ABOUT THIS TRAINING
Note: This information is not legal advice and does not create an attorney-client relationship. Consult local activists and attorneys for more precise information relevant to your area.
This training will go over the basic laws and regulations for organising a protest. Unless otherwise stated, this page sets out the law and guidance which applies in England only. The latest source for information was updated 13 November 2020. The information for this guide was taken from libertyhumanrights.org and informeddissent.info.
This training is a 17 minute read.
WHAT IS THE LAW?
You have a legal right to organise a protest. This is protected by the rights to freedom of expression and freedom of association (which are found in Articles 10 and 11 of the European Convention on Human Rights). The police have to act in a way that doesn’t go against this right. So do other public authorities. The police also have to help a peaceful protest take place. But if you want to organise one, there are some rules you must follow.
WHAT YOU MUST DO – CORONAVIRUS
On 5 November 2020, a new national lockdown was introduced in England. The new coronavirus regulations prohibit gatherings of more than two people in most circumstances.
The previous rules contained a specific exception for attending a protest. In the new rules, however, there is no exception for attending a protest, meaning if you take part in a protest you may potentially be committing a criminal offence.
These new regulations are in force until 2 December 2020.
The new lockdown rules also make it a criminal offence to organise a gathering of more than 30 people in a public outdoor place, unless certain exceptions apply.
You are, however, allowed to organise a gathering of more than 30 people in a public outdoor place if you are:
- a business, a charity, a benevolent or philanthropic institution, a public body, or a political body
On the following conditions:
- you (the organiser of the protest) have carried out a risk assessment that meets the requirements of the Management of Health and Safety at Work Regulations 1999, and
- you have taken all reasonable steps to limit the risk of transmission of coronavirus, in line with the risk assessment and with any relevant government guidance.
This would include protests. You can therefore organise a protest if you meet the above conditions.
If you organise a gathering without meeting these conditions, you may risk being fined or arrested. The penalty for organising an illegal gathering is a fine of £10,000.
However, as noted above, during the current lockdown it is not lawful to attend a protest with more than two people. Therefore, although you may be able to organise one, the current rules mean that no more than two people are allowed to attend. Take this into consideration if planning a protest.
Given the uncertainty and inconsistency of these rules, organisations such as Liberty are asking the Government for clarification as described here.
HOW DO I KNOW IF MY ORGANISATION IS A ‘POLITICAL BODY’?
The definition of a ‘political body’ is quite broad.
The regulations state a political body is either:
- a political party which has been registered under Part 2 of the Political Parties, Elections and Referendums Act 2000, or
- a political campaigning organisation within the meaning of Regulation 2 of the Health and Social Care (Financial Assistance) Regulations 2009
Activist groups, such as Black Lives Matter UK or Extinction Rebellion, are considered political campaigning organisations. An individual can also be a political campaigning organisation.
A political campaigning organisation is any person that carries out activities which:
- promote or oppose changes to any law or public policy
- are intended to affect public support for a political party, or influence voters in any election or referendum.
HOW DO I CARRY OUT A RISK ASSESSMENT?
The risk assessment you must carry out is in section 3 of The Management of Health and Safety at Work Regulations 1999.
This risk assessment was designed to be used by employers to assess risks in the workplace. It says that employers must assess workplace health and safety risks to their employees, and self-employed people must assess workplace health and safety risks to themselves, in order to identify the steps they must take to comply with health and safety laws.
We do not yet know how exactly it should be applied to protests and other public gatherings.
HOW DO I TAKE “ALL REASONABLE MEASURES” TO STOP CORONAVIRUS FROM SPREADING?
The regulations say that you must take into account any guidance the Government has produced on the kind of gathering you want to hold.
The Government’s general guidance on social distancing may be useful.
WHAT YOU MUST DO – GENERAL
IF YOU WANT TO ORGANISE A PROTEST MARCH:
- Usually, you have to provide written notice to the local police force at least one week before the march.
- If you want to protest against something that has only just happened, you don’t need to give a full week – but you should inform the police when you can.
- When you give notice, include details of the timing and route of the protest – and the name and address of at least one organiser.
BE CAREFUL: If you organise a protest without properly notifying the police, or give the wrong details, you could be committing a criminal offence.
IF YOU WANT TO ORGANISE A STATIONARY DEMONSTRATION:
- A stationary demonstration is when two or more people stay in one place. For example, a protest on the pavement outside a local authority.
