A comparison of American and English Civil Liberties

This is a long blog post. Can you summarise it in a line?

I can: the United Kingdom is not a free country.

When quoting Winston Churchill or the Bible verbatim on a street corner is enough to get you arrested and charged with a crime, freedom isn’t merely losing. It’s lost. 

And if the UK can slide quite as far as it has, much of it taking place in the last 15 years, so can any other English-speaking country. This includes the United States.

Below, I set out many political rights Americans have that the British do not in a handy tabular format. I do this to demonstrate just what happens when the political left wins the battle to restrict civil liberties, and in particular free speech, as they have in England and indeed all across the European Union.

The American left is currently attempting to replicate the English left’s success, most insidiously by renewed calls for speech codes and in violent, direct action against free elections and liberty advocates, violence they justify on the grounds that the exercise of even our most fundamental rights – those guaranteed by the first amendment – is “fascistic.” 

They must not succeed.

What’s the problem?

In America, I can do all kinds of fun stuff and hold all kinds of opinions; in the UK, doing that stuff or holding those opinions will land me in jail.

I grew up in America. I then moved to the UK for 15 years. Now I’m back in America, because living in the UK sort of sucked.

I don’t get it. The UK is a democracy, so it’s a free country, right?

Not to an American. The UK elects its rulers, but once elected, it imposes very little in terms of limits on their rule.

Endowed with nearly unlimited power, Parliament uses it to limit the political freedoms of the British people. 

The pace of change has been slow enough that the average Briton, who knows nothing else, fails to notice that much of anything has changed in his daily life. But when one approaches this from an American baseline, the changes are stark. One observes a consistent and escalating trend of increasingly aggressive government infringement on basic political freedoms (such as freedom of association or free speech) that began under the Labour government of Tony Blair, starting with the country’s ban on handguns in 1997, and has continued unchecked ever since. 

A worked example will help to illustrate how bad the UK’s situation is. Let’s take what could be a fun Saturday night in America, and see how many English crimes we will commit by doing what, for Americans, are completely normal, healthy, and legal activities:

  • 4:00PM: heckle Hillary Clinton supporters outside a political rally. (See: case of Bethan Tichborne (below), Public Order Act 1986, s. 4A)
  • 4:30 PM: Holding a megaphone, I quote Winston Churchill on the steps of a public building. An officer says a member of the public is offended by the language, and orders me to leave. I stay put. (ss. 34-42 of the Anti-social Behaviour, Crime and Policing Act 2014; Part 3, Public Order Act 1986; Article 10(2) of the Human Rights Act)
  • 4:50PM: While I’m there I have a banner that says “Democrats are, in my reasoned opinion, a bunch of slack-jawed troglodytes.” An officer suspects someone could find the banner offensive. It is seized… much as the police threatened to seize anti-monarchy banners and arrest anyone carrying them during the Royal Wedding. (ss. 4A(4), 5(4), Public Order Act 1986Article 10(2) of the Human Rights Act)
  • 5:00 PM: Disappointed, I leave. I have a multi-tool with a locking blade in my front right pocket. Because, y’know, it’s useful, in case I need to set up a campsite, fix something, open a can, tighten a screw, peel an orange, whatever. …Uh-oh! The Crown treats its subjects like Americans treat four-year-olds (no handling of sharp objects) meaning that my chosen penknife is illegal to carry – and one of the few areas of British criminal law where the government wants to impose mandatory minimum sentencing, too. (Prevention of Crime Act 1953, Offensive Weapons Acts, Knives Acts)
  • 5:45 PM: Now would be a good time to mention that, as a responsible citizen, duly licensed, I’ve been carrying my Glock pistol discreetly in a holster inside my waistband. You know, in case something bad happens and I don’t have the opportunity to unlock my phone, dial 999, explain what the problem is, then wait 15 minutes for the police to arrive. Nothing bad has happened today, so I decide to meet up with a couple of buddies to go target shooting at the local gun range. (Firearms (Amendment) (No. 2) Act 1997, Offensive Weapons Acts, etc.)
  • 7:00 PM: go home and pick up my copy of Che Guevara’s Guerrilla Warfare on my bookshelf. I just ordered it from Amazon Prime. (see: cases of Rizwaan Sabir and Ryan Lavery,  ss. 57/58 of the Terrorism Act 2000)
  • 7:15 PM: The purchase is deemed suspicious; police are alerted. Without needing to obtain a judicial warrant, they access my internet connection and phone records – as they do, without judicial warrants, 500,000 times each and every year. (See: Section 61, Investigatory Powers Act 2016).
  • 10:00 PM: I give aforesaid copy of Guerrilla Warfare to that friend for his reading enjoyment (s. 2(4) of the Terrorism Act 2006 – can be committed recklessly).
  • 11:30 PM: I buy a drink for that friend when we’re both a bit drunk (yep, getting drunk in a bar is illegal – see Section 142Licensing Act 2003) as we debate potentially illegal ideas we read in our potentially illegal book (continuing violations of the Terrorism Acts 2000 and 2006).
  • 2:15 AM: I think better of being offensive on Twitter, knowing how the Crown Prosecution Service has given over-broad effect to the Public Order Act 1986 and the Malicious Communications Act 2003 in recent years. Instead, I figure I should write something on my Facebook wall which is, in general terms, mildly offensive but not directed at a particular person. And it’s among “friends,” so no harm done, right? (Nope! Wrong again – Section 127, Communications Act 2003;  ss. 1(a)(1), 1(b), Malicious Communications Act 2003)
  • 6:30 AM: A loud knock on my door. Two constables are there. They hiss at me: “You are under arrest.” 

