LA3 Protest

Procession= a number of people moving along a route; the doesn’t specify number

Assembly= at least 2 people static in a public place, can include highway, pavement. 

S.16 POA: is important that the public/section of the public have access to it.

S.11 POA: Advance notice must be given to police 6 clear days before date intended to be held.  Notice must state:

·         Date
·         Time
·         Proposed Route
·         Names/Addresses of persons proposing to organise it

N.B an organised protest should mean that there has been advance notice

S.11(1): Notice doesn’t have to be given where not reasonably practicable to give advance notice in writing/by hand.  Allows for spontaneous protest.

S.11(7): Organisers will be guilty of summary offence if notice requirement isn’t satisfied or procession deviates from info provided (unless it occurred due to circumstances outside of their control)

S.12: Processions

S.12 allows a chief officer of police (or highest ranking officer at scene) to impose conditions prior to procession. (Evidence of conditions; police officer approaches procession and makes a modification)

S.12(1)(a): Chief officer of police (or highest ranking officer) must believe the purpose of the procession 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’

These are known as triggers.  They cover 4 situations.

1.Serious Public Disorder

2.Serious Damage to Property

3.Serious disruption to the life of the community

4.Serious threatening, intimidating and coercive behaviour

Trigger 4: requires the police to make a judgement of whether protest creates intimidation which then leads to coercion.  A procession can be coercive without being intimidating.

Reid: Raising arms and shouting creates discomfort not intimidation.  Case shows trigger will be interpreted strictly; must be fairly threatening behaviour to be intimidating.

Can only be imposed where one of the triggers is present.  Conditions imposed are very wide for processions.  Any condition can be applied which appears necessary to prevent mischief occurring.  Conditions can be any modification to procession; but, under HRA, must be proportionate

S.12(4) Organiser is guilty if they knowingly fail to comply with a condition(unless it’s due to circumstances outside their control)

S.12(5) Organiser won’t be held liable for participants who face criminal charges; UNLESS they knowingly incited participants to breach conditions

·         Conditions are imposed at the time of the assembly. 
·         The same triggers as under S.12 must be present
·         Once trigger is identified, conditions that can be imposed are more restrictive, through must still be proportionate. 
·         Conditions are confined to:
·         Place can be/continue to be held
·         Maximum length of time can be held
·         Maximum amount of people that can attend
·         Same criminal liability as under S.12; Organisers under S.14(4), others          involved under S.14(5)
·         Brickley and Kitson v Police: It is essential to the criminal offence that protestors knowingly breach conditions

·         S.13: Where chief constable reasonable believes the powers to impose conditions is inadequate to prevent serious public disorder, can apply for outright ban on the procession.  Will apply to ALL processions in the area/district
·         Apply to local council for the order to ban, order can’t exceed 3 months
·         Going ahead with procession knowing of ban=an arrestable offence.
·         Christians Against Racism and Facism v UK: Infringement of Art 13 presented by S.13 ban is both lawful and proportionate; legitimate aim couldn’t be achieved through ‘less stringent measures’

·         Criminal Justice and Public Order Act 1994: inserted S.14A into Public Order Act 1986
·         S.14A: Power to ban assemblies; only arises where they take place on private land
·         Banning order must be applied for by Chief Officer of Police.
·         Chief Officer must have reasonable belief that assembly is likely to be trespassory.
·         Trespassory Assemblies=Assemblies that take place on land to which public has no right of access, and is likely to be held without permission of landowner; OR
·         Assemblies that take place on land to which public only have limited access, and assembly is likely to exceed limits of landowner’s permission.

