Question 1

A group called the Somerset Panthers hire a council owned hall in order to hold a public meeting. The meeting is to protest against proposed increases in the excise duty on cider. Six local police officers insist on being present at the meeting, despite the express wish of the Somerset Panthers that they should not be. The leader of the Panthers, Jethro X, speaks from the platform and encourages the crowd to eject the police officers. Some of the crowd do this.

Led by Jethro X, the Panthers then march a mile from the hall to the local police station to protest against the police presence at the meeting. Their procession blocks the traffic, some shop windows are broken, and some cars are damaged. Many pedestrians flee in alarm. The police arrest Jethro and some of his supporters.

Advise the police on any public order offences that may have been committed.

Answer guidance

As with all public order problems, it is important to identify the most likely public order offences from the facts and discuss the nature of those offences.

Under section 14 of the Public Order Act 1986 this is not a public assembly, because it is not a meeting “wholly or partly open to the air”. That does not mean that the police are powerless, because they can use their common law power to control a breach of the peace to enter the hall, against the wishes of the Panthers. Breach of the peace is defined as violence or a threat of violence against a person or their property in their presence: R v Howell (Erroll) [1982] 2QB 416. It can also include provoking others to violence: Percy v DPP [1995] 3 All ER 124. The police would just have to show that they reasonably apprehended that a breach of the peace was imminent in time and place. Refusal to comply with reasonable police directions would often lead to arrest for obstruction of a police officer in the execution of his duty: Duncan v Jones [1963] 1 KB 218. Breach of the peace is not itself a crime. The police could merely arrest and detain as a preventative measure: R (Hicks) v Metropolitan Police Commissioner [2017] UKSC 9.

Jethro’s incitement of violence against the officers, could well be threatening words and behaviour and an offence under section 4 Public Order Act 1986: Jordan v Burgoyne [1963] 2 QB 744.

Again, the Public Order Act 1986 (section 11) may not apply to the march to the police station, because it seems to be a spontaneous protest, rather than pre-planned with an organiser who can notify the police. Anyway, there is no time for the police to apply to the Home Secretary for a ban on processions in that area. The senior officer present at the scene may impose conditions: R (Jones) v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin). However, the police can fall back on their wide powers to control a breach of the peace. They can stop the march (Moss v Mc Lachlan [1985] IRLR 77) and disperse the protesters, (Duncan v Jones [1963] 1KB 218).

The march may not cause enough damage for it to be a riot under section 1 of the Public Order Act 1986, although damage to property and not people is included in the offence and there might well be a common purpose to commit violence held by at least 12 of the Panthers: Mitsui Sumitomo Insurance v Mayor’s Office for Policing [2014] EWCA Civ 682. As with the lesser offence in section 2 of violent disorder, the violence must be enough for a person of reasonable firmness to fear for their safety. The police can always fall back on the old standby, obstruction of the highway (Arrowsmith v Jenkins [1963] 2 QB 561), which gives the police wide powers to order the Panthers to disperse and to arrest them.

Question 2

Gotham is a small city. Gotham Council decide to sell the local playing fields for development. There is opposition to the proposal and a ‘Parents’ Action Committee” is formed, but the fields are sold to developers anyway and preparation of the site for building commences. The PAC mount a large protest, from the public highway adjoining the playing fields. Some members of PAC occupy the site itself and prevent the builders from working. PAC make a lot of noise and sing protest songs, particularly at night. They taunt the building workers for being fat and stupid.

The police seek your advice upon whether they have the power to eject the members of PAC.

Answer guidance

Trespass is not usually a crime, but certain kinds of trespass were criminalised by the Criminal Justice and Public Order Act 1994.

Under section 68, aggravated trespass is a crime. It involves trespass that intentionally obstructs lawful activity and the protesters are stopping the builders from working: Winder v DPP, The Times 14 August 1996. It does not seem that the right to protest is a defence against a prosecution for this offence: R v Jones [2006] 2 WLR 772.

Under section 61, the police have the power to remove the protesters, if they have a common purpose of residing there. They must, however, have brought at least six vehicles onto the land with them and this seems unlikely.

