James Farmer

Legal Commentary

Commentary on my commentary on Morse

Wednesday, September 14, 2011

My views on the Morse case above extracted a response from a law student which I have repeated below

When you say:

"If the law really be that there must be a danger of some degree of public disorder before the offence is committed, then Ms Morse must count herself lucky that she was arrested so swiftly and that she therefore was able, through her counsel, to take part in an arid legal debate in the highest court of the land rather than face what must have been the inevitable wrath of the 5000 strong crowd of those attending the ceremony and wishing to pay respect to the dead."

You could have expressed this point more forcefully and explicitly. The upshot of the Supreme Court decision is that a police officer faced with the same fact pattern as Morse – protester behaving in highly antagonistic fashion toward large crowd – is probably going to have to wait until the crowd turns nasty before they can intervene. If they intervene before then they’ll find themselves in breach of the Bill of Rights Act s 22 (right against arbitrary arrest or detainment). I don’t think it’s entirely out of line to suggest that when you attach such a high weight to freedom of speech that it prevents the police from defusing situations in which it is almost a dead certainty that serious harm will occur if intervention does not take place, then you have misjudged the true value of the right. It would be embarrassing to the Supreme Court if a repeat of the Morse facts did occur and the protester ended up being attacked rather than whisked away by the police before they could come to harm – although as is usually the case it would probably be the police who would receive all the blame.

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