PROTEST
YOUR RIGHTS
Introduction
Peaceful protest has a long and noble tradition in this country. It has played a major
part in bringing about many important social and political changes – the extension of
voting rights, the establishment of the welfare state, the development of union rights.
But for much of our history there was no right to protest – protest was simply tolerated.
That changed when the Human Rights Act came into force in 2000. Articles 10 and 11
of the European Convention on Human Rights protect the rights to freedom of
expression and freedom of assembly. Laws and the actions or decisions of public
bodies which interfere with these rights can now be challenged on the grounds that
there is no adequate justification for them or that they are disproportionate in their
effects. Articles 10 and 11 may also impose obligations on the police and other public
bodies to positively facilitate protest.
In any legal case concerning protest rights, the courts must have regard to the rights to
freedom of expression and freedom of assembly protected by Articles 10 and 11.
These cases may be challenges to decisions made by the police or another public
body that restrict protest rights, or where people are prosecuted for offences said to
have been committed during a demonstration. Articles 10 and 11 won’t necessarily win
the case for protesters, but should at least ensure that the courts subject measures
restricting protest rights to robust scrutiny.
The Human Rights Act aside, there is a significant body of law relevant to protesting.
This includes criminal offences governing the organisation and conduct of protests,
civil law around trespass on private property and criminal offences relating to particular
types of trespass. The law governing police powers and ordinary criminal law are also
relevant to how protesters and those policing them behave.
The law distinguishes between static and moving protests. In this guide we use
“march” to mean a protest in which participants move, usually along a pre-planned
route, from A to B – what the Public Order Act 1986 calls a “public procession”. We use
“demonstration” to mean a static protest – usually a “public assembly” for the
purposes of the Public Order Act.(so call it a public meeting) We use “protest” as an umbrella term for both.
We make reference to many offences in this guide and give the maximum penalty that
can be imposed on those convicted of them. It should be borne in mind that it is very
rare for the maximum penalty for an offence to be imposed by the courts.
3
Notification requirements
Marches
The law on notification requirements for marches is set out in section 11 of the
Public Order Act 1986.
The organisers of a march are required to give advance written notice of the march
to the local police force. The notice, which can be in the form of a letter, should be
given at least a week before the march by being sent recorded delivery or hand
delivered to a police station. The notice should set out the date and start time of the
proposed march and its route. It must also include the name and address of at least
one of the organisers.
Anyone who organises a march and doesn’t give the required notice commits an
offence for which he/she can be fined up to £1,000. Unless this arises from
circumstances beyond his/her control the organiser also commits an offence if the
date, start time or route of the march differs from those notified to the police.
The law does, however, recognise that it may not always be possible (or “reasonably
practicable” as section 11 puts it) to give the full week’s notice to the police or any
notice at all, e.g. because the march is an immediate or speedy response to some
unexpected event. The organisers should give the police what advance warning they
can. This should be done by hand delivering (not posting) a written notice with all
the required details to a police station. Of course, someone who doesn’t give the full
week’s notice to the police when it would have been possible to do so risks
committing an offence, so it is always best to give the full week’s notice (or even
longer) if you can.
Demonstrations
There is no requirement to give the police advance notice of demonstrations.
1
However, many people choose to give the police advance warning so that they are
not surprised by the demonstration and can make arrangements to police it.
Police imposing conditions
Sections 12 and 14 of the Public Order Act 1986 give the police the power to
impose conditions on marches and any demonstration that comes within the
definition of a “public assembly”. A “public assembly” is an assembly of two or
4
more people in a public place that is wholly or partly open to the air. This can
extend to privately owned land that the public generally have access to.
The power to impose conditions in advance can only be exercised by the Chief
Constable (or the Metropolitan Police Commissioner or the Commissioner of the
City of London Police). This power can be delegated to an Assistant Chief
Constable (or Assistant Commissioner). Conditions imposed in advance have to
be put in writing. Once a march has started to assemble or a demonstration is
under way conditions can be imposed by the most senior police officer present.
These can be given orally.
The Chief Constable/senior officer present can only impose conditions if he/she
considers that the march/ demonstration may result in serious public disorder,
serious damage to property or serious disruption to others or that the purpose of the
organisers is to intimidate others into doing or not doing something. The conditions
that may be imposed are those that the officer considers necessary to prevent these
eventualities. In relation to a march these can include conditions as to its route or a
prohibition on entering certain areas. In relation to a demonstration, only conditions
as to the demonstration’s location, duration and the maximum number of people
that can take part can be imposed.
