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Originated – Liberty Human Rights

Right of Peaceful Protest

Where to Find the Law

The most important statutory provision is the Public Order Act 1986 (POA), extended by the Criminal Justice and Public Order Act 1994 and the Crime and Disorder Act 1998 and recently amended by the Anti-Social Behaviour Act 2003. These statutes set out the powers of the police to impose conditions on marches and on static demonstrations such as rallies, pickets and vigils. The POA also sets out the main public order offences, such as riot, affray and threatening behaviour, which are directed at people on demonstrations.
Not all public protest takes the form of organised marches through town centers by people carrying placards and chanting slogans. Although the POA introduced extensive controls on such traditional forms of political expression, there has been a movement away from formal protest in favour of a proliferation of imaginative and diverse actions, some on private land. These new types of action have enabled political messages to be sent and damaging practices to be frustrated away from the restrictive controls of the police.
Inevitably, one of the stated reasons given in later years for extensions of the provisions of the POA was that the police needed additional powers to regulate new and varied methods of mass action, including raves, festivals, roads protests and hunt sabotage. The result is a statutory regime that is broader than ever before, with extensive powers that can be used not just against these and other 'targeted' groups, but also against all manifestations of political protest, both formal and informal.
Another significant statute is the Police and Criminal Evidence Act 1984, as amended by the rash of new measures post 2000, which give the police powers to arrest and detain people suspected of committing criminal offences.
Even after these major pieces of recent legislation, public order law is far from unified. This is because, as well as their powers under these statutes, the police retain some historic 'common law' powers, such as the power to take action to prevent a breach of the peace. There are also numerous bye-laws, passed by local authorities, which are specific to particular areas and often restrict our rights or impose obligations on us. Other legislation sometimes regulates the right to demonstrate, for instance picketing during industrial disputes is regulated by employment laws.
Another important source for today's law is reported cases, showing how the courts have approached particular situations in the past. All laws have to be interpreted - the courts have to decide exactly what counts as a 'public place', for example - and the precedents from previous court decisions are a useful indication of how they might react if the same situation were to occur again. Many of these cases are reported regularly in publications such as Legal Action (see FURTHER INFORMATION below), which has a comprehensive round-up of public order cases every February and August.
All the above - our domestic statute law, common law and all the cases that interpret them - are now considered in the light of the Convention. The most important provisions in the field of public protest include Article 5, the right to liberty; Article 6, the right to fair trial; Article 8, respect for private and family life; Article 9, freedom of thought, conscience and religion; Article 10, freedom of expression; and Article 11, the right of peaceful assembly. In addition, Article 14 of the Convention outlaws discrimination over the exercise of those rights on the basis of race, sex, religion, colour and political opinion or other status.

Our courts also have to consider the many cases in which the European Court of Human Rights (ECHR) has given guidance on the meaning of the Convention. The ECHR has been operating for decades, and Convention law is already highly developed. Unlike our approach to interpreting domestic law, the ECHR has been creative, applying the spirit of the Convention to new situations that arise rather than insisting on applying the letter of an outdated law. As a result, the Convention Articles themselves are only a starting point. Important additional rights - particularly in the context of the criminal law - have been read in to the Convention by the ECHR.
Other police powers to restrict protest
In addition to the powers that the police are given by the POA, they have traditional powers, such as those relating to breach of the peace and obstruction of the highway, and those conferred by local bye-laws, which can be used to move or disperse a crowd that has assembled for a common purpose.
There are several nineteenth-century statutes (Metropolitan Police Act 1839, City of London Police Act 1839 and Town Police Clauses Act 1847) that enable the Commissioners of Police in London and the City or local councils outside London to make regulations and give directions to prevent obstruction and to keep order. Directions are given to constables and are not required to be made public. There are no conditions that must be satisfied before directions can be given, and, therefore, little scope to challenge them as excessive or unjustified. When lawful directions have been issued (for example, not to continue down a particular street), and you have been 'acquainted' with them, you commit an offence if you do not comply. You could also be charged with obstructing the police (see below – Police Obstruction).
At the beginning of each Parliamentary session, the Metropolitan Police Commissioner is instructed by Parliament to give directions under the Metropolitan Police Act 1839 to police officers 'to disperse all assemblies or processions of persons causing or likely to cause an obstruction, disorder or annoyance' within a specified area around Westminster whenever Parliament is sitting.
The police must rely on their general powers of arrest or powers to prevent a breach of the peace. You commit an offence (maximum sentence, a fine up to level 2 – currently £500) if you fail to disperse after you are made aware of the Commissioner's Directions, which normally means that the police must read them to you, or at least summarise their effect, before they can arrest you. It is a defence to show that the free passage of MPs would not have been obstructed. The directions do not affect processions or meetings on a day when Parliament is not sitting.
Police directions are often used to restrict protest events, but over the last decade police forces in different parts of the country seem to have been more ready to turn to these discretionary powers to regulate not just political demonstrations, but also raves and festivals, and the movement around the country of groups of people such as pickets, football supporters, new age travellers or road protesters. When directions are made, the police can be given very wide powers indeed, as the following examples - all from the last decade - show:

  • During the News International dispute at Wapping the Metropolitan Commissioner's directions, which were renewed monthly during the dispute, gave the police authority to close streets - even to residents - and to stop any person walking or driving in any street in Tower Hamlets.
  • When a 'Stop the City' demonstration was planned, the City of London Commissioner issued directions under which the police arrested people who distributed leaflets or gathered in groups of three or more.
  • In Salisbury, the district council made an order banning 'hippies' from the town centre for two days and restricted them to a designated route.

In the City of London, the 'Ring of Steel' anti-terrorist roadblocks were originally set up under police powers to stop and search suspected offenders, but after protests the police conceded in practice that they had no special grounds to think that the people caught up in the roadblocks were terrorist suspects. The roadblocks continued, but were then justified by reference to directions issued by the City of London Police Commissioner. In due course, the Government brought in specific statutory powers, but the episode highlighted the use of 'Commissioner's Directions' in anticipation of powers not yet granted under statute.
New police powers of stop and search
Historically, the exercise of powers of stop and search depended on the individual police officer concerned having reasonable suspicion that the individual to be searched was carrying a prohibited article. This is no longer always the case.
Police are now able to designate an area in which individuals may be searched for knives or other weapons whether or not officers have any grounds to suspect the individual of having any. Police have recently been given additional new powers, within a designated area, to require the removal of facial coverings that they believe are being worn to avoid identification. In practice these powers are hugely significant in a public order context since they permit generalised and unaccountable stops and searches of any or all of the protestors at a given location.
The Terrorism Act 2000 takes this a stage further. Areas may be designated in which officers can stop vehicles and search the driver or anyone else inside. The power also covers pedestrians. Once again, this is a general power to search for evidence of terrorism (defined very broadly in Section 1) regardless of any particular suspicion against the individual to be searched.
Liberty has been at the forefront of challenges to police actions of this type that appear to be designed to stifle free expression. Liberty believes that the concept of ‘terrorist’ employed in the Terrorism Act 2000 is far too wide and should be restricted by the courts to those situations that are clearly outside the realm of legitimate public protest.

Marches and processions

The Public Order Act refers to marches as 'processions' and to all other static demonstrations as 'assemblies'. A 'procession' is simply defined as people moving together along a route; the law does not provide a minimum number to constitute a procession, so even a handful of people going to a Town Hall to hand in a petition will constitute a procession. The POA gives the police extensive controls over processions. Organisers of most processions must give advance notice to the police. The police may impose conditions on processions and, in limited circumstances, have them banned. Failure to comply with these provisions is a criminal offence.
Who is the Organiser?
There is no legal definition. For a big procession an official organiser will probably have been selected well in advance of the date. For an informal event the organiser could be anyone who takes the lead. Some spontaneous events will have no organiser.

Advance Notice
The rules are designed to ensure that the police are told, in advance, about the vast majority of political marches. Specifically, they say that notice should be given of any procession if it is intended to:

  • Demonstrate support for or opposition to the views or actions of any group.
  • Publicise a cause or campaign.
  • Mark or commemorate an event.

