Chapter 13: Indirect horizontal effect Flashcards
- Introduction
The HRA 1998 primarily operates in a vertical direction to provide protection for individuals against public authorities that interfere with their Convention rights. However, the HRA is not
limited to its vertical application, because it can also have an influence over the legal
determination of claims between private individuals and private organisations with legal
personality
Indirect horizontal effect
The ‘indirect horizontal effect’ of the Act arises from s 6(3)(a), HRA which recognises that courts and tribunals are public authorities and are therefore obliged, in accordance with s 6(1) HRA, to act compatibility with the Convention. As a result, courts are under a duty to apply and develop the common law in accordance with the demands of the Convention.
Key case: Douglas v Hello [2001] QB 967
In this leading case, Keene LJ recognised the indirect horizontal effect. In considering the article 8 rights of the applicant and the article 10 rights of the defendant magazine, Keene LJ stated:
The courts as a public authority cannot act in a way which is incompatible with a convention
right: s. 6(1). That arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation.
1.1 Cause of action
The HRA did not create a new, free-standing cause of action between private individuals. If a
private party wishes to invoke a Convention right in a dispute with another private party, there must be a pre-existing cause of action against the other private party upon which to ‘hang’ the Convention right.
Wainwright v Home Office [2003] UKHL 53
The law lords held that there was no general common law right to privacy in domestic law. They pointed to the limited protection for invasions of privacy committed by private individuals, provided by the long-established action of breach of confidence, which affords a remedy for the unauthorised dissemination of personal information.
Coco v A N Clark (Engineers) Ltd [1968] FSR 415
However, they emphasised that this cause of action required there to be a prior relationship of confidence between the parties (Coco v A N Clark (Engineers) Ltd [1968] FSR 415).
The common law was developed, however, from that point.
Key case: Campbell v MGN [2004] 2 A.C. 457
In this case, the Court of Appeal had dismissed Naomi Campbell’s claim against the Mirror Group for breach of confidence, as it found there to be no obligation of confidentiality between the two
private parties. The House of Lords overturned this finding, however, and established a new cause of action.
Lord Nicholls
Characterised this as a new (tortious) action of ‘misuse of private information’.
Lord Nicholls new judgement
[…] This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship […] the time has come to recognise that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence.
- Misuse of private information
The House of Lords identified two elements necessary for determining whether there has been misuse of private information, as now developed under the HRA:
(a) Whether article 8 is engaged in the first place depends solely on whether the applicant has a
‘reasonable expectation of privacy’
(b) If article 8 is engaged, the next stage of the inquiry is to conduct a balancing exercise
between the competing rights in articles 8 and 10 and consider whether the publication was necessary. (Note that the media enjoy article 10 rights to freedom of expression by definition.)
2.1 ‘Reasonable expectation of privacy’
Obviously private
Lord Hope in Campbell suggested that the test for whether there is a reasonable expectation of privacy is firstly to ask whether the information is obviously private. If this is the case, the situation will be one in which the person affected can reasonably expect his or her privacy to be respected.
Disclosure Offensive.
If, however, the information is not obviously private, the courts will then consider whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, would find the disclosure offensive. (Lord Nicholls, however, dissented on using the offensiveness test in his judgment.)
Further Guidance given by Lord Phillips
Further guidance was given by Lord Phillips. On determining whether there was a reasonable expectation of privacy in respect of the material in Douglas v Hello! (No 3) [2005] EWCA Civ 595,
he asked:
What is the nature of “private information”? It seems to us that it must include information
that is personal to the person who possesses it and that he does not intend shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria
Murray v Express Newspapers [2009] Ch 481
Discussed further below), the Court of Appeal held that the question of whether or not there is a reasonable expectation of privacy in relation to the relevant information:
Broad One
[…] Is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of
consent and whether it was known or could be inferred, the effect on the claimant and the
circumstances in which and the purposes for which the information came into the hands of the publisher.
Court of Appeal in Browne v Associated Newspapers Ltd [2008] QB 103
Noted that there will
be no reasonable expectation of privacy in respect of information that is in the public domain. Whether information is in the public domain is a matter of fact and degree for determination in each case depending on its specific circumstances.
McKennitt v Ash [2006] EWCA Civ 1714
Waiving Reasonable Expectation of Privacy
That a person can choose to waive their reasonable expectation of privacy by placing the information in the public domain. However, the
fact that a person has revealed some aspects of their personal life does not mean that every
aspect of their private life is open to scrutiny
Differing views of the scope of article 8
In the horizontal context arose between the House of Lords
and the ECtHR. In Campbell, Baroness Hale suggested that a photograph taken in a public place of a routine act, such as shopping, was not essentially private and would therefore not engage Article 8
Von Hannover v Germany (No. 1) (2005) 40 EHRR 1
The ECtHR held that the publication of photographs showing Princess Caroline going about her daily life in public places, which included
her shopping and leaving a restaurant, depicted her in activities of a purely private nature, thereby engaging the protection of article 8.
