Restrictions (OCR A-Level Law): Revision Notes
Restrictions
Introduction to restrictions
In addition to restrictions contained within the European Convention on Human Rights itself, UK Parliament and domestic courts have established various legal restrictions on human rights and freedoms. These restrictions operate through specific statutory provisions and common law principles designed to balance individual rights against the rights of others and wider societal interests.
The domestic restrictions work alongside the limitation clauses already present in the ECHR itself, creating a multi-layered framework for balancing individual rights against competing interests and public policy objectives.
The key areas where domestic law restricts human rights include public order offences, police powers, interception of communications, confidentiality duties, obscenity laws, defamation, trespass, and harassment provisions.
Public order offences
Purpose and scope
Public order law aims to balance freedom of expression (Article 10) and freedom of assembly (Article 11) against the rights of others to conduct their daily lives without interference, and the right to respect for private and family life (Article 8). This involves maintaining order while protecting legitimate protest and expression.
The fundamental challenge in public order law is achieving proportionate restrictions that protect public safety and the rights of others without unduly suppressing legitimate protest, political expression, and peaceful assembly - all of which are essential features of a democratic society.
Main offences under the Public Order Act 1986
The primary statutory framework for restricting Articles 10 and 11 is the Public Order Act 1986, which creates three main offences:
- Section 1 – riot: the most serious public order offence
- Section 2 – violent disorder: involves violent conduct by three or more persons
- Section 3 – affray: unlawful fighting or violence causing fear
These offences allow prosecution of conduct that goes beyond legitimate exercise of expression and assembly rights.
Breach of the peace
Breach of the peace is a common law power (not a statutory offence) that gives police significant authority to maintain public order.
Definition of Breach of the Peace
A breach of the peace is an act done or threatened to be done which either actually harms a person, or in his presence, his property, or is likely to cause such harm being done.
This definition encompasses both actual and threatened harm, giving police broad preventative powers.
Police powers:
- Police may detain or arrest a citizen if a breach of the peace has occurred
- Police may also act to prevent a breach from occurring
- Once the threat has passed, police must release the detained person
This represents a significant restriction on liberty and security (Article 5) and freedom of assembly (Article 11), but is justified as necessary to prevent harm and maintain order.
Illegal forms of assembly
Not all assemblies receive protection under Article 11. Assemblies for illegal or criminal purposes contravene domestic law and therefore fall outside Article 11 protection. Examples include:
- Meetings of groups supporting terrorism
- Gatherings promoting race hatred
- Similar assemblies with criminal objectives
Critical Balancing Requirement
Local authorities must still balance Article 10 (expression) with Article 11 (assembly) requirements. They cannot simply censure difficult or controversial modes of expression merely because they find them objectionable. The restriction must be based on genuine illegality or criminal purpose.
Police powers
Purpose and legal framework
Police powers law clarifies the extent to which police may restrict several fundamental rights:
- Freedom of liberty and security (Article 5)
- Right to a fair trial (Article 6)
- Right to respect for private and family life (Article 8)
- Freedom of assembly (Article 11)
The law must balance the legitimate need to investigate and prevent crime against individuals' rights to go about their daily lives without undue interference.
Main powers under PACE 1984
The Police and Criminal Evidence Act 1984 (PACE) provides the primary statutory framework for police powers in England and Wales:
- Section 1: grants constables the power to stop and search a person or vehicle
- Section 24: grants constables the power to arrest a suspect
- Part IV: grants powers to detain an arrested person
These powers represent significant restrictions on personal liberty but include safeguards and procedural requirements to protect individual rights, such as requirements for reasonable suspicion, time limits on detention, and rights to legal representation.
Interception of communications
The Regulation of Investigatory Powers Act 2000
The Regulation of Investigatory Powers Act 2000 (RIPA), as amended, governs procedures that must be followed before public bodies can intercept communications. This includes acquisition of communications data and surveillance activities.
Any interception must be authorised as a justifiable interference with Article 8 rights (right to respect for private and family life).
Key provisions of RIPA 2000
| Section | Provision |
|---|---|
| Section 1(1) | Makes it a criminal offence for any person without authority to intercept communications in the UK via a public postal service or public telecommunications system |
| Section 1(2) | Makes it a criminal offence for any person without authority to intercept communications in the UK via a private telecommunications system |
| Section 5 | Provides lawful authority for interception if a warrant is issued by the Secretary of State |
| Section 5(2) | Requires that the Secretary of State will not issue an interception warrant unless it is both necessary and proportionate to what is sought to achieve |
| Section 6 | Specifies that warrants can only be issued upon application by certain specified persons, such as the Director General of the Security Service |
Necessity and Proportionality Requirements
The necessity and proportionality requirements in section 5(2) provide important safeguards, ensuring interception powers are not used arbitrarily and that less intrusive means are considered first. This reflects the principle that any interference with Article 8 rights must be justified and proportionate to the legitimate aim pursued.
Duty of confidentiality
Nature of the duty
The duty of confidentiality is primarily a common law duty rather than a statutory one. Lawyers are bound to respect the confidentiality of all matters arising during the course of representing their clients, both inside and outside court.
Purpose and exceptions
Purpose: The duty allows clients to discuss matters freely and in confidence with their legal representatives, knowing that information will not be disclosed without consent. This is essential for the proper functioning of the legal system and access to justice.