Any of the speech or conduct on this list is easily enough to get you arrested in England.

None of it should ever get you arrested in the United States.

So what does an enslaved country look like?

“There’s freedom of speech to a degree, but not to that degree.”

“You are under arrest.”

Wow. That sucks.

Yes, it does.

What does a free country look like?

“This is what I call dedication to the cause, out here in the rain!”

“I’m out to catch bad guys, not people exercising their Constitutional rights.”

“Right on. Well guys, be safe, watch out for traffic… Stay dry if you can, all right?”

Freedom is only ever a generation away from extinction. 

We should do what we can to keep America free.

In the UK, my friends who have an awareness of these infringements of their political rights view them through the same sort of lens they might use to justify staying with an abusive partner, or a job they hate. With resignation. 

It doesn’t have to be that way – but it will take twenty or thirty years of concerted effort to win back what they’ve lost. If you’re English, get informed so you can speak intelligently about how god-awful the British civil rights situation actually is.  Learn what the restrictions are. Advocate for the repeal of them all. 

If you’re American, look to England as a cautionary example. Make the left fight for every inch of ground. 

Give them nothing. Because as the English example shows, if you give them an inch, they’ll take everything. Including your ability to complain or fight back.

I will keep these tables updated (and will add to them over time). Hit me up on Twitter at @prestonjbyrne if you have any suggestions for additions/cases/new categories.

1) Freedom of speech and expression

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Freedom of expression (true statement of fact) First Amendment No Section 94, Telecommunications Act (Home Secretary can issue executive orders “in the interests of national security” to do or refraining from doing any thing, paired with a gag order, without judicial authorisation)

S. 4A-5, Public Order Act 1986 (if there is a reasonable suspicion someone would be offended by that true statement or verbatim quotation) (See below for analysis)

Section 5(2), Official Secrets Act 1989

Article 8, Article 10(2); Human Rights Act 1998

Extremism Bill 2016 (possibly; detail to follow)

Privacy Injunctions

S. 94 entitles the Home Secretary to issue a non-judicial order to any telco to which the section applies to do or refrain from doing some thing if it is “in the interests of national security or relations with the government of a country or territory outside the United Kingdom.”

Such an order can be paired under s. 94(5) Telecommunications Act 1984 with a gag order if “the Secretary of State is of the opinion that disclosure of that thing is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of some other person.”

Reporting on these issues dealt with in “press freedom” section (below). See  Campbell v Mirror Group Newspapers 2004 UKHL 22. 

See also the PJS super-injunction.

Freedom of expression (blasphemy) 1st Amendment Yes in principle

No in practice/where there’s reasonable suspicion that a hearer might be offended (which would seem likely – given that, y’know, it’s blasphemy

Blasphemy legalised in 2008 (after 352 years on the books) with passage of the Criminal Justice and Immigration Act 2008. 

Sections 5 and 4A (“offensive” conduct), Public Order Act 1986 possibly infringes this right (fact-dependent).

Malicious Communications Act, s. 1(a)(1),1(b); s. 127, Communications Act 2003 possibly infringes (fact-dependent).

Note that criticism of religion in a political setting may contravene provisions of the Public Order Acts and other legislation, depending on the nature of the conduct in issue. See e.g. amendments to the Public Order Act through the Racial and Religious Hatred Act 2006.
Freedom of Expression (possession of writings, literature, engineering information, art, arbitrary data, or an “article” of any kind) 1st Amendment No.

Restricted in the name of counterterrorism, social harmony and public morality.

Section 12, Terrorism Act 2000

S. 58, Terrorism Act 2000 (re Terrorism); s. 2, Terrorism Act 2006

Unilateral executive action by Home Secretary

Racial and Religious Hatred Act 2006; Part 3, Public Order Act 1986

Obscene Publications Acts, ss. 63 to 68 of the Criminal Justice and Immigation Act 2008 

Malicious Communications Act, s. 1(a)(1),1(b); s. 127, Communications Act 2003

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Sections 5 and 4A, Public Order Act 1986

 Extremism Bill 2016 (possible, detail to follow once draft available)

The Terrorism Act 2000 is a travesty and much of it would be unconstitutional. Blanket crime of possessing certain types of objects, materials, literature, or data, no matter what it is, contained in s. 58 Terrorism Act 2000. Includes weapons/survival manuals, or whatever else a prosecutor could make an argument for. I have Che Guevara’s “Guerrilla Warfare” on my bookshelf, as well as a book of the same title by Mao Tse-Tung; I see no reason why these, which I read out of historical interest, could not possess the kind of utility proscribed by the Terrorism Act 2000. See Malik. For overbroad application see case of Ryan Lavery.

Re: Art see  ban in place on Tyler the Creator.

Re: political writings which are proscribed, see also police investigations of numerous Twitter accounts such as Katie Hopkins‘.

Re: Malicious Communications, “trolling” counts. Up to five internet trolls per day are convicted of this offence – which would often be constitutionally protected in the US.  

Public order offences also possible, based on the expected response of a third party to the writing/art/etc. See s. 4A Public Order Act.

Obscenity legislation is very restricted in its application in the United States, with significant legislative efforts being struck down for their unconstitutionality (see e.g. Reno vs American Civil Liberties Union). Other, mainly federal, crimes remain on the books pursuant to certain public policy exceptions which are not generally disputed.

Freedom of Expression (literature of any kind, paired with a reasonable suspicion of an intent to commit terrorism) 1st Amendment

5th, 6th, and 14th Amendments; re Winship, 397 U.S. 358 (1970) (in respect of the due process violation)

No. 

