Our heartfelt condolences to the Royal Family – Context is everything

Context is everything for the right to protest at Royal events

The death of Queen Elizabeth II and the accession of King Charles III are occasions of political and constitutional significance. For many, this is also a period of mourning and emotional poignancy. Over recent days, there have been several widely-publicised incidents in which protesters at processions and proclamations marking these historic events have been subject to arrests or warnings by the police for voicing (or displaying signs asserting) anti-monarchist or republican views.

On Sunday 10th September, arrests were made of a woman in Edinburgh for holding a sign stating “f**k imperialism, abolish monarchy” and a man in Oxford for shouting “who elected him?” during the public proclamation of King Charles III. On Monday, a man was arrested for shouting “Andrew, you’re a sick old man” at the Duke of York, Prince Andrew, during the procession of his mother’s coffin on the Royal Mile. On the same day a woman in London was moved on by the police from where she was standing outside the Palace of Westminster, seemingly for silently holding a sign which read “Not my King”. A video circulated on social media captured another protester holding a blank sign being threatened with arrest by police.

This post considers the legality of such forms of protest action during present royal events and by extension, of policing responses to the public display of anti-monarchist and republican views. It affirms the familiar refrain that “in law context is everything.” The rights of protesters must be balanced with those of other members of the public attending events. Public sentiment among a crowd will be a relevant consideration for operational policing. If there is a genuine risk of outbreaks of violence or disorder, police may be justified in restricting or otherwise diverting acts of protest. Absent this risk, an overzealous policing approach may unlawfully infringe protesters’ human rights.

What are the rights of protesters?

The right to protest derives from Article 10 (freedom of expression) and Article 11 (freedom of peaceful assembly and association) of the European Convention on Human Rights (“ECHR”). These rights are given effect in domestic law by the Human Rights Act 1998 (“HRA 1998”). It is unlawful for a public authority (including the police and the courts) to act in a manner which is incompatible with Convention rights unless obliged to do so by primary legislation (s6 HRA 1998). Protesters may bring legal challenges to the decisions of public authorities which restrict their ability to exercise Article 10 and 11 rights by way of judicial review (s7(1)(a) HRA 1998) and can defend themselves against civil claims and criminal charges by pleading the exercise of these rights (s7(1)(b) HRA 1998).

The right to protest is not, however, absolute. Freedom of expression and of peaceful assembly are “qualified” rights in the Convention scheme. Public authorities may justify imposing restrictions on their exercise for one of the “legitimate aims” provided for in Articles 10(2) and 11(2). These include “public safety”, “the prevention of disorder or crime” and “the protection of the rights and freedom of others”. Any restriction must be “prescribed by law”, and be “proportionate” (i.e. must have a sufficiently important objective to justify restricting a Convention right and not go beyond what is necessary to achieve this aim). Restrictions meeting these tests will be lawful.

The European Court of Human Rights in Strasbourg (“ECtHR”) provides for the authoritative interpretation of the content and scope of Convention rights. These rights are intended to be “practical and effective” and not merely “theoretical and illusory”. The right to freedom of expression extends to ideas and information which may “offend, shock, or disturb the State or any sector of the population”. It also protects the form in which views are expressed, including symbolic protest activity.

Freedom of expression and peaceful assembly have been repeatedly held to be essential foundations of a pluralist democratic society. The Convention therefore imposes on States both a negative obligation to refrain from unjustified restrictions on free expression and assembly and a positive obligation to facilitate the exercise of these rights. This includes a duty to take reasonable steps (within a margin of appreciation) to protect peaceful protesters from abusive conduct or violence from those who oppose their cause.

What are the relevant police powers?

The arrests and issuing of warnings to protesters at the processions and proclamations of recent days appear to have been made under s5 Public Order Act 1986 (“POA 1986”) and under common law powers available to the police to prevent a “breach of the peace”.

It is an offence under s5 POA 1986 to use (or display) “threatening or abusive” words; or “disorderly behaviour”; “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. A police officer must have reasonable grounds for suspecting an offence is being, or is about to be committed in order to make an arrest. On the face of it, statements such as “Not my King”, or “who elected him?” are neither threatening nor abusive and holding a sign or calling out in a crowd are unlikely to fall within a sensible interpretation of “disorderly behaviour”. Causing offence is also an insufficient basis for establishing the s5 offence. “Alarm or distress” represent higher thresholds to justify the intervention of the criminal law.

It is a defence, under s5 POA 1986, to establish that the conduct in question was “reasonable” in the circumstances. Following the Supreme Court’s ruling in DPP v Ziegler, the exercise of Article 10 and 11 rights may well represent “reasonable” conduct for the purposes of this defence, requiring the prosecution to demonstrate the proportionality of any interference in addition to proving the elements of the offence. There is uncertainty in the law on this point at present, as the Court of Appeal Criminal Division has subsequently attempted to restrict the ratio of this case to the offence of wilful obstruction of the highway.

The case of Abdul v DPP considered the proportionality of prosecutions of protesters under s5 POA 1986 when Article 10 rights were engaged. The court held that the importance of freedom of expression must be the starting point and therefore required justification for any interference with the right to be convincingly established. There is no “universal test for resolving when speech goes beyond legitimate protest, so attracting the sanction of the criminal law”. The justification for imposing such a sanction will be “the threat to public order” and therefore “the context of the particular occasion will be of first importance”. In this assessment, however, the “threat to public order should not be taken as meaning that the risk of violence by those reacting to the protest is, without more, determinative; sometimes it may be that the protesters are to be protected” (§49).