2.1.1 Murray
In Murray, the Court of Appeal sought to reconcile the different approaches in Campbell and Von Hannover (No 1).
High Court
The case of Murray arose from covert photographs taken of Dr and Mrs Murray (more commonly known as JK Rowling) with their 19-month-old son, David, when they were out walking on a public street. They issued proceedings on David’s behalf for an infringement of his privacy contrary to Article 8. The High Court rejected the claim on the basis that David did not enjoy a reasonable expectation of privacy from photographs taken in a public place.
Reasonable expectation of privacy is a broad concept
The Court of Appeal accepted that the mere taking of a photograph of a child in a public place would not engage the article in all situations. However, the court held that reasonable expectation of privacy is a broad concept, requiring consideration of all the circumstances. In
finding that David did have a reasonable expectation of privacy
Court of Appeal cited a
series of factors
- The judge’s reasoning had focused too heavily on the taking of the photograph and not enough on its publication. It had been taken in a clandestine way to sell for publication in
circumstances where the parents had not been asked for their consent. - The judge had not sufficiently recognised that the action was brought on behalf of a child.
- It was of particular significance that David’s parents had taken great care to keep him out of the public eye so that he could live a normal life.
Axon v Ministry of Defence [2016] EWHC 787
The applicant sued the Ministry of Defence in relation to a civil servant’s disclosure to The Sun that he had been removed from his role as a commanding officer on a Navy frigate due to bullying. He also sued the parent company of The Sun for publishing the story.
Nicol J
Held that Axon did not have a reasonable expectation of privacy as he was performing a
very public function and had imperilled the fighting effectiveness of the ship. Moreover, the officers on the ship, who had complained about his bullying, knew or would have been able to
have inferred why he had been removed from the ship.
Judge’s treatment
It is notable that the judge treated the effect of Axon’s behaviour on the fighting effectiveness of the ship as being relevant to the question of whether there was a reasonable expectation of privacy in the first place, rather than confining it to the second stage balancing exercise (for
which, see below).
Re JR38’s Application [2015] UKSC 42
The majority in the Supreme Court found that the
applicant (who was 14 years old) did not have a reasonable expectation of privacy in relation to photographs published in two newspapers showing that he had been involved in serious rioting in
Northern Ireland.
Re JR38’s Application [2015] UKSC 42
The photos were taken from CCTV images and used as part of a police campaign designed to identify individuals and to discourage further rioting. The minority considered that article 8 had been engaged, given the applicant’s age, but that the interference with this right was justified in the circumstances.
2.2 The balancing of articles 8 and 10
When an applicant seeks to protect their privacy in a case of misuse of private information, the media will often argue that this interferes with its right to publish the information, which is protected as a form of expression under article 10.
2.2 The balancing of articles 8 and 10
Accordingly, if an applicant can demonstrate a reasonable expectation of privacy so as to
engage article 8, the next stage of the inquiry is to conduct a balancing exercise between the respective rights under articles 8 and 10, and to consider, ultimately, whether the publication was necessary. When the courts are balancing these competing Convention rights, both parties are
required to justify the interference they propose to make with the other party’s right.
Key case: Von Hannover v Germany (No. 1) (2005) 40 EHRR 1
In this case, the ECtHR set out some guidance concerning the balancing assessment: The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.
Key case: Von Hannover v Germany (No. 1) (2005) 40 EHRR 1
On the facts of this case, the applicant, Princess Caroline of Monaco, had sought injunctions from the domestic courts that would prevent the publication of pictures of her and her family in the German media, arguing that this violated their article 8 rights
German Courts
The German courts had consistently taken the view that, as a public figure of note, she should tolerate this level of press interest and intrusion. She argued, in contrast, that such a situation should only apply when she was carrying out official duties and that German law was at fault for
not providing legal mechanisms by which people like her might protect themselves.
Scope of her private life
The ECtHR found that there had been a breach of the applicant’s article 8 rights. It found that the
publication of the pictures did not contribute to a debate of general interest. They depicted the applicant within the scope of her private life.
Necessary Protection
Thus, the court held that there may be positive obligations on the state, inherent in an effective respect for private or family life, to provide the necessary protection against such intrusions.
2.2.1 Further cases on the balancing exercise
Lord Steyn in Re S (a child) [2004] UKHL 47
Domestically, further guidance on the balance between articles 8 and 10, was provided by Lord
Steyn in Re S (a child) [2004] UKHL 47. S was an eight-year-old, whose mother was charged with the murder of S’s brother. A number of national newspapers wished to publish the names and photographs of S’s parents and of the deceased child (without referring to S).
Lord Steyn stated in
relation to the interplay between the competing Convention rights that:
First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must
be applied to each.
House of Lords
Considered that the interference with article 8 was not of the same order when
compared with cases of juveniles, who were directly involved in criminal trials. It also considered that the principle of open justice was fundamental and, in order for justice to be open, the press
should be able to report fully and freely on matters arising. It was therefore held that the balance came down in favour of article 10 in this instance.
