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(version 3, January 2004)
| 1. | Introduction |
| 2. | Giving Your Details |
| 3. | At the Police Station |
| 4. | Bail |
| 5. | Police Search Powers |
| 6. | Police General Powers of Seizure and Retention |
| 7. | Face Masks |
| 8. | Police Powers of Arrest |
| 9. | Sections 1-5 Public Order Act 1986 |
| 10. | Police Powers to Regulate Processions and Assemblies |
| 11. | Offences Against the Person |
| 12. | Home Demos |
| 13. | Harassment |
| 14. | Obstruction of the Highway |
| 15. | Trespass |
| 16. | Use of Video Cameras on Demos |
| 17. | Human Rights |
| 18. | Suing the Police |
| 19. | Complaints Against the Police |
| 20. | Definitions and Abbreviations |
| 21. | Recommended Criminal Law Solicitors |
This guide is intended to provide advice to activists in dealing with some of the more common pieces of law, which you are likely to encounter during the course of protests. It does not deal with every possible law you might encounter but instead focuses mainly on police powers to control public order and how these can be challenged.
This is the third edition we have made of this guide and now takes in to account the new changes to the law under the provisions of the Criminal Justice Act 2003 and the Anti-Social Behaviour Act 2003. These give substantially new powers to the police in relation to public order law and to police powers of arrest, detention and bail as well as their new powers to take and retain fingerprints and DNA. This edition also takes account of new rulings in the High Court on the application of the Protection from Harassment Act 1997 and police powers to detain for breach of the peace.
The advice contained in this booklet is correct to our knowledge as of November 2003. Nothing is this booklet is intended to encourage you to break the law. Please seek further legal advice before acting on the contents of this guide. It is not guaranteed in any way, and is not a substitute for proper legal advice
The guide is divided in to the following sections:
Giving your Details
This explains what details you have to give to the police. Unless you are
the driver of a vehicle, it is not an offence to refuse to give the police your
details although you can sometimes be arrested for refusing to give them.
At the Police Station
This section describes your rights where you have been arresred and detained
at a police station
Bail
This section contains details of the new powers conferred on the police
by the Criminal Justice Act 2003. This includes the new power to issue “street
bail”, whereby the police can arrest suspects, charge them and bail them
without the need to go to the police station. It also contains an explanation
of the new powers of the CPS to charge suspects.
Police Search Powers
This section explains the various powers of stop and search of persons, vehicles
and premises available to the police. Note that certain of the powers of search,
namely those exercised under Section 8 of PACE with a search warrant, and under
Section 18 without a warrant, are only available where an “arrestable offence”
has been committed
Police General Powers of Seizure and Retention
This section explains the circumstances in which the police can seize and retain
your property
Face Masks
This section explains the powers the police have to remove face masks.
Police Powers of Arrest
This section explains the general powers of arrest enjoyed by the police. It
explains the difference between “arrestable” and “non-arrestable”
offences, and why the police can sometimes arrest for non-arrestable offences.
It is important to understand this, as it will form the basis of your understanding
of all the laws which are used against activists and the police powers associated
with them.
Sections 1-5 Public Order Act 1986
This section explains the offences committed under Sections 1-5 of the Public
Order Act 1986. Sections 4, 4A and 5 are by far the most common ones used against
protestors.
Processions and Assemblies
This section explains the powers available to the police to impose restrictions
on assemblies and processions under the Public Order Act 1986 and using their
powers at common law. An “assembly” can legally now consist of as
few of two persons.
Offences Against the Person
This section explains the different assault charges available to the police,
and which ones are “arrestable”.
Home demos
This section explains the law with regard to home demos. Demonstrations at someone’s
home are not against the law, but it is an offence not to comply with a police
direction to leave.
Harassment
This section explains the law on harassment, and how it is currently being used
to stifle protest
Obstruction of the Highway
This section explains what is meant by “obstruction of the highway”.
The police and courts must have regard to all the circumstances of an obstruction
when deciding whether it is lawful or not.
Trespass
This section looks at both civil and criminal forms of trespass. Aggravated
trespass can now be committed inside as well as outside buildings.
Human Rights
This section explains how the Human Rights Act 1998 has had an impact on UK
law and how it can be used to sue public authorities such as the local council
or the police
Suing the Police
This section explains what you can sue the police for, and how to go about it
Complaints Against the Police
This section explains why complaints against the police are important and how
to go about doing it. Remember that you have an absolute right to demand a formal
investigation in to the conduct of police officers, whatever they may tell you
otherwise.
Definitions and Abbreviations
This section explains some of the commonly used legal jargon and abbreviations
used throughout the guide.
Recommended Criminal Law Solicitors
This section contains a list of lawyers experienced in dealing with activists
arrested for protest activity.
Other than under road traffic legislation, you do not commit an offence in English law by refusing to give your name and address to the police. However there are certain situations where the police may arrest you if they cannot establish your name and address, and if you are arrested and charged with an offence you will be unlikely to be granted bail unless they can establish these details.
The general rule to remember is that you never have to give your name and address
to the police prior to arrest, subject to the following 2 exceptions:
- where you are the driver of a vehicle
- where the police reasonably suspect you of a non-arrestable offence, and require
your name and address for the service of a summons (Section 25 Police and Criminal
Evidence Act 1984 (PACE)).