An organiser of a march or demonstration who fails to comply with conditions that
he/she knows about commits an offence for which he/she can be fined up to £2,500
or sentenced to up to 3 months’ imprisonment. Someone taking part in the
march/demonstration who knowingly breaches a condition commits an offence for
which he/she could be fined up to £1,000.
Banning a march
There is a power under section 13 of the Public Order Act 1986 to ban marches
outright. A Chief Constable can only decide to do this if he/she has grounds to
believe that imposing conditions will not be enough to prevent the march leading
to serious public disorder. His/her decision must also to be approved by the local
council (unless the march is in London) and, in all cases, the Home Secretary.
If a ban comes into force it applies to all marches in the area for the duration of
the ban. This power is used very sparingly but has been used recently to prevent
EDL marches. (because they are racist in nature)
5
Negotiating with the police
Once notice has been given of a protest, the police will often want to discuss the
arrangements with the organiser(s). It is a good idea to engage with them. The
police may want changes to the arrangements, particularly the route or location and
may use the threat of imposing conditions to try to get their way. While it may be
sensible to agree some alterations, some changes to the route or location may
seriously diminish the impact of your protest. Be prepared to stand up to the police
and argue why allowing your protest to go ahead as planned will not cause serious
disruption to others, for example. Get legal advice if necessary.
Sometimes the police will tell the organisers of a demonstration that they need to get
public liability insurance. If you are organising a demonstration it may well be a good
idea to get insurance in case someone taking part gets hurt and tries to sue you, but
the police have no power to make obtaining public liability insurance a condition of
holding a protest. You should be prepared to point this out if necessary.
We have also heard of the police telling demonstration organisers that they need to
get a temporary road closure order from the local council – at considerable cost.
This is sometimes coupled with a suggestion that the police will not actually police
the demonstration themselves. It is open to question whether a local authority can
grant a temporary road closure order for the purposes of a demonstration (as
opposed to a sporting event, carnival or street festival.) If the police take this line
insist on your right to hold your demonstration with support from the police if that is
what is necessary. Again get legal advice if the police won’t back down.
Decisions made by the police that affect your protest, particularly the imposition of
conditions under sections 12 or 14 of the Public Order Act), may be challengeable in
the High Court though a procedure called “judicial review”. As the police probably
won’t impose conditions until the last minute (frequently the day before or the day of
the protest) it may be impossible to commence these proceedings and get a
decision from the Court before the protest takes place. But proceedings can still be
brought after the event and such cases can be useful in establishing precedents
that will benefit others.
6
Protests on private property
By their nature protests are usually held in public places. A case that Liberty was
involved in the 1990s2 established that there is a right to protest on the “public
highway”. The public highway means most roads and usually their accompanying
pavements (although parts of some pavements may belong to the buildings they
run alongside and so aren’t part of the highway.)
But what about other public spaces that are not part of the highway – squares,
parks, or the areas around office blocks? These may be owned by local councils or
may be privately owned. Moreover, large parts of our cities and towns, often areas
that have been regenerated, are now privately owned; this may include the
roadways and pavements. What rights are there to protest in these areas?
Land owned by local councils and other public bodies
Like any landowners, local councils are in principle entitled to regulate who comes
onto their land and the uses such people make of it. But they and other public
bodies are required by the Human Rights Act to act compatibly with people’s rights
under the European Convention on Human Rights, including the rights to freedom of
expression and freedom of assembly protected by Articles 10 and 11. If you are
planning a protest on land owned by a council (or other public body), aside from
any obligation to notify the police, you ought to check with the council that they have
no objection to you going ahead. Councils may have procedures, sometimes
reinforced by byelaws, that they require you to follow. If a council (or other public
body) is unduly obstructive you should remind them of their obligations under
7
THE ORGANISERS
OF A MARCH ARE
REQUIRED TO GIVE
ADVANCE WRITTEN
NOTICE OF THE
MARCH TO THE
LOCAL POLICE
© Chrisjohnbeckett, 2009
Articles 10 and 11, including the positive obligation to facilitate protest. If they refuse
to back down you should seek legal advice.
Privately owned land
Private bodies, whether companies or individuals, are not required by the Human
Rights Act to act compatibly with rights protected by the European Convention on
Human Rights, so a refusal to allow a protest on privately owned land cannot be
challenged directly under the Human Rights Act. With many parts of our cities and
towns now in private ownership (e.g. Canary Wharf in London, Liverpool One in
Liverpool) this is increasingly a problem.
