Apocryphally we all know that if “voting modified something, they’d abolish it.” Within the case of a hereditary Monarchy, that after all isn’t an possibility – the transition in energy is clean, seamless and speedy. It’s one thing that has not occurred within the UK in 70 years, and so, could be one thing that few had turned their minds to. The demise of Queen Elizabeth II final week, and thus the accession to the throne of King Charles III marked such a possibility for reflection. Nonetheless, what some have discovered right here within the UK is that expressing republican sentiment in public has been met with a policing intervention – arrest or warning. This put up considers the legality of expressing such views, and thus of the police response too, in addition to some wider points in regards to the policing of protest, dissent and free speech. A few of my views could be discovered right here and right here.
There have been quite a lot of contexts wherein folks have expressed such sentiments, however what unites people who have made the information is that they’ve all occurred within the presence of many others, at organised occasions corresponding to public processions throughout the capitals of the 4 nations, or the UK-wide public proclamations of the brand new king. There have been no reviews of individuals arrested or spoken to ‘merely’ for having anti-Monarchist banners or placards exterior their homes or on outlets. That’s essential for 2 causes I feel. First, as College of Manchester Legislation Professor Geoff Pearson identified on Twitter this morning, the members of the general public attending these royal occasions have their very own Article 11 rights to affiliate. This makes the balancing with the free speech rights, beneath Article 10, of republican protesters extra acute. I feel although a court docket would favour – that’s rank extra extremely or as extra precious – the instrumentality of the protester’s political message. It’s moderately nicely accepted that the European Court docket at Strasbourg adopts a hierarchy of safety without cost speech beneath Article 10, with political speech on the high, and consequentially affords it a a lot narrower margin of appreciation – discretion – inside which to function. That mentioned, I feel a court docket too would acknowledge the social, collective nature of the (mass) nationwide mourning, a collective outpouring of grief – expressive content material too – from many, many 1000’s if not thousands and thousands of residents. As Geoff Pearson suggests, that brings with it presumably unexpected penalties – for, say, the policing of soccer: if these mourning the demise of the Queen have Artwork 11 and even Artwork 10 expressive rights, why do sports activities followers not accomplish that? Second, additionally it is essential that the reported arrests and so forth. have all occurred at large-scale public occasions as a result of a lot public order legislation is determined by viewers response – and so the higher quantity who (seemingly) witness one thing, the likelier it will likely be that somebody will react badly, that’s by threatening violence, making it likelier the police have grounds to intervene. We’ll come onto this quickly. The heightened emotion – on either side – of those specific public occasions – the demise of a Monarch after 70 years on the throne – makes a response by some likelier, or makes the affect higher. That is in any case not only a Summer time carnival procession via a city centre. The legislation rightly takes account of context inside which disputes and tensions happen.
The one factor that any of those protesters can’t be arrested for in home legislation is for having offended anybody. There isn’t a offence both wholly or partly depending on or triggered by “offensive language” – no offence of “giving or inflicting offence”. Such would trigger a large carve-out within the safety supplied to free speech, so value-laden and subjective would it not be. That’s not to say that current authorized regime – to which we’re about to show – just isn’t devoid of subjectivity; it’s simply that “inflicting offence” can be a really a lot higher intrusion. I feel additionally it is clear that arrests of the protesters beneath what has grow to be the usual public order energy in England – s.5 of the Public Order Act 1986 – wouldn’t stand as much as scrutiny. The Act is premised on use of “threatening or abusive” phrases or behaviour. If that’s the case, then there have to be somebody who is probably going harassed, alarmed or distressed. That latter just isn’t the sticking level for the police. It’s the necessity to present both threats or abuse. It is vitally onerous to conceive of placards saying “Not my King” or somebody shouting “Who voted for you?” as becoming both of these two phrases. Earlier than 2013, the state of affairs would have been completely different, and maybe simpler for the police, as there was a 3rd set off – insulting. That was eliminated beneath the 2010-2015 Coalition Authorities exactly as a result of the dangers to free speech had been nicely documented.