Key case: Von Hannover v Germany (No. 2) [2012] 55 EHRR 15
In a more recent case brought by Princess Caroline of Monaco, the ECtHR provided guidance on how domestic courts should balance the two articles. This further case arose after the applicant and her husband had brought proceedings in the German courts seeking an injunction preventing
publication of three photographs.
Key case: Von Hannover v Germany (No. 2) [2012] 55 EHRR 15
The first showed the applicants out for a walk on a skiing holiday and was accompanied by an article concerning the ill-health of Caroline’s father, Prince Rainier. The two further photographs also showed the applicants on holiday and were respectively accompanied by articles detailing how happy they were.
Key case: Von Hannover v Germany (No. 2) [2012] 55 EHRR 15
The German national courts granted an injunction to prevent the publication of the latter two photographs on the basis that they were wholly in the sphere of private life and satisfied nothing but the curiosity of the general public. When considering the first photograph in the context of the article, which mentioned the ill-health of Prince Rainier of Monaco, the national courts refused to grant an injunction on the basis that the subject matter was of general public interest on which the press was entitled to report.
Grand Chamber in Strasbourg
Found that Germany had not failed in its obligation to respect the applicants’ article 8 rights: They had carefully balanced the right to freedom of expression against the right to respect for private life.
Von Hannover (No. 1)
It was noted that the German courts had taken into account the case of Von Hannover (No. 1) and given due consideration to whether the publication contributed to matters of public interest. The assessment by the German courts of the informative value of the photograph, in the light of the
accompanying article, could not be considered unreasonable. The Grand Chamber used this
opportunity to affirm that articles 8 and 10 are of equal value.
Five relevant criteria
which contracting states should consider when balancing the rights:
- Whether the information contributes to a debate of general interest
- How well-known the person concerned is and the subject matter of the report
- The prior conduct of the individual concerned
- The form and consequences of the publication
- The circumstances in which the photos were taken, in particular whether the person
photographed gave their consent
HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776
Concerned extracts from
Prince Charles’ journal. The claimant contended that the journal set out private and personal thoughts; the defendant argued that it was not confidential as the contents were of a political nature and related to the claimant’s public life, a matter legitimately within the public interest. The court concluded that the claimant had a ‘reasonable expectation of privacy’ in respect of the
journal, and that, in balancing the competing interests, there was a strong public interest in
preserving its confidentiality
Mosley v News of the World [2008] EWHC 1777
The newspaper published a front-page story alleging that Max Mosley, then President of the FIA (the governing body for Formula One), had taken part in a ‘sado-masochistic orgy’ with five prostitutes which had a ‘Nazi theme’. Mosley did
not dispute that the sexual activities had taken place but contested the alleged Nazi theme.
Eady J balanced the
competing interests
He identified that there was a public interest in the secret filming and subsequent publication of any behaviour which may have involved ‘parodying Holocaust horror’,
particularly given Mosley’s public role. However, he did not find any evidence of a Nazi theme and noted that the treatment of the claimant was unsatisfactory, given the gravity of the allegations and the devastating impact of the publication on him.
- Injunctions
A significant element of the development of this area of law has been the use of injunctions to attempt to restrain publication in some cases. Perhaps the most notorious example related to the
controversy over the activities of the company, Trafigura Ltd.
Interim Injunction in 2009
Preventing the publication of an internal company
report which had concluded that its disposal of oil waste in the Ivory Coast would cause injury to local people. The injunction also prevented newspapers discussing the existence of the injunction
itself, making it a so-called ‘super-injunction’
(RJW v Guardian News and Media Limited [2009] EWHC 2540 (QB))
An MP became aware of the issue and tabled a question on the topic in the House of Commons, which was then listed on the Order Paper for that day. When the solicitors for Trafigura became aware of this, they attempted to amend the injunction, but The Guardian newspaper had already reported the existence of the super-injunction on its website.
The super-injunction, which was considered in the Trafigura case (RJW v Guardian News and Media Limited [2009] EWHC 254, (QB)) was seen to be an attempt to restrict reporting of parliamentary proceedings, and therefore a restriction on the transparency and openness which are required in a system governed by the rule of law
3.1 Use of injunctions
In 2011, the law on privacy was in the spotlight as a result of a number of celebrities obtaining
super-injunctions. Against this background, in ETK v News Group Newspapers [2011] EWCA Civ 439, the Court of Appeal took the notable step of stating that the potentially adverse impact of publication of a parent’s misdeeds upon the lives of their children could, in effect, enhance the
claimant’s case for an injunction. This clearly provides a significant level of protection for children, but it also allows the claimant to bolster their case precisely because of their own wrongdoing.
Mosley v UK [2011] ECHR 774
The applicant, who had successfully brought a claim for misuse of private information in the domestic courts (see above), argued before the ECtHR that article 8 imposed a positive obligation on contracting states to enact a legal measure that required
individuals to receive notification from the press in advance of publication of information that interfered with their private lives.
