United Kingdom: vague conditions, prohibited zone, loose review and the HRA

In UK law, the regime is split into processions and stationary meetings also with regard to bans and conditions. The Public Order Act 1986 authorises the police to impose conditions on any sort of meetings, and marches, ie, also on those where there is no obligation of advance notice.²⁹⁵ Section 12 of the Act empowers the police – the Chief Officer of Police if considering in advance, or the constable at the scene if decided during the meeting – to impose conditions in a much wider range than it was possible under the 1936 Act.

As to processions, the police officer can impose conditions in one of four cases.

The first three are the cases where the officer ‘reasonably believes’ that (i) ‘serious public

294 United for Peace & Justice v. City of New York, 243 F. Supp. 2d 19 (S.D.N.Y. 2003). In more detail see Suplina, Crowd Control, above n 246.

295 In spite of contrary statements in DPP v. Jones [2002] EWHC 110 by Gage J. Cf. also Neil Parpsworth

& Katharine Thompson, ‘Imposing Conditions on a Public Assembly’, 166 Justice of the Peace 424 (2002).

100 disorder’, (ii) ‘serious damage to property’ or (iii) ‘serious disruption to the life of the community’ will be caused by the procession (Section 12 (1) a) POA 1986). The first two are obviously much clearer than the third.

Serious disruption to the life of the community as a condition for restriction of rights is extremely vague in numerous respects. For instance, the smaller the community is to be understood, the wider the possibility of imposing conditions: virtually any demonstration will disrupt to some extent the life of a little number of people. The vagueness of the requirement is to some extent diminished by judicial interpretation: in Reid²⁹⁶ the court stated that the conditions should be strictly interpreted.

The fourth case which authorises imposition of conditions (s. 12 (1) (b) of the 1986 Act) is related to the purpose of the meeting. If the officer reasonably believes that the purpose of the assembly 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’, he or she might impose some condition to avoid such a result. For the imposition of conditions both coercive and intimidatory purpose is required which in the interpretation of the courts seems to be a rather stringent condition. It was determined for instance that shouting and raising arms might cause discomfort, but it does not amount to intimidation.

If any of the above four triggers occur, the police officer is entitled to impose any condition which might be necessary for the prevention of the occurrence of the mischief.

The conditions can include practically everything (including but not limited to changing the planned route or time) except for banning the whole procession. In DPP v. Baillie²⁹⁷ the Divisional Court affirmed that the effect of overly burdensome conditions might

296 Reid [1987] Crim. L.R. 702.

297 DPP v. Baillie [1995] Crim. L.R. 426.

101 amount to a ban which is unlawful under sections 12 and 14, since a banning power only arises under more severe circumstances according to sections 13 and 14A (see below).

Section 14 authorises the police to impose conditions on stationary meetings. The preconditions for doing so are essentially similar to the section 12 conditions which are valid for processions, ie some probability of disorder, damage, disruption or intimidation is required. On the other hand, the conditions which might be imposed on meetings are limited, not ‘everything what is deemed necessary by the officer’ can be imposed, but only directions as to the place, as to the duration, and as to the number of participating persons,²⁹⁸ ie issues which in the German, but depending on the exact wording, in the US understanding as well, would qualify as modality or content-neutral restrictions.

The reason for the limited scope of imposable conditions on meetings as opposed to processions has been stated by the White Paper preceding the adoption of the POA:

‘meetings and assemblies are a more important means of exercising freedom of speech than marches.’²⁹⁹ Discussion is considered superior to potentially pressuring expression.

Case law on imposition of conditions also dealt with the difference between stationary meetings and processions. In DPP v. Jones³⁰⁰, a 2002 Divisional Court case there was an animals’ rights demonstration planned at Huntingdon Life Services premises. The police got advance notice, and imposed some conditions, including the route from the place where the demonstrators would disembark to the place of the demonstration proper. Ms. Jones was found to be outside the designated area when trying

298 The condition also has to be communicated to the demonstrators, ie it has to be heard by them, otherwise they will not be liable. Nonetheless, the mentioned widening of the field of applicability of the provision from those assemblies where at least 20 people are present to those where at least 2 compromises severely this apparent moderation of the legislator.

