PastPaperHero | Public order law - Balancing public order and freedom of expression

Learning Outcomes

This article provides an overview of the legal framework governing public order in England and Wales, focusing on the balance between maintaining order and protecting fundamental rights to freedom of expression and assembly. It examines the key statutory powers available to the police to control processions and assemblies under the Public Order Act 1986, alongside the common law concept of breach of the peace. For the SQE1 assessments, you will need to understand these powers and their limitations, particularly in light of the Human Rights Act 1998. This understanding will enable you to apply relevant legal rules and principles to SQE1-style multiple-choice questions concerning public order scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the core principles of public order law and how they interact with human rights protections. This includes the powers available to police forces to manage public demonstrations and potential disorder. Your revision should focus on:

The legal definitions of public processions and public assemblies.
The police powers under the Public Order Act 1986 to impose conditions on processions (s 12) and assemblies (s 14).
The requirements and procedures for banning public processions (s 13) and trespassory assemblies (s 14A).
The common law concept of breach of the peace and associated police powers.
The interplay between public order powers and the rights to freedom of expression (ECHR Article 10) and freedom of assembly (ECHR Article 11), including the requirement for proportionality.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Under which section of the Public Order Act 1986 can the police impose conditions on a static public assembly?
True or False: The police can impose a blanket ban on all public assemblies in a specific district for up to three months.
Which of the following is required for the police to exercise common law powers to prevent a breach of the peace? a) Actual violence has occurred. b) A breach of the peace is reasonably apprehended as imminent. c) A complaint has been made by a member of the public. d) The assembly consists of more than 20 people.
Which two Articles of the European Convention on Human Rights are most relevant when considering restrictions on protests?

Introduction

The regulation of public gatherings, such as processions and assemblies, involves balancing the state's duty to maintain public order with the fundamental rights of individuals to express their views and gather peacefully. This area of law is primarily governed by the Public Order Act 1986 (POA 1986) and the common law power relating to breach of the peace, interpreted in light of the Human Rights Act 1998 (HRA 1998), which incorporates Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR). Understanding this balance and the specific powers available to the police is essential for advising clients involved in organising or participating in public demonstrations, or those affected by them.

Key Term: Freedom of Expression (Article 10 ECHR) The right to hold opinions and to receive and impart information and ideas without interference by public authority. This right is qualified and can be restricted by law if necessary in a democratic society for specified legitimate aims, such as public safety or the prevention of disorder.

Key Term: Freedom of Assembly and Association (Article 11 ECHR) The right to peaceful assembly and association with others. This is also a qualified right, subject to restrictions prescribed by law and necessary in a democratic society for legitimate aims like preventing disorder or protecting the rights of others.

Public Processions

A key aspect of public order law concerns the regulation of marches or processions. The POA 1986 provides police with powers to manage these events to minimise disorder and disruption.

Key Term: Public Procession A procession in a public place. The POA 1986 does not define 'procession', but case law suggests it involves a body of persons moving along a route (eg, a march or parade). A 'public place' includes any highway and any place the public has access to, on payment or otherwise (s 16 POA 1986).

Advance Notice Requirements (s 11 POA 1986)

Organisers of certain public processions are required to give written notice to the police at least six clear days in advance (or as soon as reasonably practicable if that's not possible). This requirement applies to processions intended to:

Demonstrate support for or opposition to views/actions.
Publicise a cause or campaign.
Mark or commemorate an event.

The notice must specify the proposed date, time, route, and the organiser's name and address. Failure to provide notice when required is a summary offence for the organiser, although the procession itself is not rendered unlawful merely by the lack of notice. Customary processions (e.g., annual parades) and funeral processions organised by funeral directors are exempt. Spontaneous protests might also be exempt if giving notice was not reasonably practicable.

Imposing Conditions (s 12 POA 1986)

If a senior police officer reasonably believes a proposed procession may result in serious public disorder, serious damage to property, serious disruption to the life of the community, or the intimidation of others, they can impose conditions on it.

Key Term: Senior Police Officer For imposing conditions before a procession, this is the chief officer of police for the area. For conditions imposed during a procession, it is the most senior officer present at the scene.

Conditions must be necessary to prevent the anticipated disorder, damage, disruption, or intimidation and can include directions regarding the route or prohibiting entry into specific public places. Recent amendments (Police, Crime, Sentencing and Courts Act 2022) allow conditions based on noise impact if it may result in serious disruption to organisations or have a significant impact on persons in the vicinity. Organisers or participants who knowingly fail to comply with conditions commit an offence, punishable by fine or imprisonment (for organisers/inciters).

Prohibiting Processions (s 13 POA 1986)

If the chief officer of police reasonably believes their powers to impose conditions under s 12 are insufficient to prevent serious public disorder, they can apply to the local council (or the Home Secretary in London) for an order prohibiting all public processions (or a specified class) in the district for up to three months. Banning a specific procession is not permitted under this section. Organising or participating in a prohibited procession is an offence.

Public Assemblies

Static gatherings or demonstrations are also subject to police control under the POA 1986.

Key Term: Public Assembly An assembly of two or more persons in a public place which is wholly or partly open to the air (s 16 POA 1986).

Imposing Conditions (s 14 POA 1986)

Similar to processions, a senior police officer can impose conditions on a public assembly if they reasonably believe it may result in serious public disorder, serious damage to property, serious disruption to the life of the community, or intimidation of others. Conditions can limit the assembly's location, maximum duration, or the maximum number of participants. As with processions, the power now extends to conditions based on noise impact. Knowingly breaching conditions is an offence. Unlike processions, there is no power under s 14 to ban all public assemblies in a district.