In the early 2000s Liberty took a case to the European Court of Human Rights on
behalf of a community group that was prevented from collecting signatures on a
petition in what they and other residents of their town considered their town centre, a
shopping mall and its surroundings.
3 The mall had been publicly owned but was
sold off several years previously. The mall owners refused to give the community
group permission to canvas for signatures in the mall. Before the European Court
we argued that the law should recognise some privately owned land as “quasi
public”. The community group lost their case but there may be scope for bringing a
further challenge. Liberty would be interested in hearing from anyone prevented
from protesting on privately owned land.
Trespass
If you enter or stay on land (including buildings) without the owner’s permission you
commit trespass. Permission may be implied, (e.g. there is implied permission to go
into shops during their opening hours), and/or conditional, (e.g. you may go into a
shop for the purpose of shopping but not to protest). Unless it is granted under a
contract (and even where it is if the contract provides for this), your permission to
be on land or in a building may be withdrawn at any point and once it is you
become a trespasser.
Trespass is not on its own a criminal offence. But a landowner can bring court
proceedings against a trespasser to claim damages and also has a right to forcibly
remove the trespasser. Most landowners and their agents, typically security guards,
avoid using force to remove trespassers who refuse to leave. The usual response is
to call the police who generally encourage the trespasser to leave. Where the
trespasser refuses the police may be able to justify arresting him/her if they suspect
8
that their continuing presence there may lead to a breach of the peace. There are,
however, circumstances where trespass can be criminal:
Aggravated trespass
Under section 68 of the Criminal Justice and Public Order Act 1994 it is an offence
for a person to trespass on land (including buildings) and to intimidate people there
into not doing something that they are legally entitled to, or to obstruct or disrupt
such activity. Although it was designed to be used against hunt saboteurs,
protesters have been arrested and prosecuted for this offence. For example this is
the offence with which people who protested and sat down in Fortnum and Mason
on the day of the TUC’s March for the Alternative (March 2011) were arrested and
later charged. The offence in punishable by up to three months’ imprisonment or a
fine of up to £2,500.
Trespass on a designated site
Under section 128 of the Serious Organised Crime and Police Act 2006 it is an
offence to trespass on a “nuclear” or “designated” site. Nuclear sites include
nuclear power stations. Sites that have been designated include the Houses of
Parliament, royal palaces and military bases. Sites which have been designated
usually have signs up making this clear. The offence of trespassing on a designated
site is punishable by up to six months’ imprisonment or a fine of up to £5,000.
Trespassory assembly
Section 14A of the Public Order Act 1986 allows the police with the agreement of the
relevant local council and the Home Secretary to designate areas in which any
gatherings which involve trespass will be an offence. The designation can only last
for up to four days and can only be made if the police believe that people are
planning such gatherings and that they may cause serious disruption to others or
damage sites or buildings of historical or scientific interest. The offence was created
to deal in particular with gatherings at Stonehenge. It is now a little used power. It
was a case brought under this provision that established that there is a right to
protest on the highway.
4 The offence of organising a trespassory assembly is
punishable by up to three months’ imprisonment or a fine of up to £2,500 and the
offence of taking part in one by a fine of up to £1,000.
9
Police powers and tactics
Stop and account
There is no obligation for anyone stopped by the police to respond to police questions.
But under section 50 of the Police Reform Act 2002 it is an offence for someone not to
give their name and address to a police officer where the officer has reason to believe
that the person is acting or has been acting in an anti-social manner. The police officer
should make clear when he/she is relying on this power. It is an offence punishable by
a fine of up to £1,000 not to provide the requested details or to give false details.
While there is no justification for applying this power to someone who is peacefully
protesting, the protester risks arrest and prosecution if he/she fails to comply with a
request.
There is no longer any national requirement for the police to make a record of a stop
where they just question someone and do not conduct a search.
Stop and search
Most police powers to stop and search someone depend on the officer having
grounds to suspect that the person he/she proposes to search has certain items on
him/her. This may be drugs (search under section 23 of the Misuse of Drugs Act 1973)
or stolen articles, weapons or items that could be used to cause damage to property or
for use in other offences (search under section 1 of the Police and Criminal Evidence
Act 1984.) Under section 60 of the Criminal Justice and Public Order Act 1994 there is
a power for the police to search people without any grounds for suspecting them.
10
But the power can only be used if such searches have been authorised by a senior
police officer (inspector or above.) The officer can only give the authorisation if he/she
believes that incidents involving serious violence may take place or that people are
carrying weapons or other dangerous instruments in the area covered by the
authorisation. An authorisation can also be given where a weapon has been used in an
incident involving serious violence and having the authorisation in place will help in
finding the weapon. An authorisation can only be given for up to 24 hours, although it
can be renewed.
