Constitutional Law - Public Order Law Flashcards
What is the impact of the HRA 1998 on Public Order?
Think about important Articles for protesting.
The Human Rights Act 1998 had an considerable impact in the area as there is now a poistive protection of individual rights and freedoms in the UK.
Key provisions of the ECHR in the context of public order are:
Article 10- freedom of expression
Article 11 - freedom of association and association
These rights are regarded worldwide as funamental rights in a democratic society and the courts construe them widely.
How can the state restrict Article 11: Freedom of Assembly?
Think of wider public interest.
If the restrictions are
1) Prescribed by law
2) Necessary in a democratic society:
- in the interests of national security or public safety
- for the prevention of disorder of crime
- for the protection of health and morals
- for the protection of the rights and freedoms of others
What are public processions?
PROTEST
These are governed by s11-13 of POA 1986
- Prima Facie Public Processions are lawful, the police usually need specific powers if they are to control them.
Section 11: The purpose of a procession must be
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
c) t**o mark or commemorate an event **
NOT Procession:
E.g. football supporters on their way to watch a football match or school children going to a local library
Section 16:
- defines ‘public procession’ as a procession in a public place including a highway or any other place that the pubic may lawfully assess on payment or otherwise e.g. public squares, parks and beaches but also privately owned places e.g. football grounds, theatres that the public can assess on purchasing a ticket.
Therefore, the definition of public procession would cover a march into a theatre to protest about a place being performed there.
When will a public procession unlawful?
- If a disorder or violence breaks out- possibility arises that participants may be charged with a public order offence, criminal or tort action.
- Protest marches through streets of a town or city will normally be legal as long as they keep moving
- It is an offence if a person, without lawful authority or excuse, wilfully obstructs the free passage along a highway
What powers does the POA 1986 give to the police?
Significant statutory powers
* To deal with potential distruption to society and threats of violence
* Power to impose conditions or ban public processions and public meetings
* Charge with public order offence incuding: riot (s1) with a maximum 12 years imprionsment, threating, abusive or insulting behaviour (s5) with a fine of £1,000 as a maximum sentence
Common law powers
- Prevent breaches of peace (sometimes supplement the statutory powers)
What are the requirements under S11-13 of the Public Order Act 1986 - Public Processions?
- Section 11: Person organising a ‘public procession’ must give the police at least 6 clear days notice of the date, time and route of the proposed procession.
- Section 11(4) - Organisers must deliver the notice to a police station in the police area where the procession will start (to alow police to plan and give directions to avoid public disorder or other distruption)
In what kind of public procession is the 6 day notice requirement not required?
Qualifications and exemptions?
Not required if it is not reasonably practicable - e.g. sudden death, or unexpected military action by a government
**- A common regular event ** - Kay v Commissioner of Police - mass protest cycle ride that had taken place in central London for 12 years was not held to be a public procession and so did not need to give notice requirements
Common event in a police area
Customary event- Rememberance day or Diwali Parade
- A funeral
What are the offences for not giving notice under s11?
Only organisers commit an offence it does not make the participation in such a procession a criminal offencer. The processiion itself is lawful.
First offence- organisers are guilty of the first offence if they do not give the required notice.
Defence - if the organiser did not know and did not have any reason to suspect that s11 had not been complied with.
Second offence- Processions differ from what the notice specifed
Defence - if the departure details in the notice arose from circumstances beyond the organisations control or from something done with the agreement of the police or by their direction
Burden of proof - is on the defendant on the balance of probabilities to prove that the defence exists.
On conveiction, the orgnaisers are liable for a fine not exceeding level 3 on the standard scale, currently £1000
NOTE: Only organisers commit an offence it does not make the participation in such a procession a criminal offencer. The processiion itself is lawful
Can the police impose conditions on public processions?
Must be a senior police officer
Under s12 of the POA 1986 - the police have powers to impose conditions upon public processions, provided that a senior police officer reasonably believes that
1) The march will result in serious public disorder, serious damage to property, or serious disruption to the life of the community
2) The purpose of the organisation is to intimidate others with a view of compelling them not to do something that thry have the right to do, or do something that they have a right not to do
Following changes made in ss12(2A) and s14(2A) there is the requirement for the police to consider the following when deciding whether to impose conditions:
- All relevant distruption, that is distruption that may result from the assembly, or that may occur regardless of whether the assembly or procession is held (including in particular normal traffic congestion)
- The cumulative impact of concurrent and repeated processions o assemblies in the same area.
