1. Leafleting on the Public Highway
2. Door-to-Door Leafleting and Leafleting in “Quasi-public” areas
3. Leafleting and Criminal Damage
4. Content of Leaflets
5. Breach of the Peace
Leafleting is a basic form of campaigning and one of the most powerful. There are many reasons for leafleting and you do have a right to carry it out.
However, not everyone is happy with your freedom of expression, especially if they disagree with you, and they may attempt to stop you. This article is to help you understand how the law can be invoked to stop you leafleting and what your rights are.
This article is divided in to two parts. Firstly we look at how the law applies to four different types of leafleting, namely leafleting on the public highway, leafleting door to door,leafleting in quasi-public places (ie private places to which the public has an implied right of access) and sticking leaflets on lampposts etc . Secondly we look at how the law applies to the actual content of leaflets.
A law sometimes quoted to people handing out leaflets is section 137 of the Highways Act 1980, which covers obstruction of the highway. This makes it an offence to cause a wilful obstruction of the highway with out lawful authority or excuse. The key here is what amounts to a "reasonable excuse" for causing the obstruction. An assumption sometimes made by the police is that by being there handing out leaflets you are using the highway unreasonably and hence forming an obstruction. However, in Hirst v Chief Constable of West Yorkshire it was ruled that leafleting is an activity which can actually amount to a reasonable use of the highway.
In simpler terms, as long as you are not physically preventing people from passing then you are probably not committing an offence under Section 137 of the Act. The trick is not to cause an actual obstructions so as to make it difficult for people to walk past you eg if you have a table or boards on a narrow walkway. If the authorities are being pedantic on this issue, take photographs of other similar obstructions from local businesses such as A-boards. If the police or council are not asking for these to be removed as well, then they may be acting arbitrarily. They are not allowed to single you out for victimization whilst ignoring other obstructions.
Another point to note is that if you are continually moving through a pedestrian area, then that is not an obstruction either. If you are on a march then the police do not have the right to stop you leafleting. The police, most notably Thames Valley, have sometimes been known to impose conditions on processions imposing limits on the numbers of people who can hand out leaflets. In our view such a condition could be challenged in the High Court as it is incompatible with the right to freedom of expression. It could also form the subject of police complaint, as such infringements on basic rights need to be fought at every turn. See our guide to complaining here.
For more on obstructing the highway see:
Even where the provisions of the Public Order Act 1986 does not apply to the content of leaflets (see Content below) they may apply to the manner in which you are handing them out. For example, if you are being aggressive towards people in handing out leaflets, the police may be able to argue this is “threatening, insulting or abusive behaviour or disorderly conduct” contrary to either Sections 4, 4a and 5 of the Act (. Or they could say that it amounts to a breach of the peace.
To avoid this problem it is best to be polite at all times and do not allow
yourself to be riled by the comments of others. Chasing after people is not
a particularly good idea, or shouting at them. If in doubt, phrase the offering
of a leaflet as a question, that is “Would you like a leaflet to explain
why we are protesting?” or something similar.
Note that other people are not allowed to be aggressive towards you and if they are you are entitled to put in complaints against them. That they disagree with the contents of your leaflets or that you are handing them out does not give them license to be abusive towards you.
If you are banned from an area for other reasons – eg by an Anti-Social Behaviour Order or a civil injunction, you cannot argue that being there to leaflet is a reasonable excuse for being in the area.
Putting leaflets through doors does not amount to civil trespass. You have what is called in law an “implied license” to enter property to put materials through a letterbox. If this were not the case postmen, salesmen, etc would be trespassing as soon as they entered your property. You only become a trespasser if you are asked to leave and refuse to do so.
The situation is similar if you are leafleting in a “quasi-public” area, where the public has an implied right to enter – for example, a supermarket or a petrol station forecourt. Again you are not trespassing in this situation until you are actually asked to leave and refuse to do so. But if you enter part of a building to which entry is clearly forbidden – eg if you jump over a security barrier or go through a door marked staff only – then you are immediately trespassing.
If the police suspect you of trespassing, then they could arrest you for “aggravated trespass”. In such a case, the prosecution would have to show that you were actually trespassing and by leafleting you were intending to disrupt a lawful activity from taking place. You could argue here that you were simply trying to inform the occupants of the building about your campaign, but you’d be hard pushed to show to a magistrate why this could not have been done without the need to trespass.
Wherever you are handing out leaflets, you need to be aware of the possibility of committing criminal damage. Affixing leaflets to private property may amount to criminal damage, especially if the owner is required to go to an effort to remove the leaflet. It does not matter if you do not think you have done any actual damage. If the owner of the property has to incur cost in order to restore the property to its original condition, then you have probably committed criminal damage. For example, if you affix a sticker to a lamppost or a phone box, this can amount o criminal damage as the council or the phone company will have to pay someone to restore the property to its original condition.
If you are trespassing at the same time as you are affixing the leaflet, you could actually be arrested for burglary, as this offence can be committed by entering as a trespasser with intent to commit criminal damage! The police occasionally use this arrest power after the event, when they have no other grounds on which to base an arrest. However you would probably not be charged with this, as “burglary” is an either-way offence for which you have the right to a jury trial.
It is unlikely that very trivial instances of interfering with property eg putting leaflets under car windscreen wipers could amount to criminal damage. The car owner may rant and rave, but unless you actually damage the windscreen wipers or car in some way, you are unlikely to have committed criminal damage, as the owner of the car will not incur financial loss in restoring the car to its original condition!
The right to leaflet as a freedom of expression is covered by Article 10 of the European Convention on Human Rights, and thus in the UK by the Human Rights Act 1998. However, some leaflets may contain graphic images or strong sentiments, as is sometimes the case with animal rights imagery, and the police often take issue with this. And of course if the leaflet contains wording that is “threatening, insulting or abusive” this could also amount to an offence.
