I was interviewed by ITV news today about the police’s treatment of protesters during the period of Royal Mourning following the Queen’s death.
The period of mourning started on 9 September and is expected to continue until 26 September.
During that time, the Queen’s coffin travelled from Balmoral to Edinburgh to lie-in-state. A journey south will result in a further period of lying-in-state in Westminster Hall, before the Queen’s funeral on Monday 19 September.
Protesters have lined procession routes, and, on occasion, voiced their opposition to the monarchy, and, in one case, Prince Andrew specifically:
How the police dealt with protesters
The police have responded in various ways. These range from threatening protesters like Paul Powlesland with arrest for holding up a blank piece of paper, to arresting them for a breach of the peace or on suspicion of a statutory offences such as s.5 of the Public Order Act 1986 or the Police, Crime, Sentencing and Courts Act 2022 (PCSC).
This is despite the Metropolitan Police’s DAC Stuart Cundy saying:
“The public absolutely have a right to protest and we have been making this clear to all officers involved in the extraordinary policing operation currently in place.”
— Metropolitan Police Events (@MetPoliceEvents) September 12, 2022
As we continue through this period of mourning, the police and public alike might want to review the relevant laws and think about how they impact our democratic right to freedom of expression.
What is the law around breach of the peace?
The law surrounding breach of the peace cases is widely misunderstood. In this blog post I sought to clarify it for the benefit of the police, hoping that they would learn from it and stop wrongfully arresting people. (It appears my efforts were probably in vain.)
An important thing to know is that a breach of the peace is a common law power. This means that it is judge-made, rather than from Parliament.
As a result, the definition has changed over the years. But Lord Justice Watkins gave a useful definition in the important case of R v Howell. He said a breach of the peace is committed:
“… whenever harm is actually done or is likely to be done to a person or in his presence to his property; or a person is in fear of being harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”
Why can the police arrest people for a breach of the peace?
The right to arrest for a breach of the peace is granted to “every citizen”, including members of the public, police officers, and security guards (as I described in this blog post about Simon Brodkin’s arrest at a Conservative Party conference).
“Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.” (Albert v Lavin  AC 546)
The police are treated like ordinary citizens under this common law right. They have no special powers of arrest to prevent a breach of the peace. Lord Watkins explained in Howell that the power of arrest can be exercised in three situations:
- where the breach is committed in the arrestor’s presence;
- where the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested, even though at the time of the arrest no breach had been committed; and
- where a beach of the peace had been committed and it is reasonably believed that a renewal of it is threatened.
What happens if the police don’t follow the law when arresting someone for a breach of the peace?
Police officers who fail to apply breach of the peace law correctly when arresting someone potentially expose their forces to compensation claims. Contrary to what the police and media may have some readers believe, compensation is not a windfall payment. Rather, the primary reason civil courts order that compensation is paid is to put the victim of unlawful police action in the pre-incident position.
Claimants can seek damages for false imprisonment, personal injury (usually assault & battery), and other things. Read how I helped Miss B and Gary Wilson with their breach of the peace compensation claims by clicking on the links.
How the police and courts deal with protesters
Protesters arrested for a breach of the peace should be brought before the Magistrates Court at the earliest opportunity to comply with the Human Rights Act 1998, which gives effect to Article 5(1)(c) of the European Convention on Human Rights.
But, it is important to note, there is an overlap between common law (breach of the peace) and statutory laws, such as the Public Order Act 1986 and Police, Crime, Sentencing and Courts Act 2022.
In my experience, the police refer to both breach of the peace and the Public Order Act to deal with protesters. I expect this is because rank-and-file officers are comfortable with using them as grounds for arrest. As Lord Justice Watkins said in Howell, when explaining the circumstances of that case:
It is possible that Pc Hammersley was in the heat of the moment confusing his power of arrest at common law for a breach of the peace with a similar power of arrest for offensive conduct conducive to a breach of the peace contrary to s 5 of the Public Order Act 1936. However, the appellant was not charged with this statutory offence. Accordingly, and for the additional reason that the appellant was told at the police station on arrival there that he had been arrested for ‘a breach of the peace’, we think it was open to the jury when deciding whether there had been a lawful arrest to have regard to the constable’s power at common law only. Since this was the effect of the manner in which the jury was directed on this matter by the judge we are not, strictly speaking, called on to decide whether an arrest for a breach of the peace at common law would serve also to constitute a lawful arrest under s 7(3) of the 1936 Act for committing an offence under s 5. But we feel it right to say our tentative view is that it would serve this dual purpose, seeing that a breach of the peace is involved in both offences.
But, as the case of Symon Hill (which I refer to later) shows, the police’s use of both common and statutory laws to justify arrest might change as training manuals are updated to include the new Police, Crime, Sentencing and Courts Act.
Legal consequences of a finding of breach of the peace/ s.5 Public Order Act
It is important to note that, in England and Wales, a breach of the peace is not a criminal offence. (This is not the case in Scotland- there a protester has been criminally charged for heckling Prince Andrew on Monday.)
Proceedings alleging a breach of the peace in England and Wales are brought using a complaint to justices in the Magistrates Court. Justices have the power to issue a bind over.