- ‘Community’ mean any group of persons affected by the procession or assembly and not only people who live or work in the vicinity of a given procession or assembly
The conditions that the senior police officer may impose are those that appear to be necessary to prevent such disorder, damage, disruption or intimidation. This includes conditions prescribing the route or prohibiting the march from entering a particular public place.
What is meant by ‘intimidate others with a view to compelling them not to do something they have the right to do’?
S12 POA 1986
Intimidation
- Must be more than a nuisance or causing discomfort
- South Africa House case : reception was being held, shouted at guests as they arrived - the demonstrators raised their arms and waved their fingers at the guests as they arrived chanting apartheid murderers, get out of Britain’ and ‘You are a dying breed
- Chief Inspector - decided that this was intimidatory and sought to impose a condition on the demonstrators requiring them to move away, relying on s14(1) of PA 1986.
- The defendant ignored the condition and was arrested and charged with failing to comply with it - court held that the condition was ultra vires as the chief inspector had applied the wrong test. Intimidation is ‘putting people in fear or discomfort - the demonstrates would have needed an intention to compel the guests not to go into the reception for their activities to amount to intimidation
Section 73 of the Police, Crime, Sentencing and Courts Act 2022 has amended s12 of the POA 1986
- To broaden the circumstances in which the police can impose conditions on protests to include where noise may cause a significant impact on those in the vicinity or serious distruption to the activities of an organisations.
- The 2022 Act defines serious distruption to the activities of an organisation as including where it may result in persons connected with the organisation not being reasonably able, for a prolonged period to carry out their activities within the vicinity of a protest.
What powers were given to the SoS in the amendment of s12 POA 1986 in the 2022 Act?
- The 2022 Act has given the Home Secretary the power to make regulations further defining the meaning of serious distruption
- The Home Secretary has exercised these powers by adopting the Public Order Act 1985 (Serious Distruption to the Life of the Community) Regulations 2023 which have made some significant changes to the POA
Aim of 2023 Regulations to assist the policing of protests e.g. Just Stop Oil and Insulate Britain
- Amend both s12 and s14 of POA 1986 by enabling the police to intervene in a wider range of circumstances
- Have reduced the the threshold for ‘serious distruption’ by defining it as ‘more than minor’ hinderance to day-to-day activities for other people - including commuting, particular making of the journey
Court has held that the Home Secretary has exceeded her powers
- defining serious distruption as any distruption which was more than minor - did not fall within the ordinary and natural meaning of the words, the court held that ‘more than minor’ did not fall within the ordinary and natural meaning of ‘seriour’.
- SoS of state had acted in a procedurally unfair manner by only consulting law enforcement agencies before adopting the Regulations, and not groups who might be adversely of an appeal by the Home Secretary
Explain who the ‘Senior police officer’ is and what powers they have imposing conditions under s12(2)?
This could be a senior police officer presentat the time (if a condition is imposed during the public procession) OR the Chief Constable of the Relevant Police Force (if a condition is imposed prior to the public procession)
Under s12(2) - the identity of the ‘senior police officer’ with the power to impose conditions depends on the circumstances.
For conditions imposed during the procession
- it is the most senior police officer present at the scene and they may be given verbally.
For conditions imposed in advance
- Chief officer of police - Chief Constable of the relevant police force or the Commissioner of Police of the Metropolis or for the City of London
- When giving before the event, they must be given in writing
- Chief officer must provide sufficient reasons so that the demonstrates understand why the conditions have been imposed and a court can assess whether the belief that the procession may result in the consequences listed (e.g. serious distruption) is reasonable
BOTH Need to consider
- The impact of Article 11 ECHR
- Any conditions they impose must be proportionate.
What are the offences under Section 12 of POA 1996, as amended by the Police Crime Sentencing and Courts Act? And the possible sanctions?
S12(4) : Organising a public procession and failing to comply with a condition imposed under s12(1)- where the person concerned knows ought to know that the condition has been imposed
Possible sanction – imprisonment not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale (currently £2,500) or both
S12(5) – Taking part in a public procession and failing to comply with a condition imposed under s12(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 £1000)
S12(5) – Inciting a participant in a public procession to commit an offence under s12(5)
Possible sanction – imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale
What defences can organisers and participants have for an offence under s12?