Worked Example 1.1

A group plans a protest outside Parliament, expected to attract 500 people, involving speeches and chanting using megaphones. Police anticipate significant disruption to traffic and parliamentary business. Can the police impose conditions?

Answer: Yes. This is a public assembly. If the senior police officer reasonably believes it may cause serious disruption to the life of the community (e.g., traffic gridlock, preventing access to Parliament), or that the noise will have a significant impact, they can impose conditions under s 14 POA 1986. Conditions might include limiting the location (e.g., a specific designated area), duration, number of attendees, or use of amplification equipment. The conditions must be necessary and proportionate.

Trespassory Assemblies (s 14A-C POA 1986)

Specific powers exist regarding assemblies on land where the public has no or limited access, held without the occupier's permission (or exceeding permission/access rights).

Key Term: Trespassory Assembly An assembly of 20 or more persons on land in the open air to which the public has no right of access, or only a limited right, which is likely to be held without the occupier's permission (or exceed it) and may result in serious disruption or significant damage to land/buildings/monuments of importance (s 14A(1), (9) POA 1986).

If a chief officer reasonably believes such an assembly is intended, they can apply for an order prohibiting all trespassory assemblies in a defined area (up to 5-mile radius) for up to four days. Organising or participating in a prohibited trespassory assembly is an offence. Police can also direct persons reasonably believed to be on their way to such an assembly not to proceed (s 14C).

Worked Example 1.2

Environmental activists plan to occupy a private field containing ancient woodland (a site of scientific importance) for a week-long protest camp involving 50 people. The landowner has refused permission. The police anticipate significant disruption to local farming and potential damage to the woodland. What action can the police take?

Answer: This appears to meet the definition of a trespassory assembly under s 14A POA 1986 (20+ people, land with no public access, no permission, likely significant disruption/damage to land of scientific importance). The chief officer can apply to the local council (with Home Secretary consent) for an order prohibiting such assemblies in the area for up to four days. If an order is made, organising/participating would be an offence. Police could also use powers under s 14C to stop people travelling to the site.

Breach of the Peace

Alongside statutory powers, the police retain common law powers relating to breach of the peace.

Key Term: Breach of the Peace Occurs where harm is actually done or is likely to be done to a person, or in their presence to their property; or a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly, or other disturbance (R v Howell). It is not a criminal offence itself but provides a basis for police preventative action.

Police powers include arrest (where a breach has occurred or is reasonably apprehended as imminent), dispersal of gatherings, entry to private premises to prevent a breach, and binding over orders from magistrates.

Exam Warning

The threshold for preventative action for breach of the peace requires the breach to be imminent. Action taken too early, where there is no immediate risk of disorder, may be unlawful (R (Laporte) v Chief Constable of Gloucestershire). Police action must also be proportionate.

Balancing Rights: Proportionality

The exercise of police powers under both the POA 1986 and common law must comply with the HRA 1998, specifically Articles 10 and 11 ECHR. Any restriction imposed on the rights to freedom of expression or assembly must be:

Prescribed by law: The power must have a clear legal basis (e.g., POA 1986).
In pursuit of a legitimate aim: Such as preventing disorder, protecting public safety, or protecting the rights of others (as listed in Articles 10(2) and 11(2)).
Necessary in a democratic society: This involves the principle of proportionality.

Key Term: Proportionality The restriction imposed must be no more than is necessary to achieve the legitimate aim. It requires balancing the severity of the interference with the individual's rights against the importance of the aim being pursued. A less intrusive measure should be used if it could achieve the same objective.

Courts will scrutinise police decisions to impose conditions or bans, assessing whether the action taken was a proportionate response to the perceived threat (Austin v Commissioner of Police for the Metropolis; Tabernacle v Secretary of State for Defence).

Worked Example 1.3

Police impose a condition banning the use of any amplification equipment at a small, peaceful assembly (30 people) protesting government policy in a public park. The reason given is potential noise complaints from nearby residents during the daytime. Is this likely lawful?

Answer: Potentially unlawful due to proportionality. While preventing disorder/protecting rights of others (residents) are legitimate aims, a complete ban on amplification for a small, peaceful assembly might be disproportionate. Less intrusive measures, like limiting volume or duration, might achieve the aim without unduly restricting the protesters' Article 10 rights (freedom of expression). The police belief must be reasonable and the restriction necessary.

Revision Tip

When analysing public order scenarios, always identify the specific police power being used (e.g., s 12, s 14 POA 1986, common law breach of the peace) and then assess if the statutory/common law conditions are met AND if the action is compatible with Articles 10/11 ECHR, paying close attention to proportionality.

Key Point Checklist

This article has covered the following key knowledge points:

Public order law balances maintaining peace with protecting freedoms of expression (Art 10 ECHR) and assembly (Art 11 ECHR).
The Public Order Act 1986 gives police powers to manage public processions and assemblies.
Advance notice is required for some public processions (s 11 POA 1986).
Police can impose conditions on processions (s 12) and assemblies (s 14) if they reasonably believe there's a risk of serious disorder, damage, disruption, or intimidation (or significant noise impact).
Processions can be banned (s 13), but not specific assemblies (though conditions under s 14 can be very restrictive).
Trespassory assemblies (20+ people, no permission, risk of disruption/damage) can be prohibited (s 14A).
Police retain common law powers to prevent an imminent breach of the peace, including arrest and dispersal.
All police actions restricting Articles 10 or 11 must be prescribed by law, pursue a legitimate aim, and be necessary and proportionate.

Key Terms and Concepts

Freedom of Expression (Article 10 ECHR)
Freedom of Assembly and Association (Article 11 ECHR)
Public Procession
Senior Police Officer
Public Assembly
Trespassory Assembly
Breach of the Peace
Proportionality

Public order law - Balancing public order and freedom of expression