Public Order Flashcards
Traditionally, what is the principle of residual / negative freedom? Where did it come from?
This is the principle that citizens are free to do as they wish unless the law clearly states that the conduct is prohibited.
This was developed under common law.
What was the protection of rights and freedoms under the UK constitution was based on?
the principle of residual or ‘negative’ freedom
What right have judges acknowledged under common law?
The right to protest
What are the key human rights in relation to this area?
o Freedom of expression (art 10)
o Freedom of assembly and association (art 11)
What has had a significant impact on the protection of rights in the UK? How did this expand on the principle of negative freedoms?
The ECHR and HRA 1998
These provide positive protection of citizens’ rights and freedoms
When can Art 11 freedom of assembly be restricted?
- The restrictions are prescribed by law; and
- They are necessary in a democratic society, i.e.:
In the interests of national security of public safety
For the prevention of disorder or crime
For the protections of health or morals; or
For the protection of the rights and freedoms of others
What is the general position under the public order act 1986?
Processions and meetings are prima facie lawful unless they amount to crimes or torts
The police have specific powers under POA and common law to control them
What is the definition of a procession?
A march or moving protest
What is the general position under the public order act 1986 in relation to processions?
Processions are regarded as a reasonable use of the public highway and so are lawful unless:
o Disorder or violence breaks out
o Property is damaged
o There is a breach of a public order offence
If disorder or violence breaks out during a procession, what are the possible consequences?
participants may be charged with a public order or other criminal offence
What are the key provisions under the public order act 1986 in relation to processions?
- S11 POA – notice requirements and offences
- S12 POA – powers of the police and offences
- S13 POA – extended powers of the police and offences
If property is damaged during a procession, what are the possible consequences?
participants may face action in tort
What is the general position under s11 POA - notice requirements for processions?
If a person is organising a public procession for any of the below reasons, they must give the police 6 clear days’ notice of the date, time and route of the proposed procession:
o A procession to demonstrate support / opposition of the views or actions of a person or body of persons;
o A procession to publicise a cause or campaign; or
o A procession to mark or commemorate an event
If a person is organising a public procession what notice must they give and who to?
they must give the police 6 clear days’ notice of the date, time and route of the proposed procession
What types of procession must the police be informed of?
o A procession to demonstrate support / opposition of the views or actions of a person or body of persons;
o A procession to publicise a cause or campaign; or
o A procession to mark or commemorate an event
Where must notice of a public procession be delivered to?
the police station closest to where the procession will start
Give an example of when a procession would and would not be public
Public procession - a march into a theatre to protest about a play being performed there
NOT a public procession - football supporters on their way to watch a match
What is a public procession?
a procession that takes place in a public place i.e. a highway or any other place that the public may lawfully access on payment or otherwise
in other words, it includes public spaces AND private spaces if the public need to buy a ticket
What types of procession are exempt? What does this mean?
The following are exempt and do not need to comply with s11 notice requirements:
o Funerals
o Customary or commonly held procession in a given police area i.e. Remembrance Day, Diwali, mass cycle events that take place annually (even if a set route isn’t followed)
o If it is not reasonably practicable, notice does not need to be given i.e. impromptu reaction to news following unexpected military action by the government
What are the offences in relation to notice of processions? What is important to remember about these offences?
- organisers will be guilty if they do not give the required notice
- organisers will be guilty of the processions differ from what was set out in the notice
NB: this is only an offence relating to the organisers (i.e. not the participants). It does not render the procession unlawful
What is a defence to the offence of failing to give notice of a procession?
It is a defence if the organiser did not know and did not have any reason to expect that the notice requirements had not been complied with
What is a defence to the offence of the procession differing from the notice?
It is a defence if the procession differed due to circumstances beyond the organiser’s control or from something done with the agreement of the police or by their direction
What is the burden of proof in relation to the defences for procession offences?
the burden of proof is on the defendant on the balance of probabilities to prove that the defence exists
What is the penalty for a procession offence?
Convicted organisers will be liable of up to a level 3 fine (currently £1000)
What powers do the police have in relation to processions?
s12 POA - the power to impose conditions.
s13 POA - the power to prohibit processions.
When can the police exercise the power under s12 POA to impose conditions on processions?