If the police say that they require your name and address under Section 25 PACE, they need to have reason to suspect you of committing, or having committed a non-arrestable and therefore fairly minor offence – eg aggravated trespass or threatening behaviour. This situation may arise when you are the passenger in a vehicle on the way to a demo. If the police demand your details in these circumstances, ask them what reasonable suspicion they have that you are committing / have committed a non-arrestable offence. They don’t have to tell you, but if they have no genuine suspicion then they will usually back down. If you refuse to give your details the police may say that they find this suspicious and that someone with nothing to hide would give their details. This is an age-old ploy by the police and a fairly reliable indicator that they have no genuine suspicion. Also if they suspect you of burglary or criminal damage, both “arrestable offences”, there is no power to take your details under Section 25 PACE.
After arrest you still have the right to remain silent, but failure to give a name and address will mean that you will probably not be given bail if you are charged. If you are not charged with an offence then the police have to let you go, even if they don’t have your name and address. The point to remember is that you do not commit an offence in these circumstances by refusing to give your name and address. There is no offence, for example, of obstructing the police in their line of duty – if the police try and tell you otherwise they are bluffing. There may well be very good reasons for you to delay giving your details to the police – eg. in order to give someone time to get to your house before it is raided.
If you give false details at any stage you could be liable for obstructing a police officer in his line of duty or even, more seriously, for perverting the course of justice.
Except where you are the driver of a vehicle, you never have to give your date of birth and you cannot be arrested or detained for refusal to do so.
If you are arrested you should be told by the arresting officer that you are under arrest and the reason why. You should then be taken to the nearest police station. You have the right to remain silent, and you should exercise this at all times, other than to give your name and address. You don’t have to say anything, but if the police cannot establish your name and address you won’t get bail if you are charged with an offence. When you arrive you will be booked in by the custody sergeant, who then becomes responsible for your detention at the police station. His job is to ensure that your rights are complied with. He should inform you of the following:
You are entitled to consult the PACE codes of practice. This manual details the manner in which the police are bound by law to treat detained persons.The custody sergeant will fill out a standard type form, on which there will be sections for your date of birth, occupation, height etc. You are under no obligation to answer any of these questions and do not fell pressurized in to doing so.
You will also be asked to sign the form – again there is no legal obligation to do this, but most people do. You will have your property taken from you, including any watch or belt, and placed in a bag. Under recent legislation, the custody sergeant is no longer obliged to log all your personal property and may do so at his discretion.
If your property is logged, you will be asked to sign a form to confirm that this is your property, so – if you choose to sign - make sure the inventory is correct, and sign directly underneath the last item, so the police can’t add anything afterwards. You will then be taken to a cell, where you will usually have to wait a few hours before being interviewed or released.
Do NOT agree to be interviewed without a solicitor present. Any interview will be tape-recorded and you are entitled to have a solicitor present free of charge, regardless of your income. These safeguards exist to prevent the police from fabricating evidence.
You should REMAIN SILENT during interview and at all other times. If the police sense that you are scared or in any way unsure, they may use any number of tricks to try to get you talking. Eg:
One trick they sometimes use is to say that the main activists – “the ringleaders” – won’t risk getting arrested themselves and are using you and letting you take the rap. Don’t be taken in by it. This is a classic ploy adopted by the police to turn people against each other in order to gain evidence. They have arrested you, because the arresting officer thinks you are guilty of an offence. The custody sergeant has authorized your further detention in order to gain more evidence by questioning to secure a conviction. Although the courts may draw an “adverse inference” from your silence, the case will only get to court if the police can put together enough evidence, and they regard the interviewing of suspects as one of the main tools in obtaining this.
Prior to charge the police can now take your photo, using force if necessary. This power was introduced in the Anti-Terrorism, Crime and Security Act 2001 in the wake of the September 11th attacks on America.
New legislation in the form of the Criminal Justice Act 2003 now means that the police can take the fingerprints and DNA of anyone who has been arrested for a “recordable offence”. This covers any situation where you have been arrested except where the arrest was for breach of the peace. The police may keep your fingerprints and DNA on file indefinitely regardless of whether or not you are subsequently charged with or convicted of an offence.
Under the recently passed Criminal Justice Act 2003 the police can now hold you for up to 36 hours, if you have been arrested for an “arrestable offence”. However if you have been arrested for an offence which is not strictly speaking “arrestable”, then the maximum time they can hold you is still 24 hours as before.
Points to Note
With the passing of the Criminal Justice Act 2003, you are unlikely to be charged with an offence initially, but will instead be bailed without charge to appear at a police station at a later date (see notes on ‘Bail’ below). If you are subsequently rearrested and charged with an offence when you return to answer bail at the police station, the police will usually attach conditions to bail granted after charge and prior to your first appearance in court. These typically include conditions not to enter a certain area, not to approach certain people and to reside at a certain address.
The Criminal Justice Act 2003 has introduced major changes to the system of granting bail due to perceived inadequacies in the charging procedure. Police now have new powers to grant ‘street bail’, without having to process the prisoner in the police station. In the majority of cases, the Crown Prosecution Service (CPS) rather than the police will in future take over decisions on whether to charge offenders. They will then have the power to charge suspects directly by way of the new ‘written charge’. Alternatively the police may issue the suspect with the new “conditional caution”. It will also be harder for defendants to get bail if they are already on bail for another imprisonable offence, and prosecution powers to appeal against such bail decisions have been increased.
We will look at each of these areas in turn.
Up until the passing of the Criminal Justice Act 2003, the police had to take you to a police station as soon as reasonably practicable after arrest. The police did have the power to release you before getting to the police station, but in doing so they could not bail you to attend at a later date. Under the new law, the police now have new powers to release prisoners on bail before reaching the police station, under a duty to appear at a specified police station at a later date.
In recent years we have seen an increase in activists being released from custody without charge on police bail, with a duty to appear at a police station at a later date. This has been to enable the police to liaise with their lawyers and informally with the CPS before deciding which charges, if any, to bring. Nonetheless the police have still been responsible for charging suspects with offences and for compiling evidence against them. Under the new Criminal Justice Act 2003, the CPS will take over responsibility for charging in all but the most routine of cases.
