The right to protest and the policing of protests by Richard Brigden

30 November 2017

This guide sets out:

The right to protest;
What offences the police and other authorities may use against protesters/protectors;
What tactics the police may use to stop /curtail protesters; and
What details and information the police can take from you.

The right to protest

The police tend to view protesters/protectors as ‘domestic extremists’. The Association of Chief Police Officers’ Manual of Guidance on Keeping the Peace (ACPO) 2006 states that:

…domestic extremism and extremists are the terms used for activity, individuals or campaign groups that carry out criminal acts of direct action in furtherance of what is typically a single issue campaign. They usually seek to prevent something from happening or to change legislation or domestic policy, but attempt to do so outside of the normal democratic process [note, not ‘outside the law’].

The UN Rapporteur notes that this definition now:

…encompasses everybody who protests, in particular the so-called ‘professional demonstrators’, a number of whom felt that they are considered to be ‘enemies of the State’ by the authorities.

The introduction of the Human Rights Act 1998 (HRA) gave domestic effect to Articles 10 (freedom of expression) and 11 (freedom of assembly) of the European Convention on Human Rights (ECHR). This represented a ‘sea change’ in the domestic protection of the right to freedom of expression and peaceful assembly, and now means that there is a positive obligation on the state to ensure that people can engage is lawful peaceful protest – see Arzte fur das Leben v Austria (1988) 13 EHRR 204 [32]:

Genuine effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the State not to interfere. Article 11 sometimes requires positive measures to be taken even in the sphere of relations between individuals.

Guidance on the degree of tolerance of disruption that must be given to a protest before police/authorities may lawfully intervene can be taken from the following sources:

ACPO statutory guidance on public order policing states the: “Police must demonstrate a certain degree of tolerance towards the protest and anticipate a level of public disruption” (p114);
The Organisation for Security and Cooperation in Europe (OSCE) Guidelines on Freedom of Peaceful Assembly (2010) emphasise the need for demonstrators to have ‘sight and sound’ of the object of their demonstration: “Public assemblies are held to convey a message to a particular target person, group or organization. Therefore as a general rule, assemblies should be facilitated within ‘sight and sound’ of their target audience’” (para 3.5). And: “In particular, the state should always seek to facilitate public assemblies at the organizers’ preferred location, where this is a public place that is ordinarily accessible to the public” (para 19);
The importance of giving significant weight to the chosen location of a demonstration was set out by Lord Neuberger (emphasis added) in Hall v Mayor of London [2010] EWCA Civ 817: “37 The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation”;
Laws LJ highlighted the need for tolerance of disruption caused by protests in Tabernacle v SSD [2009] EWCA Civ 23: “ Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them”;
According to Kuznetsov v Russia (App No 10877/04): “44… as a general principle, the Court reiterates that any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance”;
In Kudrevicius and Others v Lithuania (Application no. 37553/05) it was stated that: “ The Court observes at the outset that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively. As such this right covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions…”; and
As observed in Sunday Times v UK (No 2) (1992) 14 EHRR 229: Any restrictions on a defendant’s Article 10 rights must be ‘narrowly construed’ and ‘convincingly established’.

Where the police wish to restrict rights contained in Articles 10 and 11 of the ECHR it must be proved that the restriction is necessary. This necessity must be ‘established convincingly’ (see R (Gallastegui) v Westminster City Council [2013] EWCA Civ 28).

In Ezelin v France (1992) EHRR 362 it was confirmed that the reference to ‘restrictions’ in Articles 10(2) and 11(2) included punitive measures taken against a person after, and as a result of their participation in a protest.

Offences

Intimidation or annoyance by violence or otherwise

Section 241 of the Trade Union and Labour Relations (Consolidation) Act 1992 states:

(1) A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority—

(a) uses violence to or intimidates that person or his spouse or civil partner or children, or injures his property,

(b) persistently follows that person about from place to place,

(c) hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,

(d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or

(e) follows that person with two or more other persons in a disorderly manner in or through any street or road.

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.

