Palestine Protests – What are my rights?

As hundreds of thousands of protestors across the UK have taken to the streets to call for a ceasefire in response to Israel’s airstrikes on Gaza, Home Secretary Suella Braverman has come under criticism after she referred to the protests as “hate marches”.

In a letter written to Police Chiefs in England and Wales, Braverman encouraged the police to consider whether chants such as “From the river to the sea, Palestine will be free” should amount to a criminal offence. She went on to state that “it is not just explicit pro-Hamas symbols and chants that are cause for concern” and that “the waving of a Palestinian flag, may not be legitimate such as when intended to glorify acts of terrorism.” Although it is inconceivable in what circumstances waving a Palestinian flag could be intended to glorify acts of terrorism, this has left individuals concerned about what appears to be a crackdown on free speech and confused as to what their rights are when attending protests.

Despite the Home Secretary’s attempt to curb protest rights, waving a Palestinian flag or chanting “from the river to the sea” does not, in itself, constitute a criminal offence. However, it could lead to an arrest where it may cause harassment, alarm or distress to others. The Deputy Commissioner of the Metropolitan Police has said:

“What we cannot do is interpret support for the Palestinian cause more broadly as automatically being support for Hamas or any other proscribed group…An expression of support for the Palestinian people more broadly, including flying the Palestinian flag, does not, alone, constitute a criminal offence.”

Can the police prohibit the marches from going ahead?

More recently, Prime Minister Rishi Sunak described pro-Palestinian protests planned in London on Armistice Day as “provocative and disrespectful” and that there was a risk that war memorials could be desecrated. Despite mounting pressure from the Government, the police must remain operationally independent when deciding how best to respond to threats of crime. Although the doctrine of operational independence is not formally contained in legislation, it is recognised through guidance and case law that this means that police decisions when applying the law should not be made based on political interference. This is linked to the constitutional doctrine of the separation of powers, which requires the principal institutions of the state to be clearly divided so as to prevent overconcentration of power in any one institution. Accordingly, any decision to prohibit a protest must be based in law.

Legally, the Metropolitan Police can prohibit protest marches under Section 13 of the Public Order Act 1986 only where the Commissioner of Police reasonably believes, because of particular circumstances existing in the area, that imposing conditions / restrictions on the march would not be sufficient to prevent serious public disorder. The Commissioner must make an application to the Home Secretary for the ban, who must agree. This power should only be used in exceptional circumstances and must be balanced against individuals’ rights to protest. It has been used rarely in the past.

Regarding the protest planned on Armistice day, whilst the Metropolitan Police initially issued a statement asking organisers of the march to consider postponing their protest, Sir Mark Rowley, the Commissioner of Police of the Metropolis later stated that there was no intelligence which suggested that the threshold to apply to prohibit the march had been met.

So, what rights do individuals have when it comes to protesting and expressing support in solidarity with the Palestinian people?

Article 10 of the Human Rights Act (HRA) 1998 protects your right to freedom of expression. It means that you are free to hold opinions and express those opinions to others. Article 11 of the HRA protects your right to freedom of peaceful assembly and association with others. Together, these rights protect your right to protest. However, these rights are “qualified”. This means that the authorities, including the police, can restrict them in certain circumstances. These rights can be restricted only where it is lawful, necessary and proportionate. This includes, where it is in the interests of national security, public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.

Whilst you do not need permission from the police to protest per se, as this right is protected under the HRA, there is usually a legal requirement to notify the police of an intention to organise a protest 6 days in advance of the date unless it is not reasonably practical. This might be the case where, for example, the protest was organised at short notice in response to a sudden event. This obligation falls upon the organiser, rather than individual attendees.

There is no requirement to notify the police where the protest is stationary. For example, a vigil at a set location. As established above, whilst in some very rare circumstances, the police may prohibit a protest altogether, more commonly, the police can and do often impose restrictions or conditions on a protest where it is considered necessary, in certain circumstances. For example, they may limit the route or duration of a march or impose other more specific conditions.

What can the police arrest me for at a protest?

The below is not a comprehensive list but includes some of the most common ‘protest’ offences which the police may exercise their powers of arrest in respect of:

• Breach of the peace – this is not an offence which you can be charged for. However, you may be arrested for it where you harm a person or their property or are likely to do so or put a person in fear of being harmed or their property harmed.
• Obstructing a police officer in the exercise of their duty under Section 89(2) of the Police Act 1996 – this is where a person wilfully prevents or makes it more difficult for an officer to carry out his or her duties.
• Locking on under the Public Order Act 2023 – it is an offence to attach yourself, another person or object, to another person, object or land where this causes ‘serious disruption’ and you intend or are reckless as to whether your acts would cause serious disruption.
• Harassment, alarm or distress under Section 5 of the Public Order Act 1986 – this is where a person uses threatening or abusive words or behaviour, or disorderly behaviour or displays writing or signs which are threatening or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress. This offence may carry more serious consequences where it is motivated by hostility towards members of a racial or religious group.

• Public Nuisance under Section 78 of the Police, Crime, Sentencing and Courts Act 2022 – this is where a person intentionally or recklessly does something or fails to do something, which risks or causes serious harm to the public or obstructs the public in the exercise/enjoyment of their rights.
• Failing to remove a face covering under Section 60AA of the Criminal Justice and Public Order Act 1994 – this allows a uniformed police officer to require a person to remove any item they reasonably believe is being worn to conceal their identity. For example, a ‘keffiyah’. This power must be authorised in advance by a senior police officer.
• Breaching a dispersal order under Section 34 of the Anti-social Behaviour, Crime & Policing Act 2014 – this allows a uniformed officer to direct a person to leave and not return to an area for a specified period where they have reasonable grounds to suspect that a person’s behaviour is likely to contribute to members of the public being harassed, alarmed or distressed, or to crime/disorder.
• Failure to comply with conditions imposed on a protest under the Public Order Act 1986, which a person knew or ought to have known about. However, the police should provide an opportunity to comply with the condition before attempting to arrest someone.
• Terrorism offences – Hamas and Hezbollah are proscribed organisations under the Terrorism Act 2000, which makes it an offence to belong to, express support for including by arranging meetings, wearing articles or publishing images that arouse reasonable suspicion of support for the groups.
• Assault – this does not necessarily have to involve physical violence and can include making another person think that violence may be inflicted on them, such as, for example, a raised fist. There is also a separate offence of assault on an emergency worker in the exercise of their functions (which includes police officers) which can carry a more serious sentence.
• Criminal damage – this is the destruction of property belonging to another with intent or recklessness as to whether any such property would be destroyed or damaged, with damage being defined as an impairment of the value or usefulness of the property.

Before arresting you, the officer should tell you that you are being arrested, what the offence is and why it is necessary to arrest you.

It is important to remember that police officers may approach individual protestors to gather information and intelligence, however, you are not obliged to speak to the police or answer their questions if you don’t want to. The exception to this is where officers have a reasonable suspicion that you have specifically engaged in anti-social behaviour (behaviour which is likely to cause harassment, alarm or distress). In these circumstances, you are required to provide your name and address.

If you are concerned that the police conducted themselves unlawfully towards you at a protest, you can contact our solicitors for independent legal advice on what actions you can take.