299 Home Office, Review of Public Order Law (Command 9510) (Stationary Office Books, 1985).

300 DPP v Jones [2002] EWHC 110. This is not the 1999 DPP v. Jones and Lloyd case, the famous trespassory assembly case of the House of Lords discussed later.

102 to get back to the road, and arrested for not complying with the imposed conditions. The court found that under section 14 there is no power for the police to impose conditions as to the route the participants should reach the place of the demonstrations, since, at the most, the movement of persons could qualify as a public procession, and thus, it would fall under section 12, which, if at all, could be made conditional only in a different notice.

What is more, the going from the disembarkation point to the place of assembly cannot be placed under conditions at all, since Gage J. thinks that the power of imposition of conditions in section 12 refers only to such processions where advance notice is required [28].

As indicated above, this is probably a false interpretation of the POA.

Nonetheless, there is much sense in the view of Gage J. that going to an assembly would not normally qualify as a public procession. At the least, there is certainly no inherent necessity of that. Meanwhile, the police are entitled to fix the entrance and exit points of a demonstration under a section 14 notice.

The decision can be criticised for the almost untenable distinction of processions and stationary meetings. Meetings can easily become processions, and vice versa. Every beginning and every conclusion of a march consists of stationary gathering, while every stationary assembly is preceded by a movement of people, most of the times in groups, to the place. Should the police then really issue a notice under section 14 and another one under section 12 if they want to cover the whole event? This would invite claims of disproportionate burdening on a fundamental right,³⁰¹ and would question the sense of having these two kinds of regulatory regimes in the POA as both should apply in every case.

301 Beth Cook, ‘Moving on’, 153 New Law Journal 1279 (2003).

103 At the same time, the decision should be welcome for at least not widening the already large discretion the police have in imposing conditions. It is always beneficial from the perspective of fundamental right if the police have to justify one by one the steps they take. On the other hand, the court reasonably acknowledged that in case the directions of the notice are severable, there is no need to invalidate the whole notice, if some of the directions turn out to be illegal.³⁰²

A demonstrator incurs liability if he or she knowingly fails to comply with the conditions imposed by the police on a procession or meeting. Organisers cannot be made liable for a breach arising out of circumstances beyond their control, ie the organiser is liable for their own conduct, including inciting others to breach the imposed conditions.

However, the incitement – just as the conditions – must actually come to the notice of the demonstrator who is incited to act upon it,³⁰³ and must contain an element of persuasion;³⁰⁴ otherwise the organiser will not incur liability, both according to earlier case law.

A more recent case, Broadwith³⁰⁵ dealt with another aspect of liability for breaching the conditions. There were two assemblies notified which were supposed to follow each other. The police issued a condition that the second cannot start earlier than a given time. Broadwith approached the closed area before the given time, and was warned not to enter. When he did, he got arrested. The issue was whether the police order imposing conditions only applied to those who participated at the first assembly, since there was no evidence that Mr. Broadwith did, or, it applied to everybody who could be

302 Cf. Parpsworth & Thompson, Imposing Conditions, above n 295 at 425.

303 Krause, (1902) 18 TLR 238.

304 Hendrickson and Tichner, [1977] Crim. L.R. 356.

305 Broadwith v. Chief Constable of Thames Valley Police [2000] Crim. L.R. 924.

104 reasonably believed to intend to participate at the second procession. The court agreed with the police and the lower court that the conditions applied to Mr. Broadwith. Rose LJ here ignored the possibility of a situation where someone does not intend to take part at the protest and also did not take part at the preceding protest. Possibly, it was not the case with Mr. Broadwith, nonetheless, the rules on burden of proof and standard of proof as to such questions could have been clarified by the court.

A post-HRA case related to monthly Critical Mass procession coinciding with the opening of the London Olympic Games is also characteristic of the light touch review courts exercise with regard to police and assembly. Critical Mass is exempted from the notice requirement (see below under 4.1.), but, as it turns out, still can be the subject of conditions imposed by police. What is more, though the Critical Mass does not have a predetermined route – a fact confirmed and accepted by the House of Lords –, police are still entitled to determine the route it takes by conditions under s. 12 POA, and all this when it is only police who apprehended the cyclists wished to disrupt the opening ceremony.³⁰⁶ Police arrested 182 people, but only interviewed 5, and later only they were charged for violating a s. 12 order (for fearing serious disruption to the life of the community). It looks like the power under s 12 served as a pretext to pre-emptive detention of persons feared to become ‘protestors’. Courts found it raised no problem.³⁰⁷ The case is typical of the view where if something is perceived as protest than it appears somehow more subject to limits than when it is only an everyday activity.³⁰⁸ If the right to assembly and protest is a human right, then it should be the opposite.

