| |
|
|
|
|
|
20.1 Introduction
20.2 The Offence
2.3 General Requirements for Each Offence
2.4 Arrest and Punishment
2.5 General Notes on Section 241
Section 241 of the Trade Union and Labour Relations Act 1992 re-enacted Section 7 of the Conspiracy and Protection of Property Act 1875. Parliament did not take the opportunity to amend the archaic wording of the provision and as a result it is fraught with difficulty for prosecution purposes. As its name suggests, the law was designed to deal with pickets and demonstrations in connection with industrial disputes. However it has often been used against animal rights and road protestors, so activists should be familiar with its provisions. It actually creates five different offences and is stated as follows:
A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority -
(a) uses violence to or intimidates that person or his wife or children, or injures his property,
(b) persistently follows that person about from place to place,
(c) hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,
(d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or
(e) follows that person with two or more other persons in a disorderly manner in or through any street or road.
This can include the use or threat of violence to persons or property. However it has been held that ‘abuse, swearing or shouting’ does not in itself amount to intimidation for the purposes of this section.
There are conflicting case authorities on whether or not the intimidation must succeed in putting someone in fear of violence or whether it is enough that it is likely to do so.
It is likely that a mass picket outside someone’s home could implicitly
amount to intimidation and the police do sometimes warn or arrest people for
‘home demos’ under this section.
Persistently following the other person from place to place
This type of conduct does not require any violence or threat of violence. The
mere act of following is enough.
There is no general definition of what amounts to “persistently following”. In one case, a conviction was upheld where the accused followed a worker who had emerged from a factory being picketed by the accused through three streets. The accused had not tried to speak to the worker and had on one occasion overtaken him.
The following need not be on foot – it could, for example, be one car following another car.
This charge has been used recently against activists suspected of interfering with badger traps. Case law suggests however that some level of violence needs to be used either against persons or property, so it is arguable that simply interfering with the mechanism of a trap so as to make it inoperable does not amount to violence.
‘Watching’ is a question of fact and has no special legal meaning.
‘Besetting’ is defined in the dictionary as follows: “to attack
from all sides; to trouble persistently; to harass; to hem in’.
There is no requirement for “watching or besetting” to be for more
than a short time. In practice this is only usually charged in respect of watching
or besetting private residences and the police have used it against animal rights
protestors on ‘home demos’.
Unlike the provision under (b) above, persistence is not required. On the other hand, as you can see there are the extra requirements that the accused’s following must be with two people or more, it must be in a disorderly manner and must be in a street or road. Whether the following is “disorderly” is a question of fact which will depend on all the circumstances of the case.
In practice, this section is hardly ever used against protestors, as the police tend to rely on other legislation, for example the provisions of the Public Order Act 1986 and the Protection from Harassment Act 1997.
In each case, the accused must have acted with a view to compelling someone to abstain from doing something which he had a right to do, or to do something which he had a right to abstain from doing.
The words “with a view to” mean the same as “with the aim or intention of” in this context. Intention must be distinguished from motive. For example if a person acts in one of the specified ways with the aim of compelling workers not to build a motorway, it is irrelevant that his motive is to conserve the environment.
The prosecution has to show that the aim was “compulsion”. So for example an anti-vivisection protestor who watches and besets a person’s home or workplace with a view to persuading (rather than compelling) persons not to engage in animal testing, should not be convicted of an offence. Of course, this will depend on the circumstances and an activist who takes part in a vociferous home demo may well have a difficult task in persuading the court that his intention was to persuade rather than compel the occupant not to experiment on animals.
Each of the types of conduct must be done wrongfully. This means that it must be unlawful in the civil sense (ie tortious) independently of Section 241 of the Act. Examples of civil wrongs - that is, torts – which may be relevant are those of public nuisance, trespass to land, intimidation, assault and battery.
This section will probably only be considered in a prosecution if the accused raises it as a defence. This defence might be used where a defendant has some sort of license or authority to carry out the conduct of which he is accused. We don’t know of any cases where activists have used this defence and it is more likely to avail a defendant in a trade union dispute.
Offences under Section 241 are not “arrestable offences” under 24 PACE. However it does carry a limited statutory power of arrest. A police officer can arrest anyone whom he reasonably suspects to be committing an offence.
Offences under this section are punishable summarily by a maximum of 6 months’ imprisonment or a fine.
Contrary to belief amongst some activists, this Section cannot be challenged on the basis that it was not intended to be used against protestors, as the High Court has already ruled that it can be.
However, prosecutors are not generally keen on using Section 241, primarily because it is generally difficult to prove that the accused person intended to compel someone to carry out or not to carry out an activity.
Neither intention nor compulsion is necessary in Sections 4, 4A or 5 of the Public Order Act 1986 and consequently these sections are generally preferred.
The provisions of Section 241 have been used against road protestors and against people carrying out home demos, where the conduct is not in itself threatening or disorderly but people have been prevented from going about their lawful activity.
In the case of home demos, the government has announced plans to make them illegal. But as the law stands the police are likely to rely on this section to prevent this kind of protest.
[<<19. Penalty Notices][Contents][21. Trespass>>]
This article is for information purposes only; its aim is to let people to know their full rights under UK law. Nothing on these pages is absolute as the law is always changing; if in doubt contact a trusted solicitor for further advice. We do not encourage you to break the law.
Please feel free to copy and distribute these articles to fellow activists, but do not alter the text in any way. These articles are anti-copyright for non-commercial purposes. Please visit www.freebeagles.org for the latest version of our articles and to learn about the freeBEAGLES Ethical Open Document License under which this document is distributed.
If you see any errors, or we have missed any changes to the legal situation please contact us as soon as possible, at info@freebeagles.org, as wrong information can prove costly to people's freedom.
© Copyright freeB.E.A.G.L.E.S.; last updated: September 2004