Restricted in the name of counterterrorism.

S. 57, Terrorism Act 2000 

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Extremism Bill 2016 (possible, detail to follow once draft available)

Slightly trickier, still ugly. In the US, possession of literature could, in conjunction with a conspiracy, represent a preparatory act for a crime (which is itself an offence, albeit an inchoate offence). This fact that it was a preparatory act would need to be proved – and “intent to commit” is a lower standard than actual preparation.

This has been used, e.g., to punish people who just collect random data; it could be used on a tourist taking a picture of Big Ben while standing on Parliament Square. File under “grants overbroad prosecutorial discretion and leads to miscarriages of justice.” See the case of Ryan Lavery.

There are more and these references will follow.

Freedom of Expression (largely benign political speech or belief) 1st Amendment No.

Restricted for social harmony and public order (i.e. people getting offended too easily). 

Section 12, Terrorism Act 2000

Sections 5 and 4A, Public Order Act 1986

Unilateral executive action by Home Secretary

Racial and Religious Hatred Act 2006; Part 3, Public Order Act 1986

(see Controversial political speech below, which may or may not be “offensive” depending on the listener)

Malicious Communications Act, s. 1(a)(1),1(b); s. 127, Communications Act 2003

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Extremism Bill 2016 (possible, detail to follow once draft available)

Easily classified as harassment by overzealous prosecutors misusing the statute. See R v Tichborne.

See also police investigations of Twitter accounts such as Katie Hopkins‘ and the parliamentary debate to ban Donald Trump from entering the country. 

Such speech, though impolite and though pertaining to religion, is fundamentally political and would be well within 1st Amendment protection in the United States.

See ban in place on Tyler the Creator.

See arrest of Anonymous in early 2016 for expressing opinions on the arrival of Syrian refugees in Inverclyde.

See historic ban on the famed modernist composer Dmitri Shostakovich.

These laws depend very much on the condition of the listener – “egg shell skull” for expressing opinions.

Public opprobrium is a very different thing from threat of arrest or refusal of entry at a border. All in all this legislation has a severe chilling effect on free speech in the United Kingdom.

Freedom of Expression (Controversial political speech)  1st Amendment  No.

Restricted for social harmony and public order (i.e. people getting offended too easily). If you don’t believe me, read the Norwood, McCann and Abdul judgments, each of which justifies the derogation under Article 10(2) ECHR on the grounds that the “rights of others” to not be offended are sufficient grounds for restricting the speech in question. 

I’m not kidding. They actually ruled on that basis.

Crazy, right?

Section 12, Terrorism Act 2000

Section 5 (“insulting” language now removed) and 4A, Public Order Act 1986

Malicious Communications Act 1988, s. 1(a)(1),1(b); s. 127, Communications Act 2003 (clearly given wording of the statute)

Unilateral executive action by Home Secretary

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Racial and Religious Hatred Act 2006; Part 3, Public Order Act 1986

 Extremism Bill 2016 (possible, detail to follow once draft available)

Norwood v DPP (2003); conviction for hanging a poster that said “Islam Out of Britain.”

See also Manchester Crown Court ex parte McCann [2002] UKHL 39, paragraphs 41 and 48, where it more or less sets out that freedom of speech should be curtailed on account of other people’s right to not be offended, and the requirement of judicial sanciton – despite the fact that the McCanns had not actually committed any crime. More on that below in the bit about ASBOs. 

In the “mildly offensive” category we place Geert Wilders and Michael Savage, both of whom were barred from travelling to the United Kingdom for mildly offensive but unquestionably political speech. Savage broadcasts freely from the US; Wilders, perhaps more troublingly, is a EU citizen and thus very clearly entitled to (a) as a European, freedom of movement and (b) as a human being, political speech under Article 10 of the European Convention.

Wilders’ exclusion was subsequently overturned by an appellate court.

Also, Donald Trump.

Also, Menachem Begin (ban later revoked).

Freedom of Expression (Outrageous political speech) 1st Amendment   No.

Restricted for social harmony and public order (i.e. people getting offended too easily).

Also restricted in the name of counterterrorism. 

Section 12, Terrorism Act 2000

Section 5 (“insulting” language now removed) and 4A (in force), Public Order Act 1986

Unilateral executive action by Home Secretary

Malicious Communications Act, s. 1(a)(1),1(b); s. 127, Communications Act 2003 (clearly given wording of the statute)

Terrorism Act 2006, ss.1-2 (indirect incitement/inducement, glorification, possession of publications)

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Racial and Religious Hatred Act 2006; Part 3, Public Order Act 1986

Extremism Bill 2016 (probable, detail to follow once draft available)

 

Abdul v DPP (2011); convictions of seven Muslim activists picketing the Royal Anglian Regiment on its return from Iraq (using explicit language, but language only).

Each under  Section 5 of the Public Order Act 1986. The word “insulting” was removed from the statute in 2013 to great fanfare. However, in practice “insulting” and “abusive” language are treated as the same by the courts. This legislation was originally designed to address straight-up harassment or threatening. It is used for this purpose today. In light of Tichborne, which is far milder and was under Section 5A (insulting words or behaviour requiring intent), hard to see how the situation has at all improved.

Indirect incitement is, in my view, political speech – like it or lump it, it should stay and we should win on the arguments.

Terrorism is, distressingly, starting to muddy the waters in the US as well of late. Recent prosecutions re: “material support to terrorism” for Twitter users who retweet ISIS accounts are highly dangerous and in my view this conduct should be allowed, subject of course to the usual common law inchoate offences and/or conspiracy charges.