Chilling Effect on the Right of Freedom of Expression
The ECtHR dismissed this argument. In reaching its conclusion, Strasbourg found that the introduction of such a requirement would have a chilling effect on the right to freedom of expression guaranteed by article 10 and expressed doubts as to its effectiveness. In addition, it
noted that a wide margin of appreciation is conceded to states in ensuring compliance with positive obligations under article 8, which have an impact on free speech
May 2016, The Supreme Court
Was able to make a number of very significant points about the use of injunctions to restrain information being disclosed about the private and sexual lives of celebrities in the case of PJS v News Group Newspapers Ltd [2016] UKSC 26. It was argued by News Group that so many people had already been able to find out who the celebrity was via the
internet that injuncting this information was effectively pointless
However, in upholding the injunction, Lord Mance made the clear point that:
[…] the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made - especially
if it occurs in a different medium.
4 Summary
Indirect Horizontal Effect
- Section 6(3)(a) HRA has brought about what is known as the ‘indirect horizontal effect’ of the HRA. Under that provision, courts and tribunals are identified as public authorities and therefore they must act in accordance with s 6(1) and make decisions that are compatible with the Convention, even if both parties are private individuals
Pre-existing cause of action
If a private party wishes to invoke a Convention right against another private party there must be a pre-existing cause of action against the other private party upon which to ‘hang’ the Convention right. A commonplace cause of action which results in the engagement of article 8
is the tort of the misuse of private information (Campbell).
Campbell
In Campbell, the House of Lords identified two elements necessary for determining whether there has been misuse of private information, as now developed under the HRA:
- The applicant must have a ‘reasonable expectation of privacy’.
- The court will conduct a balancing exercise between the competing interests of the right to privacy (article 8) and the right to the freedom of expression/to publish (article 10).
1 Public Order Act 1986
Public processions – advance notice: Section 11
Conditions on processions: Section 12
Prohibition of processions: Section 13
Conditions on public assemblies: Section 14
Trespassory assemblies – prohibitions and offences: Section 14A.
Police Powers to control processions and assemblies
In this chapter we will firstly examine the powers of the police to control processions and assemblies under the Public Order Act 1986 (POA). In addition to police powers under the POA, the police have powers to prevent a breach of the peace under the common law. This will be considered later in the chapter.
s 6 Human Rights Act 1998 (HRA)
It is also important to note the wider legal environment in which such powers operate. When the police exercise public order powers they have to do so in a way that complies with their obligation, as a public authority, under s 6 Human Rights Act 1998 (HRA).
Disproportionate Interference
For example, if the police take the decision to ban a protest march, they must ensure that this does not result in a disproportionate interference with the rights of the
demonstrators to freedom
of expression (article 10 ECHR) and/or freedom of assembly and association (article 11). The right to liberty (article 5) could be engaged too, depending on the method of police enforcement.
1.1 Public order law and individual rights
The UK’s constitutional arrangements have historically operated on the basis of the common law principle of residual freedom. Under this principle, citizens of the UK have been free to do or say
what they wish unless it has been prohibited by law.
Negative Freedom & Positive Protection
The principle of residual or negative freedom remains a significant one but the legal environment has been partially changed by the introduction of positive protection for individual rights in UK law. The HRA has incorporated ECHR (Convention) rights into UK domestic law. Consequently,
when the police make decisions concerning public order matters, using their powers under the POA or other statutory provisions, or at common law, they must ensure they are acting compatibly with these Convention rights.
Prescribed by law
You will recall that state interference with a person’s qualified rights under articles such as 10 and 11 must be prescribed by law; in pursuit of a legitimate aim; and necessary in a democratic society, ie proportionate
2 Public processions
Part II of the POA deals with public processions and assemblies. Section 11(1) POA requires written notice to be given of any proposal to hold a public procession for any of the three following purposes
The Three Purposes
(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.
Take place in a public place
To be ‘public’, processions must take place ‘in a public place’ (see s 16 POA for a definition of
public place).
2.1 Section 11(1): Advance notice
Under s 11(1) POA, organisers of public processions must give a minimum of six clear days’ notice of the date, time and route of the procession. (Failure to do so amounts to an offence under s 11(7).)
The rationale behind the provision is to allow the police to consider public order issues in advance of the event, and to give directions to prevent public disorder.
Exemption from the advance notice requirement
Some processions will be exempt from the advance notice requirement. Section 11(2) provides for an exemption ‘where the procession is one commonly or customarily held in the police area (or areas) in which it is proposed to be held or is a funeral procession organised by a funeral director acting in the normal course of his business’.
Kay v Commissioner of Police of the Metropolis [2008] UKHL 69
The House of Lords held that the monthly mass cycle rides (known as ‘Critical Mass’) that had occurred in London since 1994 amounted to a ‘commonly or customarily held’ procession and thus, the rides were exempt from the notice requirement. This was despite the fact that the routes varied on each occasion and the
nature of the events was spontaneous.