The provisions of this section are like those contained in section 7 of the Conspiracy and Protection of Property 1875 (the offence that was an is supersede by s241) There must be an element of compulsion. Whichever of the sub clauses are operative, there has to be a compulsion to stop another person from doing something (see DPP v Fidler [1992] 1 WLR 91). Compulsion should mean more than just passively lying on a road in front of a lorry. It should involve some explicit or implicit understanding that if the complainant continues then the protester will act against them with words or actions.

A protest against a particular thing (in Fidler it was an abortion clinic) will not amount to an offence unless it can be proved that the protester intended to stop another person from doing a particular thing.

Delaying a particular act should not amount to an offence under this Act.

The CPS are using this offence more often than used to be the case. The reason for this is that it can attract a sentence of imprisonment, opposed to obstructing the highway which will only lead to a fine.

Obstructing the highway

Section 137(1) of the Highways Act states:

(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway, is guilty of an offence and liable to a fine.

A highway is an area of land which the public at large have the absolute right to use to ‘Pass and Repass without let or hindrance. This includes highways for vehicles and pedestrian.

In Hurst and Agu v The Chief Constable for West Yorkshire [1986] Cr App R 143 the court stated that the correct approach the question of whether the highway had in fact been obstructed was to consider:

Whether there was an obstruction of the highway, which included any occupation, unless de minimis, of part of a road thus interfering with people having the use of the whole road;
Whether the obstruction was wilful in the sense of deliberate; and
Whether the obstruction was without lawful authority or excuse, which covered activities otherwise lawful in themselves which might or might not be reasonable depending on all the circumstances.

In Westminster City Council v Brian Haw [2002] EWHC 2073 (QB) [11] the found that the prosecution:

“…must establish not only the fact of obstruction but also that it is, in all the circumstances, unreasonable Obstruction of the highway”.

Protesters can and should rely on Articles 10 and 11 ECHR to argue that their actions were reasonable.

Limits on public processions

Section 11(1) of the Pubic Order Act (POA) 1986 states:

Written notice shall be given in accordance with this section of any proposal to hold a public procession intended—

(a) to demonstrate support for or opposition to the views or actions of any person or body of persons,

(b) to publicise a cause or campaign, or

(c) to mark or commemorate an event,

unless it is not reasonably practicable to give any advance notice of the procession.

Advance notice does not need to be given where it is not reasonably practicable to do so. If, for example, where it is a spontaneous march or it is called at very short notice. In practice, a last minute phone call to the police may help to reduce tensions between police and protestors.

Failure of the organiser to notify the police of the march or to change the start time or route without giving further notice is an offence with a maximum penalty of a fine up to £1,000 (section 11 POA). However in practice, unless a protestor puts their contact details on the posters advertising the march, it has proved very difficult for the police to prove who has organised a march.

Processions

Section 12 of POA provides:

(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that—

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of 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,

he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.

If you are arrested / charged for failing to comply with directions given under section 12 POA you are entitled to challenge the lawfulness of the direction.

Imposing conditions on public assemblies

Section 14 of POA states that:

(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of 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, he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

A ‘public assembly’ is two or more people gathered together in a public place. Conditions can be imposed immediately by a senior officer which restrict the place, the duration and the numbers, ‘as they appear necessary to prevent serious disorder, disruption of the life of the community, or intimidation’. Conditions can be imposed in advance or by the senior police officer who is at the assembly.

Failure to follow a direction and or condition under section 14 can give rise to a non-imprisonable offence (level 3 fine).

In R (Brehony) v Chief Constable of Greater Manchester [2005] EWHC 640 (Admin), at paragraphs 18 and 19, the court stated:

If the direction is being given pursuant to section 14(1)(a), the direction must identify whether the reasonable belief is that the assembly may result in serious public disorder, or serious damage to property, or serious disruption to the life of the community (or all three or only two of them)…

The Officer making the direction must have properly considered the correct test, failure to do so would render the direction itself void. It would effectively amount to a mistake of law which the defendant was properly entitled to ignore. The test of ‘serious’ (per section 14(a)) is a high threshold (see Powlesland v DPP [2013] EWHC 3846 [Admin]).

