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Human Rights And Civil Liberties > Public Order > Flashcards

Public Order Flashcards

1
Q

What right is public order offences concerned with?

A

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”

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2
Q

What are the forms of protest?

A

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”.

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3
Q

Since the enactment of the HRA, there has been an enlargement of the law in this area.

A

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

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4
Q

What is the ECHR jurisprudence in this area?

A

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

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5
Q

Public Order Act 1986 s.11

A

(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.

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6
Q

What is a procession?

A

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)

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7
Q

What are the exceptions to the “must give notice” rule?

A

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

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8
Q

Public Order Act 1986 s.12

A

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

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9
Q

How can the police powers exercised at a procession be challenged (case law example)?

A

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

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10
Q

R (Brehoney) v. CC of Greater Manchester

A
  • 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
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11
Q

What is the problem with judicial review?

A

it is a expo-facto remedy, and the time of the protest will have past.

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12
Q

Public Order Act 1986 s.13

A

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.

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13
Q

Why is s.13 POA controversial?

A

it gives unelected officers the power to restrict human rights

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14
Q

Case law surrounding s.13 POA?

A

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

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15
Q

When does a procession become an assembly?

A

as soon as the procession stops it becomes an assembly

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16
Q

Public Order Act 1986, s.16

A

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”

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17
Q

Public Order Act 1986, s.14

A

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

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18
Q

Case law surrounding the police powers of an assembly?

A

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

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19
Q

Public Order Act 1986, s.14(a)

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

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20
Q

What is the case law surrounding s.14(a)?

A

DPP v. Jones (stonehenge road side), Pendragon v. UK (stonehenge druids), Gypsy Council v. UK (kent and the gypsy’s)

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21
Q

DPP v. Jones

A
  • 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]
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22
Q

Pendragon v. UK

A
  • 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]
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23
Q

Gypsy Council v. UK

A
  • 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
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24
Q

What common law powers do the police have to prevent/ halt a protest?

A

breach of the peace and kettling

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25
Q

What is breach of the peace?

A

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.

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26
Q

Pre-HRA what did the court say about breach of the peace?

A

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)

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27
Q

Duncan v. Jones

A
  • 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
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28
Q

Moss v. MacLachlan

A
  • 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
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29
Q

DPP v. Redmond Bate [2000]

A

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
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30
Q

Sedley LJ, in DPP v. Redmond Bate

A

“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]

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31
Q

Case law surrounding breach of the peace?

A

Redmond Bate casts doubt on whether Duncan v. Jones and Moss v. MacLachlan were correctly decided. In Redmond Bate the POs decision to arrest was not lawful. it is a shift away from granting such wide power to the police. However it is now subject to the decision in the case of R (Laporte) v. Chief Constable of Gloucestershire

32
Q

R (Laporte) v. Chief Constable of Gloucestershire

A
  • case involved an anti-Iraq war, the police new some people on three buses were members of the anarchist group, The Wombles,
  • the police stopped and searched the buses some way before the destination however could not find them so turned the buses around and sent them back to London so no one could protest
  • this went to JR
  • House of Lords held this was unlawful interference with a Human Right, the court held the breach of the peace must be imminent and police only have powers to arrest and not to direct people.
33
Q

What is Kettling and case law examples?

A

It is when the police restrict the movement of protesters to a certain area
Austin v. Commissioner of Police of the Metropolis and R (Moos) v. Commissioner of Police of the Metropolis

34
Q

Austin v. Commissioner of Police of the Metropolis

A
  • an anti-globalisation rally in London, the organisers had not sought authorisation for it
  • fearing disorder the police cordoned off Oxford Circus for 7 hours
  • a speaker was held in the cordon for 7 hours argued it was in breach of her article 5 right to liberty as she could not collect her child from nursery
  • House of Lords held a deprivation of liberty is a matter of degree and intensity, and a range of factors should be considered such as:
  • situation of the individual
  • context in which it occurs
  • purpose of the confinement
  • in this case it was held that the police measures were in good faith then the article 5 right was not contravened, therefore in this case it was held to be reasonable and proper
    [this case went to ECHR and it was held there was not intervention]
35
Q

What is the relation between the cases of Laporte and Austin?

A

Laporte had restricted the use of breach of the peace powers through restricting police police to merely arrest. Austin however had broadened it allowing detention in a kettle.
It should be noted that the House of Lords did stress the exceptional nature of the circumstances in Austin.

36
Q

R (Moos) v. Commissioner of Police for the Metropolis

A
  • there was a fear of violence at the G20 summit, PO made the decision to kettle 4000-5000 protesters from 12pm to 7:30pm
  • Court held it was reasonable to conclude that a breach of the peace was imminent in light of the information available to them at the time
    Lord Neuburger: “a decision to contain will only be made… in extreme and exceptional circumstances… and the circumstances here met this test”
37
Q

Can police film in kettles?