·         Must likely result in serious disruption to life of community; OR
·         Damage to certain types of buildings/structures (particularly historical monuments)
·         S.14A ban order; will last 4 days and apply within radius of 5 miles of area
·         Power supported by S.14C, inserted by CJPO
·         Gives police power to stop people within ban radius if they reasonably believe they were heading to venue under S.14A ban
·         S.14B: If suspect is aware of ban, can be arrested and fined
 

Jones and Lloyd v DPP: leading case on S.14A: Ban under S.14A only applies to trespassory assemblies; non-trespassory assemblies not affected by ban

·         S.30 Anti-Social Behaviour Act 2003: Senior Officer can authorise officers to issue dispersal order.
·         Only apply to assemblies
·         Can only authorise where he believes members of public have been intimidated, harassed, alarmed or distressed because of behaviour of a group of people; OR
·         Anti-social behaviour is a significant and persistent problem in the area
·         Once authorised, officers in uniform can order groups of people to disperse or leave area if they have reasonable grounds for believing their behaviour is/likely to cause distress, harassment to members of public.
·         Knowingly contravening dispersal order is a criminal offence
·         R(Singh) v Chief Constable West Midlands: High Court ruled Parliament clearly intended S.30 to apply to protests as well as other gatherings.

·         S.137 Highways Act 1980.  Person guilty of offence if without lawful authority or excuse wilfully obstructs the free passage of the highway.  Issue is of reasonable use

o    Arrowsmith v Jenkins: defendant convicted of offence despite advance notice, assistance in clearing obstruction.

o   Nagy v Weston: Issue of reasonableness should be considered with length, purpose, place of obstruction plus whether actual/potential obstruction took place.

o   Hirst and Agu v Chief Constable of West Yorkshire: Peaceful protest reasonable use of the highway.  LJ Glidewell ruling.

·         S.61 CJPOA: amended law of mass criminal trespass-created wider offence.  S.61(1): Certain conditions must be met;

o   2 or more people must trespass with common purpose of residing there for some time; AND

o   Occupier has taken reasonable steps to ask them to leave; AND

o   Must have brought 6 or more vehicles onto land; AND

o   Threatened, abused occupier, occupier’s agents, family/damaged property, land

o   If conditions met, senior officer could direct people to leave

o   S.69: Summary offence committed if people fail to comply or return within 3 months

o   Defendant must trespass on land in open air; AND

o   Their actions are intended to have effect of intimidating persons to deter them from a lawful activity/obstruct activity.  Action must be distinct from the trespass

o   Winder v DPP: Can be charged with aggravated trespass even if you are just thinking about committing the offence.  This case made S.69 of CJPOA redundant

o   S.69 CJPOA: Allows Senior officer to be present at scene if reasonable believes aggravated trespass will be committed.  Officer can direct any/all people to leave.

o   Most severe public order offence.  Must prove:

o   12 or more people present together; AND

o   Who used/threatened unlawful violence for common purpose; AND

o   Defendant must actually use violence being aware of/intending to be violent

o   Conduct would cause person of reasonable firmness to fear for personal safety

o   Must be 3 or more people present

o   Who used/threatened violence; AND

o   Defendant intended/was aware of violence or threat of violence

o   Conduct would cause person of reasonable firmness to fear for personal safety

o   R v Hebron: Offence can be committed by threats as well as use of violence.  1 threat will be enough if at least 2 others do same

o   Defendant must;

o   Use/threaten violence towards another

o   Intend/be aware of use/threat of violence

o   Conduct would cause person of reasonable firmness to fear for personal safety

o   Threat of violence can’t be made by words alone.  Must be display of force where actual violence doesn’t occur

o   R v Davidson: Swiping kitchen knife of police officer=display of force

o   I and Another v DPP: Must be an actual threat of violence towards a victim that would make person of reasonable firmness fear for own safety

o   Winn v DPP: elements of crime; shows crime must be charged on right strand.

o   Accused must intend/be aware words/behaviour are/may be threatening, abusive, insulting; AND

o   Words/behaviour must be directed at another person

o   1 or more of following must be present:

o   Intention to make person believe that immediate unlawful violence will be;

o   Used; OR; Provoked; OR; Likely; OR; Likely to be provoked

o   Defendant must directly approach person or act in manner that will provoke onlookers; Must be some sort of threat directly related to individual.

o   Horseferry Road: violence complained of must be immediate, but not instantaneous