Aggravated trespass

Section 68 Criminal Justice and Public Order Act 1994 states:

(1) A person commits the offence of aggravated trespass if he trespasses on land in the open air and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect—

(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b) of obstructing that activity, or

(c) of disrupting that activity.

….

(2) Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.

If you are charged with aggravated trespass you are entitled to rely on the fact that the activity being disrupted was not lawful. For instance, a hydraulic fracturing comping committing criminal damage.

In Richardson and anor v DPP [2014] UKSC 8 the court stated that:

Where, however, the issue of a relevant specific criminal offence by the occupant(s) of the land is fairly raised by evidence, the onus lies on the Crown to disprove it to the criminal standard of proof, in order for it to prove, to that standard, that the defendant trespasser has committed the offence contrary to section 68. This follows from the Ayliffe case and from the language of the statute.

If there is evidence of unlawful activity this must be documented and passed to your solicitor.

Protest Defences – Necessity

Some protesters a have successfully argued that their actions, although technically in breach of the law are necessary to prevent other crimes (as distinct from the unlawful activity point concerning aggravated trespass). The right to prevent crimes (for example, damage to the environment / illegal arm dealing) can be used as a defence. It is very difficult to succeed using this defence. However, where this defence is raised it allows protesters to highlight the very things they are protesting about, ie, the environment damage caused by hydraulic fracturing.

In R (on the application of DPP) v Stratford Magistrates Court [2017] EWHC 1794 (Admin) the court ruled that:

The crime must be imminent and immediate (happening in that area at that time);
Vehicles targeted must be engaged in unlawful business at the time (not in transit to commit unlawful business); and
There must be a direct application of force (chaining yourself to a lorry is force, lying in front of it is not).

Undercover Officers

Historically the police have embedded uncover offices within protest movement. Where this occurs, the police / CPS must disclose it. In R v David Robert Barkshire [2011] EWCA Crim 1885 the court ruled:

In summary, these convictions were quashed because of the failure of the Crown to make proper disclosure of material relating to the role and activities of the undercover police officer, Mark Kennedy, as well as of materials which had the potential to provide support for the defence case or to undermine the case for the prosecution. These materials were pertinent to a potential submission of abuse of process by way of entrapment and in any event they had the capacity to support the defence of necessity and justification. The trial was rendered unfair and the convictions unsafe. Accordingly, they were quashed. We decline to order further inquiries by this court. Ancillary costs orders in favour of the defence were made at the conclusion of the hearing.

Data Retention / Collection

It is well known that the police collect data on protesters and activists. R (Catt) v ACPO and Commissioner of Police of the Metropolis [2013] EWCA Civ 192 highlights the amount of data that the police collect. The Court ruled that the police acted unlawfully by secretly registering John Catt’s presence at more than 55 protests over four years on the National Domestic Extremism Database, maintained by the National Public Order Intelligence Unit. Mr Catt, a non-violent anti-war activist labelled a “domestic extremist” by the police, had no criminal record. The Court of Appeal ordered the police to delete their records on Mr Catt. The UN Special Rapporteur stated that, ‘He finds such practices particularly disturbing.’

In R (Wood) v Commissioner of Police for the Metropolis the claimant, who was employed by an association which campaigned against the arms trade, attended the annual general meeting of R plc, which had an association with a company organising trade fairs for, the arms industry. Due to that association there was concern that there might be demonstrations at the meeting, or at a later trade fair, and the Metropolitan Police decided to deploy a number of police officers around the hotel where the meeting was taking place. Photographs were taken of the claimant in the street as he was leaving the hotel after the meeting and police officers made attempts to establish his identity. There was no evidence that the claimant had been involved in any disturbance at the meeting; he had no criminal convictions and had never been arrested. The Court ruled that where a state authority such as the police visibly and with no obvious cause chose to take and retain photographs of an individual going about his lawful business in the street that was a sufficient intrusion by the state into the individuals privacy as to amount to a prima facie violation of his rights under Article 8(1).

