12 - Public Order Law Flashcards
How does English law traditionally approach the protection of individual rights and freedoms in the context of public order?
Historically, under UK law, individual rights were protected through the principle of residual or ‘negative’ freedom, meaning that citizens were free to act unless a law explicitly prohibited their actions.
Judges, such as Lord Denning in Hubbard v Pitt [1976], have recognised a right to protest, asserting that:
- The right to demonstrate and protest on matters of public concern is important and should be exercised without hindrance, as long as no wrongful acts are committed.
Although residual freedom remains relevant, the Human Rights Act (HRA) 1998 introduced positive protection for individual rights by incorporating the ECHR into domestic law.
- This shift provides greater protection for rights, moving away from a mere residual freedom to positive protection under the UK constitution.
The key ECHR rights relevant to public order are:
Article 10: Freedom of expression
Article 11: Freedom of assembly and association, including the right to peaceful assembly, though these rights can be restricted when necessary in a democratic society, such as for:
- National security
- Public safety
- Prevention of disorder or crime
- Protection of health or morals
- Protection of others’ rights and freedoms.
What is the legal status of processions and meetings in English law?
Processions and meetings are prima facie lawful unless they involve criminal or tortious conduct.
Processions are considered a reasonable use of public highways and are lawful unless they lead to disorder or violence, which could result in charges for public order offences.
Protest marches are typically legal as long as participants continue moving, but if they stop to hold an assembly, the situation changes.
- Assemblies on public highways may violate s 137 of the Highways Act 1980, which criminalises wilful obstruction of a highway without lawful excuse.
- Courts consider if such an obstruction is reasonable and lawful, taking into account Articles 10 and 11 of the ECHR. In some cases, protesters have been acquitted based on the reasonableness of their actions.
What five areas does the Public Order Act 1986 regulate?
Section 11: Public Processions - Advance Notice.
Section 12: Conditions on Processions.
Section 13: Prohibition of Processions.
Section 14: Conditions on Public Assemblies.
Section 14A: Trespassory assemblies - Prohibitions and offences.
Breach of peace is regulated by common law principles.
What are the advance notice requirements for public processions under the Public Order Act 1986?
Section 11(1) of the Public Order Act (POA) 1986 requires organisers of public processions to provide at least six days’ clear notice to the police if the procession is for:
- Demonstrating support or opposition to a person or group
- Publicising a cause or campaign
- Commemorating an event
Public processions are defined as processions in a public place, which includes highways, parks, and other places accessible by the public, even if privately owned (e.g. theatres).
The notice must be delivered to a police station in the area where the procession will start.
The notice allows the police to plan and give directions to prevent public disorder.
What are the key qualifications and exemptions to the notice requirement for public processions under the POA 1986?
The requirement to give notice does not apply to all processions. Exemptions include:
- Funeral processions where it is proposed to be held or is a funeral procession organised by a funeral director acting in the normal course of his business”.
- Customary processions regularly held in a given area, such as annual parades, because the police are aware of these events.
Additionally, notice is not required if it is not reasonably practicable, such as during impromptu protests reacting to unexpected news like a factory closure or military action.
For example, in Kay v Commissioner of Police of the Metropolis [2008], the courts found that a mass cycle ride occurring regularly but without a planned route was exempt from the notice requirement.
What are the offences under s 11 of the Public Order Act 1986 relating to public processions?
There are two offences under s 11 of the POA 1986:
1. Failure to give notice: Organisers commit an offence if they fail to provide the required notice (s 11(7)(a)).
2. Deviation from notice details: Organisers are also liable if the procession significantly deviates from the details in the notice (s 11(7)(b)).
Defences include:
- Lack of knowledge or suspicion that notice had not been given (s 11(8))
- Circumstances beyond control or police-approved deviations (s 11(9)).
Conviction results in a fine up to level 3 on the standard scale (£1,000), but failure to give notice does not make the procession itself unlawful, only the organisers are liable.
Under what circumstances can the police impose conditions on public processions under s 12 of the POA 1986?
Police may impose conditions on public processions if a senior officer reasonably believes the procession will:
- Cause serious public disorder, damage to property, or disruption to the community (s 12(1)(a))
- (aa) in the case of a procession …, the noise generated by persons taking part in the procession may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the procession (only applies to processions in England and Wales).