A

Mengesha v. Commissioner of Police of Metropolis

  • M had attended a demonstration in Piccadilly and became caught in a kettle
  • after a lengthy period the kettle was dispersed, they were told to be able to leave the kettle needed to give their name and ID or risk arrest
  • it was held that this is not lawful for the police to maintain containment for gaining information
  • article 8 as engaged and it was incumbent on the PO to justify the collection of information
38
Q

Police Act 1996, s.89(1)

A

(1)
any person who assaults a constable in the execution of their duty or a person assisting a constable in the execution of their duty shall be guilty of this offence
(2)
any person who resists or willfully obstructs a constable in the execution of his duty or a person assisting a constable shall be guilty of an offence

39
Q

What is a case law example of police assault?

A

(1)
Fagan v. MPC
F drove onto a POs foot and refused to remove it amounted to assault
(2)
Duncan v. Jones
once a PO reasonably believes that a breach of the peace could occur, any action which impeded them in their course of preventing it could amount to breach of the peace

40
Q

What powers do the court have in relation to breach of the peace?

A

Justices of the Peace Act 1361 gives courts the power to bind over offenders to keep the peace, this can be an alternative to a criminal offence. This involves the court identifying a certain activity which the individual must refrain from.

41
Q

What is the case law examples of binding over powers?

A

Percy v. DPP - there must be a threat of violence/ violence for a person to be bound over

Steel and others v. UK - “Good Behaviour” was too vauge therefore the courts power was no clear

Halesman v. UK - “Be of Good Behaviour” was unclear what to refrain from, therefore the ECtHR held it was in violation from art. 10

42
Q

Public Order Act 1936, s.1

A

“prohibition of uniforms in connection with political objects”

43
Q

Case law example on the prohibition of political uniforms?

A

O’Moran v. DPP - IRA funeral, the IRA had a quasi-uniform of black with a berry and sunglasses, it was held to come under s.1 POA 1936

44
Q

Public Order Act 1986, ss.1, 6-8

A

RIOT

s. 1
(1) where 12 or more people are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness at the scene to fear for his personal safety, each of the persons using unlawful violence is guilty of riot
(2) it is immaterial whether or not the 12 or more use or threaten unlawful violence simultaneously.
(3) The common purpose may be inferred from conduct.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Riot may be committed in private as well as in public places.
(6) A person guilty of riot is liable on conviction on indictment to imprisonment for a term not exceeding ten years or a fine or both.

45
Q

What are case law example of a riot?

A

R v. Tyler (riot concerning the poll tax) and R v. Jefferson (a riot after an England football win)

46
Q

Public Order Act 1986, ss.2, 6-8

A

VIOLENT DISORDER
“where 3 or more persons present together use if threaten unlawful violence whether simultaneously or not , and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene of the crime to fear for his personal safety each of those using/threatening unlawful violence is guilty of a violent disorder”

47
Q

What is the case law for a violent disorder?

A

3 or more people must be present (R v. Fleming)
the case of R v. Hebron demonstrated that being at the scene of a fight where bottles were thrown at the police led to convictions for violent disorder

48
Q

What is a typical example of a violent disorder?

A

gang violence

49
Q

What are the differences being a riot and violent disorder?

A
  1. the number of people required for the offence (3 vs. 12)
  2. the common purpose requirement for riot and not for violent disorder
  3. for riot unlawful violence is a requirement whereas for violent disorder the mere threat is required
50
Q

Public Order Act 1986, s. 3, 6-8

A

AFFRAY
“a person commits an affray if he used or threatens [other than by words alone] unlawful violence to another and his conduct us such as would cause a person of reasonable firmness present at the scene of the crime to fear for personal safety”

51
Q

What is the case law example for conduct more than words under an affray?

A

R v. Thind - D drove his car at a rival gangs car
R v. Robertson - a threatening tone of voice will not suffice, action is required
R v. Dixon - a man encouraged his dog to attack the police came within s.3
IM&H v. DPP - carrying petrol bombs can amount to an affray

52
Q

Public Order Act 1986, s.4

A

FEAR OR PROVOCATION OF VIOLENCE
“a person is guilty of an offence is he:
a.) uses towards another person threatening, abusive or insulting words or behaviour
b.) distributes or displays to another person any writing, sign or other visual representation which is threatening, abusive or insulting
with intent to cause that person to believe that immediate unlawful force will be used against him
this offence may be committed in public or private”

53
Q

The two elements of s.4 (and authority)

A

Winn v. DPP
the two elements of a s.4 offence are:
1.) D must intend or be aware that his words or behaviour are insulting
2.) that they must be directed at another person

54
Q

Case law surrounding s.4 POA 1986?

A

Threatening or abusive?
Brutus v. Cozens held that they have their ordinary meaning

Likelihood?
Parkin v. Norman - if the V isn’t offended this does not loose the insulting nature of the behaviour
Ambrose - held that rudeness is not insulting, it is a higher threshold

Towards another?
Atkin v. DPP - V has to receive the threat personally

Immediate unlawful violence?
DPP v. Ramos - racist letters amounted to an immediate threat of violence
Valintine v. DPP - letter to a neighbour amount to immediate unlawful violence

55
Q

Public Order Act 1986, s.5

A

WORDS OR CONDUCT CAUSING HARASSMENT, ALARM OR DISTRESS

(1) a person is guilty of an offence if he:
(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or
(b) displays any writing sign or other visible representation which is threatening or abusive within sight of a person likely to be caused harassment, alarm or distress thereby”
(3) a defence is that they did not know that person was there

56
Q

What is a case law example of s.5?

