Public Order Flashcards
What right is public order offences concerned with?
Article 11:
(1) everyone has the right to freedom of peaceful assembly
(2) no restrictions shall be placed on the exercise of these rights other than such as prescribed by law and are necessary in a democratic society in the interests of national security and public safety for the prevention of disorder and crime, for the protection of heath and morals or for the protection of rights and freedoms of others”
What are the forms of protest?
Fenwick (1999) states that there are different types of protest being peaceful persecution like chanting and handing out leaflets, offensive persecution like carrying racist banners and intimidation, physical obstruction and violence”.
Since the enactment of the HRA, there has been an enlargement of the law in this area.
Fenwick (1999) argues that peaceful persecution, offensive persecution and symbolic obstruction will be protected ow the state will have to provide reasons for interfering with them.
Lord Bingham in (Laporte v. CC of Gloucestershire) stated: neither right of freedom of expression nor the right to protest is a unqualified right therefore they must be balance
What is the ECHR jurisprudence in this area?
Zilberberg v. Moldova - ECHR held that the reason for the importance of freedom of assembly is, like freedom of expression, the cornerstone to a democratic society
Appleby v. UK - There is a wide UK margin of appreciation given by member states from the ECtHR in this area
Public Order Act 1986 s.11
(3) written notice is required of the date, time, proposed route and the name and address of the person organising it to the police with 6 days notice.
What is a procession?
Flockheart v. Robinson, Per Lord Goddard “a procession is a body of persons moving along a route, and the person who organises that route is the organiser of the procession”
A mass bike ride was considered to not be a procession, there was no pre-organised route and proceeded on a follow the leader basis (Kay v. MPC)
What are the exceptions to the “must give notice” rule?
Public Order Act s.11
(1) unless it is not reasonably practical to give notice to the procession (allows spontaneous demonstrations)
(2) it does not apply if the procession is commonly held
Public Order Act 1986 s.12
TRIGGERS:
The Senior police officer at the scene may impose conditions on the march if they reasonable believe that it may result in:
(i) serious public disorder
(ii) serious damage to property
(iii) serious disruption to the life of the community
(iv) or the purpose of the march is intimidating
POWERS:
(i) may alter the route of the procession
(ii) restrict numbers of protesters
(iii) restrict duration of procession
How can the police powers exercised at a procession be challenged (case law example)?
Through judicial review. The grounds for review are:
- illegality
- procedural impropriety
- irrationality
- breach of a convention right / proportionality
R (Brehoney) v. CC of Greater Manchester
R (Brehoney) v. CC of Greater Manchester
- there was restrictions imposed on a protest due to the need to prevent serious disruption on the life of the community
- court held that in cases where conditions are imposed on a public assembly (may also apply to a procession) the chief constable is under a duty to give reasons
What is the problem with judicial review?
it is a expo-facto remedy, and the time of the protest will have past.
Public Order Act 1986 s.13
give police the power to prohibit public procession if the restrictions outlined in s.12 will not be sufficient. They may ban it for up to 3 months or of any specified class of public prosecution in the area specified.
Why is s.13 POA controversial?
it gives unelected officers the power to restrict human rights
Case law surrounding s.13 POA?
Kent - the court of appeal rejected a challenge to the chief constables issuing of blanket ban on marches in London which inadvertently caught the CND
Christians Against Racism - ECHR granted a wide margin of appreciation to the UK in relation to this issue
When does a procession become an assembly?
as soon as the procession stops it becomes an assembly
Public Order Act 1986, s.16
s.16 “a public assembly is an assembly of 2 or more persons in a public place which is wholly or partially open to the air”
Public Order Act 1986, s.14
s.14
TRIGGERS
a police officer may impose conditions on a public assembly if they reasonably believe that it may result in:
- serious damage to property
- serious public disorder
- serious disruption to the life of the community
- the organiser has an intimidatory purpose
POWERS
a police officer can place restrictions on the place, duration and number of people at the assembly
Case law surrounding the police powers of an assembly?