The new law proposes that the police must receive general guidance from the CPS as to what charges if any to bring against suspects being held in the police station. If the police do decide to grant bail pending further enquiries, then the case will be automatically referred to the CPS who will make the decision on whether or not to charge the suspect with an offence. They may direct the police to charge you with a specific offence, to issue you with a conditional caution (see below), or not to charge you at all. Alternatively they may institute proceedings against you directly by way of the new “written charge” (see below).
Under current law, it is usually the police who charge you with an offence or “lay an information” at the magistrates court in order for a summons to be issued requiring you to attend court. The Criminal Justice Act 2003 gives an alternative power to “public prosecutors” to charge you with an offence by way of a “written charge”. They must at the same time issue a document known as a “requisition” which requires you to attend court to answer the charge. A set list is provided in the bill of people who may carry out the role of “public prosecutor” and it includes the police, the Crown Prosecution Service, the Attorney General and the Serious Fraud Office.
Up until now, the police have had the power to offer you a caution as an alternative to being charged. This is not as serious as a criminal conviction but it does form part of a criminal record. Under the new law the CPS will have the power to instruct the police to offer the suspect a “conditional caution”. This will not replace the ordinary caution but is aimed to cover situations where the CPS believe that charges are not necessary but the ordinary caution is inadequate. The conditions which may be attached to such a caution must have either or both of the following objectives:
i) ensuring or facilitating the rehabilitation of the offender
ii) ensuring that he makes reparation for the offence.
Prior to the Criminal Justice Bill 2003, there was a general right to bail in criminal proceedings unless the offence being charged was indictable or triable “either way” and the suspect was on bail at the time of the offence. In such a case it was still possible to get bail but it was more difficult, because the suspect no longer had a right to bail and had to give reasons why he should be given it. The new law extends this situation to cases where a suspect has committed an offence on bail where either offence is merely imprisonable.
Prior to the passing of the Criminal Justice Act 2003 ,the prosecution could appeal against a decision by a magistrate to grant bail, where the offence in question was imprisonable by 5 years or more imprisonment. This power has now been extended by the Act to cover any imprisonable offence.
Police have the powers to stop and search you or your vehicle under either Section 1 of PACE, Section 60 of the Criminal Justice and Public Order Act 1994 or Sections 43 and 44 of the Anti-Terrorism Act 2000.
Under Section 1 of PACE the police may search you and / or your vehicle, if they have reasonable grounds to suspect that you have stolen goods, offensive weapons or for articles used for burglary or theft. Under the recently passed Criminal Justice Act 2003, they may now also search you for items which they suspect are being used for criminal damage.
Under section 60 of the CJA a police officer of the rank of superintendent or above may authorize all persons and vehicles within a locality to be searched regardless of suspicion, if serious violence is expected in an area. This power may be exercised by an inspector if he believes violence is imminent and no superintendent is available.
The definition of "terrorism" under the Terrorism Act 2000 is defined so as to include serious damage to property as well as violence to people. The use of such violence must also be designed to influence the government or to intimidate the public or a section of the public, and it must be used for the purpose of advancing a political, religious or ideological cause.
It's clear therefore that certain types of animal rights actions - eg arson and possibly even serious public order offences such as violent disorder - could fall within this definition of terrorism, and therefore enable the police to use the associated draconian powers against them conferred by the act. Although we're not aware of this happening to animal rights protestors yet, the metropolitan police in London have used the blanket search conferred by Section 44 of the act against anti-war protestors In London and the power to do this has recently been upheld in the High Court. This is not too surprising in the current political climate.
This states that a constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.
This gives the police wider search powers than they would enjoy under Section 1 of Pace or Section 60 CJA above. Basically they can search you for just about anything.
Unlike Section 44 (below) the police officer must have reason to suspect the person to be a terrorist.
An authorisation under this subsection authorises any constable in uniform to stop a person or a vehicle in an area or at a place specified in the authorisation, and to search the person or vehicle and its occupants for articles associated with terrorism.
This is a blanket search power - much like Section 60 CJA above - and does not therefore require that the constable reasonably suspects the presence of articles used for terrorism.
The authorisation has to be given by a police officer who is of the rank police constable or higher, and may remain in place for up to 28 days.
Before any of the above search powers are exercised, the constable must inform you of the following:
a) the constable’s name and the police station to which he is attached.
b) the object of the proposed search
c) the constable’s grounds for proposing to make it.
d) the fact that you are entitled to a copy of the search.
Section 8 PACE, Search with a warrant
Under Section 8 of PACE, magistrates may authorize the police to enter and search premises, where the police reasonably suspect that a “serious arrestable offence” has been committed. They must also have reason to believe that it is not practical to gain entry otherwise and that there is material on the premises likely to be of substantial value to the investigation.
When applying for a warrant, the police must specify the reasons they are asking for it, and identify the items or persons sought.
The actual warrant must specify:
i) the name of the person who applied for it,
ii) the date on which it was issued
iii) the enactment under which it was issued
iv) the premises to be searched and
v) the articles or persons sought.
The police are supposed to enter at a reasonable hour, unless this would “frustrate the purpose of the search”. They must identify themselves and supply the occupier with a copy of the warrant. If there is no person present on the premises at the time, the police must leave a copy of the warrant in a prominent place. After the search has finished, the police must return it to the magistrates court where it was issued, where it must be retained for 12 months. The occupier has a right to inspect it during this period.
