The Attorney-General (AG) then took out an application to dismiss the OM. One of the reasons was that the Applicants had wrongly named the Minister for Home Affairs and the Commissioner of Police as the Respondents when it should have been the AG.
Counsel for the protesters, Mr M Ravi, responded: “Section 19(4) of the GPA authorizes the Attorney-General by way of any application at any stage of the proceeding to have the Attorney-General substituted for the defendant to the proceedings. Hence the Government had made a frivolous application on this point and be ordered to pay costs to the Applicants.”
Mr Ravi added that while the Applicants had filed joint affidavits for the hearing of the OM the AG on behalf of the Respondents have not “filed a single affidavit opposing the OM” and because of this, it was not proper to “accept any arguments from the bar by the Attorney-General.” Mr Ravi fired one more salvo: “The Respondents had ample time to file an affidavit in support of the present application or an affidavit in reply to the Applicants’ OM.”
On a more substantive issue, the Applicants’ say that the police had cited that they were a public nuisance during their protest and ordered them to leave. This was a violation of their rights to peaceful assembly. Counsel for the Applicants quoted Lord Reid in Brutus v Cozens [1973]:
Parliament had to solve the difficult question of how far freedom of speech or behaviour must be limited in the general public interest. It would have been going much too far to prohibit all speech or conduct likely to occasion a breach of the peace because determined opponents might not shrink from organising or at least threatening a breach of the peace in order to silence a speaker whose views they detest. Therefore vigorous as it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any one of three limits: It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or a specially narrow meaning. They are all limits easily recognisable by the ordinary man. Free speech is not impaired by ruling them out.
So what constitutes nuisance behaviour that would allow the police to arrest protesting individuals and stop protests? Mr Ravi cited the judgment of Lord Justice Schiemann in the case of Bibby v Chief Constable of Essex [2000]. The criteria for what constitutes nuisance and arrest-able behaviour should be that:
1. There must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully
2. The threat must be coming from the person who is to be arrested
3. The conduct must clearly interfere with the rights of others
4. The natural consequence of the conduct must be violence from a third party
5. The violence in (4) must not be wholly unreasonable
6. The conduct of the person to be arrested must be unreasonable
Justice Schiemann added: “I consider that this accurately states the law. Of course I accept that it is desirable that violence be prevented. It is also desirable that citizens neither doing nor threatening any wrong are not deprived of their liberty.”
So did the behaviour of the four CPF protesters fit into the definition set out above? Mr Ravi submitted that the police had not even satisfied themselves that the four were in fact a nuisance. They had merely responded to a call from a “member of the public”.
“The applicants have also taped the conversation they had with the police,” Mr Ravi cautioned the AG. “The question is whether by reason of the fact that one member of the public found it a nuisance, would it constitute a nuisance? Someone who does not agree with the protesters would definitely find this a nuisance. The government would find it a nuisance too.”
“Is it enough for the police to rely on such a complaint?” the counsel continued. What was their conclusion? Just because a member of the public complained that it was a nuisance, was the police justified to act upon the said complaint in the manner that they did? How did the anonymous caller depict the protest as a “nuisance”? On what criteria did the caller base his information on? Were the protesters informed about the criteria? Was it noise? Were there visuals? What was the text? Were the protesters invading the physical space of another citizen?
Mr Ravi added that it was disturbing that just because somebody complained that there was nuisance the rights to assemble peacefully was curtailed.
And what about the nuisance caused by people hawking and selling credit cards and using loud hailers in public places, Mr Ravi questioned. This could be annoying too. How do the police classify calls relating to public nuisance? Are all calls treated equally? Will the police move in and close down every public activity that is considered a nuisance by at least one member the public?
Mr Ravi then submitted that even if the police found the protesters to be a causing a nuisance, was it lawful for them to disperse the protesters? Why didn’t the police take measures to minimise the nuisance factor but still respect the rights of the protesters to carry on their protest?
“It is unusual that on a complaint of nuisance a large number of police turned up, including a riot squad armed with batons and shields.” Mr Ravi observed. “The police turning up in droves itself reflect their attitude on the issue of freedom of assembly as to whether they had already planned to disperse the protestors irrespective of whether there was a nuisance.”
The Applicants’ counsel then offered: “The Applicants have also captured the acts of the police on video which could be usefully played at the hearing of the motion if the Respondent disputes the facts.” The AG admitted that there was no dispute over the facts presented in the Applicants’ affidavit.
Mr Ravi argued that “the facts are overwhelming enough to make the case for an OM.”
Hearing continues tomorrow 21 Oct in chambers at 10 am.