The can impose conditions on public processions if senior police officer reasonably believes that:
o The march will result in serious public disorder, damage to property or disruption to the life of the community; or
o The noise generated by the persons taking part in the procession may result in serious disruption to the activities of an organisation which are carried out in the relevant vicinity; or
o The noise generated by the procession may have a significant impact on those in the vicinity; or
o The purpose of the organisers is to intimidate others with a view to compelling them not to do something they have a right to do or to do something they have a right not to do
re s12 & 14 POA power to impose restrictions:
What is meant by community?
anyone who is affected by the procession, not just people who live and work there
re s12 & 14 POA power to impose restrictions:
What is meant by serious disruption?
disruption that causes ‘more than minor’ hindrance to day-to-day activities for other people, including making a particular journey
re s12 & 14 POA power to impose restrictions:
What is meant by intimidation? What is an example?
Intimidation means more than being a nuisance or discomfort.
demonstrators shouted ‘Apartheid murderers’ and ‘you are a dying breed’ as guests. The Chief Inspector imposed a condition for them to move away. They didn’t and were charged. The Court held this was ultra vires. The Chief Inspector had used the test of ‘putting people in fear or discomfort’ but the demonstrators would have needed an intention to compel guests not to go into the reception for their activity to amount to intimidation
re s12 & 14 POA power to impose restrictions:
What must the police consider when deciding whether to impose conditions?
o All relevant disruption i.e. disruption that may occur from the procession and disruption that would occur in any event (i.e. normal traffic congestion); and
o The cumulative impact of concurrent and repeated processions in the same area
re s12 & 14 POA power to impose restrictions:
What conditions can the senior police officer impose? What must they consider?
Give some specific examples in relation to s12 & 14
Any conditions that appears to be necessary, reasonable and proportionate to prevent disorder, damage, disruption or intimidation
The police must consider Art 11 of the ECHR
Example s12 - prescribing the route or prohibiting the march for a particular public place
Example s14 - order the participants to disperse, limit the duration of the meeting but this must be proportionate
re s12 POA power to impose restrictions:
who can impose these conditions and how are they imposed?
If the conditions are imposed during the processions, the most senior police officer present. They can impose the conditions verbally.
If the conditions are imposed in advance, it is the Chief Officer of the relevant police force or the Commissioner of Police of the Met or City or London. The conditions must be given in writing and sufficient reasons must be given.
What are the offences in relation to s12 POA (police power to impose conditions)?
Where a person knew or ought to have known about a condition(s), they will be guilty of an offence if they:
o Organised a public procession and fail to comply with a condition
o Took part in a public procession and fail to comply with a condition
o Incited a participant to take part in a public procession and fail to comply with a condition
What are the sanctions where someone organised a procession and failed to comply with a condition?
o Up to 51 weeks imprisonment;
o Up to a level 4 fine (currently £2500); or
o Both
What is the sanction where someone takes part in a procession and fails to comply with a condition?
o Up to a level 3 fine on the standard scale (currently £1000)
What are the sanctions where someone incites someone to take part in a procession and fails to comply with a condition?
o Up to 51 weeks imprisonment;
o Up to a level 4 fine (currently £2500); or
What is a defence to a s12 POA offence (police restrictions on a procession)?
It will be a defence if they can show that their failure to comply with the conditions was due to circumstances beyond their control i.e.
o The organiser became too ill to change the route; or
o A participant was unwillingly swept along by the crowd
It has previously been a defence where the defendant has proven that the police conditions were invalid
When can the police exercise their power under s13 POA (power to prohibit processions)?
A chief of police can apply for a prohibition order in respect of a public procession if they reasonably believe, because of particular circumstances in any locality, that the powers in s12 are insufficient to prevent risk of serious public disorder
re s13 POA (power to prohibit processions) & s14 POA (power to restrict assembly):
Who is the application made to? What is the relevant process?
Outside of London - the police apply to the local authority. The LA will then make the order with the Home Secretary’s consent. LA’s have no power to do this on their own, the request must come from the police.
Inside of London - the Commissioner of Police for the City of London or Met will make the prohibition order with the Home Secretary’s consent.
What can a prohibition order do and not do?