2.2 Section 12: Conditions on processions
Section 12(1) POA gives the police powers to impose conditions upon a public procession, if the senior police officer reasonably believes that:
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community,
(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,
(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 procession, and (ii) that impact may be significant, 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.
2.2.1 Section 12: Powers and scope
In relation to the four potential risks outlined in s 12(1) the senior police officer ‘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, impact or intimidation’.
- Note that subsections (aa) and (ab) apply only to processions in England and Wales.
- The term ‘senior police officer’ is defined in s 12(2).
The Police, Crime, Sentencing and Courts Act 2022
Has introduced a number of specific instances into the POA in which s 12(1) is seen to be engaged:
* See ss 12(2A) to (2E) inclusive.
* For example, these include ‘delay to the delivery of a time-sensitive product to consumers’ and ‘noise generated by persons taking part in a procession’.
Section 12(3) stipulates that, where a condition is imposed in advance of the procession, it must be in writing.
2.2.2 Case law on conditions under s 12 POA
In relation to s 12(1)(b), it is important to note that intimidatory behaviour must be of a degree intended by the organisers of the procession to compel another person to act against their will. The same test applies under s 14(1)(b) in relation to assemblies. On this point, please refer to the
case of Police v Reid [1987] Crim LR 702, discussed in relation to s 14 later in this chapter
Sufficient reason to organisers
Case law also indicates that the senior police officer must provide sufficient reasons to the organisers of a procession for the need to impose conditions upon it. This procedural obligation
can be drawn by extension from cases applying under s 14 in relation to assemblies.
Procedural Obligation
On this point, please refer to the case of R (Brehony) v Chief Constable of Greater Manchester Police [2005] EWHC 640 (Admin), discussed in relation to s 14 later in this chapter.
2.2.3 Offences and defences under s 12 POA
The following offences and defences arise under the following sub-sections of s 12 POA
2.2.3 Offences and defences under s 12 POA
(4) A person who organises a public procession and fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control
2.2.3 Offences and defences under s 12 POA
(5) A person who takes part in a public procession and fails to comply with a condition
imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.
2.2.3 Offences and defences under s 12 POA
(5A) A person is guilty of an offence under subsection (4) or (5) only if—
(a) in the case of a public procession in England and Wales, at the time the person fails to comply with the condition the person knows or ought to know that the condition has been imposed;
[…]
(6) A person who incites another to commit an offence under subsection (5) is guilty of an offence.
2.2.4 Sanctions under s 12 POA
The following subsections of s 12 POA indicate the applicable sanctions (in England and Wales):
(8) A person guilty of an offence under subsection (4) is liable on summary conviction to
imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale or both.
2.2.4 Sanctions under s 12 POA
(9) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine
not exceeding level 4 on the standard scale.
2.2.4 Sanctions under s 12 POA
(10) A person guilty of an offence under subsection (6) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks months or a fine not exceeding level 4 on the standard scale or both […]
2.3 Section 13: Power to prohibit processions
Section 13(1) POA gives the chief police officer the power to apply for a prohibition order from the local authority if he or she: reasonably believes that, because of particular circumstances existing in any district or part of a district, the powers under section 12 will not be sufficient to prevent the holding of public processions in that district or part from resulting in serious public disorder […]
Cannot exceed three months
Such orders cannot exceed three months and the local authority will be required to obtain the consent of the Home Secretary (s 13(2)). The local authority may either make the order in the terms requested by the police or with any ‘modifications’ approved by the Home Secretary. Note that a local authority does not have the power itself to initiate a prohibition. Section 13 also provides for offences and sanctions concerning the breach of prohibition orders
which are similar to those found in s 12.
2.3.1 Prohibiting processions in London
Section 13(1) POA does not apply to processions in London, where an application to the relevant local authority is not required. Section 13(4) POA provides that a prohibition order can be made by the Commissioner of Police
for the Metropolis (or the Commissioner of Police for the City of London) if they reasonably believe that, as with s 13(1), orders under s 12 will not be sufficient to address concerns over serious public disorder in their police area.
2.3.2 Case law and examples: Prohibition orders
As with the imposition of conditions, prohibition orders can be challenged by applying for judicial review
Kent v Metropolitan Police Commissioner [1981] 5 WLUK 116
Concerned older provisions in the Public Order Act 1936 that were equivalent to s 13 POA. The applicant, Bruce Kent, who was the General Secretary of the Campaign for Nuclear Disarmament, challenged an order banning all processions (other than religious ones) for 28 days over the entirety (786 square miles) of the metropolitan police district. He was effectively challenging the breadth of the ban, given that
many of these processions were entirely peaceful.
