Public order Flashcards
Two things considered in this deck:
- Powers under Public Order Act
- Powers to prevent breach of the peace under common law
What powers are given to the police under the Public Order Act?
To control processions (marches, funeral) and assemblies (collections of 2> people)
If taking action to ban a protest/march, what else much police bear in mind?
Does not result in disproportionate interference of freedom of expression (art 10) or freedom of assembly (art 11), the right to libery (art 5)
What is the principle of residual(/negative) freedom?
Citizens of the UK have been free to do/say what they wish unless it has been prohibited by law
What is positive protection (for individual rights in UK law)?
Effect of HRA - when police make decisions, they must ensure they are acting compatibly with Convention rights
Recall - state interference with a person’s qualified rights under Art 10/11 must be prescribed by law; pursuit of legitimate aim; and necessary in democratic society (proportionate)
For what 3 purposes must written notice be given for a proposal to hold a public procession?
Dealt with in pt II of POA
‘Public’ processions must take part in a public place
- Demonstrate support for/opposition to views/actions of any (body of) persons
- To publicise a cause or campaign; or
- To mark or commemorate an event
Unless not reasonably practicable to give any advance notice
How much notice and what details must organisers of public processions give?
- Minimum of 6 clear days
- Date, time, route of procession
To allow police to consider public order issues in advance
What processions are exempt from advance notice requirement?
- Where procession is one commonly/customarily held in police area(s) in which it is proposed to be held
- Funeral procession organised by funeral director acting in normal course of business
Kay - monthly mass cycle rides that had occurred in London since 1994 amounted to a commonly or customarily held procession - rides exempt from notice requirement (despite fact that routes varied)
When do the police have powers to impose conditions upon a public procession?
If senior police officer reasonably believes that:
* May result in serious public disorder, damage to property, disruption to life of community
* Noise generated may result in serious disruption to activities of an person/organisation which are carried on in vicinity of procession
* Purpose of persons organising it is the (intended) intimidation of others with a view to compel them to (not) do an act they [do not] have the right to do
What must a condition imposed in advance of the procession be?
In writing
What directions may be given by a senior police officer re the four potential risks and what must they be accompanied by?
- Directions/conditions as appear to him necessary to prevent such disorder, damage, impact or intimidation
- Must be accompanied by sufficient (but not detailed) reasons of the need for conditions
What is the defence for the offence of an organiser/participant failing to comply with an imposed condition?
The failure arose from circumstances beyond his control
When will a person be guilty of an offence under the act even if they did not commit the offence?
Where they incited another to commit the offence
What is the requirement for a person to be guilty for failing to comply with a condition imposed?
They must (ought to) know that the condition has been imposed at the time they fail to comply
What sanctions are available under the POA for failing to comply with a condition?
Different for organiser and participant
- Organiser = summary conviction to max 51 weeks imprisonment or fine not exceeding level 4
- Participant = summary conviction to a fine not exceeding level 4
What sanction is available for a person guilty of inciting another to commit an offence?
Summary conviction of max 51 weeks or fine not exceeding level 4
When can the chief police offer apply for a prohibition order from the local authority?
S13
If they reasonably belive that because of particular circumstances the powers under s12 (conditions/sanctions) will not be sufficient to prevent the public procession from resulting in serious public disorder
What are the conditions for a prohibition order?
- Cannot exceed 3 months
- Local authority must obtain consent from Home Sec
Can the local authority modify the prohibition order or must they make it on terms requested by police?
Can make order in terms requested by police or make modifications approved by Home Sec
Can a local authority initiate a prohibition itself?
No - does not have the power
Breach of prohibition orders have similar sanctions as conditions
How does prohibition work differently for London?
Application to local authority not required - Commissioner of Police can make a prohibition order if they believe conditions will not be sufficient
E.g. 2011 London riots - Home Sec approved prohibution order for 25 days to prevent spillovers and giving rise to violence in other areas
Can prohibition orders be challenged by JR?
Yes - but there is an unwillingness of the court to disturb operational decisions seen to be within competence of the police re matters of public safety and security
E.g. Kent - an order banning all processions for 28 days was held to be lawful as court did not accept there were no reasonable grounds for making the order despite concern over police evidence
What are public assemblies?
