Public -> Freedom of Protest

Freedom of protest is a right laid down by European Convention on Human Rights article 10 (freedom of expression) article 11 (freedom of assembly) and implemented by common law (Beatty v Gillbank). Which the courts must balance against the offences under the Public Order Act 1986 and article 11 (2) which restricts the freedom of assembly to prevent disorder and crime.

• A public assembly is defined under s16 of the Public Order Act 1986 as ‘an assembly of 20 or more persons in a public place which is wholly or partly open to the air’.
• A procession is defined in Flockhart v Robinson as ‘a body of persons moving along a route’.

Police Powers

S11 of the Public Order Act 1986 requires 6 days of advance notice to the police unless it’s not reasonably practical.

The police have a discretion on how they use their public order control powers and are not obliged to arrest or disperse protestors, nor can they arrest for lawful protest or anything that’s not a crime (R v Chief Constable of Devon).

S14 allows a senior officer at the scene to impose conditions upon a public assembly if he reasonably believes it would result in public disorder. Officers an give directions on place, number of people and duration of assembly as well as statutory powers to disperse assemblies. Refusal of police direction is a criminal offence.

If the protestors become intimidating, harassing or cause alarm or distress then a senior officer can authorise dispersal under s.30 of Anti-Social Behaviour Act 2003 as seen in R v Chief Constable of West Midlands.

A common law power exists to prevent a breach of the peace “an act or threat of violence” (R v Howell). Which can be used to disperse a crown as seen in Duncan v Jones and for the offence of obstruction of a police officer in the execution of his duties.

Obstruction of a Highway

It is an offence under s137 of the Highway Act 1980 to wilfully obstruct free passage along the highway without lawful authority or excuse. Arrowsmith v Jenkins held a gathering on the pavement is an obstruction of the highway. Even if theres no intention to obstruct it is still an offence of wilful obstruction. As ‘a highway is for passage and re-passage and your purposes incidental to that movement’.

DPP v Jones (Margaret) HoL held that a small protest in a public place on a roadside verge was not an obstruction of the highway; Small + Peaceful protest = not an obstruction of the highway.

Use of Threats and Violence Under POA

s.1 (Riot)	Use or threat of unlawful violence	12 or more ppl with a common purpose
s.2 (Violent disorder)	Use or threat of unlawful violence.	3 ppl
s.3 (Affray)	Use or threat of unlawful violence towards another.	1 person
s.4 (fear or provocation of violence) DPP v Fidler and Moran	Use of threatening, abusive, nsulting words or behaviour or display of such towards another.	1 person
s.5 (Harassment alarm or distress)	Use of threatening abusive, insulting words or behaviour or display of such.	1 person

Use of threats, abusive or insulting behaviour likely to cause fear of immediate persona violence (R v Horsefery Rd) would satisfy s4 +s5 of POA to experience harassment alarm or distress.

A s.1 riot is a serious offence under the act ‘12 or more people present use of threatening violence for a common purpose as would cause a reasonable person to fear for his personal safety’. The violence may include violence towards person or property (s.7), however it must be proved they had a common purpose… usually towards violence (R v Jefferson). This can sometimes be difficult to prove therefore a s.2 offence may be charged (violent disorder) as it merely requires 3 participants and no need to prove “common purpose”.