Unwillingness of the court to disturb operational decisions
The police’s case was that there was a risk of serious disorder arising from National Front marches and Anti-Nazi League counter demonstrations. Although there was some concern over the police evidence relating to the extent of the risk, the Court of Appeal did not accept that there were no reasonable grounds for making the order; the challenge to the lawfulness of the general ban therefore failed. This reflects the unwillingness of the court to disturb operational decisions, seen to be within the core competence of the police, in relation to matters of public safety and security.
Power in s 13
Given the blunt nature of the power in s 13 to ban processions generally, these have been sparingly applied.
A further example of the measure can be seen following the August 2011 riots in London, when the then Home Secretary Theresa May, approved a prohibition order banning all public processions
within five London boroughs for a period of 30 days.
Home Secretary Justification
The reason given was to prevent a planned march by the far-right English Defence League in Tower Hamlets. The order covered a much wider geographical area than the proposed route of the march. The Home Secretary justified this on the grounds that the march might spill over and give
rise to the risk of violence in other areas
3 Public assemblies
The POA also regulates ‘public assemblies’ under s 14.
Under s 16 POA, as amended by the Anti-social Behaviour Act 2003 (which reduced the number of participants required from 20 to 2), a public assembly is a meeting comprising two or more
persons in a public place that is ‘wholly or partly open to the air’.
Police, Crime, Sentencing and Courts Act 2022
Note, however, that the Police, Crime, Sentencing and Courts Act 2022 has introduced a new
concept under the POA of a ‘one-person protest’. See s 14ZA for the circumstances in which police powers of control can be exercised over individual persons – which are largely geared towards noise disruption – and the extent of those powers
It is also important to note two differences applying to s 14 when compared with the regulation of public processions under s 11(1) POA:
- The purpose of the assembly is irrelevant.
- There is no obligation to give advance notice of a public assembly to the police.
3.1 Section 14 POA: Conditions on assemblies
Section 14(1) POA gives the police powers to impose conditions upon public assemblies, if the senior police officer reasonably believes that:
3.1 Section 14 POA: Conditions on assemblies
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community,
(aa) in the case of an assembly […], the noise generated by persons taking part in the
assembly may result in serious disruption to the activities of an organisation which are carried
on in the vicinity of the assembly,
(ab) in the case of an assembly […] —
(i) the noise generated by persons taking part in the assembly may have a relevant impact on persons in the vicinity of the assembly, and (ii) that impact may be significant, 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
3.1.1 Section 14: Powers and scope
Imposing conditions
In parallel with powers under s 12, the senior police officer may, under s 14(1A), impose conditions on those organising and attending assemblies if they appear to him necessary to prevent the risks of disorder, damage, impact or intimidation. The Police, Crime, Sentencing and Courts Act
2022 has also introduced into the POA a number of specific instances in which s 14(1) is seen to be engaged – see ss 14(2A) to (2E) inclusive.
Section 14(3) stipulates that, where a condition is imposed in advance of the assembly, it must be in writing:
The police do not have powers to instigate or make a prohibition order, banning assemblies in the same way they do (under s 13) with regard to processions. However, the powers under s 14 can still be effective. For example, the police are able to impose short time limitations on a meeting or maximum attendance limits.
Proportionate manner
These powers must be used in a proportionate manner, however, as indicated by the inclusion of the necessity requirement in s 14 POA (and s 12). In parallel, the police must use their powers with respect to assemblies and processions, in a way that complies with their duty under s 6 HRA.
Note that s 14 also provides for offences and sanctions which are similar to those found in ss 12 and 13.
3.1.2 Case law: Assemblies – intimidation?
Section 14(1)(b)
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.
Police v Reid (Lorna) [1987] Crim LR 702
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’.
Wrong Test in Defining Intimidation
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.
3.1.3 Case law: Reasonable belief
R (Brehony) v Chief Constable of Greater Manchester Police [2005] EWHC 640
(Admin) provides useful guidance on both the substance of s 14 controls on assemblies and the procedural requirements.
Temporary Conditions
The claimant and others had held regular demonstrations for four years outside Marks &
Spencer’s in Manchester city centre as part of a group which encouraged shoppers to boycott the store because of its alleged support for the Israeli government. Counter demonstrations had also
appeared. The Chief Constable imposed temporary conditions on the group over the Christmas period, including requiring it to move its demonstration away from the busy city centre shopping
area to the local ‘Peace Gardens’
Reasonable Belief
The group challenged whether the Chief Constable did have reasonable belief under s 14(1), and similarly, whether the conditions imposed were proportionate in terms of its rights under articles 10 and 11 ECHR. It was unsuccessful on both points.
Chief Constable’s decision to use s 14 was not unreasonable or irrational
The court held that the Chief Constable’s decision to use s 14 was not unreasonable or irrational, as he required a belief that an intended public assembly might result in the consequences outlined in s 14(1)(a), not that they necessarily would. It was also held that the conditions imposed were proportionate, as they represented temporary and limited restrictions on rights and were designed to achieve the legitimate aim of preventing serious disruption in the city centre.
