Human Rights – Public Order

Question 1

What are the key provisions in the ECHR for public order?

Answer 1

Article 10 – Freedom of Expression

Article 11 – Freedom of assembly and association

Question 2

If a demonstration occurs on private land, without the permission of the owner, does this come under Article 11?

Answer 2

No – where property rights are infringed, freedom of assembly can be limited.

Question 3

What is the statute related to processions & meetings?

Answer 3

Public order act 1986.

Question 4

What are the notice requirements for a public procession? (Section 11 POA)

Answer 4

1) Person organising it to give police at least 6 clear days notice of the time, date and route of procession.

Question 5

When do the notice requirements apply? I.e., what proposed purposes of public processions require notice?

Answer 5

(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.

E.g., football supporters on their way to watching a match or schoolchildren being led from school to a library are outside the notice requirements.

Question 6

What constitutes a public place?

Answer 6

Any highway or any other place that the public may lawfully access on payment or otherwise.

Public place therefore, includes public squares, parks & beaches but also privately owned places, like football grounds & theatres, that the public can access on purchasing a ticket.

Therefore, a public procession would cover a march into a theatre to protest a play being performed there.

Question 7

Where should notice be given?

Answer 7

– Police station in the police area where the procession will start.

Question 8

When is notice not required for a public procession?

Answer 8

1) Funeral processions

2) Where it is not reasonably practicable to give notice

3) customary or commonly held processions in a given police area (i..e, police are aware that it is a regular occurance).

Question 9

Key case on 3) customary / commonly held processions –

Answer 9

Kay v Commissioner of Police of the Metropolis – A mass cycle ride had taken place in central London on the last Friday of every month since 1994, for 12 years, without central organisation or route pre-planning. Police required the cyclists to give notice under s 11 and one of the cyclists challenged this requirement by way of judicial review.

Held = Because the cycle route was commonly or customarily held, even though it did not follow a predetermined route, was exempt from the notice requirement.

Question 10

What are the two offences under S 11 POA?

Answer 10

Section 11 (7)(a) – The organisers do not give required notice

Section 11 (7) (b) – Organisers do a procession which differs from the notice given

Question 11

What is a defence under S 11(7)(a)?

Answer 11

1) The organiser did not know and did not have reason to suspect that s 11 had not been complied with.

Question 12

What is a defence under S 11 (7) (b)?

Answer 12

1) If the departure from the deatils of the notice came from circumstances beyond the organiser’s control from something done with the agreement of the police or by their discretion.

Question 13

What is the effect of failing to provide notice / effective notice?

Answer 13

Failure to provide notice results in the organisers committing an offence but does not render the protest/procession unlawful. Only the organisers can commit an offence & it does not make participation in such a profession a criminal offence. The procession itself is lawful.

Question 14

What part of the act allows police to impose conditions on public processions?

Answer 14

Section 12 POA

Question 15

Who can impose conditions on public processions?

Answer 15

Senior police officer.

Question 16

When can they impose conditions on public processions?

Answer 16

1) Serious disruption to life of community

2) Impact of noise

3) Purpose of organisers is to intimidate others

Question 17

1) serious disruption to life of community

Answer 17

– Where procession may result in significant delay to delivery of time-sensitive products ; or

– Delay of essential goods and services (e.g., supply of food or health)

Question 18

2) Impact of noise

Answer 18

– where noise causes people to suffer alarm / distress or disrupt activities of an organisation

– Police officer will take into account the likely number of people who would be affected & duration

Question 19

3) Intimidation

Answer 19

MORE than nuisance or causing discomfort.

Question 20

Case law on intimidation –

Answer 20

Definition = more than being a nuisance or causing discomfort.

Police v Reid – Demonstrators raised their arms and waved their fingers at guests, chanting ‘Apartheid murderers, get out of Britain’ and ‘you are a dying breed’.

• Chief inspector decided it was intimidatory and sought to impose a condition on the demonstrators requiring them to move away, relying on S 14(1) POA 1986.
• HELD = Inspector was acting ultra vires and had applied the wrong test. He define intimidation as putting people in fear or discomfort and had thereby incorrectly equated intimidation with discomfort.
• The demonstrators would have needed an intention to compel the guests not to go into the reception for their activities to be intimidation.