Police v. Reid
- a police officer acted ulta vires in imposing a condition on an anti-apartheid protest outside the SA assembly, the court held the conditions were disproportionate
DPP v. Baille
- spontaneous festial could not come under this act because it was unclear where it was going to be held
Public Order Act 1986, s.14(a)
(1) if at any point in time the chief police officer reasonably believes that an assembly is intended to be held… on land to which the public has no right of access and that assembly
(a) is likely to be held without the occupier of the lands permission … and
(b) may result in:
(i) serious disruption to the life of the community
(ii) where the land has historical importance
he may apply for an order prohibiting the holding of all trespassory assemblies in the district
What is the case law surrounding s.14(a)?
DPP v. Jones (stonehenge road side), Pendragon v. UK (stonehenge druids), Gypsy Council v. UK (kent and the gypsy’s)
DPP v. Jones
- a peaceful assembly on a roadside verge next to stonehenge, this area had been subject to a s.14(a) order
- the assembly went ahead
- Upon appeal to the House of Lords it was held by Lord Hutton that a public assembly on a public highway would not constitute a trespass if it was a reasonable use of the highway
[the court recognised there was a power inbalance in favour of the police so work to ensure the rights of the protesters]
Pendragon v. UK
- the prevention of a druidic religious celebration at stonehedge did not discriminate against the druids
- there was no evidence that the druids were treated any differently to any other religion wishing to celebrate summer solstice there
[this is an example of the courts balancing rights including freedom from discrimination of religion]
[it also demonstrates the wide margin of appreciation give to member states by the ECtHR]
Gypsy Council v. UK
- gypsy council challenged a councils decision to move a horse fair which had long been held in a village green in Kent
- s.14(a) chief constable made an order to the council (they believed they would camp in farmers fields)
- ECtHR ruled that due to the wide margin of appreciation and the provision of an alternative site there was no breach of article 11
What common law powers do the police have to prevent/ halt a protest?
breach of the peace and kettling
What is breach of the peace?
breach of the peace is a long standing common law principle which is used to prevent unlawful violence against people or property. It allows a police officer to arrest a person in order to prevent a breach of the peace, when it is reasonable to believe that should certain conduct continue a breach of the peace will occur. Sanction for breach of the peace is that the court can bind over to keep the peace.
Pre-HRA what did the court say about breach of the peace?
R v. Howell -
“breach of the peace will arise if an act is done or threatened to be done which either harms the person or is likely to cause such harm or which put a person in fear of such harm (e.g. violence)”
This can be seen by the case of Duncan v. Jones (Trade Unionist case) and Moss v. MacLachlan (Miners case)
Duncan v. Jones
- D was about to make a public address in a place where a year earlier a disturbance had been incited by her speaking
- PO reasonably believed that a breach of the peace would occur if the meeting was held, and order D not to speak
- D persisted in trying to hold the meeting and obstructed a PO in doing their duty
- If the PO had been lawful in carrying out their duty then D could be held to be liable for obstructing a PO in the execution of their duty
- Court held: D willingly obstructed the officer in the execution of their duty as the PO reasonably apprehended a breach of the peace
Moss v. MacLachlan
- four striking miners were travelling in a convoy of cars aiming to picket a working mine
- they were stopped by a police cordon on the M1 junction as the police believed a breach of the peace may occur
- if they continued they would be in breach of the peace and therefore be arrested (they continued and were arrested)
- they were arrested of committing the crime of willfully obstructing a PO
- they appealed this and the court held:
“the situation has be assessed by the senior PO present… provided they honesty and reasonably believe there is a real risk of a breach of the peace… there actions in this case were reasonable
DPP v. Redmond Bate [2000]
this was a pre-HRA case, however ruled in the light that the legislation would come into law imminently
- RB had been preaching on the steps of a cathedral abut morality, God and the Bible peacefully
- the police then arrested her as a crowd started to threaten them - they refused to move through breach of the peace
- it was held that they were not obstructing a police officer in his duty because free speech was protected as long as it didn’t encourage violence
Sedley LJ, in DPP v. Redmond Bate
“free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”
[link this with the harm principle]