3.1.4 Case law: Reasons for conditions
On the procedural issue in Brehony, the question was whether the Chief Constable had to give reasons for imposing conditions under s 14(1). As they had been imposed in advance rather than at the scene, the Chief Constable was obliged to identify which of the three possible consequences of the demonstration (outlined in s 14(1)(a)) he reasonably believed may result.
Sufficient information on the reasons
The court indicated that extensive detail was not required. However, the Chief Constable did have to provide sufficient information on the reasons in order for a demonstrator to understand why directions were being given. (Such reasons had been provided in this case in the court’s view.)
Powers to prohibit assemblies
Although the POA does not provide powers to prohibit assemblies, the police can in some situations use powers from other legal sources to prevent people assembling
Reclaim These Streets Case Study
For example, in March 2021 the police prohibited a vigil in memory of Sarah Everard. The meeting had initially been organised by the group Reclaim These Streets to remember Sarah and to highlight violence against women on the UK’s streets. The police relied on regulations restricting peoples’ movement which had been brought in to protect public health in response to the Covid19 pandemic. Theimposition of these controls led to a public order situation after several attendees were arrested by the police when they refused to disperse.
3.2 Section 14A: ‘trespassory assembly’
As we have seen, the police did not have a power to prohibit assemblies under the POA 1986. However, the law has since been amended following the enactment of the Criminal Justice and Public Order Act 1994. This added a new section, s 14A, into the POA 1986, containing the power to prohibit ‘trespassory assemblies’.
3.2 Section 14A: ‘trespassory assembly’
A trespassory assembly must consist of ‘20 or more persons’ (s 14A(9)) and ‘be held […] at a place or on land to which the public has no right of access or only a limited right of access’ (s 14A(1)). (It does not therefore apply to common land.)
Land in the Open Air
‘Land’ is defined as ‘land in the open air’. (Note that the s 14A power only applies to land that is wholly in the open air, whereas the s 14 power can apply to public places that are wholly or partly open to the air.)
3.2.1 Prohibiting trespassory assemblies
Section 14A gives the chief police officer the power to apply for a prohibition order from the local authority if they reasonably believe a trespassory assembly is intended to be held, and that the assembly:
(a) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s right of access
May Result
(i) In serious disruption to the life of the community, or
(ii) where the land, or a building or monument on it, is of historical, architectural,
archaeological or scientific importance, in significant damage to the land, building or
monument.
3.2.2 Offences
Section 14B POA – as amended – contains a number of offences (and sanctions) relating to those
who organise and take part in such trespassory assemblies, as well as those who incite another person to take part.
Trespassory Element
The ‘trespassory’ element of the offence has been further defined by case law, notably by the House of Lords in DPP v Jones (Margaret) [1999] 2 AC 240. Here protestors were convicted for taking part in a prohibited assembly under s 14B(2), as they had been involved in a demonstration on part of the public highway close to Stonehenge. This was
subject to an order under s 14A(2) from the local authority
peaceful and non-obstructive nature
The law lords overturned the conviction, given the peaceful and non-obstructive nature of the demonstration. They emphasised that the public highway was a public place where any reasonable activity, which did not involve either a public or private nuisance and did not obstruct the highway, should not be seen as trespass. A right of peaceful assembly on the public highway could therefore exist subject to those provisos.
- Breach of the peace
As well as their statutory powers, the police have common law powers to maintain public order by
preventing a breach of the peace. Although breach of the peace has featured in the common law for hundreds of years, only relatively recently have the higher courts provided an authoritative
definition
R v Howell [1982] QB 416 the Court of Appeal defined breach of the peace as follows:
There is a breach of the peace whenever harm is actually done or likely to be done to a person
or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
4.1 Scope of breach of the peace
Breach of the peace is not a criminal offence in itself. However, it does generate certain police powers, including:
* Arrest
* Detention
* Having a person ‘bound over’ to maintain good behaviour and keep the peace
* Entering a meeting to prevent an anticipated breach of the peace and asking participants to disperse
Variety of circumstances and contexts
The police can use these powers across a variety of circumstances and contexts, for example, to stop or control meetings, marches and demonstrations, and to disperse crowds of opposing sports fans. Note that the police power of entry without a warrant to prevent a breach of the peace was put on a statutory footing by PACE 1984. The police’s actions and decisions at common law are also subject to their obligations under s 6 HRA.
Case Law Examples
Some of the most contentious cases concern preventative action where a breach of the peace is feared but has not yet happened.
Duncan v Jones [1936] 1 KB 218
is an early example of the courts holding that the
police could use their common law powers to stop a public meeting from taking place because it was feared a breach of the peace was likely.
Moss v McLachlan [1985] WLUK 376
The police used their common law powers to stop a convoy
of striking miners from travelling to picket collieries, because they feared violent clashes between striking and working miners. The police erected a cordon on the M1 motorway in order to prevent a
breach of the peace.