Points to Note
This entitles a constable to enter and search premises which are occupied or controlled by someone under arrest for an “arrestable offence” where they reasonably suspect that there is evidence on the premises relating to the offence for which they have been arrested or to some other similar arrestable offence.
Points to Note
This section confers the power on a constable to search a person not at a police station upon arrest for anything which might be evidence relating to an offence. The constable may also enter and search the premises where the suspect was arrested, or immediately before he was arrested, for evidence, if he reasonably suspects that he will find on those premises items relating to the offence for which the suspect was arrested.
Section 19 of the Police and Criminal Evidence Act (PACE) states that an officer lawfully on premises may seize any item which he reasonably suspects is evidence of any offence, or which he suspects has been obtained in the consequence of an offence.
Under Section 22 PACE the police may retain any items seized “for as long as is necessary in all the circumstances”.
The police power to remove face masks was conferred by Section 60 of the Criminal Justice and Public Order Act 1994 (CJA). This was originally only available where a Section 60 CJA stop and search authorization was in force, whereby a Superintendent had to fear acts of serious violence in a locality. So if there was no Section 60 – as on many demos - then the police could not demand that you remove your face mask. The police complained to the Home Office about this, who announced they would be changing the law as part of the much-vaunted “package of measures” against animal rights extremists.
So under the Anti-Terrorism, Crime and Security Act 2001, Section 60AA was
added to the CJA. It states that where an officer of the rank Inspector or above
reasonably believes
a) that activities in any locality in his area may involve the commission of
offences, and
b) that it is expedient, in order to prevent or control those activities to
give an authorization under this section
then he may make a Section 60AA authorisation. A Section 60AA authorisation
confers power on an officer in uniform:
a) to remove any item which he reasonably believes is used wholly or mainly
for the purpose of concealing his identity and
b) to seize any item which the officer reasonably believes any person intends
to wear wholly or mainly for that purpose.
Police arrest powers are governed by the following:
It is important for activists to be able to distinguish between arrestable and non-arrestable offences.. If an offence is “arrestable” then you may be arrested for it afterwards if the police have reason to suspect you. And the police enjoy certain powers of search which they cannot use for non-arrestable offences. So whether or not an offence is arrestable will determine not only the power of arrest, but the power to search your house and your ability to sue afterwards for false imprisonment.
Many minor public order offences only carry a limited power of arrest, and are not strictly speaking “arrestable offences”, as defined by Section 24 PACE. This section defines what is meant by the term “arrestable offence”.
Firstly it states that any offence is arrestable if the sentence is fixed by law - eg murder. There are very few of these and they are of little relevance to activists. Section 24 then states that any offence is arrestable if it is punishable by 5 years’ imprisonment or more upon first conviction. Finally it lists a set number of about 25 offences which are also arrestable, even though they do not fit either of the above criteria. This list is periodically added to, and it includes some fairly minor offences eg refusal to remove a face mask.
Examples of arrestable offences are
Examples of non-arrestable offences are:
Many non-arrestable offences do carry a limited statutory power of arrest, however, namely where the police officer suspects that you are actually committing the offence at the time. This statutory power only exists where it has been actually inserted in to the law itself.
For example, s4 (3) Public Order Act 1986 states:
"A constable may arrest without warrant anyone he reasonably suspects is
committing an offence under this section". Where there is no such power
inserted in to the act and the offence is not arrestable under Section 24 PACE
(above), police powers of arrest are limited to the general power under Section
25 PACE or at common law to prevent a breach of the peace.
The usual procedure for prosecution of non-arrestable offences is by way of a summons to appear before magistrates. But where the police reasonably suspect you of committing or having committed a non-arrestable offence, then they may arrest you if they believe that the service of a summons in impractical because any one of the general arrest conditions under Section 25 of PACE is satisfied.
These conditions are as follows:
(1) They cannot establish your name or they think you have given a false one,
OR
(2) They cannot establish an address suitable for the service of a summons or
they think you have given a false one, OR
(3) They have reasonable grounds to believe arrest is necessary to prevent you
from doing any of the following:
(i) causing physical injury to yourself or any other person, OR
(ii) suffering physical injury; OR
(iii) causing loss of or damage to property; OR
(iv) committing an offence against public decency, OR
(v) causing an unlawful obstruction of the highway.
The police may threaten you with arrest for breach of the peace when their other powers of arrest are inadequate. The police can exercise it if they reasonably believe that you are using or about to use violence against persons or, in their presence, against their property.
The police can also arrest you for breach of the peace, if they reasonably believe that by your actions you are provoking or will provoke the use of violence by others. If you take a look at the case law on breach of the peace, you'll see that the courts regard any action which involves infringing someone elses's private rights - eg trespass - as unreasonable and therefore provocative. If you take part in a hunt sab, or are occupying office premises, then according to current case law your arrest for breach of the peace could be lawful. This is because you will be deemed to be interfering with the legitimate property rights of others and thus by your actions provoking the use of violence by others. If by contrast you are engaged in peaceful leafleting outside a shop, an arrest for breach of the peace would probably be unlawful, even if people find your leaflets offensive, so long as the leaflets do not provoke violence.
The police have often threatened activists with arrest in the past for occupying private property – eg banks, offices - during the course of a protest. They are more likely to use the new power of arrest for “aggravated trespass” which has now been amended to include activity taking place inside as well as outside premises.
Sections 1-3 of the Public Order Act 1986 are the most serious and carry the most serious penalties. Riot carries up to 10 years, Violent Disorder 5 and Affray 3 years. The underlying thread for each is that violence must be used or threatened and that this would cause a hypothetical person of reasonable firmness to fear for their personal safety. Thus the test for whether or not an offence has been committed is an objective one, and the prosecution do not have to rely on witnesses who were actually in fear. In practice there will usually be witnesses, however, as it would otherwise be very difficult to prove the offence. But the witnesses themselves do not necessarily have to attest that they feared for their personal safety.