·         Threats, Abuse, Insults Leading to Harassment, Alarm, Distress

o   Crime and Courts Bill 2012: If passed, will remove ‘insulting’

o   DPP v Clarke: 2 stage approach must be taken;

o   Must be intent/aware that words/behaviour was threatening/abusive/insulting; AND

o   This could then lead to harassment/alarm/distress; Must prove objectively

o   Also; person must be present; but needn’t have experienced harassment etc.

o   But; necessary to prove likely to have experienced

                        Words don’t need to be aimed at specific person

o   Swanston v DPP: Person doesn’t have to be called as witness, inferences can be drawn from bystanders’ testimony.

o   DPP v Orum: Police Officer can be harassment etc. but less likely to be affected

o   DPP v Fidler: Conviction of aiding and abetting S.5 offence. Shows how easy to commit offence

o   DPP v Clark: Relevant to placards; perceived as abusive, insulting, but defendants didn’t intend placards to be.

·         CJPOA 1994; Inserted S.4A into POA (describe alongside S.5)

o   Intentionally causing harassment, alarm, distress.  Different from S.5

o   No need to prove intent to display, threatening/abusive/insulting words/behaviour

o   Actual harassment/alarm/distress must occur

·         Defence of Reasonableness

o   Defence exists for S.5, S.4A, S.4

o   Must be proved actions were reasonable

o   No guidance to what is reasonable in the Act itself

o   DPP v Clarke: Indicates it’s an objective test; dependant on bench of Magistrates hearing case

·         S.18 POA: Extends scope of offence of stirring up racial hatred.  Liability arises;

o   Threatening/Abusive/Insulting words/behaviour used/written material displayed; AND

o   There is an intention to stir up racial hatred/is likely to be stirred up

o   Possible to commit without intent

o   But must be shown accused realised words were threatening etc

·         S.19: Makes it an offence to publish threatening, abusive, insulting material with intention or likelihood of stirring up racial hatred.  No need to show disorder caused or racial hatred stirred up.  Can be committed by words alone, no need for person to feel harassment, alarm, distress.

·         Part 3A POA: Incitement of Religious Hatred

o   Created by Racial and Religious Hatred Act.  Offence committed where;

o   Used threatening words/behaviour

o   Intend to stir up religious hatred

o   S.29J: Freedom of Expression defence: no prohibition/restriction of ‘discussion, criticism or expression of antipathy, dislike, ridicule, insult or abuse’ toward religion

·         S.28-32 Crime and Disorder Act 1998

o   S.28: outlines what the law will consider to be racially/religiously aggravated

o   Must be indication before/during/after crime of racial/religious motivation

o  will result in increase in sentencing; S.28-32 allow this + other sanctions for racially motivated crime.  S.4, S.4A, S.5 can all be racially aggravated.

·         R v Howell: Defines breach of the peace; ‘Breach of the peace will arise if violence to persons or property either actual or apprehended occurs’
·         Any person can arrest for breach of the peace.  But can’t arrest once breach ceased.
·         Moss v McLachlan: ‘imminent’ defined.  If Police reasonable believe that a gathering in a public place will give rise to a breach of the peace, they are under a common law duty to take reasonable steps to prevent gathering taking place.
·         Foulkes: Arrest should be last resort
·         Austin v MPC: If police suspect members of group about to commit breach of the peace, are entitled to detain that group and anyone in vicinity even if they aren’t part of group.

Redmond-Bate: Previous approach

·         Must be sufficiently real present threat to justify depriving person of liberty
·         Threat must come from person arrested
·         Conduct must clearly interfere with rights of others; AND
·         Natural consequences of conduct must be violence from third party; AND
·         Conduct of person arrested must be unreasonable

Steel v UK,  Use of power should be proportionate Laporte:   Principles set down.

 ·         Power only conferred power of arrest, detention; Laporte; police went beyond.

·         Even if reasonable grounds for suspicion, power must used proportionally.  If violence can be prevented other ways, that should be preferred approach
·         In Laporte case only small portion of protestors said to have violent intentions.