See also ban on Mike GuzovskyDon Black and Erich Gliebe from entering the United Kingdom.

Freedom of Expression (Statement of religious principle honestly held) 1st Amendment   No, clearly not Unilateral executive action by Home Secretary

Section 12, Terrorism Act 2000 

Section 5 and 4A, Public Order Act 1986

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Racial and Religious Hatred Act 2006; Part 3, Public Order Act 1986

Malicious Communications Act, s. 1(a)(1),1(b); s. 127, Communications Act 2003 (possible)

Extremism Bill 2016 (possible, detail to follow once draft available)

See McCann (2002), Abdul (2011). As a lawyer I sometimes wonder if these cases are more a matter of inelegant delivery.

However, we must ask – surely blunt delivery and forceful conviction is required in order to make an sincere expression about ultimate cosmic truth? (Unless of course, for atheists such as I am, ultimate truth is embodied in the person of Leonard Susskind.)

For executive action see ban of Shirley Phelps-Roper from entering the United Kingdom.

Freedom of Expression (Somewhat offensive religious speech)  1st Amendment  No.

Restricted for social harmony and public order (i.e. people getting offended too easily) as well as domestic political pressures.

 Section 5 and 4A (in force), Public Order Act 1986

Unilateral executive action by Home Secretary

Section 12, Terrorism Act 2000 and Part II generally of that Act

Terrorism Act 2006, ss.1-2 (indirect incitement/inducement, glorification, possession of publications)

Malicious Communications Act, s. 1(a)(1),1(b); s. 127, Communications Act 2003 (clearly given wording of the statute)

Article 10(2) of the European Convention and corresponding provision of the UK Human Rights Act

Racial and Religious Hatred Act 2006; Part 3, Public Order Act 1986

 Extremism Bill 2016 (likely, detail to follow once draft available)

See McCann (2002), Abdul (2011). 

For executive action see ban of Abdul Alim-Musa from entering the United Kingdom.

Freedom of Expression (Outrageous religious speech) 1st Amendment  No.

Restricted for social harmony and public order (i.e. people getting offended too easily) as well as domestic political pressures.

As above

 Extremism Bill 2016 (probable, detail to follow once draft available)

Clearly illegal, if not under Public Order then certainly under the provisions of anti-terrorism legislation.

America, on the other hand, clearly allows a degree of this within its own borders, and furthermore finds that such speech cannot give rise to civil liability imposed by a court due to the Constitutional protection such speech is granted. See Snyder v Phelps 562 U.S. 443 (2011). 

Note the Phelps case above relates to aforementioned Shirley Phelps as well as Fred Phelps (deceased), both of whom have been banned from entering the UK on account of their religious speech.

Freedom of Expression: Sedition (borderline, own government) 1st Amendment  No.

Note: the common law offences of sedition and seditious libel were abolished per section 73 of the Coroners and Justice Act 2009. However, the same or analogous conduct could be/is proscribed on a statutory basis by the Terrorism Acts

Section 12, Terrorism Act 2000

Part II, Terrorism Act 2000

ss. 1-2 Terrorism Act 2006

High Treason

 
Freedom of Expression: Sedition (clear, own government) 1st Amendment, qualified by case law

Prosecutions for sedition (which remains on the books) are exceedingly rare; furthermore 1st Amendment protection has applied to such speech in the few encounters the judiciary has had with the offence. See New York Times Co. v. Sullivan and Brandenburg v. Ohio, the latter of which stated that speech was not proscribed unless likely to incite “imminent lawless action.”

 No.

Note: the common law offences of sedition and seditious libel were abolished per section 73 of the Coroners and Justice Act 2009. However, the same or analogous conduct could be/is proscribed on a statutory basis by the Terrorism Acts

Section 12, Terrorism Act 2000

Part II, Terrorism Act 2000

ss. 1-2 Terrorism Act 2006 

High Treason

Note that seditious conspiracy has, in rare cases, been successfully prosecuted in the US for terrorist crimes. These prosecutions have been criticised as infringing free speech rights and in a number of cases defendants are represented by American civil liberties groups such as the ACLU.

n.b. the US position should be considered in light of recent executive decisions to conduct airstrikes against non-combatant enemy agitants (who may be US citizens, such as Anwar Al-Awlaki, whose civil rights – particularly in relation to due process – were, in my opinion, unlawfully denied to him). 

Freedom of Expression: Sedition (against foreign government) 1st Amendment

At first glance I note recent prosecutions commenced against Twitter users which (I hope) will be overturned by the Courts per Brandenburg.

TBC pending some more reading on the US position re: material support for terrorism.

No. 

Note: the common law offences of sedition and seditious libel were abolished per section 73 of the Coroners and Justice Act 2009. However, the same or analogous conduct could be/is proscribed on a statutory basis by the Terrorism Acts

Part II, Terrorism Act 2000; ss. 1-2 Terrorism Act 2006    Prosecutorial discretion plays a heavy role. Will the British government wind up prosecuting people who went to fight for the Kurds, for example, or who openly support the removal of ISIS through violent military action? Why should one Twitter user supporting the Kurds go free, while a user supporting ISIS be imprisoned to a maximum of 7 years?

Should it be illegal to support one side in an irregular armed conflict, but not the other? 

2) Freedom of Association and Assembly

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Freedom of Association 1st Amendment, NAACP v Alabama No. Article 11(2), European Convention and corresponding provision of the UK Human Rights Act 1998

Section 12, Terrorism Act 2000

Part II, Terrorism Act 2000

Proscribed Organisations (Applications for Deproscription etc) Regulations 2006 (SI 2006/2299).

