Public Law - Public Order Act

Question 1

What is a “public procession” and what do you need to do before holding a “public procession”?

Answer 1

Defined as:
- demonstrating support/opposition for the decisions or actions of person(s), OR
- Publicising a cause or campaign, OR
- Marking or commemorating an event.
- It must also be held in a “public place” (s.16) which is any place a section of the public has access to, even by payment, as of right or by virtue of implied/express permission.

Obligation:
- You must give written notice beforehand - unless - it is not reasonably practicable to do so.

Question 2

What is the notice requirement for people organising a “public procession”?

Are there any exceptions / exemptions from notice?

Answer 2

It is an offence if you do not give accurate event details. You must give these details with at least 6 CLEAR DAYS’ notice.

Yes, there are exemptions:
- Funeral processions in the normal course of a funeral director’s business;
- Processions commonly or customarily held in the police area are also exempt.

Question 3

Police have statutory powers to impose conditions on “public processions”.
- who can authorise these conditions and on what basis?

Answer 3

Standard: A “senior police officer” must “reasonably believe” that (there is):

• Risk of serious public disorder, serious damage to property or disruption to life of the community,
• Noise generated may result in serious disruption to nearby organisations,
• Noise of persons in the public processions may impact persons in the vicinity and that impact could be significant,
• Purpose of the persons organising was intimidating others to COMPEL them to (i) act in a way they have no right to do, or (ii) not to do an act which they have the right to do. [Intimidation must be enough to COMPEL others].

Question 4

What is meant by “senior police officer”?

Answer 4

Re. a live public procession - the most senior police officer on scene

Re. an intended public procession - the Chief Officer of Police.

Question 5

Police have statutory powers to impose conditions on “public processions” (s.12 POA).

• what conditions are available to the police?
• do these conditions on the procession need to be in writing?
• do the police need to give REASONS for imposing conditions?

Answer 5

Police can give directions to the organisers or those taking part - this includes any directions “as appear necessary to him to prevent” the relevant disorder, damage, noise or intimidation.

Re. an intended/planned public procession which has not yet occurred, any conditions imposed must be writing.

Reasons: Yes, case law suggests that the police must give “Sufficient Reasons” to the organisers of a procession re. the need to impose conditions. The reasons do not need to be detailed.
EG: Saying that the Christmas period will involve busy pavements and therefore C cannot protest outside of Marks & Spencers.

Question 6

What are 3 “failing to comply” offences in relation to “public processions”?

Do these 3 offences have defences?

What are the sentences that are possible for these 3 offences?

Answer 6

s.12 Public Order Act:
1. A person ORGANISING a public procession failing to comply with a condition imposed by the police
2. A person TAKING PART in a public procession failing to comply with a condition imposed by the police
3. A person INCITES another participant to fail to comply with a condition imposed by the police

Offences 1 & 2 have two defences:
- if D can prove the failure arose from CIRCUMSTANCES BEYOND HIS CONTROL.
- if D is only guilty if the person KNEW or OUGHT TO HAVE KNOWN that the condition was imposed on the public procession.

[NOTE that these 3 offences exist - WITH NO DEFENCE - in relation to failing to comply with PROHIBITED public processions under s.13 Public Order Act]

All 3 Offences are summary offences: 51 weeks prison and/or Level 4 fine (prison not possible for “taking part” offence).

Question 7

Explain the requirements the police must satisfy the use their power to PROHIBIT / PREVENT public processions (s.13 POA)

Who issues a prohibition order and what is the maximum time they can last?

Answer 7

1. The Chief of Police [applies to local authority for prohibition order, because]
2. Reasonably believes
3. The powers under s.12 will not be sufficient [conditions on public processions]
4. To prevent serious public disorder

Prohibition orders cannot exceed 3 MONTHS.
- In London, an order can be made by the Commissioner of Police for the Metropolis.
- Outside of London, the local authority requires the Home Secretary’s consent as they cannot issue orders themselves.

Question 8

If public processions have conditions imposed upon them, or are prohibited altogether, can they be judicially reviewed? Are the courts likely to intervene?

Answer 8

Yes, they can be judicially reviewed. Powers under s.12 - s.14 must be used in a PROPORTIONATE manner (s.6 HRA).

Generally, the courts are unlikely to interfere with the operational decisions of the police that relate to public safety.
EG: In the 1980s, the police banned all public processions in the whole of the London Metropolitan police district for 28 days due to concerns around protests and serious disorder (Kent v MPC).
EG: Theresa May (then-PM) banned all public processions in 5 London boroughs for 30 days due to the 2011 riots.

Question 9

What is the definition of a “public assembly” under the Public Order Act (s.14)?

• how does this differ to “public procession” under s.12?