By contrast, a breach of section 5 of the Public Order Act is a criminal (summary) offence, for which the defendant can be fined.
Section 5 of the Public Order Act states that:
(1) A person is guilty of an offence if he/she:
(a) uses threatening [or abusive] words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening [or abusive],
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
“A person” can be the arresting police officer if the behaviour complained of is more than they should be used to. (DPP v Orum).
It is possible to defend these criminal proceedings though. If arrested and charged, a defendant can argue:
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable.
Can the police continue to detain protesters accused of a breach of the police?
Despite the fact that the common-law breach of the peace is not a crime, the courts have approved the police’s approach to treat it like one. This means that the detention rules in the Police and Criminal Evidence Act (as amended) apply.
One of those is that the police must justify continuing detention. As I explained in this case report about my client Gary Wilson:
In the case of a breach of the peace, the Police could only justify continuing his detention if they anticipated Gary would commit a further breach of the peace (on their version of events, which was not correct) shortly after releasing him.
Consequently, the police can, and should, release people immediately unless:
- “there is a real (rather than fanciful) apprehension based on all the circumstances that if released the prisoner will commit or renew his breach of the peace within a short time” AND
- that the officer making the decision for continued detention must have an honest belief that further detention is necessary in order to prevent a breach of the peace, and
- that there must be, objectively, reasonable grounds for that belief.
(See Chief Constable of Cleveland Police v McGrogan  EWCA Civ 86.)
The effect of new statutory powers under the Police, Crime, Sentencing and Courts Act
The Police, Crime, Sentencing and Courts Act (2022) is a new Act of Parliament which has the potential to greatly increase the police’s powers to deal with protesters in England and Wales.
This is because they now have broad powers to limit protests and the actions of protesters. For example, the police can ban what they consider “unjustifiable” noisy protests.
These even include protests by a single person. So far during the period of Royal Mourning events, most protesters would probably be classed that way. The new law expands the police’s powers under s.14 of the Public Order Act to say that the police can impose conditions on one-person protests when a senior officer reasonably believes:
(a) that the noise generated by the person carrying on the protest may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the protest, or
(i)the noise generated by the person carrying on the protest may have a relevant impact on persons in the vicinity of the protest, and
(ii)that impact may be significant.
(7) For the purposes of subsection (1)(b)(i), the noise generated by a person carrying on a one-person protest may have a relevant impact on persons in the vicinity of the protest if—
(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity, or
(b) it may cause such persons to suffer alarm or distress.
(8) )In considering for the purposes of subsection (1)(b)(ii) whether the noise generated by a person carrying on a one-person protest may have a significant impact on persons in the vicinity of the protest, the senior police officer must have regard to—
(a) the likely number of persons of the kind mentioned in paragraph (a) of subsection (7) who may experience an impact of the kind mentioned in paragraph (a) or (b) of that subsection,
(b) the likely duration of that impact on such persons, and
(c) the likely intensity of that impact on such persons.
(My emphasis in bold.)
How the police misuse the Police, Crime, Sentencing and Courts Act
It would appear that the police’s new powers have gone to their head, if a recent case is anything to go by.
Symon Hill said he was arrested under the PCSC Act for calling out “Who elected him?” when the Proclamation that Charles was King was read out in Oxford. This, despite Mr Hill saying,
I doubt most of the people in the crowd even heard me. Two or three people near me told me to shut up. I didn’t insult them or attack them personally but, responded by saying that a head of state was being imposed on us without our consent.
Apart from these comments, which (Mr Hill says) were barely heard, it would appear that there was nothing else he did which could be interpreted as meeting the threshold of a “serious disruption” or cause a relevant, significant impact on people “of reasonable firmness”. And yet, the police sought to use their new powers under the PCSC rather than their existing ones under s.5 Public Order Act or, simply argue breach of the peace.
It will be interesting to find out if they intend to prosecute Mr Hill, and, if so, have their reasons for arrest under the PCSS tested in court.
Chilling Effects of the PCSC
The new Act includes rules which, combined, could chill free speech.
For example, it cements the police’s power to limit protest times and locations. This, coupled with the limit on “noisy” protests, means that the police now stop people using loudspeakers in Parliament Square and the surrounding areas. (This is especially relevant during the period of mourning, as the Queen will lie-in-state in Westminster Hall, which is part of the Parliamentary Estate.)
The Act also makes the existing common law offence of “public nuisance” into a statutory offence. This means that, as with a breach of section 5 Public Order Act, public nuisance is now a criminal offence. It is punishable by up to 10 years in prison.
And, in a worrying development, the Home Secretary now has powers to “clarify the meaning of serious disruption”, bypassing Parliamentary scrutiny entirely.
Democracy on Display
It is said that Queen promoted the cause of democracy abroad through her work with the Commonweath. So, it is ironic that one of the last legislative duties the Queen performed was to make the Police, Crime, Sentencing and Courts Act the law of the land (on 28 April 2022).
The right to peaceful protest and freedom of expression are cornerstones of thriving democracies. How the government and police use their existing and new-found powers to deal with protesters will show what they think of our democratic rights. The world is watching.
Kevin Donoghue is a solicitor who specialises in civil actions against the police.