Under section 63, the police have power to disperse a rave. At least 20 people must be there, at night, but the music must be amplified and loud, which seems unlikely. Nor. The police have power to ban processions, with the permission of the Home Secretary, under section 14 of the Public Order Act 1986, but they do not have power to ban public assemblies, under section 11 of the Public Order Act 1986, simply to control them: R (Jones) v Metropolitan Police Commissioner (Extinction Rebellion) [2019] EWHC 2957 (Admin). Police powers over public assemblies were strengthened in the Criminal Justice and Public Order Act 1994, but it does not seem likely that this is a site of historical, archaeological or scientific importance, so the police would not be able to treat it as a ‘trespassory assembly’ under section 70.

The police would need to fall back on older powers like obstruction of the highway. This used to be treated very strictly, with even minor blockages to the road being treated as an offence: Arrowsmith v Jenkins [1963] 2 QB 561; Duncan v Jones [1963] 1KB 218. More recently, the courts have been willing to accept that the right to protest might justify minor obstructions of the highway: DPP v Jones (Margaret) [1999] 2 AC 240. However, a major blockage, which lasted for some time and did not allow others to use the highway, would not be accepted: City of London v Samede [2012] 2 All ER 2017.

Section 4 of the Public Order Act 1986 might be considered as it makes it illegal to use threatening, abusive or insulting words likely to cause harm or distress. Builders, however, like policemen, or US servicemen might be hard to insult: DPP v Orum [1988] 3 All ER 449 and Percy v DPP [2003] EWHC 1564 (Admin) respectively.

The police have a great deal of discretion in how they police public order and they would be legally entitled to do nothing, even though offences might be being committed: R v Chief Constable of Devon & Cornwall ex parte CEGB [1982] QB 458. Since the Human Rights Act 1998, there has been more tolerance for largely peaceful protest, which is protected under Articles 10 and 11: Steel v UK (1999) 28 EHRR 603.

Question 3

“There are many ways in which public meetings or processions may fall foul of the law, both civil and criminal. Just as important is what is likely to happen in practice…Much depends on the policeman on the spot.”

Bailey, Harris and Jones ‘Civil Liberties, Cases and Materials.’

Answer guidance

The police have a lot of powers to deal with meetings and processions, not just their statutory powers in the Public Order Act 1986. Section 11 allows the police to regulate a procession and, with the permission of the Home Secretary, ban it. Challenges in court to the use of this power have seldom got far: Kent v Metropolitan Police Commissioner The Times 15 May 1982. Although the police must be careful to use their powers correctly. The Commissioner of the Metropolitan Police could not ban Extinction Rebellion protests across the whole of London, because only the senior officer present at the incident could take control measures: R (Jones) v Metropolitan Police Commissioner (Extinction Rebellion) [2019] EWHC 2957 (Admin).

Under section 14 the police cannot prohibit a public assembly, but they can regulate one. There is a power to prohibit a ‘trespassory assembly’ added by sections 70 and 71 of the Criminal Justice and Public Order Act 1994, but this is limited to the very specialised situation where land, buildings or monuments of architectural, archaeological, historical or scientific importance could be damaged.

The police, however, do not need to use their statutory powers, as they have a duty to prevent a breach of the peace occurring. This enables them to halt a moving protest, Moss v Mc Lachlan [1985] IRLR 77 and disperse a meeting: Duncan v Jones [1963] 1KB 218. Again the courts do not often interfere with the use of police discretion and have upheld the detention of large numbers of people, to prevent violence, (‘kettling’) in Austin v Metropolitan Police Commissioner [2008] 1 All ER 564 and R (Castle) v Metropolitan Police Commissioner [2012] 1 All ER 953. This approach was even upheld by the European Court of Human Rights, as the police must try to prevent violence and protect the rights of others affected by the protest: Austin v UK (2012) 55 EHRR 14. The courts did, however, object to protesters being prevented from travelling from London to Gloucestershire in R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105. Any potential violence was not imminent.

The police can always use obstruction of the highway. The highway is for passage and repassage, not meetings and demonstrations: Arrowsmith v Jenkins [1963] 2 QB 561. Minor obstructions of the highway might now be tolerated, if there is a genuine exercise of the right to protest: DPP v Jones (Margaret) [1999] 2 AC 240.