When Confidential Information May Be Disclosed
The duty is not absolute. Confidential information may be disclosed in certain circumstances, such as:
- At the client's express request
- Where required by law
- To prevent serious harm
These exceptions recognise that confidentiality must sometimes give way to overriding legal obligations or public safety concerns.
Balance with human rights: Statutory provisions covering the duty of confidentiality are rare. Any such provisions must be balanced against:
- Article 8 (right to private life) – protecting the confidentiality
- Article 10 (freedom of expression) – potentially requiring disclosure in certain circumstances
Obscenity
The Obscene Publications Act 1959
The Obscene Publications Act 1959 was introduced to amend and clarify the law on obscenity. It prohibits the publication of obscene matter by establishing a legal test for what constitutes obscenity.
The obscenity test
Section 1 of the Act provides:
Legal Definition of Obscenity
An article shall be deemed to be obscene if its effect or the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
Key elements of the test:
- The article must be considered as a whole (not just isolated parts)
- It must tend to deprave and corrupt
- Assessment is based on the likely audience having regard to all relevant circumstances
The test recognises that not all offensive or distasteful material is obscene – the threshold of depraving and corrupting is deliberately high.
Balancing with Article 10
The statutory provisions prohibiting obscene publications, performances, and photographs represent restrictions on freedom of expression (Article 10). Any such restriction must be:
- Justified under Article 10(2)
- Necessary in a democratic society
- Proportionate to the legitimate aim pursued
The high threshold required by the "deprave and corrupt" test provides important protection for freedom of expression, ensuring that only material with serious harmful effects can be prohibited, rather than merely offensive or controversial content.
Torts of defamation and trespass
Defamation
Definition: A defamatory statement injures the reputation of another by exposing them to contempt, ridicule or hatred, or might lower them in the esteem of right-thinking members of society.
Two forms of defamation:
Libel vs Slander
Libel – a defamatory statement in permanent form, such as:
- Newspaper articles
- Online publications
- Written documents
- Broadcasts
Slander – a defamatory statement in transient form, such as:
- Spoken words
- Gestures
- Temporary displays
The distinction is historically important as libel is generally actionable without proof of damage, whereas slander usually requires proof of actual loss.
Balancing rights in defamation
Holding a statement as defamatory requires balancing competing rights:
- The maker's rights under Article 10 (freedom of expression)
- The subject's rights under Article 8 (right to respect for private life and reputation)
This balance is particularly important in cases involving media freedom, public interest reporting, and political speech, where expression rights may carry greater weight. Courts must carefully assess whether restricting expression is necessary and proportionate to protect reputation.
Trespass to land
Definition: Trespass to land is one of the oldest torts in common law. It occurs where there is unlawful and direct interference with the rights of a landowner.
Effect on human rights:
- Restricts rights under Article 5 (liberty) and Article 11 (assembly) – by preventing unauthorised entry or occupation
- Enforces rights under Article 8 (private life and home) – by protecting landowners' peaceful enjoyment of their property
The tort provides civil remedies (such as injunctions and damages) to landowners whose property rights are infringed.
Harassment
The Protection from Harassment Act 1997
Harassment is primarily governed by the Protection from Harassment Act 1997, as amended. The Act provides both criminal sanctions and civil remedies, including restraining orders that prohibit defendants from engaging in specified conduct.
Key offences
Section 2 – covers acts causing alarm or distress
- The less serious offence
- Involves a course of conduct causing harassment
- Summary offence
Section 4 – covers acts putting people in fear of violence
- The more serious offence
- Requires the victim to fear violence will be used
- Either-way offence
Restriction on Article 10
These offences necessarily curtail rights under Article 10 (freedom of expression). Examples of conduct that may amount to harassment include:
- Making repeated telephone calls
- Writing letters or emails
- Publishing articles in newspapers
- Following or watching someone
- Persistent unwanted contact
The "Course of Conduct" Requirement
The requirement for a "course of conduct" (usually at least two incidents) provides some protection against isolated instances being criminalised. This ensures that only persistent behaviour that crosses the threshold into genuine harassment is caught by the legislation.
Justification: The restriction is justified as necessary to protect individuals from harassment that goes beyond legitimate expression and causes genuine alarm, distress, or fear.
The courts must balance the harasser's expression rights against the victim's rights under Article 8 (private life) and Article 3 (freedom from inhuman or degrading treatment in serious cases).
Summary
Key Points to Remember:
-
Domestic restrictions on human rights operate through statutes and common law – they supplement the limitations already contained in the ECHR itself, creating a comprehensive framework for balancing rights
-
Public order offences balance expression and assembly rights against public safety through the Public Order Act 1986 and breach of the peace powers, with restrictions justified only where necessary and proportionate
-
Police powers under PACE 1984 restrict liberty and privacy but include safeguards such as requirements for reasonable suspicion and time limits on detention to prevent arbitrary interference
-
RIPA 2000 regulates interception of communications through a warrant system requiring necessity and proportionality, protecting Article 8 rights while enabling legitimate law enforcement
-
Multiple restrictions require balancing competing rights – particularly the balance between Article 10 (expression) and Article 8 (privacy/reputation) in defamation, harassment, and obscenity cases. Courts must carefully assess whether restrictions are justified, necessary in a democratic society, and proportionate to the legitimate aim pursued