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Lecture 18 - Public Protest

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John McGarry

on 27 January 2014

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Transcript of Lecture 18 - Public Protest

Relevant Convention rights
Article 10 - Freedom of Expression
Article 11 - Freedom of Association and Assembly
The common law and public protest
The law of trespass may prevent protest on land owned by another, even if there is a public highway across that land - Harrison v Duke of Rutland [1893] 1 Q B 142
Public protest may amount to a private nuisance - Hubbard v Pitt [1976] QB 142
A peaceful demonstration which does not prevent others from using the highway, does not amount to a nuisance and does not threaten violence, breach of the peace etc is lawful - DPP v Jones [1999] 2 AC 240
Statutory restrictions on public protest - the Public Order Act 1986
Distinguishing between public processions and public assemblies
Public processions -
Flockhart v Robinson [1950] 2 KB 498: “A procession is not a mere body of persons: it is a body, of persons moving along a route.”
S 16 of the Public Order Act 1986: "'public procession" means a procession in a public place.'
Public assembly -
S 16 of the Public Order Act 1986:
"public assembly" means an assembly of 2 or more persons in a public place which is wholly or partly open to the air;
"public place" means--
(a) any highway, or in Scotland any road within the meaning of the Roads (Scotland) Act 1984, and
(b) any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission;
Section 11 - Advance notice of public processions
Unless it is not reasonably practicable to do so, the police must be given notice of any public procession which is:
held to demonstrate support for or opposition to the views or actions of any person or body of persons,
to publicise a cause or campaign, or
to mark or commemorate an event.
The notice should be given at least six days before the event and delivered by hand or by recorded post. It should state:
the name and address of the person(s) organising it;
the date when it is to take place; and
the proposed route.
Where it is not reasonably practicable to give six days notice, the notice should be delivered as soon as is reasonably practicable.
R (Kay) v Commissioner of Police of the Metropolis [2008] UKHL 69 -
it is not essential that the same route be followed for an event to be considered to be commonly or customarily held and so for the exception in section 11(2) to apply
section 11 seems to assume some prior organisation and an organiser
section 11 only applies if a procession is for one of the reasons listed in 11(1)
if notice has not been given when it should have been, only the organisers - and not the participants - commit an offence (per Baroness Hale).
Under section 11(2), notice is not necessary if the procession is one that is commonly or customarily held or is a funeral procession
Section 12 Imposing conditions on public processions
A senior police office may impose conditions on the march if he or she reasonably believes that the procession:
a)may result in
serious public disorder,
serious damage to property or
serious disruption to the life of the community;
b)the purpose of the person organising the march is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.
The officer may impose conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.
Section 13 Prohibiting public processions
A Chief Police Officer may apply for an order banning public processions if he reasonably believes that the holding of a procession will result in serious public disorder and the powers under section 12 will not be sufficient to prevent that disorder
Section 14 Imposing conditions on public assemblies
A senior police officer may impose conditions on public assemblies if he reasonably believes -
(a) it may result
in serious public disorder,
serious damage to property or
serious disruption to the life of the community
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
Only three conditions -
number of participants
Sections 14A, 14B, and 14C - Trespassory assemblies
The power of the police to 'kettle' protesters is based on the power to prevent a breach of the peace
R v Howell [1982] QB 416 -
a breach of the peace occurs where:
•harm is done to a person
•a person is in fear of harm
•harm is done to a person’s property.
Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 / Austin v UK (2012) 55 EHRR 14 -
Both the House of Lords and the ECtHR held that kettling protesters to prevent a breach of the peace did not amount to an infringement of their Article 5 right to liberty
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