Constitution Watch 4/2019

Criminal Nuisance and the Right to Protest

18 February 2019

CONSTITUTION WATCH 4/2019
[18th February 2019]
Criminal Nuisance and the Right to Protest
Introduction
Many people arrested in connection with last month’s disturbances have been
charged with criminal nuisance; many have signed admissions of guilt and have
been released after paying deposit fines.
What is criminal nuisance and how does it affect the right to demonstrate
guaranteed by section 59 of the Constitution?
Definition of Criminal Nuisance
The term “criminal nuisance” covers a multitude of sins. According to section 46 of
the Criminal Law Code, anyone who does anything set out in the Third Schedule to
the Code is guilty of criminal nuisance and liable to a fine of up to $200 or to a
prison sentence of up to six months.
The Third Schedule lists a total of 29 separate acts which can amount to criminal
nuisance. They range from mischievously ringing doorbells to skinning animals in
public. Among this miscellany the following acts could conceivably form the subject
of a charge against a person who participated in the recent disturbances:
(c) without the permission of the appropriate authority, makes a fire … in a public
place [This would cover burning tyres in a street];
(f) encumbers or obstructs the free passage along any street, road,
thoroughfare, sidewalk or pavement;
(m) shouts or screams in a public place to the annoyance of the public;
(v) … does any act which is likely to create a nuisance or obstruction.
If a person does any of these things in a public place or a street he or she will be
guilty of criminal nuisance. Does it make any difference if the person is taking part
is a demonstration?
It should do, because of sections 58 and 59 of the Constitution, which guarantee
freedom of assembly and freedom to demonstrate.
Freedom of Assembly and Demonstration
The sections 58 and 59 of the Constitution are worded in broad terms:
“Every person has the right to freedom of assembly and association …” [section
58(1) of the Constitution]
Every person has the right to demonstrate and to present petitions, but these
rights must be exercised peacefully.” [section 59]
These rights, together with the allied right to freedom of expression, are the bedrock
on which democracy is based.
Unless people can assemble together to
demonstrate for or against particular causes, rulers will be unresponsive to their
people’s concerns. Ordinary citizens must be able to bring their concerns to the
attention of their rulers – presidents, ministers and legislators – at times of their own
choosing, not just at political rallies staged by the rulers themselves.

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