Question 21

What conditions can the senior police officer impose?

Answer 21

– Any that appear necessary to prevent disorder, damage, disruption or intimidation

Question 22

What consitutes ‘senior police officer’?

Answer 22

S 12(2) – The identity of the senior police officer with the power to impose conditions depends on the circumstances.
Conditions imposed during the procession, it is the most senior police officer present at the scene (s 12(2)(a) and they may be given verbally.

For conditions imposed in advance, it is the chief officer of police (the Chief constable of the relevant police force, or the commissioner of police of the metropolis or for the city of London (s 12(2)(b).

• When given before an event, it must be given in writing.
• The police officer must provide sufficient reasons so that, first the demonstrators can understand why the conditions have been imposed and secondly, a court can assess whether the belief that the procession may result in the consequences listed above (serious disruption etc) is reasonable (R (Brehony) v Chief Constable of Greater Manchester Police).

Question 23

What are the offences under Section 12 POA?

Answer 23

1) Organising orr taking part in a public procession and failing to comply with a condition imposed by the senior officer where they knew or orught ot have known they were imposed.

2) Inciting a participant in a public procession to disobey the conditons imposed.

Question 24

What are the defences to S 12 POA?

Answer 24

Defence = 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.

• It is also a defence to prove that the conditions are invalid, as in Police v Reid.

Question 25

What is Section 13 POA?

Answer 25

Power to prohibit processions.

Question 26

What power does Section 13 POA give chief officer of police?

Answer 26

Provides that a chief officer of police can apply for a prohibition order if they reasonably believe, because of particular circumstances existing in any locality, that the powers in s 12 are insufficient to prevent 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.

Question 27

Does Section 13 POA apply to London?

Answer 27

No.

Question 28

What is the procedure to prohibit a procession in London?

Answer 28

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 or processions of a particular class, such as political marches.
• However, there is no power to ban a specific individual procession. The order must be in writing (s 13(5)).

Question 29

Can prohibitions on processions be subject to judicial review?

Answer 29

YES.

• KEY – The courts are reluctant to quash police’s ‘operational decisions’.

Question 30

What are the two offences under Secion 13?

Answer 30

1) Organising or taking part in a public procession knowing it is prohibited under section 13.

2) Inciting a participant to take part in a public procession that is prohibited under section 13.

Question 31

What are the only instances where section 13 prohibition on a procession can be used?

Answer 31

• There is no power to ban specific individual processions. A banning order can ban all processions, or processions of a particular class.
• There is no power to ban marches on the basis of serious damage to property. The only reason marches can be banned is whether the chief officer of police reasonably believes that their powers to impose conditions under s 12 are insufficient to prevent a risk of serious public disorder.

Question 32

What is the general rule on meetings / assemblies ?

Answer 32

General rule = no requirement to obtain permission to hold a meeting. The police have no power to ban assemblies.

Question 33

What are the exceptions to this?

Answer 33

Local or private acts of parliament or byelaws may require permission for meetings.

Question 34

What does Section 14 POA relate to?

Answer 34

Imposing conditions on public assemblies.

Question 35

What is a public assembly?

Answer 35

Public Assembly = An assembly comprising two or more persons in a public place that is wholly or partly open to the air. Must be at least 2 people.

• Wide definition – i.e., includes crowds listening to a band, or gatherings in a pub garden.

NOTE – the purpose of the assembly is irrelevant.

Question 36

What are the polices’ powers under Section 14?

Answer 36

Senior police officer can impose conditions on a public assembly for the same reasons as per Section 12 – e.g., 1) Noise 2) intimidation 3) disruption to life of community

Question 37

Are people holding a public assembly required to give advance notice?

Answer 37

No.

Question 38

Do separate gatherings, separated by space and time, even if co-ordinated under an umbrella of one body, constitute a public assembly?

Answer 38

No.