- (ab) in the case of a procession … (i) the noise generated by persons taking part in the procession may have a relevant impact on persons in the vicinity of the processions, and (ii) that impact may be sigificant (only applies to processions in England and Wales).
- Intimidate others to compel them to do or refrain from doing something they have a right to do (s 12(1)(b)).
In Police v Reid [1987], it was clarified that intimidation must involve more than discomfort or nuisance; it must intend to compel others.
The Police, Crime, Sentencing and Courts Act 2022 broadened police powers to impose conditions where noise causes significant disruption or where an organisation’s activities are seriously impacted.
The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 further defined serious disruption as more than minor hindrance to day-to-day activities, although this definition was challenged in court.
What factors must the police consider when imposing conditions on public processions under s 12(2) of the POA 1986?
Under s 12(2), police must consider:
- The seriousness of potential disruption or intimidation.
- Cumulative impact of concurrent or repeated processions in the same area.
- All forms of disruption, including normal traffic congestion.
- Article 11 ECHR: Conditions must be proportionate to the aims of preventing disorder, damage, or intimidation.
Conditions include restrictions on routes or preventing the procession from entering certain public places.
The senior officer at the scene has authority to impose verbal conditions, while advance conditions are issued by the chief officer of police and must be given in writing with reasons provided to enable legal review.
What is required for behaviour to be considered intimidation under s 12(1)(b) of the Public Order Act 1986?
Intimidation under s 12(1)(b) requires more than causing a nuisance or discomfort. It must involve an intention to compel others to do or refrain from doing something they have the right to do.
In Police v Reid [1987], anti-apartheid demonstrators outside South Africa House were deemed not to have engaged in intimidation despite shouting and chanting at guests. The court ruled that while the behaviour might cause discomfort, it did not rise to intimidation as defined by s 12(1)(b) because there was no intent to compel the guests not to attend the reception.
How did the Police, Crime, Sentencing and Courts Act 2022 expand police powers to impose conditions on protests?
The Police, Crime, Sentencing and Courts Act 2022 broadened the circumstances under which police can impose conditions on protests, including:
- Noise impact: Conditions can now be imposed where noise causes a significant impact on those in the vicinity.
- Serious disruption: The Act defines serious disruption to an organisation’s activities as preventing persons connected with the organisation from reasonably carrying out their activities for a prolonged period near the protest.
These amendments provide the police with greater scope to intervene in protests, such as those by Insulate Britain or Just Stop Oil.
What changes did the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 introduce?
The 2023 Regulations made significant changes to the POA 1986 to assist in policing protests:
- Lowered the threshold for serious disruption to ‘more than minor’ hindrance to day-to-day activities, including making journeys.
- Defined community as any group affected by the procession or assembly, not just those living or working nearby.
The Divisional Court in R (Liberty) v Secretary of State for the Home Department [2024] found the Regulations unlawful because the term “more than minor” did not align with the natural meaning of “serious”. However, the Regulations remain in force pending appeal.
How is the identity of the senior police officer who can impose conditions under s 12(2) of the Public Order Act 1986 determined, and what must they consider when imposing these conditions?
The identity of the senior police officer with the power to impose conditions under s 12(2) depends on the circumstances:
- For conditions imposed during the procession, it is the most senior officer present at the scene, and these conditions can be given verbally (s 12(2)(a)).
- For conditions imposed in advance, it is the Chief Officer of Police—either the Chief Constable of the relevant police force or the Commissioner of Police for the Metropolis or City of London (s 12(2)(b)). These conditions must be provided in writing.
The chief officer must provide sufficient reasons for the conditions, so:
- Demonstrators can understand why the conditions are imposed.
- A court can assess whether the belief that the procession may result in serious disruption, disorder, or other listed consequences is reasonable.
When imposing conditions, police must also consider the proportionality of their actions in light of Article 11 ECHR (the right to freedom of assembly).
What offences and possible sanctions are established under s 12 of the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022?
s 12(4):
Offence: Organising a public procession and failing to comply with a condition imposed under s 12(1) where the person concerned knows or ought to know that the condition has been imposed.