- You don’t need to tell the police about this kind of demo, so it’s up to you whether you want to. Some groups choose to tell the police in advance so that if the police do attend, their presence is not a surprise. Others choose not to, as protesting is a right that does not require police permission. Bear in mind that if you do give advance notice to the police, it may give them time to impose conditions on the protest.
IF YOU WANT TO ORGANISE A PROTEST ON PRIVATE LAND:
- The rules about this can be complicated – read the Liberty guide to your right to protest or contact them for more information.
CAN THE POLICE PUT CONDITIONS ON MY PROTEST?
Yes, the police can put conditions on a protest if they think it could cause:
- serious public disorder
- serious damage to property
- serious disruption to the life of the community.
You want to organise a march to protest against the closure of a local library. But your route would go past a primary school when parents and guardians would be picking up their children. The police might say you have to go at a different time or use a different route to minimise disruption.
They can also impose conditions on your protest if they think that:
- its purpose is to intimidate other people and stop them from doing something they have the right to do.
When the police are deciding what conditions they might put in place, they have to take into account your rights to freedom of expression and freedom of association.
Any restrictions or requirements they impose should be in writing. This should be from a Chief Constable, Commissioner or Assistant Chief Constable.
If the police want to impose any restrictions or requirements during the protest, they should come from the most senior police officer there. These should be clearly communicated to the organiser or the people taking part.
CAN THE POLICE BAN MY PROTEST?
If the police think there is a high risk of serious public disorder they might use their powers to restrict your protest. They can also ask the local authority to put a temporary ban in place to stop the protest from happening. Any ban has to be approved by the Home Secretary.
Both of these decisions have to be made with your rights to freedom of expression and freedom of association in mind. They should only happen in exceptional circumstances.
Contact Liberty if this has happened to you and you want help with what to do next.
CAN THE POLICE MAKE ME PAY FOR THEM TO ATTEND MY PROTEST?
Sometimes, the police will suggest that it’s your responsibility to cover the cost of policing the protest. This is wrong.
The police have the power to charge people for policing events like football matches or street festivals. But they have to make sure members of the public can protest safely and freely. They should not ask you to cover the cost.
WHEN SHOULD I MAYBE NOT CONTACT THE POLICE IN ADVANCE?
Above we have mentioned the official guidelines for organising a protest "by the books". However, depending on the type of protest you are organising, you might not always want to contact the police in advance. Especially if you are planning civil disobedience, when you begin talking to the police about your protest, then there is more likely to be an increased police presence at your protest. By opening up conversations with them, you also put the police in a better position to impose conditions on your protest under Sections 12 or 14 of the Public Order Act. Also, as mentioned above, the police may also demand that you change your route as part of the liaising process.
You may also be singled out as an 'organiser' or a 'leader' which could potentially lead to more serious charges in the future. It provides them with details of people in the group and also could lead to information-gathering tactics (listening in on phone calls or intercepting text messages) of yourself or of others involved in the protest group. The police also do, sometimes, reach out to people they see as 'organisers'. Sometimes this is done through social media and sometimes the police do call up activists who they suspect are 'organisers' of an action. In this situation, we recommend that you answer 'No Comment' to all questions they ask. If this is something that happens to you, you can reach out to organisations such as informeddissent. Note that the law relates specifically to the organiser of the protest – individual participants do not have to check whether the police have been notified.
Regardless of whether or not you have notified the police of the march, the march itself remains legal and protected by articles 10 and 11 of the Human Rights Act.
POSSIBLE OFFENCES BY THOSE WHO ARE IDENTIFIED AS ORGANISERS
The remainder of the training will be focusing on possible offences that one should be aware of prior to organising protests involving civil disobedience. It is rather technical and might not apply to all our readers.
CONSPIRACY AND ENCOURAGING OR ASSISTING A CRIME
These offences don’t exist independently in their own right but are attached to the common offences that will already be familiar to many. So there’s aggravated trespass, criminal damage, etc. The connected offences, as they are called, would be a conspiracy to commit aggravated trespass or encouraging and assisting criminal damage for example.
You can be prosecuted for these connected offences because of actions or agreements made in preparation regardless of whether the common offence is actually committed or attempted. Rebels are at risk of arrest for these kinds of offences either before, during, or after an action.
They include conspiracy and encouraging or assisting someone to commit other criminal offences.
It is under suspicion of having committed one of these offences that members of the splinter group Heathrow Pause were pre-emptively arrested in mid-September 2019 near Heathrow or at their homes.
