The following information has been produced by the Revolutionary Communist Group and is available on their website, the information is to help inform activists and interested persons about their rights. It’s essential reading for those taking part in pickets, demonstrations, paper sales and political work generally!
Legal information to help with organising demonstrations, stalls and street meetings
The purpose of this document is to disseminate information which will help to facilitate political work by providing general information about legal rights in England, Wales and Scotland. It is prepared by activists with knowledge of the law and experience of organising events and dealing with their legal ramifications; however we are not professional lawyers and this guide should not be considered a substitute for seeking legal advice on complex situations which may arise.
Before holding any political event it is advisable to discuss security in advance. The measures you need to take will vary with the circumstances. For instance, if there is a particular risk of arrest, make sure you have a solicitor’s details for everyone and that all participants are aware of what they should do. If the risk is physical attack from opponents, make sure that everyone knows and agrees to the arrangements for collective and personal safety. Discuss the security of people arriving at and leaving an event or meeting that may be under attack. Think about what you things you need to take with you and what you should leave behind.
On all events, it is advisable to put one person in charge of the task of dealing with the police and/or private security guards from shops etc. Other participants should be aware who this person is and should try not to get involved in discussions with the police etc, but should direct them to the relevant steward.
2. Pickets and static demonstrations
a. The right to demonstrate. Under the European Convention on Human Rights, which is incorporated into British law under the Human Rights Act, we have the rights to freedom of expression (Article 10) and to freedom of assembly (Article 11). While the state can interfere with these rights under certain circumstances, their interference must be proportionate. We should defend these rights and contest any interference.
b. Imposing conditions. An event is a public assembly for the purposes of the law if there are two or more people assembled in a public place that is wholly or partly open to the air. We are lawfully allowed to assemble publicly without giving prior notice to the police; however under section 14 of the Public Order Act 1986 the senior police officer at the scene may impose some conditions upon the assembly if they have ‘reasonable belief’ that the assembly will either result in serious public disorder, serious damage to property or serious disruption to the ‘life of the community’ or if they reasonably believe that the purpose of the organisers is to intimidate others with a view to compelling them not to do something they have a right to do, or to compel them to do something they do not have a right to do. The conditions that the senior police officer may impose in this situation are: The place at which the public assembly may continue to be held; The maximum duration of the assembly; and The maximum number of persons that are allowed to participate in it. These are the only conditions which can be imposed under s.14 and the protest cannot be prohibited outright. Police are not obliged to give you reasons for imposing any of these conditions. The senior police officer for the purposes of this part of the law is simply the officer most senior in rank present at the scene.If you are communicating with police about an assembly that you plan to hold (although remember you are not obliged to notify them), the senior police officer is the chief officer of police and in this circumstance s/he must give reasons as to the imposition of conditions. S/he must provide sufficient detail of the reasons of his/her belief in any of the grounds for imposing conditions listed above so that the demonstrator(s) can understand. You may wish to inform police of an intended assembly if, for example, you have been harassed by police at a certain location in the past and wish to receive clearance so that there will not be any hassle on the day.
c. Kettling/containing demonstrations. ‘Kettling’ takes place under common law powers to prevent a breach of the peace and, as the purpose of the containment is supposedly to effect dispersal, the police do not have an automatic right to take your details before letting you out. However, they may in some circumstances be permitted to do this on the basis they are investigating criminal offences of which you or others are suspected. Section 60 Criminal Justice and Public Order Act 1994 gives police the right to search people in a defined area at a specific time (such as in a ‘kettle’) when they believe, with good reason, that: there is the possibility of serious violence; or that a person is carrying a dangerous object or offensive weapon; or that an incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality. This action has to be authorised by a senior officer.
d. Pickets/assemblies within a square mile of Parliament – London only. In March 2012 the controversial part of the Serious Organised Crime and Police Act (SOCPA) 2005, which governed demonstrations in the vicinity of the Houses of Parliament, was replaced by legislation under the Police Reform and Social Responsibility Act (PRSRA) 2012.
This means that there is no longer any need to apply for permission for a static demonstration within the area of Parliament and that the regulations under Section 14 of the Public Order Act apply, as with any other demonstration.