Answer 9

1. Meeting of two or more persons in a public place,
2. That is wholly or partly open to the air.

NOT THE DIFFERENCES:
- Purpose of the public assembly is IRRELEVANT;
- No OBLIGATION to give advance notice for public assemblies.

Question 10

Police have statutory powers to impose conditions on “public assemblies” (s.14 POA).
- what conditions are available to the police?
- do these conditions on the procession need to be in writing?
- do the police need to give REASONS for imposing conditions?

Answer 10

[S.12 AND S.14 ARE THE SAME STANDARD]
Standard: A “senior police officer” must “reasonably believe” that (there is):

• Risk of serious public disorder, serious damage to property or disruption to life of the community,
• Noise generated may result in serious disruption to nearby organisations,
• Noise of persons in the public processions may impact persons in the vicinity and that impact could be significant,
• Purpose of the persons organising was intimidating others to COMPEL them to (i) act in a way they have no right to do, or (ii) not to do an act which they have the right to do. [Intimidation must be enough to COMPEL others].

Re. an intended/planned public assembly which has not yet occurred, any conditions imposed must be writing. [same with s.12]

Question 11

s.12, s.13 and s.14 deal with 3 different types of events but the 3 offences under all three sections are the same - what are they?

Answer 11

Failing to comply can be either an organiser of the event or a person attending the event:
- failing to comply with conditions imposed on a public procession, or inciting others to do so (s.12)
- failing to comply with a prohibition order of a public procession, or inciting others to do so (s.13)
- failing to comply with conditions imposed on a public assembly, or inciting others to do so (s.14)

Question 12

What are the main differences between a “public procession” and a “public assembly”?

Answer 12

The police have more powers to control a “public procession”:
- requirement of advance notice by organisers (6 CLEAR days)
- police can use prohibition order to cancel planned or current public processions
(Conditions can be imposed on both assemblies or processions).

Processions tend to be moving protests that have a designated route of travel. Assemblies tend to be static protests.

Question 13

Police have the power to prohibit (stop) “trespassory assemblies” - s.14A
- What are the requirements in order to seek a prohibition order from the local authority?
- Do the same 3 offences apply?

Answer 13

1. Chief police officer
2. reasonably believes [that a TRESPASSORY assembly intends to be held].
3. It is likely to be held WITHOUT PERMISSION from the occupier of the land, OR will be conducted in a way that exceeds the limits of the permission given, OR will limit the public’s right of way;
   - AND -
4. May result in serious disruption to life of community OR significant damage to land, building or monument.

Yes, the same 3 offences apply:
- organise, take part, or incite others to take part in the prohibited “trespassory assembly”.

“trespassory” in DPP v Jones did not include a peaceful & non-obstructive demonstration that took on a public highway. This is because a highway was a PUBLIC PLACE where any reasonable activity should not be seen as trespass - unless it amounted to public or private nuisance or obstructed the highway.

Question 14

Breach of the Peace - how does the common law define this?

Answer 14

1. Wherever harm is done or likely to be done,
2. To person or property,
   OR
3. A person is in fear of this harm
   by assault, affray, riot, unlawful assembly or other disturbance.

Question 15

Is breach of the peace a criminal offence? What does it allow the police to do?

Answer 15

Breach of the peace is not a criminal offence but it does generate certain police powers:
- “Bind over”/orders for someone to keep the peace / maintain good behaviour,
- Arrests,
- Detention,
- Ask participants to disperse / enter a meeting to prevent/anticipate a breach of the peace.

(NOTE: “stop-and-search” powers are not triggered by breach of the police - these are governed by statute!).

Question 16

Where are the “breach of the peace” police powers commonly used?

Answer 16

Stop and control meeting, especially public meetings; marches and demonstrations; disperse crowds of sporting fans, etc…
Any civil disobedience in groups that could pose a threat to person or property.

Question 17

What does the recent case law say about police officers anticipating/prevent something that could become a breach of the peace?

Answer 17

UKHL:
- Preventative action is justified if there is a REASONABLE APPREHENSION of SUFFICIENTLY IMMINENT breaches of the peace.
- Second, any preventative measures taken by the police must be PROPORTIONATE. (E.g. putting a blockade/cordon around the motorway would be more proportionate to a mild anticipated breach of the peace than arresting everyone and detaining them).

In other words, the breach of the peace must be “imminent” and “reasonably” foreseeable.

Question 18

To prevent an anticipated breach of the peace, can the police use the “kettling” tactic (i.e. putting cordons in and containing protestors / rioters using riot shields and containment tactics)?

Answer 18

Yes, if the breach of the peace was SUFFICIENTLY IMMINENT and it was PROPORTIONATE to the feared breach, e.g. a violent protest on the streets.

In (Austin v UK), the protestors who were “kettled” tried to raise an infringement of Art. 5 ECHR (right to liberty) but failed.

