In the UK, the freedom of assembly is traditionally regarded as a residual right, which everyone has the right to exercise provided there is no breach of the law. Therefore, in rare instances has domestic law bestowed a positive right to demonstrate. For long, in the absence of a general statutory power to demonstrate, the right of peaceful assembly depended on the goodwill of the judiciary when enforcing the variety of legal provisions that impact on the right to demonstrate. With the introduction of the Human Rights Act 1998 - which gives the courts the direct right to take ECHR rights and case law into account when interpreting and developing the law, and enables individuals to rely directly on Convention rights in the domestic courts -, the approach has changed. Today, it is under the Public Order Act 1986 that can be found those provisions that impact on the right of peaceful assembly.

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In the UK, the freedom of assembly is traditionally regarded as a residual right, which everyone has the right to exercise provided there is no breach of the law. Therefore, in rare instances has domestic law bestowed a positive right to demonstrate. For long, in the absence of a general statutory power to demonstrate, the right of peaceful assembly depended on the goodwill of the judiciary when enforcing the variety of legal provisions that impact on the right to demonstrate. With the introduction of the Human Rights Act 1998 - which gives the courts the direct right to take ECHR rights and case law into account when interpreting and developing the law, and enables individuals to rely directly on Convention rights in the domestic courts -, the approach has changed. Today, it is under the Public Order Act 1986 that can be found those provisions that impact on the right of peaceful assembly.

The Public Order Act 1986 refers to marches as processions and to all other static demonstrations as assemblies. A procession is simply defined as people moving together along a route; the law does not provide a minimum number to constitute a procession, so even a handful of people going to a Town Hall to hand in a petition will constitute a procession. A public assembly is 20 or more people gathered together in a public place which is at least partly in the open air.

The powers given to the police to control static demonstrations are similar to those for processions. Nevertheless, while processions are subject to notice requirements and may be banned in advance under certain conditions, there is no power to ban a public assembly altogether, and no advance notice need be given of any public assembly.

Processions

Notice requirements

Section 11 of the UK Public Order Act imposes a duty on the organiser of a procession to give advance notice to the police in the relevant area six clear days before the date when it is intended to be held, unless it was not practicable to give any advanced notice.

The requirement applies only to processions, and only to those processions held to demonstrate support or opposition to the views or actions of any person or body of persons, to publicise a cause or campaign, or to commemorate an event. The notice must specify the date, time and proposed route and give the name and address of the person (or one of the persons) proposing to organise it.

The police will usually use this right in conjunction with its power to impose conditions under section 12 of the Act. Under this provision the police can impose criminal liability for failure to comply with the notice requirement without having to prove an actual breach of the law during the procession, as the organiser will be guilty of an offence if the notice requirement has not been complied with or if the march deviates from the date, time and route specified. The organiser does, however, have a defence if he or she did not know of, or had no reason to suspect of, the failure to satisfy the requirements or of the difference of time, date or route. The organiser also has a defence where any deviation of time, place or route arose out of circumstances beyond his or her control or from something done with the agreement or direction of a police officer. It must be noted, however, that compliance with these requirements does not provide any legal immunity for any subsequent disorder and does not preclude the police from using their general legal powers if disorder arises.

Imposing Conditions

Section 12 provides the police with the statutory power to impose conditions on processions covered by the Act. Where a senior police officer [1], having regard to the time, place and circumstances in which the procession is to be held, or is intended to be held, reasonably believes that serious public disorder, serious damage to property or serious disruption to the life of the community may be caused by the procession, or where he reasonably believes that the purpose of the assembly is the intimidation of others, he may give directions imposing on the persons organising or taking part in the procession such conditions which appear to him necessary in order to prevent such disorder, damage, disruption of intimidation. This includes the power to impose conditions as to the route of the procession and or prohibit it from entering any public space specified in those directions.

Unlike section 11 of the Act, section 12 imposes criminal liability on both the organiser and anyone taking part in a procession if they knowingly fail to comply with any condition, although there is a defence available to both if the failure arises from circumstances beyond the organiser's or other person's control. It is also an offence for a person to incite a participant in a procession to commit an offence under the section, and a police officer may arrest without warrant either an organiser or a participant if he reasonably suspects that person is committing an offence under the section.