The Government has the power to ban, and ban membership in, organisations. An organisation may appeal this designation but this process is not judicial in nature. 
Freedom of Assembly 1st Amendment No. Article 11(2), European Convention and corresponding provision of the UK Human Rights Act 1998

Part II, Public Order Act 1986

Part II, Terrorism Act 2000

ss. 34-42 of the Anti-social Behaviour, Crime and Policing Act 2014

Meetings of “terrorist” organisations are banned unless “genuinely benign,” i.e. “a meeting at which the terrorist activities of the group are not promoted or encouraged, for example, a meeting designed to encourage a designated group to engage in a peace process or facilitate delivery of humanitarian aid where this does not involve knowingly transferring assets to a designated organisation.”

Basically this is a movie night where they all get together and watch Bridget Jones’ Diary. 

3) Press freedom

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Freedom of expression (whistleblowing/national security) 1st Amendment No

Terrorism Act 2000, Schedule 7 (detention)

Terrorism Act 2000, Section 58 (possession of material likely to be useful to terrorists)

Provisions of RIPA 2000 and draft Investigatory Powers Bill enabling government to  either (a) decrypt on demand (see Key Disclosure Law, below) or (b) see privileged communications (s.189 of draft IPBill) between journalists and sources

Section 5, Official Secrets Act 1989

All provisions listed above restricting political speech which would allow a journalist to take a position favourable to an armed combatant in any conflict disfavoured by the British government (particularly glorification/support for terrorism under s. 12 Terrorism Act 2000 and ss. 1-2 Terrorism Act 2006)

Detention of David Miranda

Unspecified threat of legal action relating to possession of leaked NSA data and destruction of hard drives held by the Guardian newspaper under the supervision of GCHQ

Freedom of expression (super-injunctions) 1st Amendment No Common law rules allowing gag orders which prohibit mention of their own existence by a person, even if the information is publicly known The Guardian’s reporting on Trafigura
Freedom of expression (reporting true statements of fact about private persons) 1st Amendment No Article 10(2) ECHR as incorporated by the Human Rights Act 1998 combined with Article 8 ECHR has trumped free speech rights A v B plc

Campbell v Mirror Group Newspapers 2004 UKHL 22

PJS v News Group Newspapers

The European formulation allows the courts to interfere with private parties’ speech rights to protect private parties’ privacy rights. The US formulation generally follows the principle that privacy rights exist to protect people from the state.

The American right to privacy cannot be used to silence others’ First Amendment rights although private remedies for e.g. breach of privacy are available (see: Hulk Hogan/Bollea v Gawker). 

4) Searches, seizures, and surveillance

“Only in a police state is the job of a policeman easy.”

-Orson Welles

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Right against unreasonable searches without due process of law (generally) 4th Amendment No, definitely not. Police and Criminal Evidence Act 1984, s. 1(2) 

Article 8(2) of the European Convention, as set out in the Human Rights Act 1998

RIPA 2000 (all over the place. This Act is a travesty.)

Part 7, Draft Investigatory Powers Bill (PDF) (Bulk Personal Dataset Warrants) (proposed)

Part 7, Draft Investigatory Powers Bill (Bulk Interception Warrants) (proposed)

Section 39, Investigatory Powers Bill (overseas requests for interception) (proposed)

Section 189, Draft Investigatory Powers Bill (removal of electronic protection) (proposed)

And more tbc

Re: PACE 1984 s 1(2), the UK follows a “reasonable suspicion” and not “probable cause” standard. This is a much lower standard of proof which would not withstand 4th Amendment scrutiny.

Note bulk collection is not really legally authorised in the UK but they’re doing it anyway. The Investigatory Powers Bill is designed to expressly set out and legalise this previously not set out (imv illegal, and if in America, definitely unconstitutional) conduct.

Right against unreasonable searches without due process of law (stop-and-search) 4th Amendment No.  

Section 60, Criminal Justice and Public Order Act 1994 

ss. 44-47 Terrorism Act 2000

Section 60, in particular, is often used where there is no reasonable prospect of violence occurring.

On order of a police officer, the area under a Section 60 order simply becomes a due-process-free-zone… for up to 24 hours.

Right against unreasonable searches without due process of law (Warrantless 4th Amendment No. Part I, Chapter 2; Part II; Schedule I RIPA 2000 

Part 3, Investigatory Powers Bill (Authorisations for obtaining comms data)

Part 4, Investigatory Powers Bill (Retention of comms data) (Proposed)

Part III, RIPA 2000 (UK key disclosure law). (Also likely breaches 5th Amendment)

Schedule 4, Part 1, Draft Investigatory Powers Bill (detailing authorities able to access communications data without  warrant) (proposed)

Section 189, Draft Investigatory Powers Bill (removal of electronic protection) (proposed)

RIPA 2000 grants power to a wide range of agencies to access UK residents’ communications data. Requests made by police alone numbered in excess of 730,000 as of June 2015; other estimates clock the total number of requests in a given year as exceeding 500,000. No warrant, or indeed judicial supervision of any kind, is required to obtain communications data under that Act.

While bulk collection has been going on for the longest time in both the UK and the United States, in the US it was ruled unconstitutional in Klayman v Obama in November 2015. 

Bulk collection as Britain does it would clearly be unconstitutional in the US.

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Right to Privacy Fourth Amendment, Roe v Wade, Griswold v Connecticut Yes but in EU law only Article 8(2) Human Rights Act 1998

RIPA 2000

Investigatory Powers Bill (proposed)

See above re: search and seizure.

Also recent passage of Investigatory Powers Bill into law as the Investigatory Powers Act likely contravenes EU privacy law as well – see 

Digital Rights Ireland and Seitlinger and Others.

