A rollercoaster ride? Article 10 and 11 ‘defences’ in aggravated trespass, public nuisance and contempt prosecutions

In a series of recent judgments, the higher courts have considered the relevance of Articles 10 and 11 of sch. 1 of the Human Rights Act 1998 in prosecutions of people engaging in public protest activities. Some cases have been prosecutions for abusive speech or criminal damage, but many have involved laws which criminalise protestors’ incursions into and subsequent actions on publicly and/or privately owned land. The thematic question pervading this litigation is whether a court hearing such a case can lawfully convict a defendant without having first conducted an individuated, fact-specific evaluation of whether conviction would be compliant with Articles 10 and/or 11.This paper evaluates the leading judgments on this question, and suggests that there is both an unfortunate degree of internal incoherence in the responses offered by domestic courts and a similarly unfortunate tendency in some judgments to misread or misrepresent the relevant case law of the European Court of Human Rights.