Searches without suspicion can also be authorised under section 47A of the Terrorism
Act 2000. An authorisation can only be given by a senior officer where they believe that
an act of terrorism will take place and that the authorisation is necessary to prevent it.
5
The authorisation should be limited to what is necessary to achieve these aims.
There are rules that apply to all searches. If the police officer is not in uniform, he/she
should provide you with proof that he/she is a police officer. This will usually be by
showing you his/her warrant card. Before searching you the officer should give you
his/her name and tell you which police station he/she is attached to, should tell you the
search power that he/she is acting under and the reason for the search.
The police officer should make a record of the search and should offer you a copy.
The officer may ask you your name and address for the purposes of completing the
form but you are not obliged to give these details.
In 2008 Kent Police searched everyone going to the Climate Camp at Kingsnorth Power
Station. The search power relied on was section 1 of the Police and Criminal Evidence
Act 1984. A legal challenge was brought arguing that the police were operating an
unlawful blanket search policy.
6 The case was settled after a document came to light
that suggested that officers were given instructions to search everyone.
Arrest
Under section 24 of the Police and Criminal Evidence Act 1984 a police officer can arrest
anyone that he/she believes has committed an offence, is committing an offence or is
about to commit an offence. He/she also has to consider that the arrest is necessary
for one of a number of reasons, including to get the person’s name and address,
because he/she doubts that the name or address given are correct, to prevent injury or
damage to property or to allow for the prompt and effective investigation of an offence.
11
The police (or an ordinary citizen) can also arrest someone for breach of the peace if
that person is committing a breach of the peace, is about to breach the peace or
has breached the peace and threatens to do so again – or, in some circumstances,
where someone’s behaviour is provoking a breach of the peace by someone else. A
breach of the peace means an action which harms someone, their property or is
likely to do so or puts someone in fear that this may happen. It is not a criminal
offence but the police have been known to rely on it in protest situations to detain or
remove potential protestors. It is also the legal basis on which the police justify the
practice of “kettling” (see below).
The police are allowed to use reasonable force to conduct a search or effect an arrest.
If you think that a police officer has searched or arrested you when he/she wasn’t
entitled to (or used more force than was reasonable) you should get legal advice.
When a court is considering the legality of a search or arrest it will not only consider
whether the officer genuinely suspected the person searched or arrested but also
whether that suspicion was reasonable.
Kettling
Kettling, or containment as the police prefer to call it, is a controversial police tactic.
It involves the police surrounding or otherwise sealing off protesters who are
causing trouble. Often people who haven’t been causing trouble get caught up in
the kettle. When the police decide to start releasing people, the release will usually
be staggered, so that all those held in the kettle are not released together. The
release procedure may be used to identify people suspected by the police. We have
heard of the police only agreeing to release people from a kettle if they agree to be
photographed or have their details taken by the police. It is open to question
whether this is legal.
Kettling is controversial because it involves people being detained sometimes for
several hours. This is particularly problematic in the case of people who weren’t
causing trouble. It has been used against school students protesting against
increases in tuition fees. Many argue that it is counterproductive: confining people
who are already angry will only increase the crowd’s hostility.
Kettling first came to prominence on May Day 2001 when the police held a crowd of
protesters, and many innocent bystanders, in Oxford Circus in London. Two of the
12
people held brought a legal challenge to the police’s actions.
7 The courts ruled that
the police can use kettling to prevent a serious breach of the peace but only as an
absolute last resort. They also held that the tactic did not breach Article 5 of the
European Convention on Human Rights, which limits the circumstances in which
people can be detained. The European Court of Human Rights considered this case
in September 2011 and its judgment is awaited.
In the meantime the courts have held that the police were not justified in kettling
Climate Camp protesters during the G20 in April 2009. A challenge to the kettling of
young people protesting against the increase in tuition fees is pending.
Other offences to be aware of
Assault
It is an offence to use violence against another person. (It is also strictly an assault if
you cause someone else to think that you are immediately about to use violence
against them.) There are various types of assault, depending on the seriousness of
the injury caused. They range from common assault,
8 which is punishable by up to
six months’ imprisonment, to causing grievous bodily harm with intent,
9 for which
someone can be given a life sentence.
Assaulting a police officer in the execution of his/her duty
You commit this offence if you assault a police officer when he/she is performing
his/her duty, e.g. conducting a search or arresting someone.
10 The offence in
punishable by up to six months in prison.