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Right against unreasonable seizures without due process of law (warrantless Fourth Amendment

(breached by existing practices relating to civil asset forfeiture)

No. ss 82-83, Terrorism Act 2000

s. 91, Terrorism Act 2000 (seizure of land and other property by order of Home Secretary)

ss. 1-3, Anti-Crime, Terrorism and Security Act 2001

Section 6060A, Criminal Justice and Public Order Act 1994

Note certain provisions relating to terrorism are civil asset forfeiture statutes, a practice the US has. 

On either side of the pond CAF is outrageous and should be abolished.

Limitations on eminent domain (compulsory purchase) Fourth Amendment

Fifth Amendment (takings clause)

State law

No. Part 8, Planning and Compulsory Purchase Act 2004 Government can compel a sale of property to a private entity or individual. 

Following the decision in Kelo vs New London 545 US 469 (2005), “economic development” justifications for property seizure for private land transfers in the style of Compulsory Purchase were outlawed or severely restricted in 42 states.

More to come tbc tbc tbc tbc
More to come tbc tbc tbc tbc


5) Due Process

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Due Process (Presumption of innocence) 5th, 6th, 14th Amendments; In re Winship, 397 U.S. 358 (1970) Yes.

Article 6(2) of the European Convention and corresponding provisions of the UK Human Rights Act

Section 57, Terrorism Act 2000; likely breaches the European Convention

Section 1 of the Crime and Disorder Act 1998 (ASBOs would be quite clearly unconstitutional as they deny defendants their rights to a speedy, public, jury trial – and deprive them of liberty for not committing a crime).

Remember this little guy from “Freedom of Expression” above? Well, he’s back.

In the UK, it’s an offence for a person to possess “an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose” connected with terrorism.

The statute is strict-liability with respect to possession. It’s interesting in that it requires a defendant to prove his innocence once accused – as opposed to the usual case where he is, in fact, innocent until proven guilty and the crown would have to prove his involvement in, e.g., a criminal conspiracy. 

This reversal of the burden of proof means the crime is to be suspected of committing a crime.

Considering it’s the state that takes an ordinary citizen and declares him a suspect… see where I’m going with this?

It’d be laughably Kafkaesque… if it weren’t the law of the land. 

Due Process (Right against self-incrimination) 5th Amendment Limited. Part III, RIPA 2000 (UK key disclosure law) Sections 34 to 37, Criminal Justice and Public Order Act 1994

Section 189 and others, Investigatory Powers Bill (proposed) (“IPBill”) (more analysis on IPBill to follow)

In the United States, failure to disclose a password is protected under the Fifth Amendment per United States v Boucher. Whether the same continues to apply to private keys is an open issue following voluntary disclosure in United States vs Fricosu and could be argued either way. This right does not exist in the UK (RIPA 2000) and intrusive powers are proposed in successor legislation, the IPBill.
Due Process (Right against adverse inferences arising from exercise of right against self-incrimination) 5th Amendment, Carter v Kentucky No.

Adverse inferences can be drawn from silence (the “if you’ve done nothing wrong, you’ve nothing to hide”-theory.)

Sections 34 to 37 Criminal Justice and Public Order Act 1994 Americans have the right to jury instructions to the effect that silence is not an indication of guilt. Carter v Kentucky 101 S. Ct. 1112 (1981).
Due Process (Exclusion of illegally obtained evidence from criminal proceedings) 4th, 5th, 6th, 14th Amendments No.

Police are thus not strongly disincentivised from engaging in less than best practices as prosecutions will not be fatally doomed by misconduct.

Section 78, Police and Criminal Evidence Act 1984 TBC
Due Process (Right to trial by jury) Article Three, US Constitution Yes for criminal offences but with different parameters.

No with respect to  anti-social behaviour orders (see below).

TBC
Due Process (Presumption of Innocence and anti-Social Behaviour Orders) 1st Amendment (freedom of expression)

6th Amendment (right to speedy and public trial; right to trial by jury; right to know what crime accused of; rights of compulsory process)

14th Amendment (deprivation of liberty without due process of law)

14th Amendment (equal treatment; arguably discriminatory in effect vs the poor and minorities)

No (in respect of freedom of expression)

Yes (in respect of Article. 6(2) of the European Convention, but courts have ruled that this does not apply to ASBOs  – deeming “social disorder” a more pressing concern than the rights of the poor subject to these orders (see McCann))

ASBOs would be unconstitutional in the United States, therefore they do not exist there.

I am of the very firm opinion that Section 1 of the Crime and Disorder Act should be repealed and ASBOs should be abolished.

Section 1 of the Crime and Disorder Act 1998

General disregard  by the English legal system for firm and literal adherence to European Convention rights + weak constitutional import of the Human Rights Act 1998 (doctrine of Parliamentary Sovereignty means that courts only able to issue “declarations of incompatibility” rather than strike down a law outright)

English law does not consider an ASBO to be a criminal charge entitling an applicant to Article 6 ECHR protection (see McCann, [2002] UKHL 39) and therefore does not entitle an applicant to jury trial.

ASBOs are serious. They have reputational and practical consequences and can apply for life.

ASBOs are brazen violations of due process rights of inner-city youth and others in the United Kingdom. Their structure makes them clearly criminal in nature.

Due Process (Presumption of innocence and Sexual Risk Orders) 1st Amendment (freedom of expression)

6th Amendment (right to speedy and public trial; right to trial by jury; right to know what crime accused of; rights of compulsory process)

14th Amendment (deprivation of liberty without due process of law)

14th Amendment (equal treatment; arguably discriminatory in effect vs the poor and minorities)

No.