Possible sanctions: Imprisonment not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale (currently £2,500) or both (s 12(8)).
s 12(5):
Offence: Taking part in a public procession and failing to comply with a condition imposed under s 12(1) where the person concerned knows or ought to know that the condition has been imposed.
Possible sanctions: Fine not exceeding level 3 on the standard scale (currently £1,000) (s 12(9)).
s 12(6):
Offence: Inciting a participant in a public procession to commit an offence under s 12(5).
Possible sanctions: Imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale (s 12(10)).
What defences are available to organisers and participants who fail to comply with conditions under s 12 of the Public Order Act 1986?
Organisers and participants have a defence if they can show that their failure to comply with the conditions was due to circumstances beyond their control, for example:
- An organiser had become too ill to change the route.
- A participant was unwillingly swept along by the crowd.
The burden of proof is on the defendant to prove the defence on the balance of probabilities.
It is also a defence to prove that the conditions imposed are invalid, as in Police v Reid.
How does the Supreme Court’s decision in Re Abortion Services (Safe Access Zones) (Northern Ireland) Bill affect the consideration of proportionality in convictions under s 12 of the Public Order Act 1986?
The Supreme Court stated that for certain protest-related offences, the ingredients of the offence itself strike the proportionality balance.
This includes the offences under s 14 of the POA 1986, and the court’s reasoning would apply by analogy to offences under s 12.
This means that, provided the condition imposed is lawful (i.e., the officer holds the necessary belief and had reasonable grounds to do so), the court does not have to check that a conviction would be proportionate on the facts of each individual case.
What powers does s 13(1) of the Public Order Act 1986 grant to police in relation to prohibiting public processions, and how does this procedure differ in London?
s 13(1): A chief officer of police can apply for a prohibition order in respect of public processions if they reasonably believe, because of particular circumstances existing in any locality, that the powers in s 12 are insufficient to prevent a risk of serious public disorder (s 13(1)).
The chief officer of police applies to the local authority, which then makes an order with the Home Secretary’s consent. Local authorities have no power of their own to seek a ban; the initiative must come from the police.
In London, the procedure is different, as s 13(1) does not apply. The Commissioner of Police for the City of London or the Commissioner of Police of the Metropolis makes the order for the same reasons as apply outside London, with the Home Secretary’s consent (s 13(4)).
The order can be for any period not exceeding three months. The order may ban:
- All processions.
- Processions of a particular class, such as political marches.
However, there is no power to ban a specific individual procession, and the order must be in writing (s 13(5)).
How can prohibitions on public processions be challenged under the Public Order Act 1986?
It is possible to challenge a ban by way of judicial review, as occurred in Kent v Metropolitan Police Commissioner (1981). This case concerned equivalent provisions in the Public Order Act 1936, but its reasoning is likely to apply to the POA 1986.
Monsignor Bruce Kent, as General Secretary of the Campaign for Nuclear Disarmament (CND), challenged an order banning all processions in the metropolitan district for 28 days, other than traditional May Day celebrations and those of a religious character.
- The Court of Appeal upheld the banning order, stating the claimant had failed to show that the Metropolitan Police Commissioner had no reasonable grounds for making the banning order. Although one Lord Justice thought the reasons were ‘meagre’, this illustrates that the courts are reluctant to quash operational decisions.
- The decision was made in a context where there had been significant outbreaks of violence in various parts of London.
- The Court of Appeal suggested that CND should have applied for a relaxation of the order, which is possible under s 13(5).
The power to prohibit processions has not been used frequently, with the overwhelming majority of bans imposed in relation to proposed marches by the National Front and more recently by the English Defence League.
What offences are created under section 13 of the Public Order Act 1986 (POA 1986) regarding public processions?
s 13(7): Organising a public procession knowing that it is prohibited under s 13.
Possible sanctions: Imprisonment not exceeding three months or a fine not exceeding level 4 on the standard scale or both (s 13(11)).
s 13(8): Taking part in a public procession knowing that it is prohibited under s 13.
Possible sanctions: Fine not exceeding level 3 on the standard scale (s 13(12)).
s 13(9): Inciting a participant to take part in a public procession that is prohibited under s 13.
Possible sanctions: Imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale (s 13(13)).
What is the general rule regarding the requirement for permission to hold a meeting, and what exceptions exist?
