The following article is intended to provide a comprehensive review of the rights and obligations of protestors, balanced against the powers of the police.
Is there a right to protest?
Article 10 of the Human Rights Act 1998 enshrines the right to the freedom of expression and Article 11 establishes the right of freedom of assembly and association. However, these rights are qualified, meaning that, in certain circumstances, these rights can be interfered with. The interference with these rights must be proportionate and necessary in the pursuit of a legitimate aim. For example, the right to freedom of expression and freedom of assembly may be compromised where this is necessary in order to ensure public safety, prevent crime or disorder, protect the rights of others, or national security.
Can the police ban or restrict a protest?
The police do have the power to restrict a protest, however there are strict guidelines which must be followed. If the protest is in the form of a public procession, a senior police office may impose conditions on the route taken for the march or prohibit the march from entering a specific area. Any conditions applied must be ‘necessary to prevent disorder, damage, disruption or intimidation.’ If a protestor knowingly fails to comply with a condition that has been imposed, they will be guilty of an offence. (Section 12 Public Order Act 1986)
A senior police office may impose limited conditions for a static protest, that being a protest where the protestors congregate and stay in one location. The available conditions include specifying where the protest can take place, for how long the protest may last, and how many people can be involved. (Section 14 Public Order Act 1986).
Prohibiting a protest march is deemed to be a last resort, with the Authorised Professional Practice stating that a protest march should only be prohibited ‘in extreme circumstances where there is a real threat of serious public disorder, which cannot be prevented by other less stringent measures.’
When can the police ask for your details?
You do not need to provide your personal details to the police if requested while protesting, unless the police officer has ‘reason to believe that a person has been acting, or is acting in an anti-social manner.’ If the police officer is able to show that the person in question has been acting in a way which amounts to anti-social behaviour, the police officer may request the person’s name and address. (Section 50 Police Reform Act 2002)
This power cannot be used if the police officer believes that you will engage in anti-social behaviour in the future, however imminent. Rather, it must be established by the police officer that you have been acting or are currently acting in an anti-social manner. Acting in an anti-social manner may include behaviour ‘likely to cause harassment, alarm and distress.’ You are entitled to ask the police officer to clarify which power they are using in order to request your name and address. You can also ask the police officer to identify the behaviour that you have exhibited, which amounts to anti-social behaviour.
If the police officer appropriately uses Section 50 to establish your name and address, you can be arrested for failing to provide your name or address or providing a false name or address. If convicted of the offence, you could be fined.
Can the police stop and search protestors?
The police are not authorised to stop and search a person merely because they are involved in a protest. The general stop and search powers are contained in the Police and Criminal Evidence Act 1984 and Code A.
Police officers are entitled to stop and search protestors, if they have reasonable grounds for suspecting that a person has possession of unlawfully obtained items or controlled drugs (Section 1 PACE; Section 23 Misuse of Drugs Act 1971). A police officer may also stop and search an individual, if they have a reasonable belief that incidents of serious violence may take place or that the person is carrying an offensive weapon while in a defined area during a specific time period. (Section 60 Criminal Justice and Public Order Act 1994).
In order for the police officer to conduct a lawful stop and search, they must provide the detained person with their name and the police station they operate from, the object of the search and the grounds for the search. If the police officer is in plain clothes, the officer must provide the detained person with proof that they are a police officer; this will be a warrant card.
The police can use reasonable force when conducting a stop and search where it is deemed necessary; this includes the use of handcuffs. (Section 117 Police and Criminal Evidence Act 1984)
What offences may be associated with protests?
There are certain offences which can be commonplace during protests. If a police officer has reasonable grounds for suspecting that a protestor has committed or is going to commit one of the offences below, the officer can arrest the individual.
Due to the COVID-19 pandemic it is now an offence to be in a gathering of more than six people. The police have the power to tell the people gathering to disperse, to return home, or to take the people back to their homes. The police are encouraged to deal with this offence by seeking cooperation with those gathering before resorting to issuing a fine or arresting those involved in the gathering. It is an offence to obstruct a police officer who requests that a gathering disperse or return home. The police do have the authority to arrest you where it is necessary to ascertain your personal details, to maintain public order or to maintain public health. (The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020)
Public Order Offences:
There are also various public order offences governed by the Public Order Act 1986 which may come into play when dealing with protests. For each of these offences it is necessary to prove that the protestor intended to be threatening, abusive or insulting, or is aware that their behaviour/words could be construed that way.
– Fear or Provocation of Violence:
It is an offence to use threatening, abusive or insulting words or behaviour or to distribute/display any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against them or to provoke the use of immediate violence. (Section 4 Public Order Act 1986)
– Intentional Harassment, Alarm or Distress:
It is an offence to use threatening, abusive or insulting words or behaviour or to display any writing, sign or visible representation which is threatening, abusive or insulting with the intention to cause a person harassment, alarm or distress. (Section 4A Public Order Act 1986)
– Causing Harassment, Alarm or Distress:
It is an offence to use threatening or abusive words or behaviour, or disorderly behaviour or display any writing, sign or other visible representative which is threatening or abusive within the hearing or sight of a person who is likely to be caused harassment, alarm or distress. (Section 5 Public Order Act 1986)
The police can use reasonable force when conducting an arrest; this includes the use of handcuffs. (Section 3 Criminal Law Act 1967)