So. Hacking v Waltham Forest - new English judgment on the Centre for Bioethical Reform, protest etc.

Some of you will remember both the Centre and Mr Hacking for their activities in Dublin 2 years ago during the referendum. You emailed us asking questions like “Is he allowed do that?”

Friends, in this case, the answer was “No.”

The court found no infringement of Mr Hacking’s right to freedom of thought, conscience and religion.

It found an infringement of his right to freedom of expression but held that this was justified.

It was justified for 7 interlinked reasons.

1) The detrimental effect on quality of life in the locality. “Detrimental“ is a lower threshold than “harassing” or “intimidating”. The court was persuaded that locals felt ill, anxious and upset as a result of Hacking’s display and this was enough.

2) The display was persistent and continuing - it went on for several days, even after a warning was issued

3) It was unreasonable - although it was political speech and therefor attracted a high level of protection it was “the visual equivalent of shouting in a person’s face”. It was unavoidable for anyone in the town square where the display took place.

4) Although the order to desist was a clear infringement of Hacking’s rights (and this was agreed by both sides)

5) The order (called a community protection notice) was prescribed by law - there was a clear legal power to issue it

6) It was issued in pursuit of a legitimate aim - preventing disorder without the need to draw on police powers, and protecting the health of people who were very distressed by the images.

And finally 7) the order was necessary and proportionate to achieve that legitimate aim. It is very difficult to justify any restriction on political speech since that speech is assumed to have inherent benefits whatever its content, and the law accepts that political speech

to be effective may need to be shocking and disturbing. However the High Court in this case suggests that protestors must also show care for those whose health may be harmed by the mode of protest adopted. Hacking in this case showed no such care - simply saying

hat the Centre couldn’t be responsible for other people’s emotions. The judge felt that on the evidence they had simply ignored the concerns expressed to them eg they did not respond to correspondence asking them to desist.

So it seems that the Centre and Hacking’s refusal to respond or engage was an important factor in the judge’s concluding that it was necessary and proportionate to require them to end their demonstration.

*Apologies for typos

Anyway. Is this useful for Ireland? The discussion of exclusion zones has obviously been paused. There is no equivalent Irish statutory power to the one used in this case and (as you will know) the English powers and tests here are controversial and might not be robust

enough for the Irish constitutional context. Also this is a judgment about the CBR, who are notorious for their use of very graphic images (in this case purportedly of a 24 week old foetus). It doesn’t tell us much about eg silent “prayer vigils” not using images.

Remember that the No campaign came close to distancing themselves from this organisation during the referendum, but think that other kinds of protest outside maternity hospitals are valid.

However, it is useful from an ECHR perspective to see that the court recognised the kinds of distress reported by passersby as harm, and preventing that harm could justify requiring the protest to end. “Harassment” and “intimidation“ not required.

It is also interesting to see the judge’s reference to the protestors’ responsibilities to others. Warning signs had been erected, but this was not enough to satisfy the judge, given the nature of the display.

Finally it is important to note that responses by those who object to the display can become part of the reason for removing it - because their interactions with protestors generate a public order issue. A point the Centre thought would run in their favour didn’t here.

Apologies - not the High Court - pandemic brain. Full judgment here: https://cornerstonebarristers.com/cmsAdmin/uploads/2020-02-26-hacking-v-lbwf-judgment-final.pdf