Question 39

What constitutes a senior police officer for Section 14?

Answer 39

Same as for section 12:

The identity of the senior police officer with the power to impose conditions depends on the circumstances.

Conditions imposed during the procession, it is the most senior police officer present at the scene (s 12(2)(a) and they may be given verbally.

For conditions imposed in advance, it is the chief officer of police (the Chief constable of the relevant police force, or the commissioner of police of the metropolis or for the city of London (s 12(2)(b).

Question 40

Limiting public assemblies – polices’ powers:

Answer 40

Under both s 12 and s 14, the police may impose any condition that appears necessary (subject to their reasonableness and proportionality). In both cases any conditions that the police impose in advance must be in writing and give adequate reasons, whilst conditions imposed during a procession or assembly may be given verbally.

Whilst there is no power under s 14 to ban public assemblies, the police may be able in effect to order participants to disperse. The chief officer of police on the scene may impose conditions limiting the duration of the meeting, so, if necessary, the police could impose a condition limiting the maximum duration to five minutes from giving the notice of the condition. However, any condition imposing a maximum duration must be proportionate.

Question 41

What are the offences under section 14?

Answer 41

1) organising or taking part in a public assemble and failing to comply with a condition imposed under s 14 where they knew or ought to have known the condition was imposed.

2) inciting a participant ia public procession to commit an offence (e.g., not comply with limitations)

Question 42

What are the defences under section 14?

Answer 42

1) Organisers & participants have a defence if they can show their failure to comply with the conditions was due to circumstances beyond their control (burden of proof= on defendant).

2) Defence to prove that the conditions are invalid – Although
an assembly can consist of as few as two people, it must be doubtful whether an assembly of two people could cause serious public disorder or serious disruption to the life of the community. Where the police impose conditions on a very small gathering, they might find it problematic to argue that those conditions were proportionate.

Question 43

Case law on section 14 – limiting public assemblies:

Answer 43

R(Brehony) v Chief Constable of Greater Manchester –
Saturday demonstrations had been taking place regularly for four years outside Marks & Spencer in the centre of Manchester, protesting against the company’s support for the Israeli Government and also calling for a boycott of Marks & Spencer’s stores. A counter-demonstration in support of Israel had also been taking place outside the same store for some months. In November 2004, the Chief Constable issued a notice under s 14 requiring the demonstration to move to the nearby Peace Gardens over the Christmas shopping period (29 November to 3 January) due to the serious disruption that would otherwise occur when the number of visitors to the city centre would treble.
The judge refused the organiser’s judicial review application because the conditions were
not unreasonable and were proportionate.

The test for proportionality was whether the Chief Constable’s legitimate objective of preventing serious disruption could have been achieved by means that interfered less with the claimant’s rights. Given the limited and temporary nature of the restrictions, they could not.

Question 44

What does section 14 ZA cover? (POA)

Answer 44

One person protests.

Question 45

Define a one person protest?

Answer 45

Definition = One-person protest is defined as a protest which is carried out by one person in a public place (s 14ZA(4).

Question 46

When can a police officer place limitations on a one person protest?

Answer 46

1) noise

2) intimidation

3) disruption to community life

Question 47

Conditions imposed on Section 14 ZA?

Answer 47

• Police may impose conditions which appear necessary to prevent such disruption or impact (subject to reasonableness and proportionality).
• Same factors which relate to impact of the noise apply as in ss 12 and 14.
• Any conditions imposed in advance must be in writing and give adequate reasons.
• Conditions imposed during a procession or assembly may be given verbally.

Question 48

What offence under Section 14 ZA?

Answer 48

• Someone is guilty of an offence under s 14ZA(1) if they organise or carry out a one-person protest and fail to comply with a condition imposed under s 14ZA(2) where they knew or ought to have known the condition had been imposed.

Question 49

What does section 14 A cover POA?

Answer 49

Power to ban trespassory assemblies.

Question 50

“trespassory assembly” =

Answer 50

An assembly to 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(9) = Assembly means an assembly of 20 or more persons and ‘land’ means ‘land in the open air’.

