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The Power of Protest – Where are we now?

On 2 May, a crowd in Peckham surrounded a coach which was intended to transfer asylum seekers to the Bibby Stockholm barge in Dorset. 45 people were arrested for various public orders offences including obstruction of the highway and of police. The crowd were linking arms and shouting “no borders, no nations, stop deportations” and reportedly deflated the coach’s tyers to prevent it from leaving.

Under the current Government, with the ever-increasingly restrictive legislative measures being implemented to curb the right to protest, it is imperative that those attending protests be fully informed about their rights when participating in non-violent action, and police powers.

Underpinning the entitlement to protest are Articles 10 and 11 of the Human Rights Act 1998, which guarantee freedom of expression and peaceful assembly - these are values enshrined within a democratic society. However, these rights are ‘qualified’, meaning that police can interfere with them only where it is lawful, necessary and proportionate.

These conditions require the following to be met:

  • LAWFUL: the police actions must be in accordance with the law (i.e. legislation or statutory instruments enacted by Parliament)
  • NECESSARY: the interference must be for a legitimate purpose. The most common for police to rely on per the lists prescribed within the HRA are to ‘prevent crime or disorder’, or ‘protect other’s rights’.
  • PROPORTIONATE: the interference must only go as far as is needed to achieve that legitimate purpose.

In R (Laporte) v Chief Constable of Gloucester [2004], the House of Lords clarified that police have a common law power to take preventative action to stop a threatened breach of the peace – such action includes the power of arrest. However, it is important to note that the threat must be imminent.

Police powers of arrest are governed by the Police and Criminal Evidence Act 1984. Where they are executed without a warrant, s.24 PACE requires two preconditions for that arrest to be lawful:

  1. Honest and reasonable suspicion [the officer must establish honest and reasonable grounds to suspect the person of an offence]
  2. Necessity [reasonable grounds for believing it necessary to arrest for one of identifiable reasons in s.24(5), the most common in this context being to prevent that person from causing loss of or damage to property, committing an offence against public decency or causing an unlawful obstruction of the highway]

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.

You may be arrested if the police hold information which leads them to have a reasonable suspicion that you plan to commit disorder at the protest, and so carry out the arrest in order to prevent harm. However, the police are also obliged to consider whether the arrest is necessary, in light of the situation faced by the police at the time. This means that arrest must be the most sensible and practical option; where there are viable alternatives, it will be difficult for the police to rationally justify their decision to reject these. Therefore, if you are cooperating or have not given any suggestion that you might not cooperate, then offering you an opportunity to attend the police station voluntarily should be considered by the officer as opposed to arrest.

The Police, Crime, Sentencing and Courts Act 2022 enabled the police to place conditions on a protest if they reasonably believe the following:

  1. That it could cause serious public disorder, damage to property or disruption to the life of the community
  2. That its purpose is to intimidate other people or to prevent such people doing something which they have the right to freely do.
  3. That noise generated by the protest may lead to serious disruption to activities of an active nearby organisation or may have a significant impact on people in the area by causing harassment, intimidation, alarm or distress. Nb. the latter obliges police to consider whether a person of ‘reasonable firmness’ would be affected in this way, as well as the extent of the impact (how long/intense it is likely to be and how many people will be affected).

‘Conditions’ encompass anything the police consider necessary to prevent any of the above. For example, police may restrict access to a particular area, impose noise limits, prescribe a certain route for a marching protest or disallow more than a prescribed number to attend. However, if such conditions are imposed prior to the protest commencing, you are obliged to be notified in writing by the relevant police force’s Chief Constable or Commissioner. By contrast, if they are imposed during the protest, then the most senior officer on the ground must be the one to communicate this. Note, it is a criminal offence to not comply with any imposed conditions if you ‘know or ought to know’ that a condition has been imposed.

The PCSC Act 2022 also introduced harsher punishments for offences, extended the area around Parliament where certain activities are not allowed and introduced a broad offence of intending or recklessly causing public nuisance. Causing public nuisance is a crime if you create a risk of or causes serious harm to the public/ section of the public, or prevent them from exercising their rights. This can include occupying a public space or ‘locking on’. All these measures are deterrents and make it more difficult for protesters to freely disrupt.

Recent regulations have refined the definition of what would constitute ‘serious disruption to the life of the community’ to incorporate any protest which could, through physical obstruction:

  • Prevent or hinder in a way that is more than minor, day-to-day activities
  • Prevent or delay in a way that is more than minor, delivery of a time-sensitive product
  • Prevent or disrupt in a way that is more than minor, access to essential goods/ services

Now the Public Order Act 2023, in building on the existing legal framework, further increased police powers to restrict protest. In introducing the Act, the Government claimed that police had ‘insufficient powers’ to deal with mass participation in non-violent protest. The Act confers wider expansion of existing stop and search power under PACE 1984, meaning the police can stop and search you provided they have reasonable grounds to suspect you are carrying something made or adapted for use in the course of or in connection with:

  • Willful obstruction of the highway
  • Intentional/ reckless causing of public nuisance
  • Locking on, i.e. attaching yourself or another person to another person/object/land, where it is capable of causing serious disruption to 2+ individuals or an organisation
  • Obstructing major transport works
  • Interfering with the use or operation of key national infrastructure
  • Causing serious disruption by tunneling or being present in a tunnel

Note, it also allows stop + searches to be carried out without suspicion in the mind of the searching officer, provided it has been authorised by a senior officer who holds reasonable belief that any of the above offences may be committed in the area and the authorisation is necessary to prevent the same from occurring. As always, this runs the risk of discriminatory application against black people, where disproportionate use of S&S measures against the black community is already well documented.

These powers are deliberately widely defined and have chilling effects of deterrence. Equipment which could arguably be adapted for use in connection with those offences encompasses a large range of things which people in London may ordinarily be carrying, such as bike locks, plastic cables, mobile phones.

Some important points you should know if you plan to attend a protest:

  • You CAN film the police. Their only lawful basis to stop you is if the data is likely to be useful to someone committing/ preparing an act of terrorism.
  • You CAN refrain from answering questions. You only must provide your name & address if they have reason to believe you have been/ are engaging in anti-social behaviour (causing or likely to cause harassment, alarm or distress).
  • If you do get arrested, you do not have to say anything. Know that you are entitled to legal advice for free to assist in a police interview.
  • Do not accept a caution without taking legal advice from a solicitor. A “caution” is an admission of guilt and will stay on your criminal record.

Collective action is a tool for meaningful change. To name just a few: from 1908 when the suffragettes took to the streets to achieve the right for women to vote; 1963 when Martin Luther delivered his ‘I have a dream’ speech at the Lincoln Memorial; 1969 at the Stonewall Inn when the LGBTQIA+ movement gathered momentum; to 2019 when students walked out of their classrooms every Friday to campaign about inaction on climate targets; we all must take responsibility to guard the freedom to challenge this seemingly-inescapable hostile environment through the mechanism of protesting.

This is not intended to be a comprehensive manual of everything you should be aware of at a protest. Our police action, civil liberties and human rights solicitors specialise in actions against the police – get in touch if you believe that the police have conducted themselves unlawfully towards you at a protest.

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