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
However, Courts have acknowledged that a right to protest and demonstrate exists –Hubbard v Pitt
What is positive protection (for individual rights in UK law)?
Effect of HRA which incorporated key rights and freedoms of ECHR into domestic law as ‘Convention rights’ - 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 (freedom of expression) /11 (freedom of assembly and association) must be prescribed by law; pursuit of legitimate aim; and necessary in democratic society (proportionate)
How much notice and what details must organisers of public processions?
- Minimum of 6 clear days notice to the police
- Date, time, route of procession
To allow police to consider public order issues in advance
For what 3 purposes must notice be given to police 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
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
- Where it is not reasonably practicable to give notice [eg: sudden announcement of Queen’s death / factory closure LOLLL]
Eg: Diwali parade
Kay v Commissioner [2008] - 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 under s.12?
If senior police officer reasonably believes that:
* May result in serious public disorder, damage to property, disruption to life of community
* Purpose of persons organising it is the (intended) intimidation of others with a view to compel them to do an act they have the right to do / right to not do
* * Noise may result in serious disruption to activities for a prolonged period in vicinity of procession (new condition, added in 2022)
Intimidation = more than nuisance or causing discomfort
Police v Reid: Protestors gathered outside South Africa House chanting ‘apartheid supporters.’ Police applied s.12. Court held that intimidation must be more than ‘fear or discomfort’ –it must have compelled the guests to not enter the House.
What form must a condition imposed in advance of the procession be in?
In writing
Must conditions under s.12 be accompanied by reasons?
Yes – by sufficient (but not detailed) reasons
What sanctions are available under the POA for failing to comply with a condition under s.12?
Different for organiser and participant
- Organiser = summary conviction to max 51 weeks imprisonment and/or fine not exceeding level 4 (£2,500)
- Participant = summary conviction to a fine not exceeding level 3 (£1,000)
Both organiser and participant must know/ought to know that a condition has been imposed
Is incitement an offence (if so, what is the sanction)?
Yes. Inciting a participant in public procession to attend a procession when they (ought to) know a condition has been imposed = criminal offence
Sanction = Summary conviction of max 51 weeks or fine not exceeding level 4 (2,500)
When can the chief police offer apply for a prohibition order from the local authority under s.13?
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
Who must apply to local authority under s.13?
Chief of police applies to local authority, who then makes an order with Home Secretary’s consent
Local authorities have no power to seek a ban; must come from police
What is the process to apply for a s.13 prohibition inside London?
Commissioner of Police for the City of London and Commissioner of Police of the Metropolis makes the order with Home Secretary’s consent
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?
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 ban all processions of a specific class? (eg: political marches)
Yes, for a maximum of 3 months. They cannot ban specific individual processions
In what form must a s.13 order be made?
In writing (s.13(5))
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 v Metropolitan Police [1981] – 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
Offences under s.13
s.13(7): Organising a public procession knowing it is prohibited under s.13
Sanction: Max 3 month imprisonment or level 4 fine
s.13(8) Taking part in prohibited public procession
Sanction: Fine not exceeding level 3
s.13(9): Inciting participant to take part in prohibited procession
Sanction: Max 3 month imprisonment or level 4 fine
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
General rule for public assemblies
No requirement to obtain permission to hold a meeting – but local or private acts can set specific requirements
Meetings on private land require landowners permission.
Eg: Holding a meeting in trafalgar square = need permission from Greater London Authority
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
BUT can impose time limits, maximum durations or attendance levels (as long as proportionate)
How must police powers be exercised?
Re conditions
- In a proportionate and reasonable manner
- In a way that complies with duties under s6
Can police impose conditions on one-person protests?
Yes, where the noise created may cause a significant distruption to the activities of an organisation
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
Offences under s.14
14(4) Organising a public assembly and failing to comply with condition
Santion: Max 51 week imprisonment or level 4 fine (2,500)
14(5) Taking party in public assembly and failing to comly with a condition imposed
Sanction: Max level 4 fine
14(6) Inciting a participant to commit an offence
Santion: Max 51 week imprisonment or level 4 fine (2,500)
Defences to s.14
- Failure to comply with conditions was due to a change in circumstances
- Conditions are invalid or disproportionate
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)
How large can the prohibition for tresspassory assemblies be?
Must have strict time and geographical limits
- ** Cannot last more than 4 days**
- Cannot apply to an area greater than a 5-mile circle from a specified centre
- Must obtain Home Secretary’s consent
Does a notice for trespassory assemblies confer an absolute ban on all assemblies on that land?
No. Only to the extent that those taking part are trespassers
Can police stop someone who they believe is headed towards a trespassory assembly?
Yes. Police can stop and direct them to not proceed in direction of assembly. Ignoring this is punishable by a level 3 fine (£1000)
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
When can you arrest for breach of peace?
Before (preventative) or after it has occured
Police can attend and disperse a gathering if they reasonably feel it would be a breach of peace
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
Under what conditions can state restrict freedom of assembly?
If the restrictions are:
- Prescribed by law; and
- Necessary in a democratic society:
* In the interests of national justice or public safety
* For the prevention of disorder or crime
* For the protection of health or morals; or
* For the protection of the rights and freedoms of others
Why was POA introduced?
To give police greater powers and clarify the law
What is the general rule on possesions?
Processions and meetings are prima facie lawful unless the amount to crimes or torts [eg: breaks out into a violent disorder]
Possessions include reasonable use of public highways
What type of consequence can participants of a criminal/tortious prosession face?
Look at fucking question
Criminal proceedings/tort action
What is the basic rule for protests?
Marches are legal as long as they keep moving
What happens if marches stop and hold an assembly/meeting?
Could turn into a potential offence – but courts will consider whether protestors acted reasonably
Eg: if marchers hold assembly in public highway = willful obstruction
Offences under POA 1986
- Riots – maximum 12 years imprisonment
- Threatening, abusive or insulting behaviour – maximum fine of £1000
How do you define public procession? Is somewhere that requires payment to enter considered public?
A procession in a public place, including highways or any other place public may lawfully access on payment or otherwise [eg: public squares, parks, beaches] but also privately owned places [eg: football grounds, theatres] that the public can access on purchasing a ticket
To which police station must notice of a procession be given?
Police station in the area where procession will start
What are punishments for the 2 offences under s.11 for organisers?
Organisers are guilty of …
1. The first offence if they do not give required notice
2. The second offence if the processions differ from what the notice specified
What is the available defence to the first offence under s.11?
Failure to give notice
The organiser did not know, or have any reason to suspect, that s.11 had not been complied with
ie: did not know/have reason to know that notice was not given
What is the available defence to the second offence under s.11?
Procession is different than specified in notice
If the departure from the details of the notice arose:
* From circumstances beyond the organiser’s control, or
* From an **agreement or direction **of the police
Who holds and what is the burden of proof for the 2 defences in s.11?
Defendant on the balance of probabilities
Does failure to give notice make the procession unlawful? Can participants be liable (if so how much)?
No – the procession is unlawful, but it does mean that the organisers committed an offence.
Participation in such a procession is not a criminal offence. Only the organisers commit an offence.
On conviction, what is the penalty organisers can face for failing to comply with s.11?
A fine not exceeding level 3 – currently £1000
ie: fine not larger than 1000
What defences are available for failure to comply with s.12 for both organisers and participants?
- Failure to comply with conditions was due to **circumstances beyond their control **[eg: orgniser became too ill to change route or participant was unwillingly swept along by crowd]
- Conditions are invalud
Who and what is the burden of proof for a s.12 defence?
Falls on the defendant to prove on the balance of probabilities