Obstructing a police officer
Deliberately obstructing or resisting a police officer when he/she is performing
his/her duty is also an offence.
11 This is punishable by imprisonment of up to a
month or a fine of up to £1,000.
Criminal damage
It’s an offence to damage or destroy someone else’s property. The courts have held
that graffiti, even with water soluble paint, cause damage and come within the
offence. The courts’ maximum powers of punishment depend on the value of the
damage. Criminal damage with a value of less than £5,000 is punishable by up to 6
months’ imprisonment.
13
Harassment, alarm or distress
It is an offence to say things that are threatening, abusive or insulting or to behave in
a threatening, abusive, insulting or disorderly manner.
12 It is also an offence to
display any sign that is threatening, abusive or insulting. For the offence to be
committed there has to be someone present who is likely to be caused harassment,
alarm or distress. This person could be a police officer.
There are more serious versions of the offence where the same things are done with
the intention of causing someone else harassment, alarm or distress13 or with the
intention of causing someone to think that they are about to be assaulted or to
provoke violence from someone else.
14
The basic version of the offence is punishable by a fine of up to £1,000, while the
more serious versions are punishable by up to 6 months’ imprisonment or a fine of
up to £5,000.
The inclusion of “insulting” words, behaviour or signs within these offences,
particularly the basic offence, is controversial; many people question why someone
should be criminalised for offending someone else. The police have been known to
threaten protesters with arrest because of their chants or the words used on
banners or placards. Protesters charged with using insulting words or displaying
insulting signs may be able to rely on their right to freedom of expression (contained
in the Human Rights Act) to defend the charge.
Affray, violent disorder and riot
Someone is guilty of affray15 if he/she uses or threatens violence towards someone else
and his behaviour is such that a normal person present at the scene would fear for
his/her personal safety. It is punishable by up to 3 years in prison or an unlimited fine.
Violent disorder16 involves three or more people using or threatening violence where
their behaviour, taken together, is such that a normal person present at the scene
would fear for his/her personal safety. The offence of violent disorder is punishable
by imprisonment of up to 5 years or an unlimited fine.
A riot
17 is where 12 or more people use or threaten violence for a common purpose
and their behaviour, taken together, is such that a normal person present at the
scene would fear for his/her personal safety. Someone convicted of riot can be
sentenced to up to 10 years’ imprisonment or given an unlimited fine.
14
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Endnotes 1 At the time of writing the only exception to this rule is demonstrations (including those comprising just
one person) within a defined area around Parliament (called the “designated area”). Under section 133
of the Serious Organised Crime and Police Act 2005 at least one of the people intending to take part in a
demonstration within the designated area has to give written notice to the police. This has to state when
and where the demonstration is to take place, how long it will last, whether it will just comprise the
person giving the notice and the name and address of the person giving the notice. Unless it is not
reasonably practicable to do so the notice must be given at least a week in advance. In all cases at least
24 hours’ notice needs to be given. It is an offence to organise or take part in a demonstration for which
notice has not been given. The Police Reform and Social Responsibility Act 2011, which is currently
before Parliament, will repeal these provisions and give the police and council officials new powers to
prevent “prohibited activities” (e.g. operating amplified noise equipment or erecting a tent or other
sleeping structure) within a much smaller area.
2DPP v Jones and Lloyd
3 Appleby v United Kingdom, (App no. 44306/98)
4 See note 2
5 This search power replaces a much wider power under section 44 of the Terrorism Act 2000. The
Government repealed section 44 (by means of a remedial order under section 10 of the Human Rights
Act) in response to the ruling of the European Court of Human Rights in the case of Gillan v the United
Kingdom, which held that the search power under section 44 was incompatible with Article 8 of the
European Convention. Section 47A will itself cease to have effect when Parliament passes a
replacement provision in the Protection of Freedoms Bill.
6 R E, T and Morris v Chief Constable of Kent Police
7 Austin and Saxby v the Commissioner of Police for the Metropolis
8 Section 39 of the Criminal Justice Act 1988
9 Section 18 of the Offences against the Person Act 1861
10 Section 89(1) of the Police Act 1996
11 Section 89(2) of the Police Act 1996
12 Section 5 of the Public Order Act 1986
13 Section 4A of the Public Order Act 1986
14 Section 4 of the Public Order Act 1986
15 Section 3 of the Public Order Act 1986
16 Section 2 of the Public Order Act 1986
17 Section 1 of the Public Order Act 1986
© Backseatpilot, 2009, Back cover: Hipponotized, 2009
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