On Policing the right to protest

So here’s a thing, apparently the police are arresting people for having blank pieces of paper. And also for expressing republican views. Even for saying ‘not my king’.

Which all seems a bit harsh. On the public. Definitely not the done thing.

The truth is a little more complicated, as it usually is.

There was a woman arrested for holding a sign in Edinburgh during the proclamation of the ascension of King Charles; a man arrested in Edinburgh for shouting at the funeral procession, a man arrested in Oxford for saying in a loud voice, “Not my king”, as well as reports of ‘people being moved on’ and the barrister who was threatened with arrest if he wrote ‘Not my king’ on a blank piece of card or paper.

I can't find many more stories of the police taking inappropriate action - but these are the ones that caught the headlines, and the generated more comment. These stories have also been told, and told and retold and are being conflated with accounts of Russian police arresting anti-war/special military operation protestors. (Which is taking place in a completely different legal jurisdiction where the police, government and judiciary are arguably way more cosy than here.)

This is all a little problematic, from the view of policing in England and Wales. Why, you ask?

Because firstly the two arrests in Scotland were conducted within the very different Scottish criminal legal framework. To compare, to 'breach the King's Peace' in England and Wales requires that 'when harm is done or likely to be done to a person or (in his presence) to his property, or when a person is in fear of being harmed through an assault, affray, or other disturbance. At common law, anyone may lawfully arrest a person for a breach of the peace committed in his presence, or when he reasonably believes that a person is about to commit or renew such a breach.'

This provides the definition and also provides a power of arrest - but - this is the definition in England and Wales and derives from a piece of legislation from 1361 - but the interpretation above comes from the more recent era of the 1980's - from the case of R v Howell [1982] QB 416. Definitions are important, as is case law as the application and understanding of the law are what makes the creaking mass of the criminal justice system work. (Here, the word 'work' is doing some heavy lifting.)

The Scottish matters - Edinburghian ones, if you wish - both seem to rely on the Scottish offence of a breach of the Peace (or another bit of legislation) - which is a very different animal from the variant south of the border - basically comparing an English gerbil to a Scottish wolverine - the Caledonian variant has big teeth - it is something where substantial criminal penalties apply, and is a staple of the Sherriff's Courts - the lower level Courts that deal with lower level criminal complaints. The definition is different and arguably a little wider - 'conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community'. With this in mind then fair questions are: is holding a sign up in a solemn civil occasion saying 'fuck..' going to make out the offence? would shouting through a crowd at a solemn procession make out the offence? For both questions the final arbiter would presumably be the Scottish Courts. My experience of policing is solely in England, so my understanding of Scottish law is rudimentary at best. (Quite frankly it's all mystifying - I once had a Scottish DC trying to explain the difference between arresting someone and detaining them - I didn't get it one bit.)

Media commentary invariably doesn't understand that the powers of the police and the law are very different between England and Wales - there has been some frankly hysterical overreactions the news stories and the fact that the handful of incidents have taken place in different legal and criminal jurisdictions is relevant. This brings me on to the second point - essentially that comparing all these incidents together does nothing to promote understanding, nor gives the layperson any useful advice or reassurance.

The second issue is the fact that the arrests made or threatened in England aren't great examples of policing: there is a possibility of officers in the Oxford and London matters, have made decisions based on a poor understanding of the law, or made decisions in the heat of the moment, certainly the man from Oxford was released with no further action taken, and the barrister with the blank card/paper was not arrested; add to this the complications of various people in the media and on social media piling in with their takes, which run the whole spectrum from badly to completely ill-informed.

From the cases so far, the relevant law referred to here is mainly section 5 of the Public Order Act, 1986, which states:

A person is guilty of an offence if he—

(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening or abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

There's a bit more:

An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

And Parliament also added some defences for a person accused of such an offence:

It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

So, there's a lot to do there - any behaviour needs to be threatening or abusive or disorderly (once it could have been insulting, but that provision was removed) and there needs to be a person likely to be harassed, alarmed or distressed who can see or hear what is going on. Blank pieces of paper, or card, or saying or showing 'not my King' will not make this offence out.

That said - if you were to walk up and down the queue of people waiting to pay their respects to the Queen lying in Westminster Hall, expressing these views then you could well find that the British fondness for fair play and free speech becomes a little strained. You could well come away with a bust lip. This would be unreasonable on the part of the assailant. However, at what point does freedom of expression rub up against freedom from seeing or hearing views that seem misplaced, mistimed or disrespectful? Which rights win? Who has the right not to be annoyed? Let me make this really clear - thumping a republican for expressing a reasonable view in a reasonable way is plain wrong and should be punished accordingly. On the other hand, is it reasonable that the police ask you to step away, move back, stand somewhere else, quieten down a bit for your own safety? Should a handful of officers take one protester away or try and arrest the fifteen angry gammon monarchists who are trying to dump them in the Thames?

This is one of the times when policing gets a bit messy. All I can advise is - learn the law - check the legislation - especially as it tends to change, and new legislation is rarely briefed effectively. I know my copies of 'Policing Protest - An Aide Memoire' courtesy of the NPCC is now well out of date - thanks to the Policing Crime and Sentencing Act (the Bill that didn't get killed...). Make the best decision, juggle those competing rights - and don't drop them as the government don't seem keen on looking after them, and lastly, having learned the law, be prepared to apply it, fairly and with lashings of common sense, with a sprinkle of NDM.