Are you sitting down? This is just unbelievable. 

Basically, if an English court thinks you’re a bit of a creep and (a) you’ve been convicted of a crime, (b) adjudicated not guilty by reason of insanity or disability or (c) received an official police caution, they can prevent you from getting your nookie on unless you give advance notice to the police.

They can do this even if you have committed no crime, and there is simply a “reasonable cause”  for that order to be granted. 

Section 113 of the Anti-social behaviour, Crime and Policing Act 2014

Schedule 5, Anti-social behaviour, Crime and Policing Act 2014.

General disregard  by the English legal system for firm and literal adherence to European Convention rights + weak constitutional import of the Human Rights Act 1998 

English courts actually do this.

Talk about killing the mood.

Talk about killing due process rights.

Due process: right to not be tried twice for the same offence (“double jeopardy” rule) 5th Amendment with strict adherence to the rule. No for serious offences.
No in that acquittals can be quashed for being made in error.
Yes for minor offences.
Part 10 of the Criminal Justice Act 2003; Part VII of the Criminal Procedure and Investigations Act 1996 Subject to fairly strict judicial oversight. Enacted in response to the failed private prosecution of Gary Dobson for the murder of Stephen Lawrence. This is a classic example of letting an exceptional case erode civil liberties for all. 
Due process: Habeas Corpus (right to not be detained for extended period without charge) Article One, Section 9, Clause 2, U.S. Constitution (subject to the suspension clause for grave public emergency) No. Terrorism Acts mainly; looking into distinction re: extended detention for questioning under PACE 1984 Examples to follow
tbc tbc tbc tbc tbc

 

6) Revocation of Citizenship Rights

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Citizenship permanence rights: Natural-born citizen Section One, Article 2, U.S. Constitution No. 

A foreign-born (but natural-born) Briton who becomes a security threat can be stripped of citizenship and barred from re-entry if deprivation is “conducive to the public good.” Decision to be made by the Secretary of State on highly subjective criteria.

Section 40, British Nationality Act 1981 (Amended) EXAMPLES: To follow.
Citizenship permanence rights: Naturalised citizen United States Code Materially different.

UK criteria are more subjective than American criteria and thus more amenable to the political winds from time to time. US generally requires either (a) a material misrepresentation of fact when naturalising or (b) either of (i) joining a totalitarian or terrorist organsiation or being a member of the Communist party within 5 years of naturalisation or (ii) an other than Honorable Discharge from the US Armed Services having acquired citizenship through service (a criminal offence). Membership of the Nazi Party an absolute bar to naturalisation and so citizenship can be stripped at any time.

Section 40, British Nationality Act 1981 (Amended) EXAMPLES: To follow. Note US criteria are more objective in nature, which is traditionally regarded as more legally sound as it provides certainty and, therefore, a sounder basis for judicial process.

7) Right-to-carry

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Carrying a tool (Screwdriver) Common law, 10th Amendment Depends on intent/whether a “good reason” can be established for carrying the article. Sections 57/58, Terrorism Act 2000.

Section 1, Prevention of Crime Act 1953

“Offensive Weapon” means “any article made or adapted for use to causing injury to the person, or intended by the person having it with him for such use.”

Meaning a screwdriver is the same as a knife or a firearm, depending on what you intend to do with it. Intent is something which can be constructed by an investigator – and so anything (broomstick, baseball bat, etc.) is potentially an illegal “offensive weapon.”

Carrying a tool (plastic spoon, ham sandwich) Common law, 10th Amendment Depends per above. Sections 57/58, Terrorism Act 2000.

Section 1, Prevention of Crime Act 1953.

Even a plastic spoon or a ham sandwich. Though this would be a stretch even by English standards.
Carrying a knife (As a tool) Common law, 10th Amendment, subject to local ordinances and state statutes No, with qualifications Carrying knives without reasonable excuse (high threshold – “it’s handy” not enough) is an offence unless (a) a pocketknife with a non-locking folding blade less than 3” (a good way to cut yourself) and (b) carried without intent to use for self-defence. Arrests are made for even this form of legal possession at the discretion of the arresting officer, whether justified or not. See Samengo-Turner (at right)  Section 1, Prevention of Crime Act 1953; others See Samengo-Turner (resulting in an acquittal). Am quite certain many cases on similar facts fall the other way and will include these in due course – the point being in Samengo that a trial should never have occurred in the first place in the U.S.. 
Right to carry (nonlethal and other non-firearm weapons) 2nd Amendment (significant variation by state) No.

Carrying most knives of practical utility effectively banned. 

Swords banned save where antiquities.

Carry of “defensive” offensive weapons (e.g. pepper spray) by civilians banned.

Stun guns banned.

Section 1, Prevention of Crime Act 1953. Penalties increased if no lawful authority or good excuse, or if the article has a pointed blade (see amendments made by sections 2, 3 respectively of Offensive Weapons Act 1996). Before we get to firearms, want to address the “Durr you need a militia, that law dates back to 1787” argument. This no longer holds. District of Columbia v Heller 554 U.S. 570 holds that 2A protects rights to keep & bear arms for use in event of confrontation. I will find the judgment that holds that these weapons may be of “contemporary military utility.”
Right to keep arms (firearms) 2nd Amendment

Limited variation between states; right to keep arms nearly universal after being guaranteed by District of Columbia v Heller. A few holdouts remain e.g. New York City, which restrict access through stringent, difficult-to-pass permitting schemes (limiting access to arms to the wealthy and well-connected, as is the case in England). 