Context: The use of conspiracy as a mechanism to control the activities of those involved in protest movements and, in particular, forms of direct action, is not new.
If the police have intelligence that demonstrates the existence of a planned protest that would involve people committing criminal offences then, legally at least, there is nothing controversial in the use of arrest for conspiracy - especially where similar offences have been committed in the past. These kinds of offences partly exist to enable proactive rather than reactive policing.
There have been instances where protesters have found themselves facing conspiracy charges even though the protest had begun already and these same people could have been arrested for the offence itself.
What is it?
A conspiracy is an agreement where two or more people agree to carry out a criminal offence (such as ‘aggravated trespass’ or any of the other common offences detailed below). The offence is committed at the time of the agreement so it is irrelevant whether or not the actual offence is ever carried out - either because the parties change their mind or find it impossible to commit it (though these arguments can be used to reduce the sentence that a guilty verdict would carry). The actions or words of one person charged with conspiracy can be used as evidence of other people’s involvement in that same conspiracy.
How is it treated in the Courts?
The offence of conspiracy is triable only in a Crown Court (these are called ‘indictable’ offences) even if the parties agreed to commit a criminal offence triable only in a Magistrates Court (these are called ‘summary’ offences).
The maximum term of imprisonment cannot exceed that of the relevant criminal offence. Where that offence is not punishable by imprisonment, a conspiracy is punishable by a fine.
Courts are encouraged to avoid a one-size-fits-all approach to the sentencing of those found guilty of conspiracy, and attention will be paid to the different roles and types of involvement of each of the parties to a conspiracy when sentencing them. Sentencing will depend very much on the conduct of each defendant.
Conspiracy to commit an offence does not require it to have actually been committed, conspiracy can often involve pre-emptive arrests (as happened with the Heathrow Pause action in mid-September 2019). Pre-emptive arrests can be used as a means of 'strategic incapacitation', a policing tool that is becoming an increasingly prevalent method of dealing with diffuse and unpredictable forms of direct action, which enables them to stop planned actions from taking place and search premises for evidence of conspiracies. It is understood to be a typical strategy for the police to use preemptive arrest where actions relate to “critical national infrastructure” like airports, railways, power plants, hospitals, telecommunications, etc.
ENCOURAGING OR ASSISTING A CRIME
This is not frequently applied in protest-related cases, but is an offence to intentionally encourage or assist an offence or to encourage or assist an offence believing it will be committed. You can be prosecuted for these offences regardless of whether the underlying offence that you might be encouraging or assisting is actually committed or attempted.
This offence is triable in the same way as the anticipated offences, so if the anticipated offence is a summary offence triable in a Magistrate’s Court, this offence would be too. The maximum penalties are the same as those for the anticipated offence.
There is a defence to the offences where the encouragement or assistance is considered to be reasonable in the circumstances - as defined by what the person knew or reasonably believed those circumstances to be. Factors determining reasonableness include the seriousness of the expected offence and any purpose for (or authority by) which the defendant claims to have been acting.
ATTEMPTING TO COMMIT AN OFFENCE
This offence only relates to offences that are either indictable (triable in a Crown Court) or so-called ‘either-way' offences (which can be tried in a Crown or Magistrates Court), such as Criminal Damage or Public Nuisance. There is no offence of an attempt to commit a summary-only offence such as breaching a Section 12 or 14 Order or Obstruction of the Highway.
You will be guilty of this offence if you actually tried to commit the act in question rather than merely being prepared to do it. Whether your actions were merely preparatory will be a question for the court. The prosecution must prove that the defendant had the specific intent to commit the full offence attempted. If the accused has passed the preparatory stage, the offence of attempt has been committed and it is no defence that they then withdrew from committing the completed offence or were unable to complete it.
The maximum penalty for an attempt to commit an offence is the same as for the offence itself but an attempt will usually carry a lesser sentence than the offence itself.
INCITEMENT AND ORGANISING OFFENCES IN THE PUBLIC ORDER ACT
Sections 12 and 14 of the Public Order Act allow conditions to be imposed on ‘public processions’ and ‘public assemblies’. Breaching these conditions is an offence, but the Act specifically includes further offences of organising or inciting others to breach the Section 12 or 14 conditions. Those found guilty of these organising and inciting offences will face more serious penalties which could include a custodial sentence. Whilst a custodial sentence is one of the maximum sentences, it is highly unlikely to be applied in the case of a first-time offender.
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