Question 51

Differences between Section 14 and Section 14 A?

Answer 51

• Under s 14, an assembly need only comprise two people, whilst under s 14A at least 20 people are required.
• The section 14A power only applies to land entirely in the open air, whilst s 14 land applies to land that is just partly in the open air.
• The section 14A power applies only to land to which the public has no or only a limited right of access. Accordingly, the s 14A power (unlike the s 14 power) does not cover assemblies on common land to which the public has an unlimited right of access.

Question 52

What is the crietria for banning a trespassory assembly?

Answer 52

The chief officer of police must reasonably believe that it is intended to hold a trespassory assembly:

• without the permission of the occupier or outside the terms of any permission or right of access; AND
• which may result in serious disruption to the life of the community or significant damage to the land, building or monument which is of historical, archaeological or scientific importance.

Question 53

What are the time & geographical limits on the scope of the order / ban?

Answer 53

• It must not last for more than 4 days;
• It must not apply to an area greater than that represented by a circle of five miles’ radius from a specified centre.
• The local authority must also obtain the Home Secretary’s consent for the making of such an order.
• In London, the police commissioner for the metropolis or the commissioner of the city of London Police may make such an order with the consent of the secretary of state.

Question 54

Case law on Section 14 A POA =

Answer 54

DPP v Jones – Salisbury District Council had made an order prohibiting certain trespassory assemblies within a radius of four miles from Stonehenge. Two protesters were arrested while participating in a peaceful, non-obstructive demonstration of 21 people on a highway near Stonehenge.

HELD = The Lords ruled by a 3:2 majority that the defendants had not committed an offence. A public highway was a public place that the public might enjoy for any reasonable purpose, provided the activity in question did not involve a public or private nuisance and did not unreasonably obstruct the highway.

S 14C – gives a constable in uniform who reasonably believes that a person is on their way to a trespassory assembly the power to stop that person and direct them not to proceed in the direction of the assembly. It is an offence to ignore such a direction.

Question 55

What is section 14 C?

Answer 55

S 14C – gives a constable in uniform who reasonably believes that a person is on their way to a trespassory assembly the power to stop that person and direct them not to proceed in the direction of the assembly. It is an offence to ignore such a direction.

Question 56

What is the common law breach of the peace?

Answer 56

Breach of 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 though an assault, an affray, a riot, unlawful assembly or other disturbance (R v Howell).

Question 57

What are the police powers for breach of peace?

Answer 57

• A breach of peace is not an offence but triggers various police powers to take action to prevent the breach.
• Police an arrest if a breach of peace has occurred and can prevent a breach from occurring.
• Police can request people breaching the peace or threatening to do so, to move away.
• Police can attend and disperse a gathering if they reasonably fear a breach of the peace.
• S 17(6) Police and Criminal Evidence Act 1984 preserves the common law powers of entry without a warrant to prevent a breach of the peace.

Question 58

Case law, breach of peace =

Answer 58

Duncan v Jones – Common law powers can be used to prevent a public meeting. Where an officer reasonably apprehends a breach of the peace, they can act in the execution of their duty. The police had the power to prevent a demonstration on a public highway where there was any fear of a breach of the peace. The police do not need to wait until actual violence occurs before they can exercise their common law powers & they can take preventative action to prevent gatherings which could result in a breach of the peace.

Moss v McLachlin – Striking miners were intending to picket some mines. The police used their common law powers to direct them not to do so, as there had been violent strikes in the past. Court upheld the convictions – The possibility of a breach of peace in close proximity both in place and time was real & immediate and not remote.

Austin & Others v The United Kingdom – Police, can sometimes in limited circumstances, take drastic action to prevent a breach of peace, even if it adversely impacts innocent bystanders.
Upshot = Police have considerable discretion but need to be able to show their conduct is a proportionate response to the situation & they do not violate convention rights.

Question 59

What are the requirements for breach of peace powers to be activated?

Answer 59

1) The breach is IMMINENT

2) The actions of the police constitute a proportionate restriction of convention rights. (where they’re relevant).