306 See eg the views of some cyclists on this: http://www.theguardian.com/uk/2012/jul/29/critical-mass-police-arrest-three

307 Powlesland v DPP [2013] EWHC 3846 (Admin)

308 http://www.theguardian.com/environment/bike-blog/2013/mar/18/police-activism

105 All in all, it appears from the discussed cases that at least before the 1998/2000 Human Rights Act (HRA) incepting the European Convention of Human Rights has come into force, the UK law had only allowed for review for procedural errors and unreasonableness in cases of conditions imposed by the police on marches and meetings, or, more precisely, the law certainly had not encouraged a strict review of policing demonstrations. The courts had lacked both the clear power of substantive review,³⁰⁹ and the willingness to interfere with the exercise of statutorily granted police discretion.³¹⁰ As the HRA imposes a duty to interpret UK law in harmony with the ECHR if it is possible, courts are required to read into the police discretion of sections 12 and 14 a duty of proportionality in the fashion of ECHR. Thus, courts are currently entitled to review both as to the substance and to the form the decisions of police officers, the terms of the POA being vague enough to make possible an interpretation conform to the Convention. Still, not every decision appears to take seriously the human rights implications of public order law, as recent cases discussed above testify.

As to the banning powers, the regime is split as well. Marches can be banned under the 1986 act under special circumstances. If the Chief Officer of Police reasonably believes that the powers under section 12 (imposing conditions) are not sufficient to prevent the holding of an assembly from resulting in serious public disorder, he or she must apply to the council for issuance of a prohibiting order. The council may make an order as requested or modified with the approval of the Secretary of State. The police officer shall reasonably believe in the occurrence of a serious public disorder, ie neither

309 Cf. Secretary of State for Education and Science v. Tameside [1977] AC 1014., as cited in Fenwick, Civil Liberties, above n 276 at 461.

310 Cf. Secretary of State for the Home Department ex parte Nothumbria Police Authority [1989] QB 26 as cited in Fenwick, Civil Liberties, above n 276 at 461.

106 serious damage to property, nor serious disruption to the life of the community is sufficient, unlike in the case of conditions. Secondly, once the officer apprehends such a danger, there is no discretion on the part of the police: the decision is compulsively conferred to a higher level: to the council and the Secretary of State. This reduces certainly to some extent the possibility of arbitrariness and discriminative enforcement.

However, compared to the imposition of conditions, the banning order will have an extremely serious effect: it is possible that in a whole area no processions whatsoever might be held for as long as three months which can even be further prolonged. The provision is clearly overbroad: it catches not only those marches which might turn violent or disorderly, but any kind of processions to take place somewhere, even though the rationale of the banning power is admittedly the prevention of serious disorder. In Kent v.

Metropolitan Police Commissioner³¹¹ the court refused to quash a banning order under a similar provision of the 1936 Public Order Act. The court declared that the ban could only be quashed if there was no reason whatsoever to impose it, and that the act provided sufficient remedy insofar as it allowed the revocation of the ban. Obviously, there is no possibility to challenge an order just by establishing that one particular procession will not turn violent if a ban is already in effect, but a revocation can only be applied for if the applicant can show that no danger of public disorder exist both in terms of area and time and possible processions.

In other words, a banning order shifts the burden of proof in such a way as to render it practically impossible for even unquestionably peaceful demonstrators to march in a given area for a given period of time if they face a hostile police officer. Fenwick

311 Kent v. Metropolitan Police Commissioner (1981) The Times, 15 May as cited by Fenwick, Civil Liberties, above n 276 at 463.

107 mentions that the government rejected the possibility of a more specific banning order regime which would only target the ‘real’ target, ie violent marches, because it would allegedly have put too great a burden on the police. The argument is that same marchers could convene then under another name, but with the same violent purpose. Actually, Fenwick proposes a ‘compromise solution’ according to which marches with a similar political message to what was the message of the banned march could also be banned.³¹² Nonetheless, I do not quite see why it is too much to expect from the police, council, and Secretary of State to make an individual evaluation in each case, or why police cannot be trusted to form a good case-by-case evaluation, reviewable by courts.