However, under PRSRA, within the ‘controlled area’ which is comprised by the central gardens in Parliament Square and the adjoining footways, the following activities are prohibited:
i) erecting, using or keeping any tent or sleeping equipment (PSRA s143)
ii) operating ‘any amplified noise equipment’ unless it has been authorised by the Greater London Authority or Westminster Council, who can charge a fee for considering applications (PSRA s143, 147-8)
3. Marches and Processions
a. Advance notice. Section 11 of the Public Order Act provides that, where it applies, written notice of a procession must be given to the police station in the area in which the march is being proposed. Such notice must specify the date and time, proposed route and name and address of the person or one of the persons organising it. This section will apply if the procession is public and is intended: to demonstrate support for or opposition to the views or actions of any person or body of persons; to publicise a cause or campaign; to mark or commemorate an event. The notice must be given (either by hand or post) not less than 6 clear days before the date of the march. If this is not reasonably practicable, then notice must be given as soon as reasonably practicable. Processions which are commonly and customarily held (such as Critical Mass) are excluded from these requirements. If no notice has been given or if the notice did not contain accurate details, each organiser can be guilty of an offence.
b. Conditions on marches. Under s.12 of the Public Order Act, the senior police officer may impose conditions on the procession in relation to the time, place or circumstances e.g. the route, if s/he reasonably believes that it will result in serious public disorder, damage to property or disruption to the life of the community or if s/he reasonably believes that the purpose of the organisers is to intimidate others with a view to compelling them not to do something they have a right to do, or to compel them to do something they do not have a right to do. Importantly, a chief officer of police may apply to the local council under s.13 for a prohibition of all processions for a period of a maximum of three months within that district. The officer must believe that the imposition of conditions under s.12 will not be sufficient to prevent serious public disorder. If you participate in a march which you know to be prohibited, you can be charged with committing an offence, as could anyone who incites people to participate.
4. Under arrest
a. Giving information to the police. The police have the right to obtain some limited information from you, mainly for the purposes of confirming that you are who you say you are. Other than this information you do not have to and should not provide any information to the police. In England and Wales you must give your name and address. You are not obliged to give your date of birth, although you may be put under great pressure to do so and threatened with being held longer if you do not. As a rule you should not provide this information; however in certain circumstances it may be sensible to do so. In Scotland you must provide your name, address, date of birth, place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person’s identity) and nationality.
b. Fingerprints, DNA and photographs. If you are charged the police can fingerprint you, photograph you and take a swab of your saliva for DNA identification. They may use reasonable force to do this. Successive governments have extended the law (in England, Wales and the north of Ireland) to enable the police to keep fingerprints, photographs and DNA profiles indefinitely, even where the person arrested was not charged with a criminal offence, was acquitted, and regardless of the seriousness of the alleged crime or age of the accused. This was challenged in the European Court of Human Rights under Article 8 (right to privacy) and succeeded on the ground that these powers are indiscriminate (S and Marper v UK (2008)). The right to privacy is not an absolute right: it can be interfered with in the public (i.e. state’s) interest, so the state can retain this information in some circumstances. In Scotland, for instance, in general, samples and prints are destroyed on acquittal. This issue has now been referred back to the government for the law to be amended, but, on past experience (e.g. the right of prisoners to vote), they will delay for as long as possible. So, the police continue to exercise these powers, despite the fact that they have been deemed unlawful. You should challenge the retention of this information by writing to the Chief Constable, repeatedly if necessary.
c. Having someone informed of your arrest. You are entitled to have a named person informed of your detention. You will have to give the police the number you wish to contact.
d. Access to solicitors and questioning. You are entitled to have a solicitor informed of your detention and to contact and speak in private to a solicitor of your choice. This may be over the phone or in person. The police have no right to question you without a solicitor present. (This is a recent change to the law in Scotland, where until October 2010 the police could interview suspects for up to six hours without a solicitor present.) Insistence on access to a solicitor may prolong your detention in the short term, but will decrease the chance of charges and convictions.
e. Detention time limits. The initial time limit on detention without charge for criminal offences in England and Wales is 24 hours, which can be extended to 36 hours. In Scotland the police can detain you for up to 12 hours and in some instances 24 hours. The position in regard to detention under anti-terror legislation is different and is outlined elsewhere.
f. Searching following arrest. The police have a common law power to search any person who has been arrested, without a warrant, to find articles used in commission of a criminal offence. The police have no general power to enter and search premises without a warrant, unless an accused is in custody on a serious charge and delay in obtaining a warrant is likely to defeat the ends of justice or where consent is given by the owner/occupier of the premises. The police have no power to enter a house or building without a warrant, unless there is a serious disturbance or in the close pursuit of a person suspected of committing a serious crime.
Appendix A – Useful websites
1. Home Office’s own guide to your rights if you are arrested (!)
2. Liberty – Your rights guide
3. Free Beagles legal guide (some is slightly out of date, but generally useful)
4. Legal Defence and Monitoring Group
Appendix B – Legislation
1. European Convention on Human Rights
Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
2. Public Order Act 1986 – section on processions and assemblies http://www.legislation.gov.uk/ukpga/1986/64/part/II
3. Police Reform and Social Responsibility Act 2011 – sections on demonstrations outside Parliament
4. Terrorism Act 2000
5. Terrorism Act 2006