Riot is indictable only. Violent disorder and affray are “either way” offences, triable in magistrates or the Crown Court. Charges of violent disorder and affray may often be used as an alternative to assault causing actual or grievous bodily harm if there is insufficient evidence in such a case.
This is the most serious offence under the Public Order Act 1986 and is very rarely used. Although you are unlikely ever to get charged with riot, it is useful to have an understanding of it, in order to put the other offences in to context.
In order to be liable for the offence the accused person must use violence
and:
a) 12 or more persons (including the accused) who are present together use or
threaten violence for a common purpose, AND
b) their conduct taken together is such as would cause a person of reasonable
firmness to fear for their personal safety AND
c) the accused’s use of violence was for the common purpose.
This is the more likely charge in the case of serious public disorder. In order
to be liable the accused must use or threaten violence in the following circumstances:
a) where three or more people (including the accused) use or threaten unlawful
violence AND
b) the conduct of them taken together is such as would cause a person of reasonable
firmness to fear for their personal safety.
The difference from riot is as follows:
a) Only 3 persons who are present together are required to use or threaten violence.
b) The accused person may be guilty if he merely threatens violence.
c) There is no requirement that the violence be used or threatened for a common
purpose.
Affray looks very similar to violent disorder, and is supposed to be reserved
for serious cases involving the use or threat of violence.
Section 3 states:
A person is guilty of affray if
a) he uses or threatens unlawful violence towards another and
b) his conduct is such as would cause a person of reasonable firmness present
at the scene to fear for his personal safety.
These offences are much less serious than Sections 1-3. Sections 4 and 4A carry a maximum sentence of 6 months imprisonment, whilst Section 5 carries a maximum of a fine. Sections 4A and 5 are the ones you will most often encounter on demos.
Section 4 - Fear or Provocation of Violence
A person is guilty if he either
a) uses towards another person threatening, abusive or insulting words or behaviour,
or
b) distributes to another person any writing or sign which is threatening, abusive
or insulting
and either
i) he intends to cause that person to believe that immediate unlawful violence
will be used against him or another by any person or to provoke such immediate
violence or
ii) it is likely that the person will believe that such violence will be used
against him, or it is likely that such violence will be provoked.
A person is guilty if, with intent to cause a person harassment, alarm or distress,
he
a) uses threatening, abusive or insulting words or behaviour or disorderly behaviour,
or
b) displays any writing, sign or other visible representation which is threatening,
abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
Although Section 4A was originally introduced as an amendment to the act in order to address the problem of racial harassment, it is not limited to such conduct and is frequently used against protestors. There are three basic ingredients to the offence. Firstly your behaviour must be threatening, abusive, insulting or disorderly. Secondly you must intend to cause someone harassment alarm or distress by that behaviour. Thirdly, in contrast to Sections 4 and 5, someone must be actually caused harassment, alarm or distress by your behaviour.
Section 5 - Conduct likely to Cause Harassment, Alarm or Distress
This is by far the most commonly used piece of legislation on demos, and the one with which activists will be most familiar.
A person is guilty of this offence if he
a) uses threatening, abusive words or behaviour, or disorderly behaviour, or
b) displays any writing, sign or other visible representation which is threatening,
abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm
or distress.
Section 5 is triable summarily only, the maximum penalty is a fine, and it
is not an “arrestable offence”. A constable may only arrest if:
a) a person engages in offensive conduct which a constable warns him to stop
and
b) that person engages in further offensive conduct immediately or shortly after
the warning.
If you engage in regular protest you will inevitably encounter the police’s use of Sections 12 and 14 of the Public Order Act 1986.
This confers power on the senior officer to impose conditions on processions, which he reasonably believes are necessary to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community. He may also impose such conditions if he believes that the purpose of the persons organising it is the intimidation of others with the 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.
If he reasonably believes any of the above, then he may impose conditions on persons taking part in the procession as are reasonably necessary to prevent the above, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.
Anyone who knowingly fails to comply with a condition is guilty of an offence.
As with Section 12, the senior officer may impose conditions on public assemblies,
which he considers are reasonably necessary to prevent serious public disorder
etc. But unlike Section 12, the conditions he may reasonably impose are in this
case limited to specifying:
a) the numbers of people who may take part,
b) the location of the assembly, and
c) its maximum duration.
On most big animal rights demos these days there is a Section 14 notice in place, which gives the location where the assembly may and may not take place, and the time at which it must finish. It does not usually specify the number of people who may take part.
An assembly is defined by Section 16 of the Act as consisting of two people or more.
Anyone who knowingly fails to comply with a condition is guilty of an offence.
Doesn’t there need to be more than two people to form an assembly?
Not any more. Section 57 of the Anti-Social Behaviour Bill 2003 amended
Section 16 of the Act to reduce the numbers of people necessary to form an assembly
from twenty to two. This amendment was introduced after intensive lobbying by
the police and the pharmaceutical industry for more powers to be available to
deal with animal rights protests where less than twenty people were present.
They finally got what they wanted, so activists can expect even more widespread
use of Section 14 in the future.
What is a “public place”?
Section 16 of the Act states that a public procession or assembly is one which
takes place in a public place. It defines what is meant by “public place”
as follows: any highway, or any place to which the public has access, on payment
or otherwise, as of right or by virtue of express or implied permission. This
therefore includes supermarket car parks and garage forecourts for example,
to which the public has “implied permission” to enter.
When can I be arrested?