The main law which is cited by the police in relation to the content of leaflets is Section 5 of the Public Order Act 1986. This also applies to the display of signs or placards.Section 5 makes it an offence either
a) to use threatening, insulting or abusive words or behaviour or disorderly conduct or
b) to display any writing, sign or other visible representation which is threatening, abusive or insulting
within the sight or hearing of a person likely to be caused harassment, alarm or distress.
The police often say that pictures on display are offensive or distressing and are therefore an offence under Section 5. However as you can see, the police also have to suspect that you have used words or behaviour or a display which is threatening, abusive or insulting. And in order for a prosecution to succeed, the prosecution has to show that you must at least have been aware that your conduct was threatening, insulting, abusive or disorderly.
So if for example you are handing out leaflets and displaying posters with pictures of dead and tortured animals on them. The police say that your leaflets and posters are causing harassment, alarm and distress, and demand that you put them away. The question here is whether or not the pictures on display are threatening, insulting, abusive or disorderly. These words have no special legal meaning, and whether or not a display is threatening etc will turn on the circumstances of the individual case (see the case of Brutus v Cozens). Most activists would not think that the ordinary meaning of “threatening, abusive or insulting” could extend to a display of an upsetting picture. However, in the case of Lewis v DPP, it was held that displaying pictures of dismembered fetuses to persons attending an abortion clinic could amount to insulting behaviour. This is, in our submission, an unfortunate example of judicial creativity where the law could not precisely be applied to the facts of the case. One of the Oxford English dictionary definitions of “insult” is “an affront to modesty” and this seems the only basis for the ruling, namely that displaying the fetuses was an affront to the modesty of persons attending the clinic.
The case of Lewis v DPP could in theory be applied to a display of pictures on an animal rights demo, although the prosecution would be hard pushed to show that displaying pictures of abused animals was an affront to the modesty of people likely to see the display. In a recent animal rights case someone was arrested for Section 5 for holding up a poster of a disemboweled cat on a demo at Yamanouchi. The lawyer successfully argued that upsetting pictures are nowadays part of every day life. During cross-examination of the police, he asked whether the officer was planning to arrest the manager of WH Smith for displaying upsetting pictures of tortured Iraqis of newspapers on display in the shop to which the officer was unable to reply. The magistrates were convinced and acquitted the activist.
Even if it can be established that the display is “threatening, insulting or abusive’ you can say as part of your defence that you did not were not aware that the pictures were of this nature. This is a subjective test - ie it doesn't matter if your belief is "reasonable" or not so long as it is honestly held. So if you convinced the court that you were displaying the leaflets for informational purposes then you could not be convicted on these grounds. In the case of Clarke, another abortion case, the protestors stated that they were showing the pictures for informational purposes etc. They stated in evidence that they did not intend them to be threatening, insulting or abusive, and were not aware that they might be. The activists were acquitted on this basis.
Another complaint often made by the police is that the image in display is offensive to members of the public and that it is therefore causing them harassment. But no matter how graphic the image is, the fact that someone finds it offensive does not in itself make it illegal. It was noted in the landmark case of Redmond-Bate v DPP that all protest by its nature is offensive to someone, and this is not in itself a reason to curtail freedom of speech.
The wording on the leaflet amounts to a breach of section 5 of the Public Order Act 1986 by being threatening, insulting or abusive. For example, if it called all staff in a company murders or animal abusing scum then it would fall in this category. Of course most protest leaflets are bound to insult somebody, but this does not in itself make them unlawful. For example, leaflets in which animal testing labs are compared to concentration camps are clearly insulting to the lab workers. However these have never been the subject of a criminal prosecution or arrest.
Again, you can say in defence that you were not aware that the wording was threatening, insulting or abusive. This will be hard to argue in cases where persons are overtly insulted on the leaflet – eg labeled “murderers,” but it could provide a defence where as in the above example an animal testing laboratory is compared to a concentration camp.
A leaflet has to be displayed in order for it to come within Section 5. If you were handing out leaflets with upsetting pictures on but in such a way that the pictures could not at first be seen eg by folding them in half, then this does not amounted to displaying the pictures. Similarly if when you push a leaflet though someone’s door the leaflet is folded in half or inside an envelope then this cannot amount to a display.
A defence available to any charge under Section 5 Public Order Act 1986 is
that your conduct was reasonable. This is where you would argue that you were
exercising the right to freedom of expression and that in all the circumstances
it was reasonable to do so in this way.
For more on Section 5 see section 12 of the legal booklet (v4).
The police might occasionally threaten you with arrest for breach of the peace for handing out leaflets. However you could only be arrested in this situation where the contents of the leaflet were inciting violence or provoking the use of violence by others As most leaflets do not incite or provoke violence but simply provide information, the law on breach of the peace generally cannot be applied. In Redmond-Bate v DPP it was ruled that you could only be arrested for breach of the peace if you provoke a reasonable person to violence - which the vast majority of leaflets do not. (For more on breach of the peace see section 11.8 of the legal booklet.)
If the leaflet is libelous, then that is a civil matter and not one for the police. It is up to the person being libeled to take action, not the police. The police cannot demand your details in order to enable civil action to be taken against you.
Leafleting is a basic right of expression and your right to leaflet is well guarded in law. This will, however, not stop various authorities from trying to take it from you.
If you know the law then you can out argue them easily enough, If they still insist on taking away your rights illegally, then make sure you take action to stop them and protect your freedom of expression.
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.
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© Copyright freeB.E.A.G.L.E.S.; last updated: September 2004