Pistols:  nearly total ban (except Northern Ireland and long-barrelled revolvers)

Semi-automatic centrefire rifles (eg AR-15, Mini-14): banned.

Shotguns and bolt-action rifles: Yes, but largely restricted to upper classes which are able to afford to participate in shooting sports and evidence good reasons to possess these weapons. Certificates are issued on an extremely restrictive may-issue basis.

Firearms (Amendment) Act 1997, Section 1 (Pistols)

ss. 5, 6, 19, 19A, 20, 30A-D, 47, Firearms Act 1968 

An armed citizenry is one alternative to mass surveillance for domestic security, as proposed by the director of Interpol
Right to carry (firearms) 2nd Amendment (significant variation by state). See here for a summary of the position, which is seeing a move to more permissive regimes country-wide. No.  Section 1, Prevention of Crime Act 1953;

Section 19, Firearms Act 1968

Intended as a safeguard against tyrannical rule, which the evidence shows was a wise decision.

In the 240 years since 1776, we observe that totalitarian regimes do not respond well to polite requests to treat people nicely and more direct methods of persuasion are usually required. (See: Second World War, 20th-century war atrocities, genocides and political mass exterminations.)

The American formulation, whatever its shortcomings may be,  works extremely well to protect political rights – which, following the 1960s Civil Rights Movement, are now more robust than they were at the founding of the Republic nearly a quarter of a millennium ago. There’s still room to improve. There always will be.  

8) States of Emergency

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES
Protection from suspension of civil rights during time of emergency Express limitation in the Constitution of:

-emergency power permitting felony charges to be brought without empaneling a Grand Jury

-empowering Congress to call forth the Militia

-suspension of habeas corpus in the event of rebellion or invasion only

-authorising states to wage war without federal authorisation if invaded

No.  Part II, Civil Contingencies Act 2004

“Margin of Appreciation” re: European Convention and Human Rights Act 1998 (general)

Unless specifically stated, the Constitution continues to apply in states of emergency falling short of those specifically enumerated (e.g. rebellion or invasion)

10 comments

  1. Not sure where this belongs in your analysis, but jaywalking seems like a restriction of freedom to me http://www.bbc.co.uk/news/magazine-26073797

    Maybe it belongs in Freedom of Association. I’m not aware of any UK law that specifically prevents me walking down the middle of a road (although I could possibly be arrested for a breach of the peace if it is a busy road).

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    1. Jaywalking is a municipal offence in places like New York. People get stopped for it in England even though it is not on the books – I will find the link!

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  2. Interesting also that Pastor McConnell was prosecuted (unsuccessfully) under the Communications Act because his offensive sermon was live-streamed https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/SummaryJudgments/Documents/Court%20finds%20Pastor%20McConnell%20not%20guilty/j_j_Summary%20of%20judgment%20-%20DPP%20v%20James%20McConnell%205%20Jan%2016.htm – I guess the Communication Act is more restrictive about what can be said than the Human Rights Act?

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    1. Both that and the Public Order Act rely upon the derogation in Article 10(2) of the Convention/UK Human Rights Act to restrict speech. The judgments in Norwood, Abdul, and McCann make this abundantly clear – these rights are only rights so long as the Government feels they are convenient and inoffensive to public sensibilities.

      As a result, convention rights aren’t really rights, just aspirations (a notable exception being Article 6, which is also violated by s. 57 of the Terrorism Act 2000 at the very least) since the language of the Convention allows governments to restrict the rights in cases of expediency (which the American Constitution only very rarely allows).

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  3. The US definitely comes out the worse on point 10: the three strikes rule, plea bargains, litigiousness, civil asset forfeiture etc.

    Britain fares worse on almost everything else. I didn’t realise how bad things are re: freedom of expression and sedition. Might be worth mentioning that the British population are the most surveilled in the world.

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    1. I agree (all points). Hence their inclusion – the ideal would be to incorporate the best of each!

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  4. […] Preston Byrne, who will be known to some Samizdata contributors, has this fascinating and lengthy comparison about the state of freedom in the US and UK. He comes to the conclusion that according to a range of metrics, the UK isn’t a free nation any longer. […]

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  5. I don’t think the Convention on Human Rights is aspirations based, not when embedded in the Human Rights Act. All freedom is relative and many rights do not dovetail together but rather conflict: right to privacy versus freedom of expression for instance. What is key is how a country determines the appropriate balance between conflicting rights and that question is a cultural one, amongst other imperatives such as public policy. That balance and discretion (referred to as the Margin of Appreciation in the context of the European Convention) is also a matter of national sovereignty which in the context of an international treaty demands some respect. One caveat though is freedom from torture which is deemed an absolute right, but that said both the US and other states have found ways to subvert that right to serve their national security priorities. Great analysis and research Preston.

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    1. Thanks! Great comment, with which I agree somewhat – save that a culture of rights tends towards being more absolutist in application (otherwise one exception begets another, begets another, etc.). Certain things (due process protections, free speech) the Americans do well and should be placed on a firmer legal footing as quickly as possible. Others I understand will be more controversial, but at the end of the day, the only way you can ensure all rights are consistently protected is by protecting all of them all the time.

      And, in an environment such as this where they are restricted so severely, seeking to expand the scope of all of them all the time – making the case for freedom and winning popular support.

      Equally I agree the US isn’t perfect, and could learn a thing or two from the EU side of the pond – going to deal with that in the policing and access to justice sections when I get around to it.

      Libertarians everywhere are on the same side. If we can point to things other jurisdictions do better than our own (while still managing to keep the lights on) I think that might be a really good approach to socialising pro-liberty positions to legislators.

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