Offences under sections 12 and 14 are only punishable by a fine. Breach of Section
12/14 is not, therefore, an “arrestable offence” under Section 24
PACE, and there is only a very limited statutory power of arrest namely where
a constable in uniform reasonably suspects you of committing the offence. As
the offences are not “arrestable”, you cannot be arrested after the
offence has been committed (eg the next day) and if you are arrested your house
cannot be searched.
Does a Section 14 or 12 notice have to be in writing?
A Section 14 or notice only has to be in writing where it is issued in advance
by the chief constable of police. It does not have to be in writing when it
is issued at the time of the assembly by the most senior officer present.
Who is the “senior officer”?
The powers conferred can only be exercised by the “senior officer”.
The identity of the senior officer depends on the nature of the procession.
If it is an advertised march or assembly and a Section 12 or 14 notice is issued
in advance, then it can only be exercised by the chief constable of police and
it has to be in writing. But in the case of impromptu marches or processions,
where there is no advance notice, then the power must be exercised by the senior
officer present at the scene and does not have to be in writing.
A notice is invalid if issued by the wrong officer. For example, in 2002 police officers arrested some animal rights activists for assembling in Derby town centre, contrary to a Section 14 notice. On the day in question the activists had taken the police by surprise, as the advertised assembly was elsewhere in the neighbouring county. This meant that no advance Section 14 notice had been issued to control the assembly in Derby on that day. A section 14 direction was then issued to deal with the protestors in Derby. However this was not issued by the senior officer at the scene, but by a more senior officer based at the police headquarters. This meant that the Section 14 notice was issued illegally and all of the activists were subsequently acquitted
Can I be arrested if I have not been told about the conditions?
It is an offence knowingly to fail to comply with one of the Section 12 or 14
conditions. So it would be a defence to say that you had no actual knowledge
of the conditions – eg because you had not been told or, in the case of
a notice issued by the chief constable, there was no written notice.
The police sometimes use a megaphone to issue a Section 14 notice at the scene of an assembly, Activists arrested for breach of Section 14 are often subsequently acquitted because they simply could not hear what the police were saying and therefore had no knowledge that a Section 14 notice was in existence.
What if I am marching, can the police still use Section 14?
No they can’t, they would have to use Section 12, which governs marches.
The police sometimes wrongly seem to think that Section 14 gives them the power
to outlaw any form of protest other than the assembly on the day in question.
In April 2003, the police in Cambridgeshire attempted to use Section 14 to control
a march - and failed. On the day in question, there had been an advertised demonstration
at Huntingdon Life Sciences. A Section 14 was issued here, and this stated amongst
other things that no other assemblies could take place anywhere in the county.
Some activists marched that day through Cambridge town centre, another town
within the same county. They were stopped by the police from marching, then
arrested for assembling contrary to the Section 14, which had been issued at
Huntingdon. The case was eventually dismissed when it was shown that the only
reason why they were assembling was because they had been forced to do so when
stopped by the police. They had been attempting to march and this was not a
failure to comply with the Section 14 direction.
Were the conditions legal?
The police can only impose conditions, which are authorized by the statute.
So for example, where an assembly is taking place, the police cannot impose
a condition stating that you cannot blow whistles or bang drums. Such a condition
would be unlawful, and you could not be convicted for failing to comply with
this condition. However, the presence of one such unlawful condition does not
in itself invalidate the entire Section 14 notice.
According to a recent High Court case, the police cannot impose conditions under Section 14 as to the route protestors take to and from an assembly, nor can they restrict the numbers of people who may leave the assembly at any one time. The police often include a condition in a Section 14 notice nowadays that you cannot assemble anywhere in the entire county other than the area they have designated. Although this point has yet to be decided in court, we believe that such conditions are unlawful, as the power only exists to regulate a particular assembly.
Is Section 12/14 compatible with my human rights
As with all legislation, the police must not issue conditions, which are incompatible
with your fundamental right to protest. Any condition imposed must be “proportionate”
to the harm – i.e. serious disorder etc – which the police are seeking
to prevent. If, for example, the police sought under section 12 to divert a
procession planned to go through a city centre to the outskirts of the city,
you could argue in court that this amounted to a denial of your right to freedom
of expression as it was not necessary to divert the march to prevent disorder.
If the judge agreed, this would render the Section 12 direction unlawful and
any failure to comply with such an unlawful direction would not be a criminal
offence.
The police do not always use Section 14 to control assemblies, but sometimes rely on their powers at "sommon law". The police’s duties at common law include preventing a breach of the peace, and protecting public safety. They are empowered to take all reasonable steps to prevent a breach of the peace and to protect the safety of the public where they reasonably suspect that it is necessary to do so. ]
Assault and battery are “common law” offences. Although the term assault is often used to cover situations involving both assault and battery, they are in fact two separate offences.
Assault is defined at common law as “any act which puts a person in fear of immediate and unlawful violence”. So if you go to throw a punch at somebody and they fear that you will carry it out, this is enough to constitute the offence. The victim does not have to be actually afraid – he will be deemed to “fear” violence, if he anticipates that the punch will be carried out.
Battery is defined at common law as “the application of unlawful violence” by the accused on the victim. The slightest touching is enough to constitute a battery, but the courts have recognized that everyday life involves many incidents of contact between persons which should not be treated as criminal.
This is defined by Section 89 of the Police Act 1996.
Section 89(1) makes it an offence to assault a constable in the execution of
his duty.
Section 89(2) makes it an offence to resist or wilfully obstruct a constable
in the execution of his duty.