- It can ban all processions or procession of a particular class
- It cannot ban a specific individual procession
re s13 POA (power to prohibit processions):
How long can a prohibition order be in place for? What form must it take?
up to 3 months and it must be in writing
What are the offences in relation to s13 POA (power to prohibit processions)?
- Organising a public procession knowing that it is prohibited under s13.
- Taking part in a public procession knowing that it is prohibited under s13.
- Inciting a participant to take part in a public procession that is prohibited under
Do the public have any power in relation to prohibition orders?
They can be challenged by way of judicial review but the courts are reluctant to quash such orders
What are the sanctions for organising a public procession knowing that it is prohibited under s13?
o Up to 3 months imprisonment;
o Up to a level 4 fine (currently £2500); or
o Both
What are the sanctions for inciting a participant to take part in a public procession that is prohibited under s13?
o Up to 3 months imprisonment;
o Up to a level 4 fine (currently £2500); or
o Both
What is the sanction for taking part in a public procession knowing that it is prohibited under s13?
o Up to a level 3 fine on the standard scale (currently £1000)
When does a procession become an assembly?
If a procession stops and holds a meeting, it will then become an assembly
What is a meeting and what is its formal name?
A meeting is a static protest (i.e. picket lines and industrial action). This is called an ‘assembly’.
If a procession becomes an assembly, what may happen?
This may amount to a wilful obstruction of a highway contrary to s137 Highway Act 1980. This Act makes it an offence for a person without lawful authority or excuse to, in any way, wilfully obstruct the free passage along a highway
What is meant by ‘lawful excuse’?
‘lawful excuse’ means looking at whether the action is lawful and reasonable
What powers do the police have in relation to public assemblies?
s14 POA - the power to impose conditions
14a POA - the power to ban trespassory assemblies
What is the main difference between the processions and assemblies in terms of the legislation?
There are no notice requirements for public assemblies, but there are for processions
When can the police exercise their powers to impose conditions on a public assembly?
These are the same as when the police exercise powers under s12, i.e.:
The can impose conditions on public processions if senior police officer reasonably believes that:
o The march will result in serious public disorder, damage to property or disruption to the life of the community; or
o The noise generated by the persons taking part in the procession may result in serious disruption to the activities of an organisation which are carried out in the relevant vicinity; or
o The noise generated by the procession may have a significant impact on those in the vicinity; or
o The purpose of the organisers is to intimidate others with a view to compelling them not to do something they have a right to do or to do something they have a right not to do
What is the definition of a public assembly?
an assembly comprising of two or more persons in a public place that is wholly or partly open to air.
Unlike s12 public processions, the purpose of the assembly is irrelevant
What do the police not have the power to do under s14?
The police cannot ban a public assembly but they can order participants to disperse
Under s14 (power to restrict assemblies), what form must an advance notice take?
The conditions must be in writing and give sufficient reasons for the restrictions conditions
What are the offences in relation to s14 POA (power to restrict public assemblies)?
Where a person knew or ought to have known about a condition(s), they will be guilty of an offence if they:
o Organised a public assembly and fail to comply with a condition
o Took part in a public assembly and fail to comply with a condition
o Incited a participant to take part in a public assembly and fail to comply with a condition
What are the sanctions where someone organised an assembly and failed to comply with a condition?
o Up to 51 weeks imprisonment;
o Up to a level 4 fine (currently £2500); or
o Both
What is the sanction where someone takes part in an assembly and fails to comply with a condition?
o Up to a level 3 fine on the standard scale (currently £1000)
What are the sanctions where someone incites someone to take part in an assembly and fails to comply with a condition?
o Up to 51 weeks imprisonment;
o Up to a level 4 fine (currently £2500); or
What is a defence to a s14 POA offence (police restrictions on a procession)?
It will be a defence if they can show that their failure to comply with the conditions was due to circumstances beyond their control i.e. a participant was unwillingly swept along by the crowd
It has previously been a defence where the defendant has proven that the police conditions were invalid
What is a trespassory assembly (S14a POA 1986)? What are the definitions of the key terms within this?
‘as assembly to be held at a place or on land which the public has not right of access or only a limited right of access’
Assembly = of 20 persons or more
Land = land in the open air
When can the police exercise their power under s14a (trespassory assembly)?