The current system of ban on processions is thus certainly quite restrictive. Even though bans are rather rarely issued, the banning power can be easily used as a strategic weapon in negotiating with the demonstrators.³¹³ It also seems that in practice there is not much control on the police. The more discretion the police is statutorily granted, the less will be other organs that have some say in the banning decisions willing to interfere: the council and Secretary of State will not risk serious disorder, and the court, as it is obvious from Kent, also will be reluctant to question the evaluation of the police.³¹⁴

As to stationary meetings, the law is less restrictive because it only applies to private land. The 1994 Criminal Justice and Public Order Act introduced the notion of trespassory assemblies, or, more precisely, a statutory, more or less comprehensive regulation of possibilities of banning a meeting on a private land. By amending the Public Order Act, it established a banning power for meetings parallel to that for processions.

312 Ibid

313 Ibid

314 Stone, Textbook, above n 275 at 350. f.

108 The circumstances which might lead to a ban are the following. The police shall reasonably believe that the assemblers intend to assemble in a place (to which they have either no or only a limited right of access) likely without the consent of the owner and this may result in ‘serious disruption to the life of the community’ [or ‘in significant damage to the land, building or monument of historical, architectural, archaeological or scientific importance’] (Section 14A (1) b) i. and ii POA, as inserted by the Criminal Justice and Police Order Act 1994 ‘CJPOA’).

Thus, though similar, there are some differences in the two kinds of banning powers. Banning is only possible with regard to stationary assemblies taking place on private land, the amount of which however considerably increased in recent decades.³¹⁵

Also, banning assemblies is possible on the condition that they would cause serious disruption to the life of the community while with marches it is only possible for the prevention of serious public disorder. What a serious disruption to the life of the community might be is a question for the police officer, and, on review, for the magistrates’ court to decide. It is certainly much less than danger to property or life or limb.

The regulatory technique is otherwise almost the same: the chief officer of the police applies to the council of the district for a banning order which with the consent of the Secretary of State makes such or a modified order. The difference is that the police have discretion in launching the process. The similarity is that the order applies to a designated area (delineated in a radius around a specified point) for a specified period of time, thus again – possibly – catching up such assemblies also which are not likely to cause serious disruption to the community. What is more, the police are entitled to stop

315 Fenwick, Civil Liberties, above n 276 at 464.

109 any person within five miles around the prohibited place (the specified centre of the radius) who are reasonably thought going to that place. Non-compliance with such a stopping order might result in arrest and fine. (Section 14C)

Section 14A was the basis for a banning order in the leading case DPP v. Jones and Lloyd (1999, House of Lords)³¹⁶, which to some extent interpreted the law more favourably to freedom of assembly. The order prohibited demonstrating, or, more precisely, trespassory assemblies within a four miles radius around Stonehenge. Jones and others, however, were assembling on the highway around Stonehenge within the prohibited area, since they wished to protest against the order. The police told them to disperse, and when they failed to comply, defendants have been arrested. It was clear that the protesters were neither violent, nor disorderly, and it was not likely in any case that they would cause any disturbance. The question thus arose whether they had committed a trespassory assembly by assembling peacefully in the area to which a section 14A banning order was in force.

The closer issue was whether the right of the public on a highway was in a sense limited that it excluded holding peaceful assemblies there while a section 14A order was in effect. Precedents seemed to support two interpretations of the rights related to the highway. Reasonable and usual activity on the highway should not be punished under the first interpretation,³¹⁷ while only activity which is ancillary to passing and repassing the highway is reasonable under the second.³¹⁸ Lord Irvine took the first view for the following reasons. First, he cited Collins L.J. in Hickman v. Maisey (1900) according to

316 DPP v. Jones and LLoyd [1999] 2 A.C. 240.

317 Lord Esher in Harrison v. Duke of Rutland [1893] 1 Q.B. 142, 146 ff.

318 Lopes L.J. in Harrison v. Duke of Rutland [1893] 1 Q.B. 142, 154. and Lord Slynn of Hadley in DPP v.

Jones and LLoyd [1999] 2 A.C. 240, 259-266.

In document The challenge of freedom of assembly INTRODUCTION (Pldal 99-111)