Points to Note
Assault causing actual bodily harm (ABH) is an offence under Section 47 of the Offences Against the Person Act 1847. Such an assault is a defined as an assault or battery, which in addition causes actual bodily harm. This need not be permanent or serious, but more than just a push or shove on a demo. There does not necessarily need to be a bruise or swelling if the victim is caused sufficient pain or discomfort.
The Offences Against the Persons Act 1847 contains 2 offences of wounding or causing GBH under Section 18 and 20. Section 18 is by far the most serious as it carries a maximum sentence of life imprisonment, whereas the maximum for Section 20 is 5 years. The difference is that the prosecution must prove that you intended to cause serious bodily harm under Section 18, whereas they need only show that you acted recklessly under Section 20.
For all of the above assault charges, the prosecution will need to prove that some harm has been inflicted. For this they will need a victim to give evidence to that effect. Where they are unable to do this, alternative charges may be brought under the Public Order Act 1986. Under several sections of this act, a conviction may be secured if it can be shown that a person was likely to fear violence etc, and no “victim” need actually testify to this effect. This is why public order offences are often charged as an alternative to more serious assault charges.
Section 42 of the Criminal Justice and Police Act 2001 enables the police to impose conditions on demonstrations taking place outside someone’s home. Much was made of this new law at the time, as it was supposed to be one of the government’s “package of measures” designed to stop animal rights extremism. But it has quickly become apparent that this law has had very little impact on home demos, and the police and pharmaceutical industry are still lobbying for such demos to be made completely illegal.
Section 42 confers power on a police officer to impose directions verbally on persons demonstrating in the 'vicinity' of someone's dwelling, if he reasonably believes that they are there to protest against the actions of the resident of the dwelling or anyone else, and that their presence amounts to or is likely to cause harassment, alarm or distress to the resident. This includes the power to direct you to leave the vicinity immediately. A constable can ask you to leave even if your behaviour is entirely peaceful, so long as you're in the vicinity of a dwelling.
Can the police still use Section 42 if the dwelling is also used as a
business?
Yes they can. So for example if you are protesting outside an animal breeding
facility and you are also in the vicinity of someone’s dwelling - which
is the current situation at the Newchurch guinea pig farm – then the police
could issue you with a Section 42 direction.
Are home demos now illegal under Section 42?
No they are not. Until the police arrive at the scene, the situation is exactly
as it was before the law was passed. The Section 42 offence is committed when
you fail to comply with the police officer's direction. This could be a direction
to leave the area or to demonstrate in a certain location. Activists frequently
avoid Section 42 directions, by doing a series of home demos and leaving before
the police arrive. If anything this has resulted in even more home demos than
before the legislation was passed!
What is the “vicinity”?
The law is drafted so that you may be required to leave the vicinity, even if
the “victim” is not at home, if the police reasonably believe you
are causing harass ment etc to his neighbours. The section does not define 'vicinity',
so this will be for the constable and ultimately the courts to determine –
you are usually required at least to leave the street on which the person lives.
We believe that once you’re at least a mile away, then you cannot be said
to be in the vicinity. Police at Newchurch however are currently telling protestors
that they have to go several miles in each direction. This is almost certainly
illegal and is due to be challenged in court in January 2004.
Do the “residents” have to be at home during the demonstration?
Section 42 states that the police must reasonably suspect that your presence
amounts to or is likely to cause harassment or distress to the “resident”,
in order to issue you with a direction. The “resident” is defined
as anyone who uses the premises as their dwelling. We believe that the police
must therefore take some steps to establish whether someone is actually at home
before they can lawfully issue a direction.
How does Section 42 affect my human rights?
When exercising their discretion in imposing directions on a home demo, the
police must not act in a way, which is incompatible with your European convention
rights. This could create problems for the police, where a demonstration is
taking place outside commercial premises, which also double up as someone’s
home. This is the situation at Newchurch, where guinea pigs are bred for vivisection.
The guinea pigs are bred from three sites, two of which also double up as dwellings.
At one of the sites the police currently require protestors to leave immediately,
whereas at another site protest is allowed up to a certain time after which
protestors are directed to leave under Section 42. If the police had effectively
banned protests altogether by imposing a Section 42 requirement to leave all
the sites, they would probably be acting in breach of Section 6 of the Human
Rights Act. This shows that the police are, and must be mindful of the Human
Rights Act when exercising their discretion under the act.
When can the police arrest me under Section 42?
An offence is committed by anyone who knowingly fails to comply with
a Section 42 direction. Section 42 is not “arrestable” and you can
only be arrested by a police officer in uniform who reasonably suspects you
of committing an offence. As it is not an “arrestable offence” (Section
24 PACE), you cannot be arrested for it afterwards and in the event that you
are arrested your house cannot be searched.
Section 2 of the Protection from Harassment Act 1997 makes it an offence for a person to pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other. Such a course of conduct need only amount to two separate acts, and, unlike Section 5 of the Public Order Act 1986, there is no need to prove disorderly conduct or threatening behaviour.
Section 4 of the act creates the more serious offence of pursuing a course of conduct causing a person to fear that violence will be used against him on at least two occasions.
Section 3 of the Act provides for a civil remedy, whereby an injunction can be obtained in the High Court prohibiting a course of conduct which causes harassment or distress.
Wasn’t the act introduced to prevent “stalking”?
Yes it was - the Act was introduced in the wake of media hysteria about stalking, and yet as soon as it was passed it was used extensively against animal rights activists.
Can the act be used to protect companies from harassment?
Strictly speaking no, but the act can be used to protect company employees and
is currently being used to protect Huntingdon Life Sciences’ employees
from animal rights activists. The courts have ruled that company employees do
not constitute a sufficiently “close but definable group”. It follows
that a charge under Section 2 of the Act alleging harassment of employees of
a company could not be successful unless a course of conduct was proved against
at least one named employee.