Notice need not be given if it is not reasonably practicable to do so in advance. This is intended to allow for a completely spontaneous procession, for example, when a meeting turns itself into a march or, as Christian CND put it, when it is necessary 'to call acts of witness or protest at short notice'. If a prosecution is brought, it will be for the Magistrates' Court to decide whether notice of any kind could have been given. A last-minute telephone call to the police is advisable to show you are prepared to follow the spirit of the law. A record should be kept of the call.
Notice is also not required if it is a funeral procession or a procession commonly or customarily held. This will include the Lord Mayor's Show in the City of London, the Notting Hill Carnival and other annual local parades, including those organised by religious groups. If a protest march occurs regularly (weekly, annually) at the same time along the same route, then no notice should be required.
Where notice is required it must be in writing and must include:

  • The date of the procession.
  • The time it will start.
  • The proposed route.
  • The name and the address of the organiser.

The written notice must be delivered to a police station in the area where the procession is planned to start (or the first police area in England), either by hand or by recorded delivery six clear days in advance. 'Six clear days' means, effectively, a full week in advance, for example, on Saturday for a procession the following Saturday.
If a procession is planned at short notice (less than one week), then the organiser is required to deliver written notice by hand as soon as reasonably practicable.
Offences Connected with Notice
The organiser commits an offence (maximum penalty is a fine up to level 3 – currently £1,000) if:

  • Notice was not given as required.
  • The date, starting time or route differs from that given on the notice.

There is no power of arrest, but the police could rely on their general power of arrest (see Police Powers of Arrest, RIGHTS OF SUSPECTS). In practice, in the handful of prosecutions brought under this section of the POA since 1987, it has proved very difficult for the police to prove that a particular person was the organiser of a march. Unless the police can do so, their powers to prosecute are greatly curtailed. Even if they can, it is a defence if you can prove either:

  • You were not aware that notice had not been given or not given in time; or
  • The different date, starting time or route was due to circumstances beyond your control or was changed with the agreement of the police or by direction of the police.

Police Conditions on Marches
There is no guarantee that the police will allow your proposed procession to take place as you want it. The police have extensive powers to impose conditions on marches, and even to ban them.

In advance, the Chief Constable (or the Metropolitan Police Commissioner in London) can impose conditions relating to the route, number of marchers, types of banners or duration, or restrict entry to a public place. These conditions must be in writing. After the procession has begun the most senior officer on the spot can impose similar conditions, which do not have to be in writing. The POA says that conditions can be imposed only if the senior officer reasonably believes that the procession may result in:

  • Serious public disorder; or
  • Serious damage to property; or
  • Serious disruption to the life of the community.

The senior officer may also impose conditions if he or she reasonably believes that the purpose of the organisers is to intimidate others 'with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do'. The conditions must be ones that the officer believes are necessary to prevent disorder, damage, disruption or intimidation.
Where organisers have sufficient notice of proposed conditions, they can be challenged in the courts (see below: Challenging Police Decisions). In particular, with the incorporation of the Convention, the police are under a positive duty not to act incompatibly with the Convention and conditions may be challenged on the grounds that they are excessive or unreasonable, or do not respect Convention rights such as Article 10 and Article 11.
Failure to comply with a valid condition, properly imposed, is a criminal offence with different penalties for organisers and other participants.
Banning Marches
The POA gives police power to ban all or a 'class' of processions in a local area for up to three months, by way of a banning order. If a Chief Constable (or the Commissioner in London) is satisfied that the powers to impose conditions will not be sufficient to prevent serious public disorder if the procession takes place, then he must apply for a banning order.
Outside London, the Chief Constable applies to the district council for a banning order. The district council is not obliged to make the order, and it must have the Home Secretary's consent to any banning order it does make. In London, the Commissioner makes the order with the Home Secretary's consent.

A banning order can cover all or part of a district (or all or part of the Metropolitan Police area or the City of London) and can ban all processions or just those within a certain class (for example, processions marking the death of a political terrorist). A blanket ban on all processions is often imposed, even though it is designed to prevent one march only. The standard formula is to ban 'all public processions other than those of a traditional or ceremonial character'. Once again, banning orders can be challenged in advance by reference to the Convention, but failure to comply with a valid banning order, properly imposed, is a criminal offence.

Static Demonstrations, Rallies and Assemblies

The Public Order Act gives the police specific powers to control static demonstrations that are similar to those for processions. The POA previously defined a 'public assembly' as being 20 or more people gathered together in a public place that is at least partly in the open air. In relation to England and Wales, the Anti-Social Behaviour Act 2003 has amended this provision.