It is essential that courts are prepared to control the discretion of the police in this area, particularly when the police is taking action to avoid 'serious disruption to the life of the community', which might relate to interests as trivial as the convenience of shoppers.

The power to ban processions

Section 13 of the Act gives a limited power to ban processions in advance. It states that if the Chief Constable of the district reasonably believes that because of the particular circumstances existing in any district or part of a district that the powers under section 12 of the Act will not be sufficient to prevent the holding of public processions in that district from resulting in serious public disorder, he shall apply to the council of the district for an order prohibiting for such period not exceeding three months the holding of all public processions (or any class of public procession so specified) in the district. The requirement that the application for the prohibition must be in relation to the holding of all public processions, or of a particular class, is a safeguard against discrimination. Once such an order has been made it is then an offence to organise a procession, or to take part in a procession knowing that the march is prohibited under the section.

This power is exercised via the local authority, which, being aware of the local circumstances and the likely effect of such processions, are deemed to be the most appropriate body to decide on these matters. In any case, any order has to be approved by the Home Secretary, which suggests that such orders would only be made in exceptional cases. In addition, the powers under section 13 are subject to a number of conditions that should restrict the scope and regularity of the section's use. Most notably, the power is only available when the Chief Constable reasonably believes that the powers available under section 12 are inadequate to prevent the serious public disorder that is anticipated. Thus the Chief Constable has to consider the power to impose conditions on the procession under section 12, and, presumably, any other power to control public disorder, before having recourse to this exceptional power. Again, it is clear that the section can only be used when serious public disorder is anticipated, the other conditions being inadequate to trigger the power to apply for a ban.

Nevertheless, the section permits a wide prior restraint on processions and the right to demonstrate and thus should be applied carefully and in accordance with the principles of freedom of assembly and the free speech enshrined in the European Convention.

Although the provision has a potentially wide impact on the right to demonstrate, the courts, both domestic and European, have shown a marked reluctance to interfere with the exercise of these powers.

Public assemblies

A public assembly is defined by section 16 as an assembly of 20 or more persons in a public space that is wholly or partly open to the air. However, Section 16 has been amended by Section 59 of the Anti-Social Behaviour Bill 2003. As a result, the number of people necessary to form an assembly has been reduced 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.

Public space is defined as any highway and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.

Section 14 of the Public Order Act 1986 allows the police to impose conditions on static public assemblies. The powers are similar to those that exist in relation to the imposition of conditions on processions, contained in section 12 of the Act, and apply in relation to the same circumstances. Thus, under section 14 a senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, who reasonably believes that it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or where the purpose of the persons organising it is the intimidation of others, may give directions imposing on the organisers or those taking part in the assembly such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation. The conditions may relate to its maximum duration, or the maximum number of persons who may constitute it. As with section 12 of the Act, the police officer who gives the directions needs to be the chief of police where the assembly is being held [2]. A person who organises a public assembly and who knowingly fails to comply with a condition imposed under the section is guilty of an offence [3]. A police officer can then arrest without warrant any person he reasonably suspects is committing any of the offences under the section.

Trespassory Assemblies

Prior to 1994, although the police has a power under section 12 of the Public Order Act 1986 to impose conditions on static assemblies, and to use their general legal powers to preserve the peace to stop an assembly from taking place, there was no formal power to prohibit assemblies in advance. Sections 70 and 71 of the Criminal Justice and Public Order Act 1994 partially rectified this situation by expanding section 14, giving the police power to control trespassory assemblies. Section 14A of the 1986 Act allow the relevant chief police officer to apply to the local council for an order prohibiting for a specified period the holding of all trespassory public assemblies in the area. The granting of such an order by the council requires the consent of the Home secretary. Such an order may be applied for if the chief police officer reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only a limited right of access, and that the assembly is either likely to be held without the permission of the landowner or to conduct itself in a way which would exceed that permission or the limit of the public's right of access. In addition to the requirement of trespass, the officer must also reasonably believe that the assembly might result in serious disruption to the life of the community, or, where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument. Once an order is made it will operate to prohibit any assembly which is held on land to which the public has no, or a limited, right of access, and which takes place without the permission of the occupier or in excess if any permission or the limits of the public's right of access. The reference to limited right of access is clarified in the section, and limited in this sense is stated to mean that their use of it is restricted to use for a particular purpose (as in the case of a highway or road) or is subject to other restrictions. Under the Act the order is restricted to a period of no more than four days and to a circle of no more than a radius of five miles from the specified centre.