On the facts of Abdul, the prosecution of protesters who chanted slogans and displayed placards at a homecoming parade for British soldiers returning from Afghanistan and Iraq with words to the effect that they were murderers, rapists, baby-killers and should “burn in hell” were deemed proportionate. The personally targeted and inflammatory nature of these statements appear of an altogether different order from the more general expressions of republican views at recent events, which have engendered a policing response.

The concept of “breach of the peace” derives from the common law. It is not a criminal offence. Instead, police officers may take reasonable steps (up to and including arrest) to prevent a breach of the peace that is taking place, or that they reasonably believe is about to take place. The accepted definition of “breach of the peace” was provided by the Court of Appeal in R v Howell and occurs “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 so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” The essence of this concept was summarised by the House of Lords as involving “violence or threatened violence.” Despite the very broad nature of these powers, the ECtHR has determined that “breach of the peace” has been sufficiently clearly defined within the case law of England and Wales to meet the “prescribed by law” test required to justify restrictions on free expression and peaceful assembly contained in Articles 10(2) and 11(2).

If police officers wish to take action short of arrest against peaceful protesters to prevent a breach of the peace, they must be satisfied on reasonable grounds that a breach of the peace is actually imminent, or the restrictions will be unlawful. To justify the arrest of protesters in these circumstances (i.e. where their actions are lawful but provocative), officers would need to be satisfied of the following: (1) there must be a “sufficiently real and present threat to the peace” coming from the person who is to be arrested; (2) the conduct of that person must be unreasonable and clearly interfere with the rights of others; and (3) the natural consequence of this conduct must be violence from a third party, violence which must not be wholly unreasonable.

The police must exercise their discretion in any given set of circumstances and the difficulties of operational decision-making in the “heat of the moment” should not be underplayed. Nonetheless, it is difficult to see how the criteria for making arrests or issuing warnings under common law powers to prevent a breach of the peace would be fulfilled in circumstances such as displaying a blank sign, or a sign stating “Not my King” outside the Palace of Westminster; or calling out “who elected him?” at a proclamation in Oxford.

Footage of the protester who called out of the crowd at Prince Andrew at the procession of the Queen’s Coffin in Edinburgh does show other spectators use force to pull him away from the barrier. Whether this merited enforcement action against the protester, as opposed to the implementation of protective measures is an open question and one which police “on the ground” needed to weigh in that moment. In the event, they seem to have adopted the former approach.

Contrary to some of the commentary, the arrests of protesters in recent days do not appear to have been made subject to powers provided by the controversial Police, Crime, Sentencing and Courts Act 2022. Arrests under the provisions of Part 3 of this Act (which relate to “Public Order”) would be made on two bases. The first would be where an offence has been committed for the breach of a condition imposed by a senior officer on a public procession, static assembly, or “one-person protest”. That would necessitate a two-stage process in which conditions were imposed in the first place. That does not seem to have taken place to this point (although is possible in the event any further protests are planned or take place).

The second would be for the offence of “intentionally or recklessly causing public nuisance” created (in statute) by s78 of the Act. That would require actions which create a risk of “serious harm” for the public, which means a risk of causing death, personal injury, damage to property, “serious distress, serious annoyance, serious inconvenience, or serious loss of amenity”. Admittedly, the latter are broad concepts, but again, they establish a threshold for criminality which is higher than simply causing offence or mere distress or annoyance. There is also a “reasonable excuse” defence, and therefore the discussion of the implications of the ruling in Ziegler above is relevant. Reporting thus far does not reveal that any protesters at the processions and proclamations since 8th September have been charged with this offence.

If history serves as a precedent…

If history serves as a precedent, the courts have shown deference to interventionist operational policing decisions around Royal events. In 2011, police pre-emptively arrested and detained anti-monarchist and republican protesters in advance of the Royal Wedding of Prince William and Kate Middleton to prevent a breach of the peace. Some of these protesters were held in police custody for several hours and released without charge following the end of the event. A legal challenge brought on the grounds that the appellants’ Convention rights had thereby been infringed was unsuccessful in the High Court, Supreme Court and ultimately ECtHR. The initial determination of the High Court was upheld: that the police had been justified in taking into account the risk that the protesters’ actions would provoke violence; that it had been reasonable to apprehend a breach of the peace and therefore that the arrests and detentions were proportionate and lawful.

Context is everything

The State Funeral for Queen Elizabeth II takes place on Monday 19th September in London. Political leaders, heads of state, and diplomats from around the world will travel to the capital for the event. National security concerns are paramount and there will be an intensive policing operation in place. Public emotions will run high as there is a focal point for collective mourning. A hypothetical act of anti-monarchist protest in the sight and sound of a crowd gathered for this event will evidently have a different resonance than it would for shoppers on a high-street on a different date, or attendees of a music festival. The appropriateness of the policing response is determined accordingly.

Context is all important for determining whether specific acts of expression and protest create a threat to public order or risk an imminent breach of the peace. Where this is the case, police enforcement action that is “prescribed by law” may well be justified to prevent the outbreak of violence as a “legitimate aim” provided for by Articles 10(2) and 11(2). Nonetheless, the police (and public authorities more broadly) have obligations under the Convention to facilitate free expression and peaceful assembly recognised as foundational rights for a democratic society. This should be at the forefront of operational police decision-making “on the ground”. Moreover, where there is a genuine risk of public disorder as a result of lawful but provocative expression by protesters, this does not, as a matter of course, mean that the target of necessary police intervention should be the protesters themselves. This has been made clear by the case law concerning both the offence of s5 POA 1986 when Article 10 rights are engaged, and common law powers to prevent a breach of the peace.


Author:  Max Millington

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