What is a “course of conduct”?
This will depend on all the circumstances. In one case, three threatening phone
calls within the space of five minutes were held to be a course of conduct.
In another, two instances of harassment separated by a four month period were
also deemed to constitute a course of conduct. The courts have ruled that the
more time that has elapsed between the two acts, the less likely it is that
a course of conduct will be established.
Can there be more than one victim?
Yes there can, so long as there is a sufficient nexus or bond between the victims
– eg where they are husband and wife – so that a course of conduct
harassing the one would also harass the other. The High Court has ruled that
sections 2 and 4 could generally not be used where the victims were defined
as “company employees”, and that their common employment was not sufficient
to establish a “nexus” between them. However where a civil injunction
is brought under Section 3 of the Act, the courts have ruled that it can be
brought by one company employee on behalf of all the others – see below.
Breach of such an injunction is a criminal offence.
Does there have to be an actual “victim”?
Yes there does. Unlike under sections 1-5 of the Public Order Act 1986, there
does need to be an actual victim to testify and this victim actually has to
be named. This causes problems for the prosecution where the victim does not
wish to testify for fear of being identified. In such a case, the act cannot
be used, and the prosecution may use other legislation such as the Public Order
Act 1986.
How has the act been used against protestors so far?
Extensively. This act is the main piece of legislation currently being used
to stop the group Stop Huntingdon Animal Cruelty (SHAC) in its campaign against
Huntingdon Life Sciences (HLS). HLS and several of its Japanese customers have
obtained civil injunctions against SHAC prohibiting SHAC’s members from
harassing employees and approaching employees’ homes, and restricting protest
to once a week in an area designated by the injunction. In each case the court
has allowed the claims to be issued in the name of one company employee on behalf
of all of the other unnamed employees. This is a novel use of the act and may
be challenged at some point in 2004.
These injunctions were the result of meetings between HLS, the home office and the police, and they give the police far reaching powers to control protest. This is because breach of the injunction is a criminal offence and punishable by up to 5 years in prison. It is therefore an “arrestable offence” under Section 24 of PACE thus gives the police far greater powers of arrest in relation to the SHAC campaign than they currently enjoy.
How can the police prove that I have acted in breach of a civil injunction?
To arrest you for breach of an injunction, the police would need to have reasonable
grounds to believe that you knew of the terms of the injunction and deliberately
acted in breach of them. In order to convict you for this, the prosecution would
have to prove this. It is not enough for the prosecution to show that you are
a part of an organization named on the injunction – they must have evidence
that you are specifically aware of its terms.
This evidence could consist of any of the following:
Even if the police do have evidence that you have been served, it is still a defence under Section 3 of the Act that you had a reasonable excuse to breach the injunction. This could be that you had not read the injunction or didn't understand it, even though you had been served.
What are “harassment warnings”?
Difficult question. During the course of the animal rights campaign
against the Newchurch guinea pig farm, the police have issued many “harassment
warnings”, which warn protestors with regard to their future conduct. Similar
warnings have been issued by the police during the course of other protests
around the country as well. There is no mention, however, of these warnings
in the legislation itself, and they appear to be an invention of the police.
In order to convict you for harassment under Sections 2 or 4 a court has to be satisfied that you were aware that your conduct was causing harassment. So the police could be using the warnings in order to gain evidence in the event of a prosecution.
We believe, however, that the police issue warnings, where there is insufficient evidence to bring charges under the act, for example where a victim is unwilling to testify. They are relying on the warnings instead as a form of intimidation, in the hope that they will prevent activists from protesting in the future.
The warnings have been used in particular where the suspect is thought to be engaging in home demos. The legislation designed to deal with home demos – Section 42 of the Criminal Justice and Police Act 2001 - has been singularly ineffective, hence the invention of the “harassment warning” in a rather desperate attempt to stop such demos from taking place. In one case we know of a police officer drove 100 miles to deliver a harassment warning in person!
It is significant that despite the number of harassment warnings issued at Newchurch, not a single recipient has so far been prosecuted under the act.
What defences are available?
As with Sections 4A and 5 of the Public Order Act 1986, it is a defence to show
that your conduct was reasonable, and the same arguments apply here as they
do to those sections. In the context of a campaign, the police as well as the
courts must counterbalance the human rights of the individual to protest against
the rights of citizens to be free from harassment. High Court decisions have
ruled that the act cannot be used to protect companies, but they have allowed
it to be used to protect company employees.
The High Court has ruled in one case, that any action in breach of a civil injunction could never amount to “reasonable conduct” and it has also ruled that it is unlikely that any action involving trespass could be regarded as reasonable.
Powers of Arrest and Punishment
Section 2 of the act is punishable by up to 6 months imprisonment or a fine
and / or a restraining order preventing you from continuing the course of conduct.
This is an “arrestable offence” (Section 24 PACE).
Section 4 of the Act is punishable summarily by up to six months imprisonment or by up to five years imprisonment on indictment It is therefore an arrestable offence.
Breach of a civil injunction issued under Section 3 of the Act is punishable either way by up to 6 months imprisonment summarily or 5 years on indictment. It is therefore an “arrestable offence” (Section 24 PACE).
The courts may also order a restraining order against you preventing you from committing further acts of harassment. These typically consist of an order restraining you from approaching the victim (who has to be named). Breach of such a restraining order is punishable either way by up to six months imprisonment summarily or by up to five years’ imprisonment and is therefore an “arrestable offence” (Section 24 PACE).
Section 137 of the Highways Act 1980 makes it an offence to cause a wilful obstruction of the highway without lawful authority or excuse