Question 19

The committee of the British legion in a provincial town has been informed by the local police that its members are being charged for committing an offence under s. 11(7) of the Public Order Act for failing to give notice of its procession to the local war memorial on Remembrance Day, which took place five days ago. The committee is very surprised about this as they have never contacted the police about this event in any preceding years.

Are the police’s actions lawful or unlawful, and what are the reasons for this?

Answer 19

The police’s actions are not lawful as the committee will have an exemption from the duty to give the police notice of this type of traditional or customary procession.

Remembrance Day processions and ceremonies would be considered exempt from the duty in s. 11 as they are processions “commonly or customarily” held in the police area.

Question 20

A trainee journalist is keen to write an article about a march in a large English city, which has been arranged by an organisation protesting against what it sees as inadequate government action to combat climate change. The organisers have given notice to the local police and certain conditions have been imposed including a specific route which is designed to ensure that marchers detour around the central shopping area of the city in order to avoid disruption to the life of the community.

The organisers at the head of the march decide not to obey these instructions, however, and despite loud-hailer warnings from police officers at the scene, march down the central shopping street. The journalist is unable to extricate herself from the large crowd, as it filters through the narrow street, and she is arrested along with a number of others for failing to comply with a condition under section 12 of the Public Order Act.

What is the best advice to her?

Answer 20

The journalist can defend herself against the charge by arguing that, even though she knew that she was part of a march which was processing down a forbidden route, the matter was outside her control, as she was unable to extricate herself from the crowd.

Under s. 12(5) Public Order Act this defence would be available to her.

Question 21

It has come to the attention of the chief police officer in a large provincial city that a pressure group, campaigning to save sites of Victorian heritage, is planning an occupation of the local botanical gardens. This is after news emerges that the local authority is seeking to demolish the gardens’ Palm House, on the basis that it would cost too much to keep it in the state of repair necessary to allow the public to continue to visit. The pressure group has now confirmed that it will occupy the whole of the town’s park and botanical gardens on the next bank holiday Monday and that it would also congregate in the Palm House, now closed to the public, and occupy it for as long as possible.

The police are contemplating imposing conditions on the proposed demonstration and/or a ban on any form of assembly in the Palm House on the day in question.

Are the police powers used lawful or unlawful, and why?

Answer 21

It will be possible for conditions to be imposed under s. 14 in relation to the place, duration and maximum number of attendees in the park and botanical gardens, as long as the police can show that the group’s activities may give rise to serious disruption to the life of the community. However, it will not be possible for the police to impose a ban on any form of assembly inside the Palm House because it is not “in open air” / it is trespass.

The police have powers under s. 14 to impose conditions on assemblies but not under s. 14A to ban trespassory assemblies unless (inter alia) the assemblies are taking place on land wholly “in the open air”.

Question 22

Following a particular serious period of political repression in a foreign country, involving serial human rights abuses, a campaign group has begun to organise regular protest marches to the London embassy of the state involved. Large groups of protestors, including refugees from the state, have begun to chant protest songs and to shout abusive slogans at embassy staff who are entering or leaving the building. The situation becomes so heated that embassy staff now come in and out of the compound in embassy cars. There has been no other form of disorder, however.

The police have now responded by only allowing three demonstrators at any one time to congregate outside the embassy, claiming that they are entitled to do this because the protestors’ actions are intimidatory towards embassy staff.

What is the status of the police’s actions - lawful or unlawful, and why?

Answer 22

The police’s actions appear to be unlawful as the effect of the protestors’ allegedly intimidatory behaviour was not sufficiently intense to prevent the staff from leaving and entering the embassy entirely.

The wording of s. 14(1) only allows conditions such as this to be imposed where the intimidatory behaviour is sufficiently hostile to compel other persons not to do something that they are entitled to, such as entering the embassy. Here the staff have still been able to enter the embassy.

Question 23

A group of seven young men, who were intending to attend an England football match at Wembley, were arrested by police outside the stadium before the match and taken to the local police station. They were identified from information provided by police in their local town who had strong evidence to suggest that they were intending to attack fans of the opposing national team before the match started. They were subsequently released an hour after the end of the match. They were told that this action had been necessary to prevent a breach of the peace.

At the same time, two other men were also arrested in order to prevent a breach of the peace after a police officer heard them shouting abuse in the direction of supporters of the opposing national team.

In relation to these two situations - what is the lawfulness (or otherwise) of the police’s actions?

Answer 23

It is likely that the arrest of the seven men was a legitimate use of the police’s common law power to prevent a breach of the peace. However, the arrest on the same basis of the two other men does not appear to have been lawful as there seems not to have been an imminent threat of violence.

In relation to the seven men, the evidence suggested that there was a likely threat of violence towards others and that there was a reasonable apprehension of this being imminent. The two men may have been abusing opposing fans but there was no suggestion that they were about to cause physical harm to them and so their arrest does not appear to have been a legitimate use of these police powers.