Let’s see what the difference actually is.
From Wat Tyler to Extinction Rebellion, public protest has always been a weapon in the activist’s arsenal.
Here we set out a very brief overview of the general law pertaining to protest. This can only be the most superficial outline however. The laws are complex, how they are applied is often arbitrary and inconsistent, and each case will be very fact-specific. So, a brief post can never be a substitute for seeking proper legal advice; especially if you are organising a protest.
With that caveat in mind, let us now look at the basic principles.
Demonstrations and Marches
The law distinguishes between static demonstrations and marches; or, as the Public Order Act 1986 calls them; “public assemblies” and “public processions”.
Generally, there is no obligation to notify the authorities about a planned static demonstration.
It is a requirement though that organisers of marches give at least seven days’ notice to the police.
There is an exception to this requirement where it is “not reasonably practicable” to do so; for example a spontaneous march in response to a sudden development. However, even then, you should try to give as much notice as you can.
The notice can be given by way of letter, which can be posted or handed in to any police station. The notice should set out the date and time of the march and the proposed route. You must also provide the name and address of at least one of the organisers.
The organisers of the march commit an offence if the march deviates in any way from the details in the notice; unless this was due to circumstances beyond their control. So, make sure people set off on time and stick to the route!
The police can impose conditions on marches and also on demonstrations if they involve two or more people, and take place on land wholly or partly open to the air. This includes private land that is accessible to the public.
Conditions imposed prior to a protest must be set out in writing. However, once a protest is underway, conditions can still be imposed orally by the most senior police officer present.
For static demonstrations, potential conditions are restricted to location, duration, and limits on number of people present. For marches, there can be additional conditions prohibiting entry into certain locations or the route generally. Conditions are only supposed to be imposed where they are necessary to prevent risk of serious public disorder, serious damage to property, or serious disruption of other people’s lawful activities.
The police may try to impose conditions such as obtaining public liability insurance; but it is doubtful whether they have the authority to do this. But it might be wise to consider such options anyway.
Failure to comply with a condition, especially one imposed on the day, is a common charge used against protestors.
Challenge to Conditions
In theory, advance conditions can be challenged by way of judicial review. This is an expensive process however, and time constraints may render such applications impractical. Post event judicial review though may serve a purpose, if people have been charged for breaching conditions. Such considerations however are beyond the scope of this article and definitely something where legal advice should be sought. You can find more info about judicial review and AFA’s services here.
Bans on Protests
The police, with the approval of the local authority and the Home Secretary, can impose an outright ban on a demonstration or march. This power is rarely exercised, though.
Generally speaking, there is no right to protest on privately owned land. As more and more quasi public spaces, such as plazas and shopping malls, fall into private ownership, though, this is subject to increasing challenge.
Merely occupying private land is not a criminal offence; it is just civil trespass. Land owners can use “reasonable force” to eject trespassers, though. In practice, they will often call the police first. If people then do resist being forced to leave, they may be arrested for breach of the peace or even assault.
The police do have the power to designate areas in which any trespassing will be a criminal offence. Such designations can only run for four days, however. This power was introduced principally to stop people going into Stonehenge for the solstices.
If people enter private land with the intention of disrupting a “lawful activity” then that can amount to aggravated trespass; which is a criminal offence. It does not matter if the methods of disruption are not offences in themselves. Perfectly lawful activities such as blowing hunting horns can count.
It is also just the underlying activity being disrupted that need be lawful; even if the way its undertaken is in breach of the law. For example, construction work would be regarded as a lawful activity, even if the methods used were in breach of health and safety regulations.
Whilst the police have wide array of offences they can charge protestors with, from criminal damage to assault, there are also a number of specific public order offences.
Sections 4, 4A, and 5 of the Public Order Act 1986 make it an offence to use threatening or abusive words or behaviour or to display any sign which is threatening or abusive.
Merely being “insulting” is no longer an offence. The CPS charging guidelines though, say that anything that was previously regarded as insulting can probably now be charged as abusive.
The primary differences between the various offences are whether they were aimed at any person in particular and the level of intent.
Affray is where someone uses or threatens unlawful violence such that a person “of reasonable firmness” present at the scene might fear for their own safety.
Violent disorder is basically affray but where there are three or more people and their conduct taken together would cause the bystander to worry.
Riot is where twelve or more people use or threaten violence such as to cause someone present at the scene fear. It is a requirement for riot though that all the offenders must be acting in a common purpose. A disorganised brawl would just be a big affray.
The police can ask you to give your name and address; but only if they believe you have been acting in an antisocial manner; and they must state this reason when they ask.
Generally, the police can only search you if they have “reasonable suspicion” that you may be carrying prohibited articles. There is a power though for a senior officer to give authority to the police to search anyone without reasonable grounds. Such blanket authorities can only run for 24 hours; though they may be renewed. This is a power that has been exercised against protestors on a number of occasions.
The police can also invoke a power requiring people to remove any item that a constable “reasonably believes” is being worn wholly or mainly as a “disguise”. It is an offence to refuse. The police can also confiscate items under this power.
“Kettling”; where the police contain large numbers of people in one area and then release them on a staggered basis is a controversial tactic. The courts have held that kettling is not unlawful per se; but each case turns on its own facts. A full discussion of this complex topic is beyond the scope of this article.
The police can arrest anyone they reasonably believe is committing or has committed an (tautologically named) “arrestable offence”. The arrest will be deemed lawful even if it transpires that no offence had taken place. This is different to a ‘citizen’s arrest'; which will only be lawful if the arrested person has committed the offence suspected.
So, there we have it. Whilst anyone considering a protest; and especially people organising one, would be well advised to seek independent legal advice, hopefully these bullet points give some idea as to which areas you need to think about.
Barrister, practicing from chambers in the south west and London
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