Also regulated by POA
A meeting of two or more persons in a public place that is wholly or partly open to the air
A ‘static’ gathering; can also be a protest just does not move
How are public assemblies different to public processions?
- Purpose of assembly is irrelevant
- No obligation to give advanced notice of public assembly to police
When can conditions be imposed on public assemblies?
Basically same as public processions - when senior police officer thinks it can result in:
* Serious public disorder, damage to property, or disruption to life of community
* Noise generated seriously disrupts activities on people/organisations in vicinity
* The purpose of persons organising it is the intimidation of others with a view to compelling them…
Sanctions also the same
Must be imposed in writing as with processions
How are prohibition orders different for public assemblies?
Police do not have powers to instigate or make a prohibition order to ban assemblies in same way as procession i.e. **cannot prohibit assemblies
Conditions can still be effective e.g. time limitations, maximum attendance limits
How must police powers be exercised?
Re conditions
- In a proportionate manner
- In a way that complies with duties under s6
How intimidating must the assembly be reasonably believed to be to impose conditions?
Intimidatory behaviour must be sufficient to compel the target not to do something; fear/discomfort alone not enough
Test is the same for public processions
Reid - protestors shouted “apartheid murderers, get out of Britain!” - correct test here would be that protestors would have had to compel the guests not to go into South Africa House rather than be put in fear/discomfort
Check understanding
Brehony
* Group of protestors outside M&S - encouraging shoppers to boycott store because of alleged support for Israeli GOV
* Chief Constable imposed temporary conditions on group over Xmas period including it to move demonstration away from busy shopping area
* Group challenged if Chief had a reasonable belief under s14 and whether conditions imposed were proportionate under Art 10 and 11
Challenge unsuccessful:
* Not unreasonable use of s14 - satisfied that consequences of public assembly might result in consequences outlined in s14
* Conditions were proportionate: temporary and limited restrictions on rights and designed to achieve legitimate aim of preventing serious disruption in city centre
Although POA does not provide powers to prohibit assemblies, what can the police do?
Impose powers from other legal sources - i.e. conditions - to prevent people assembling
E.g. Vigil of Sarah Everard - police relied on regulations restricting people’s movement bc COVID; imposition of controls led to public order situation where several attendees refused to dispurse
What are trespassory assemblies and how are they different?
- Consists of 20 or more persons and be held at a place/on land to which public has no right of access or a limited right of access
- Can be prohibited
I.e. does not apply to common land
When can the chief police officer apply for a prohibition order from the local authority for a trespassory assembly?
If they reasonably believe that the assembly:
* Is likely to be held w/o permission of occupier/exceeds limits of any permission of his or the public’s right of access; and
* May result in serious disruption to life of community or significant damage to land, building or monument with some kind of importance (historical, scientific, architectural)
What provisos might a peaceful assembly on a public highway be subject to?
DPP v Jones
Does not obstruct it
What does the police have under common law?
Powers to maintain public order by preventing a breach of the peace
When is there 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 assult, affray, riot, unlawful assembly or other disturbance
What powers would a breach of the peace generate?
- 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
To stop/control meetings, marches, and disperse sports fans
Is there a police power of entry without a warrant to prevent a breach of the peace?
Yes - put on statutory footing by PACE
What is required for preventative action at common law where a breach of the peace is feared but has not yet happened?
Reasonable apprehension of a sufficiently imminent breach; preventative action must be proportionate (i.e. must have reasonable grounds for the belief)
Applies to all breach of peace powers not only arrest
Will a possibility of peace of breach be enough for preventative action?
No - must be imminent and honestly believe (with reasonable grounds) that arrest is necessary
Can an individual’s rights under Art 10/11 be restricted simply because they are in the company of others who might breach the peace?
No
Is kettling allowed for a sufficiently imminent breach of the peace in light of Art 5?
Kettling will not be disproportionate to stop the likely breach of peace if deployed in good faith and not arbitrarily e.g. only for a limited period of time to achieve a controlled dispersal
Especially if operating a complex operation in difficult environment
Will usually only be a restriction of right to movement rathert than deprivation of liberty
Can rights of innocent bystanders be affected in measures taken to prevent a breach of the peace?
Yes if proportionate