What is the burden of proof?
If they can show that their failure to comply with the conditions was due to circumstances beyond their control – e.g. an organiser had become too ill to change the route or that a participant was unwillingly swept along by the crowd.
Burden of proof is on the defendant to prove the conditions are invalid on the balance of probabilities.
What approach do the courts take to ensure that there isn’t an appropriate interference with their convention rights (Article 10 and 11) when being convicted of an offence under s12?
- They consider if the conviction would be a disproportionate interference with their convention rights.
- In Abortion Services – the supreme court stated that for certain protest-related offences the ingredients of the offence itself strike the proportionality balance. These offences include the offences under s14 of the POA 1986 and the court’s reasoning would apply by analogy to offences under s12.
- This means that provided the condition imposed is lawful (i.e. the officer holds the necessary believe and had reasonable grounds to do so, the court does not have to check that the conviction would be proportionate on the facts of each individual case.
What does the court consider the police has used their lawful powers?
- If the officer holds the necessary belief and had reasonable grounds to do.
- Court does not have to check that a conviction would be proportionate on the facts of each individual case.
Does the chief officer of the police have the power to prohibit processions?
For London It is different not the ‘chief officer’ but the..
- Yes as per section 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 s12 are insufficient to prevent a risk of serious public disorder.
- Chief officer applies to the local authority – makes an order with the Home Secretary’s consent. Local authorities have no power of their own to seek a ban, the initiatives must come from the police.
- Order has to be for an period not exceeding 3 months. The order may ban all processions or processions of a particularclass, such as political marches. However, there is no power to ban a specific invidiaul procession. The order must be in writing s13(5)
NOTE. In London the procedure is different, s13(1) does not apply to London. 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)).
It is possible to challenge a ban by way of judicial review?
- Yes.
- Banning ‘all processions’ for 28 days covering a wide area like the whole of North London is too wide.
- It was argued that the secretary of state was ultra vires because it applied to all processions over a large area and was far too wide in its scope.
- The Metropolitan Police Commissioner adduced evidence of serious public disorder largely due the National Front and anti-national front demonstrations. He stated that all processions, however peaceful in intent were potential targets for extremists.
- The Court of Appeal upheld the banning order. The claimant had failed to show the Metropolitan Police Commissioner had no reasonable grounds for making the banning order, although one Lord Justice did think the reasons were ‘inadequate’ this shows that the **courts are reluctant to quash what are essentially operational decisions. **
- The decisions in this case had been taken in a context where there had been a 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 s13(5).
- The power to prohibit processions has not been used frequently. The overwhelming majority of bans have been imposed in relation to proposed marches by the National Front and more recently by the EDL.
When an event is held regularly and considered common or customery do the organisers need to give written notice?
No. If something is held monthly for example - think of Park Run, it becomes customary and you do not have to notify the police.
What are the offences under s13 of POA 1986?
s13(7) : Organising a public procession knowing that it is prohibited under s13.
Possible sanctions: imprisonment not exceeding three months or a fine not exceeding level 4 on the standard scale or both s13(11).
S13(8): Taking part in a public procession knowing that it is prohibited under s13.
Possible sanctions: Fine not exceeding level 3 on the standard scale s13(12)
S13(9): Inciting a participant to take part in a public procession that is prohibited under s13
Possible sanctions: Imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale 13(13).
What is a public assembly or (meeting)?
These are regulated by s14 of the POA 1986
- An assembly of 2 or more persons in a public place which is wholly or partly open to the air - e.g. could be a crowd listening to a band in a park, garden of a pub, as well as those attending a political meeting. Wide definition.
- Unlike the processions requirement - no requirement for the organisers of a public assmembly to give advance notice.
Is permission required to hold a public meeting or assembly?
Yes somtimes.
* Trafalgar Square Byelaws 2012 - require anyone wanting to use Trafalgar square for a meeting to obtain permission from Greater London Authority
* Similarly the Royal Parks and Other Open Spaces Regulations 1997 - necessary to seek permission to use a Royal Park such as Hyde Park.