A

Munim Abdul & Others v. DPP

  • protesting at a soldiers military parade, calling them baby killers
  • court held these words fell foul of the POA, calling them potentially defamatory comments

Norwood v. DPP
- displayed a sign that said Islam out of Britain with a picture of the twin towers, led to a s.5 offence

57
Q

What is the difference between a s.4 offence and a s.5 offence under the POA 1986?

A

s.4 need to prove a V, whereas in s.5 they merely must be aimed at one person in particular

58
Q

Insulting in s.5?

A

s.57 of the Crime & Courts Act 2013 removed the word insulting from a s.5 offence

59
Q

Public Order Act 1986, s.4(a)

A

Harassment, alarm or distress must be actually caused to the person against whom the behaviour is directed.
It also requires an intention of causing another harassment, alarm or distress

60
Q

Where do the court gain intention from?

A

The courts may infer intention from the facts (Rodgers v. DPP)

61
Q

Criminal Justice and Public Order Act, 1994, ss.68-69

A

AGGRAVATED TRESPASS
to go onto land without the consent of the owner with intent of obstructing or disrupting a lawful activity. The police have the power to order you off the land.

62
Q

Case law about aggravated trespass

A

Richardson v. DPP - Shop selling products made in palastine wanted to prevent sale of such products, it was criminalised in the shop as it was trespassing, they argued that the shop wasn’t carrying out a lawful activity due to war crimes, a spesfic criminal offence was needed rather than an incidental criminal activity

Baver v. DPP - it is the element of disrupting the shop that makes it agregvated trespass

DPP v. Barnard - there was no evidence for intimidation in a mine therefore just trespass, this is a narrow interpretation

Ayliffe, Swain & Percy v. DPP - protesting the Iraq war on a military base, argued Iraq war was an unlawful activity - court rejected this argument

63
Q

Winder v. DPP

A

Prosecution must use the test of

i) trespassing
ii) intending to disrupt
iii) did something towards that end
- this case held that running after a hunt amount ted to aggravated trespass

64
Q

Criminal Justice and Public Order Act 1996, s.61

A 
MASS TRESPASS 
Police have the power to tell an occupier to leave land when owner has asked him to do so if he has:
- damaged the land
- used threatening/ insulting behaviour
- more than 6 vehicles on the land
65
Q

Case law example of s.61

A

R (Fuller) v. CC Dorset Police
- gypsy’s on land, police raided the encampment amounted to an interference with family and private life, therefore s.61 should be construed narrowly

66
Q

s.137 Highways Act

A

OBSTRUCTING A HIGHWAY

  1. Physical obstruction of the highway
  2. with intent
  3. without lawful excuse
67
Q

Case law surrounding obstructing a highway?

A

Nagy - reasonable use of the highway depends on the circumstances
Hirst - space was a consideration

68
Q

Demonstrations near parliament?

A 
Police Reform and Social Responsible Act 2011 hold that there are special requirements for this including:
- no load speakers
- no tents
- no sleeping 
within 1km of Parliament
69
Q

Harassment

A

there is also Protection From Harassment Act 1997 which may apply in some circumstances

70
Q

In relation to all the Public Order offences what is noticeable?

A

The police have a wide discretion of powers over the human rights of people

71
Q

Fenwick (2009)

A

by minimising human rights approach to kettling this endangers the doctrine that human rights are a constitutional instrument
argues that if British Bill of rights is considered the role the police within that should be considered as well as the meaning of liberty
argues it must be reformed

72
Q

Fenwick and Phillipson (2000)

A

argues that due to the large margin of appreciation the attitude towards protest will be heavily influenced by the judicial approach to it [however this has been unclear due to the fluctuating judicial protection offered to the right to protest]

73
Q

Stone (2001)

A

argues that the B of the P is unnecessary, uncertain scope and can be used disproportionately
argues that abolition should be done, and is possible without limiting police powers as statute helps

74
Q

What are the laws governing racial hate speech?

A

Public Order Act 1986 s.18,
displaying abusive, threatening or insulting words with the intent to stir up racial hatred, or with regard to the circumstances is likely to stir up racial hatred

75
Q

What are the laws governing religious hate speech?

A

Racial and Religious Hatred Act 2006
offences involving stirring up hatred against persons on religious grounds through displaying merely threatening words with intent to stir up hatred. Note the distinction between religious hatred and blasphemy.

76
Q

What are the laws governing sexual orientation hate speech?

A

The Criminal Justice and Immigration Act s.74

use threatening words or behaviour with intent to stir up hatred based on sexual orientation

Human Rights And Civil Liberties (10 decks)

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