Trespass is not a crime, but a civil matter. Exercising the right to protest, which is now protected by Articles 8 and 11 of the European Convention on Human Rights, does not protect the perpetrators from civil action: Hubbard v Pitt [1976] 1 QB 142. This has not changed in more modern times as the ‘Occupy’ movement found out. Protesting does not permit interference with the rights of others: City of London v Samede [2012] 2 All ER 1017.

It seems that the courts may have become more tolerant of non-violent protest. If we look back to the famous case of Beatty v Gillbanks (1882) 9 QBD 308, the courts upheld a police decision to ban a march because the police feared a violent reaction from others. However, in Redmond-Bates v DPP [2000] HRLR 249, the police were instructed to protect unpopular speakers from those who did not like their message.

Even when faced with quite violent and intimidating protest, the police still have discretion on whether to use their powers. The courts will not interfere: Re E (a child) [2009] 1 All ER 467.

Question 4

PC Plod is on uniformed patrol at night. He sees Terry, who he knows has several previous convictions. Plod is aware that there have been several thefts in the area, so he decides to ask Terry what he is doing. When Terry sees Plod, he tries to run away, but Terry physically restrains him and asks him why he is in the area late at night. Terry refuses to answer, so Plod arrests him for suspicious behaviour.

Plod takes Terry to a nearby police station, where the custody officer, Sergeant Dixon, has Terry searched. A diamond ring is found in his pocket, which is similar to one reported stolen. Dixon charges Terry with theft, so Terry asks to see the duty solicitor. Dixon refuses that request and allows Plod to interview Terry about the alleged crime. Following the interview, Plod writes up what he remembers Terry said. Terry is charged with theft and awaits trial.

Consider the legality of the actions of the police and the admissibility of the evidence against Terry.

Answer guidance

Although any citizen is entitled to ask another citizen a question, the police have no extra power to compel people to talk to them or answer their questions: Kenlin v Gardiner [1967] QB 510. The police do not have any power to compel people to help with their inquiries: R v Lemsatef [1977] 2 All ER 835. Plod does have a power of arrest for any crime (section 24 Police and Criminal Evidence Act 1984), but he must have reasonable grounds for suspicion that Terry is guilty of an offence. Even then, arrest is only justified if it is needed to verify Terry’s name and address, investigate the crime, or to prevent the disappearance of the suspect. ‘Being suspicious’ is not a crime and PC Plod does not appear to have any reason to arrest Terry:Hayes v Chief Constable of Merseyside [2012] 1 WLR 517. The suspect must be told the true reason for the arrest, in order to give Terry the opportunity to explain his conduct if he can: Taylor v Thames Valley CC [2004] 3 All ER 503.

Once arrested, under section 30, Terry must be taken to a designated police station as soon as reasonably practicable. The presence of a custody sergeant indicates that this is a designated police station. Under section 54 the custody officer must record what the arrested person has with them, so this would justify a search. Such routine searches were not permitted at common law: Brazil v Chief Constable of Surrey [1983] 3 All ER 537. Although he was not arrested for theft, evidence found during a legal search can be used: Ghani v Jones [1970] 1 QB 693.

Under section 41, PACE 1984, Terry can initially be held by the police for only 24 hours. It is possible for a chief superintendent to extend this period, if it is needed to secure evidence, but we are not told that this has happened, and it is in fact fairly unusual for the police to do that.

Terry has a right to see a solicitor, which can be delayed but not denied according to sections 56 and 58. There seem to be no grounds even for delay, as there is no danger to witnesses or risk of destruction of evidence or property. This could lead to the court excluding the evidence obtained at trial: R v Samuel [1988] QB 615. Terry should have been cautioned before the interview and warned that the court could draw negative inferences if he failed to mention something in the interview which “he could reasonable have been expected to mention”: section 34 Criminal justice and Public Order Act 1994. Under section 60, the interview should have been recorded, not written up later. This is likely to lead to the court excluding this evidence at trial under section 78(R v Canale [1990] 2 All ER 187 and R v Keenan [1990] 2 QB 54) as it would have an adverse effect on the fairness of the proceedings. If the police threatened Tommy or made false promises to him, any confession would be automatically excluded for “oppression” under section 76: R v Silcott The Times, December 9. 1991.

The arrest of Terry is clearly illegal, and although the possession of the diamond ring is suspicious, the conduct of the interview is so legally deficient that Terry is likely to be acquitted, if his case was ever brought to trial. He could also sue for wrongful arrest.