Kettling

In Mengesha v Commissioner of Police of the Metropolis [2013] EWHC 1695 (Admin) (18/06/2013) the court was asked to consider whether the police can require those contained (kettled) to give their details or be videoed before they are allowed to leave the area of containment. The police initially argued that the requirement to give details and be videoed prior to leaving the ‘kettle’ was part and parcel of the containment. The court rejected this argument. In judgment the police were politely reminded that any extension of police powers should be a matter for legislative enactment.

The police may find it irritating but those contained cannot lawfully be required to give their details to the police. Statutory provisions do exist such as section 50 of the Police Reform Act 2002 (this allows the police to require a person to give their name and address if they are or have been acting in an anti-social manner) and section 64A of the Police and Criminal Evidence Act 1984 (which allows the police to take photos in a public place of those under arrest). Neither of these powers is relevant to taking details and video before a contained person is allowed to leave the containment area. This case established that it is unlawful for the police to require members of the public to be filmed and provide details before they are allowed to leave containment.

Blanket Searches

In 2008, the Kent police searched all individuals attending the Climate Camp at Kingsnorth power station, under section 1 of the Police and Criminal Evidence Act 1984. This measure was legally challenged by three protestors as being an unlawful blanket search policy. In R (Morris, E and T) v Chief Constable of Kent Police (2009) the court ruled that each stop and search of the three individuals was unlawful as the police officers had exceeded their powers under section 1 of the Police and Criminal Evidence Act 1984, and Article 11 of the HRA had been violated.

In certain situations, blanket searches are lawful. First, section 60 of the Criminal Justice Act 1994 allows a police officer to search anyone in a specific area for offensive weapons, but first an order has to be given by an Inspector, and confirmed by a Superintendent. The order lasts for 24 hours but can be extended by a Superintendent. Second, section 47 of the Terrorism Act 2000 (Remedial) Order 2011 allows a senior officer to put in place an order in a specific location where s/he reasonably suspects that an act of terrorism will take place. Such order gives the police the power to search anyone or anything for the purpose of prevention of terrorism.

Masks

If a section 60 Criminal Justice Act 1994 authorisation (where an officer above the rank of inspector reasonably believes that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence) is in place, section 60AA(2) allows the police to require the removal of any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity. Failure to act in accordance with this section can amount to an offence that is punishable by way of a level 3 fine.

In practice if a section 60 order is in place the police will ask everybody with a face mask to remove it. If you are asked to remove a mask you can ask the police to identify why you are required to remove the mask. Only if the section 60 authorisation is in place do you need to remove the mask.

Searches

The police can search you or a vehicle in a public place under section 1 of the Police and Criminal Evidence Act 1984 (PACE) if the constable has reasonable suspicion that you have stolen goods, offensive weapons, articles intended to be used for criminal damage.

The police also need reasonable suspicion to search you under section 43 of the Terrorism Act 2000. The section allows the police to search for anything which may constitute evidence that the person is a terrorist. In order to search under this section the police must have reasonable suspicion that a person is a terrorist.

Section 1 of the Terrorism Act 2000 defines terrorism in the following way:

(1) In this Act “terrorism” means the use or threat of action where:

(a) the action falls within subsection (2);

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public; and

(2) Action falls within this subsection if it:

(a) involves serious violence against a person

(b) involves serious damage to property;

(d) creates a serious risk to the health or safety of the public or a section of the public; or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

The police can search you, absent reasonable suspicion, if a section 60 (see above) authorisation is in place. If you are searched under a section 60 authorisation, and they do not find anything on your person, then you do not have to give your name or address.

Duty to Give details

You do not have to give your name and address unless under a specific legal obligation (Rice v Connolly 1966). Refusal to give your name and address cannot amount to obstructing the police in the course of their duty under section 89(2) of the Police Act 1996, but giving a false name and address can.

Under section 50 Police Reform Act 2002, if the police reasonably believe a person is involved in anti-social behaviour (defined as behaviour likely to cause harassment alarm or distress) they can request personal details and failure to provide such details can be a criminal offence. This can include harassment/ alarm/ distress to the police, police have a higher threshold than the average person. This is not a search power but a suspicion that you have caused a crime. Failure to give your name or giving a false name is an offence in and of itself.

Richard is a barrister at Garden Court North Chambers.