Moss v McLachlan [1985] WLUK 376
When some of the miners tried to break through the cordon, they were arrested for obstructing a police officer. On appeal, the court upheld the convictions. It found that
there had been a history of violent clashes during the miners’ strike, and the police had a duty to prevent a breach of the peace which they reasonably anticipated. The circumstances in this case
justified preventative action as the prospect of a breach of the peace was not too remote.
Key case: R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
You will recall this case from studies on article 10 ECHR, relating to freedom of expression. This is
an important case on the development of the courts’ approach to common law breach of the peace and it is also a good example of the interplay between the common law and the HRA.
Reasonable apprehension of a sufficiently imminent breach
In this case, three coaches, holding anti-Iraq War demonstrators on their way from London to a protest at RAF Fairford in Gloucestershire, were intercepted and escorted back to the capital because the police feared a breach of the peace. In line with Moss, the House of Lords held that a
reasonable apprehension of a sufficiently imminent breach of the peace was required to justify preventative action.
Common law power of arrest
The House of Lords departed from the Court of Appeal’s analysis in Laporte which had suggested that imminency was only required to use the common law power of arrest. In contrast, their Lordships held that the use of any common law breach of the peace power, for example dispersing a crowd, would also require the breach to be sufficiently imminent.
Threshold requirement
The House of Lords held that a reasonable apprehension of an imminent breach of the peace
was an important threshold requirement that must exist before any preventive action was permissible at common law. If there was such a reasonable apprehension of an imminent breach of the peace, then the preventative action taken must be proportionate.
No indication of an imminent breach of the peace
When the coaches were
stopped and searched. Precautions had also been put in place at RAF Fairford to handle the protests.
Police’s actions are pre-mature
The police’s actions were therefore premature, and they could have adopted less drastic, more proportionate measures. They could have used their powers to arrest anyone ultimately engaging
in actual or threatened disorder at the RAF base.
Wholly disproportionate
Their Lordships also found that ‘it was wholly disproportionate to restrict [the claimant’s] exercise of her rights under articles 10 and 11 because she was in the company of others some of whom might, at some time in the future, breach the peace’.
Key case: Austin v Commissioner of the Police of the Metropolis [2009] UKHL 5
This was another important breach of the peace case in which article 5 ECHR was in issue.
Kettling
The case concerned the police practice of ‘kettling’. During an anti-capitalism and globalisation demonstration the police confined protesters for seven hours within a police cordon at Oxford Circus. The police feared violence because some of the protesters had threatened violence and previous such demonstrations had resulted in serious disorder. The demonstration had also not been approved.
Court of Appeal
Had found that there was a sufficiently imminent breach of the peace at common law to justify the kettling measure in this case. The appeal went up to the House of Lords on the question of article 5 and the right to liberty alone. However, both parties accepted that
the decision on article 5 would affect the issue of the lawfulness of the police’s use of their common law powers.
Not a disproportionate method
Their Lordships held that the kettling measure was not a disproportionate method to stop the likely breach of the peace in this situation. Such measures would be lawful if they were deployed in good faith and not applied in an arbitrary way.
Limited Period
In this case the police intended to control the crowd for a limited period - for as long as was reasonably necessary to achieve a controlled dispersal where there was a legitimate fear of intended disorder. The police were seen to be operating a complex operation in a difficult environment
Restriction of Movement
In relation to article 5, there had therefore only been a restriction of movement as opposed to a deprivation of liberty of those in the cordon, and so article 5 was not engaged. The Lords’ decision was later endorsed by the Strasbourg court in Austin v UK (2012) 55 EHRR 14.
Circumstances for highly restrictive measures
Austin exemplifies that in certain circumstances the police will be permitted to adopt highly restrictive measures to prevent a breach of the peace even though the rights of innocent bystanders may be affected. However, overall, the case law demonstrates that the HRA has had a significant impact upon the police’s common law public order powers, as the police are required to use such powers in a proportionate manner.
5 Summary
- Under s 11 POA the organisers of public processions must give advance notice of the event to
the police. - The police have powers under s 12 POA to impose conditions upon public processions.
- The police have the power under s 13 POA to apply to local authorities (other than in London) for an order prohibiting public processions.
- In London a prohibition order under s 13 can be made directly by the relevant chief police officer.
Summary
- In relation to public assemblies, the police have the power under s 14 POA to impose conditions upon them.
- Following the amendment of the Public Order Act in 1994, the police have powers under s 14A to seek an order prohibiting ‘trespassory’ assemblies.
- For a definition of breach of the peace, see R v Howell.
Summary
- Breach of the peace triggers a variety of police powers at common law including arrest,
detention, having a person bound over, entering meetings, and dispersing persons. - For such powers to lawfully arise there must be a reasonable apprehension of a sufficiently imminent breach of the peace (Laporte).
- The imminency requirement applies to the use of all breach of the peace powers (Laporte).
- Where the police can show there was an imminent breach, their use of common law powers will only be lawful if they were not arbitrary, deployed in good faith and proportionate (Austin).