A chief officer of police can ban a trespassory assembly if they reasonably believe:
o It is being held without the permission of the occupier or outside the terms of any permission / right of access; and
o It 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
Which rank of officer can exercise s14a (trespassory assembly)?
a chief of police
If a police officer wants to exercise s14a (trespassory assembly), what will they need to do?
Seek a prohibition order.
They will need to make the relevant applications:
Outside of London - the police apply to the local authority. The LA will then make the order with the Home Secretary’s consent. LA’s have no power to do this on their own, the request must come from the police.
Inside of London - the Commissioner of Police for the City of London or Met will make the prohibition order with the Home Secretary’s consent.
What are the conditions of a prohibition order in relation to a trespassory assembly?
The prohibition order is:
o for a specified period and bans all trespassory assemblies
o cannot last for more than 4 days
o can only have a 5 mile radius from a specified centre
What powers do the police have in relation to someone on their way to a trespassory assembly?
S14c gives constables in uniform who reasonably believe a person who is on their way to a trespassory assembly the power to stop them and direct them not to proceed in the direction of the assembly
What is important to note about notices prohibiting trespassory assemblies?
The notice only applies to trespassory assemblies i.e. assemblies which take place on private land.
This is important because a prohibition order may encompass a public space, an assembly in a public area will only be trespassory where they go outside of their right of access
DPP v Jones [1999] - 21 people were peacefully protesting on a highway. The judge ruled a highway is a public place that the public can enjoy for any reasonable purpose provided it does not involve any public and private nuisance and does not unreasonably obstruct the highway.
Who has the power to exercise s14c (power to redirect re: trespassory assembly)?
a constable in uniform
Who is the sanction if someone fails to adhere to a s14c (power to redirect re: trespassory assembly) request?
level 3 fine (£1000)
What are the offences in relation to s14c (power to redirect re: trespassory assembly)? How are these different to other offences?
- Organising an assembly knowing it is prohibited
- Taking part in an assembly knowing that it is prohibited
- Inciting to organise or participate in an assembly knowing it is prohibited.
These offences require the person to know the assembly is prohibited. The other offences require the person to ‘know or ought to have known’
What is the sanction for organising a trespassory assembly knowing it is prohibited?
o Up to 3 months imprisonment;
o Up to a level 4 fine (currently £2500); or
o Both
What is the sanction for taking part in a trespassory assembly knowing it is prohibited?
o Up to a level 3 fine on the standard scale (currently £1000)
What is the sanction for inciting to organise or participate in a trespassory assembly knowing it is prohibited?
o Up to three months imprisonment;
o Up to a level 4 fine (currently £2500); or
What is breach of peace?
Breach of the peace is a common law concept which is used to prevent unlawful violence against people or property
It is defined as ‘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 assault or affray, riot, unlawful assembly or other disturbance’
What common law powers can the police use when there has been a breach of peace? When can these be used?
o Power of arrest
o Require gatherings to disperse
o Entry without a warrant
These can be used on its own or alongside statutory powers
When can the police use the common law power in relation to breach of peace?
When a breach of peace has occurred or when they reasonably apprehend / fear breach of peace will occur.
If the police are going to exercise these powers before violence has occurred, the police must reasonably believe the breach of peace is imminent. The police will need to be able to show that their intervention was proportionate (i.e. in line with Art 10 and 11).
Drastic action by the police will sometimes be justified, even if innocent bystanders are caught in it
What is an example of when the police’s’ use of common law powers have not been proportionate?
the police escorted 120 campaigners on a coach 90 miles back to London. The HOL held that the police did not feel the breach of peace was imminent. Intervention had been premature. The police could have taken less drastic action i.e. allowing them to attend the airbase and arresting anyone who did breach of peace. The RAF also had precautions in place.
What is an example of drastic action by the police in response to a breach of peace being justifiable?
demonstrators had been confined to a police cordon (known as kettling) following protests which had previously resulted in serious disorder. Some protestors had threatened violence. The HOL held that this did not affect the art 5 right to liberty, even though some bystanders were caught up in it. The crowd control measures were appropriate to prevent a BOP.