The general rule is that there is no requirement to obtain permission to hold a meeting.
However, it is incorrect to assume meetings can occur in any public space.
Local or private Acts of Parliament or byelaws may require permission, such as:
- Trafalgar Square Byelaws 2012: Require permission from the Greater London Authority for meetings in Trafalgar Square.
- Royal Parks and Other Open Spaces Regulations 1997: Require permission to use Royal Parks, such as Hyde Park.
On private land, permission from the owner is required; otherwise, the owner may claim damages for trespass or apply for an injunction.
Police can assist in ejecting trespassers if there is a breach of the peace but have no independent powers unless a breach of the peace or crimes, like criminal damage, occur.
What powers do the police have concerning the imposition of conditions on public assemblies under section 14 of the Public Order Act 1986 (POA 1986)?
Under s 14 POA 1986, a senior police officer can impose conditions on any public assembly if they reasonably believe it may result in:
- Serious public disorder.
- Serious damage to property.
- Serious disruption to the life of the community.
- Intimidation of others by the organisers.
The definition of a public assembly includes two or more persons in a public place that is wholly or partly open to the air (POA 1986, s 16).
This includes diverse gatherings, such as crowds at a park bandstand or political meetings.
Unlike s 12, there is no requirement for organisers to give advance notice of an assembly.
Conditions imposed must be necessary to prevent disorder, damage, disruption, or intimidation.
The police can order participants to disperse, though they cannot formally ban public assemblies.
Any advance conditions must be in writing, with adequate reasons provided, while conditions imposed during an assembly can be verbal.
How is intimidation defined under public assemblies, in section 14 POA 1986?
Section 14(1)(b) enables the police to impose conditions on an assembly if the senior police officer has reasonable belief that the organisers are intending to intimidate others.
In relation to this provision, it has been held that intimidatory behaviour must be sufficient to ‘compel’ the target not to do something, as required by the wording of the Act.
In Police v Reid (Lorna) [1987] Crim LR 702, protesters, taking part in an anti-apartheid demonstration outside the South African High Commission in London, shouted at guests as they arrived and chanted: ‘apartheid murderers, get out of Britain’.
The court held that the police Inspector had applied the wrong test by defining intimidation as ‘putting people in fear or discomfort’ whereas, under the correct test, the protestors would have needed to intend to compel the guests not to go into South Africa House.
How has the Criminal Justice and Public Order Act 1994 affected police powers regarding trespassory assemblies?
The Criminal Justice and Public Order Act 1994 introduced a power to ban ‘trespassory assemblies.’
A trespassory assembly is defined as one held at a location where the public has no right of access or only a limited right.
The chief officer of police must reasonably believe the assembly will occur without the occupier’s permission or outside the terms of any permission granted, potentially causing:
- Serious disruption.
- Serious damage.
Police may apply to local authorities for prohibition orders, but these cannot exceed four days or cover an area larger than a five-mile radius.
In London, the Police Commissioner can make such orders with the Secretary of State’s consent.
What are the implications of the 2022 Act on police powers regarding one-person protests and noise disruption?
Section 79 of the Police, Crime, Sentencing and Courts Act 2022 extended police powers to give directions for one-person protests, now covered under s 14ZA of the POA 1986.
Police can impose conditions on one-person protests where the noise may cause a significant impact on those nearby or disrupt activities of an organisation.
The senior police officer present may give directions necessary to prevent such disruption or impact.
This amendment allows for a broader range of assemblies to be managed under similar conditions to larger gatherings, addressing potential noise and disruption issues effectively.
What offences are created under section 14 of the Public Order Act 1986 (POA 1986) regarding public assemblies, and what are the potential sanctions?
s 14(4): Offence for organising a public assembly and failing to comply with a condition imposed under s 14(1), where the person knows or ought to know of the condition.
Sanctions: Imprisonment not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale (s 14(8)).
s 14(5): Offence for taking part in a public assembly and failing to comply with a condition imposed under s 14(1), where the person knows or ought to know of the condition.
Sanctions: Fine not exceeding level 3 on the standard scale (s 14(9)).
s 14(6): Offence for inciting a participant in a public procession to commit an offence under s 14(5).
Sanctions: Imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale (s 14(10)).