Further, section 14B creates specific offences in connection with such trespassory assemblies. Under this provision a person who organises an assembly knowing that it is prohibited by an order under section 14A is guilty of an offence. So too, a person who takes part in such an assembly knowing that it is prohibited commits an offence. A constable in uniform may arrest without a warrant anyone whom he reasonably suspects to be committing an offence under the section. Section 14C of the Act also gives the police the power to stop persons from proceeding to a trespassory assembly. Under this provision, if a constable in uniform reasonably believes that a person is on his way to an assembly within the area to which an order applies, which the constable reasonably believes is likely to be an assembly that is prohibited by that order, the constable may stop that person and direct any person not to proceed in the direction of the assembly. The power can only be exercised within the area to which the order applies, and a person who refuses to comply with such a direction which he knows has been given to him is guilty of an offence and a constable in uniform may arrest that person without warrant anyone he reasonably suspects to be committing an offence under the section.

These formal powers supplement the common law powers given to the police to preserve the peace and which can be used to stop protestors from reaching particular destinations.

In addition to the powers to control processions and assemblies in advance, there is a variety of common law and statutory offences that can be used to impose criminal liability on demonstrators. In most circumstances many of the offences are not of relevance to the rights under article 10 and 11 of the ECHR, because the activities it regulated could not in any sense be associated with peaceful assembly or demonstrations. However, some of these offences may be of direct relevance to the right to demonstrate. For instance, the offence of riot [4] as defined under section 1 of the 1986 Act can be imposed on persons taking part in a political or other legitimate protest. Although the offence requires the use of violence, the fact that a common intention can be inferred from conduct, that no specific means rea is required, and that no person of reasonable firmness need be present at the scene, means a person might face the severe penalties under this section (a maximum of ten years' imprisonment and/or a fine) in connection with relatively innocuous behaviour. The same observations may apply to the offences of violent disorder and affray under respectively sections 2 and 3 of the Act [5] . Lesser public order offences such as the offences of 'fear of provocation of violence' and 'alarm and distress' may impact more significantly on the right of peaceful assembly. The provisions defining these offences attach liability, for threatening behaviour and disorderly conduct, to conduct that might be considered as part and parcel of many heated, yet basically peaceful, demonstrations. In such cases, the law has to distinguish between behaviour that is merely incidental to peaceful protest and which causes certain people an inevitable amount of distress and inconvenience, and behaviour that is unreasonable and which causes either a foreseeable fear of provocation of violence or unnecessary distress to others.

Based on "Human Rights and Civil Liberties", Steve Foster, Pearson Education Limited 2003

[1] This means the chief officer of police where the conditions are being imposed before the event takes place, but in case where the procession in under way, or where the procession is assembling, it means the most senior officer at the scene.  Directions from the chief of police have to be given in writing.

[2] Again, if the directions come from the chief of police they must be in writing.

[3] An identical defence to that contained in section 12(4) is available to the defendant. Under section 14(6), it is an offence to incite a person to commit an offence under section 14(5).

[4] The offence is committed when 12 or more persons who are present together use of threaten unlawful violence for a common purpose, where the conduct of those persons (taken together) would cause a person of reasonable firmness to fear for his personal safety. It is not necessary that the 12 or more use or threaten unlawful violence simultaneously, and the common purpose can be inferred from conduct. It is not necessary to prove that a person taking part in the gathering intended that a person would fear for his personal safety provided that he or she intended to use violence or was aware that his of her conduct might be violent. No person of reasonable firmness need actually be present at the scene.

[5] Noteworthy is the fact that a threat or violence cannot be made by the use of words alone. Thus, a person who merely uses threatening words against another is not guilty of an offence, precluding  an action where, for example, during the course of a political or other protest, a person shouts threats at the police or at others such as a rival political group.

The analysis is based on the information provided by the United Kingdom OSCE Mission, who completed the ODIHR questionnaire.

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