Not the entire utterances this previous week would have fallen so simply. It’s a lot simpler to contemplate somebody shouting or holding a placard saying “Fuck the Monarchy” to be abusive. Right here, not solely would possibly the differential ‘attain’ – of a placard as towards shouting – be essential however crucially the context. Not like a comedy membership that all of us enter figuring out we’d hear phrases a lot worse than ‘fuck’ or turning on the TV after the 21:00 watershed, these attending to observe the royal procession in all probability didn’t suppose as they left the home that day “attending and exposing my ten year-old son to impolite phrases is a threat I’m ready to take”. That mentioned, if we’re arresting and prosecuting all those that say ‘Fuck the Monarchy” relatively than “Boo Hiss to the King”, prisons right here will probably be pretty full. The broader problem then is as a lot certainly one of differential policing, of political speech than ‘merely’ of lads’ banter exterior a pub on a Saturday evening. There may be one other set off in s.5, utilizing disorderly behaviour that harasses, alarms or distresses. Briefly, I don’t suppose as a matter of statutory interpretation this has any software right here. “Behaviour” just isn’t apt to cowl shouting – since it’s onerous to see this as behaviour – or certainly a placard slogan. The truth that the part talks of “threatening or abusive” phrases or behaviour but solely disorderly behaviour suggests the omission of phrases from the scope of behaviour. If I’m fallacious, and if the assorted “Not Our King” placards and chants could be seen as abusive, there’s nonetheless little likelihood of profitable prosecution. There’s a particular defence in s.5(3) of “cheap conduct”. It’s now established as a matter of Supreme Court docket case legislation in Ziegler that peacefully protesting, albeit disruptively (not the case right here) via a sit-in on a predominant highway, is able to constituting a “cheap excuse” for the needs of the offence of obstructing the freeway. The onus is then on the police, and charging authorities, to point out that the arrest/cost is proportionate. I feel that will be very onerous to make good right here, regardless of the heightened tensions. It’s not the best of leaps from that to a “cheap conduct” defence.
Extra problematic is the potential for breach of the peace to discovered the premise for police intervention. It’s nicely settled in case legislation that the police have energy to intervene, even arrest (in addition to to maneuver on or direct) to be able to stop what they moderately imagine will probably be an imminent breach of the peace. There isn’t a offence of breach of the peace – the primary unusual side to the idea – but it founds a bunch of preventive, pre-emptive energy. Second, the definition and scope are to not be present in statute – Parliament has by no means pronounced. It’s and stays a typical legislation energy, however certainly one of fairly appreciable ambit and affording in depth latitude to officers on the bottom. The usual definition is in Howell (1982): “hurt is definitely completed or prone to be completed to an individual or, in his presence, his property or is put in worry of being harmed”. Third, and this arises right here, additionally it is fully lawful for officers to arrest X for his or her utterances primarily based on Y’s presumed violent response. There may be now a whole lot of case legislation however maybe probably the most salient is Redmond Bate in 1999. Three Christian fundamentalists have been preaching on the steps of a cathedral and the group turned more and more agitated. They have been requested by officers to cease and transfer on, on grounds that the police feared a breach of the peace, however refused and so have been arrested for obstructing officers within the execution of their obligation. Their appeals towards conviction have been upheld. The important thing was this: have been the preachers being so provocative that somebody within the crowd, with out behaving wholly unreasonably, is likely to be moved to violence? Or have been passers-by have been taking the chance to react in order to trigger hassle? If we map that onto the types of arrests we have now seen this week, I don’t suppose, as I mentioned within the iNews piece, would it not be wholly unreasonable for any person to threaten violence towards somebody at their Queen’s funeral, saying ‘boo, hiss to the brand new King? That mentioned, there would must be violence threatened – that has not been the case in the entire numerous incidents, actually. In fact, a complete host of different questions fairly correctly throw themselves up right here: ought to my free speech rely a lot – even or in any respect – in your propensity to train, or reveal that you simply would possibly flip to violence…what is usually known as a ‘hecklers constitution’? That is the age-old drawback that illustrates the power a heckler has to disrupt, even convey to an finish, a rally or political debate. It raises the query of how far and for the way for much longer in a liberal democracy ought to we tolerate policing powers which can be if not open-ended, then very vast and over which Parliament has had no say. Additional, they is likely to be powers the train of which could defeat Parliament’s rigorously crafted steadiness when passing laws like s.5: ought to we enable the police a typical legislation fall-back for a intentionally created legislative lacuna?
The assorted arrests this week have but once more thrown mild onto the policing of protest and dissent within the UK, although in all honesty it has not been out of the highlight these previous 18 months, given the extent of XR and Insulate Britain protests throughout the UK and the response by Parliament within the type of Half 3 of the Police, Crime, Sentencing and Courts Act 2022. Certainly, there’s additional laws earlier than Parliament, the Public Order Invoice, aiming to plug a number of the gaps left by that 2022 Act; amendments voted down throughout its passage have been reinstated on this present Invoice. I’ll end with a degree about that Act, as a springboard to one thing wider on public order policing and the state of protest within the UK. Preliminary reviews of certainly one of this week’s arrests have been that he “had been arrested beneath the Police, Crime, Sentencing & Courts Act 2022 … for actions prone to result in ‘harassment or misery’“. Later reviews point out the arrested particular person was charged beneath s.5. That officers may even consider turning to the brand new Act reveals a worrying lack of familiarity with the brand new provisions. Public nuisance turned from a typical legislation offence to at least one created in s.78 of the Act however harassment just isn’t a set off for that in any respect… although critical misery is listed. Harassment and misery are triggers for the brand new noise powers however these don’t create an offence – they merely empower officers to impose circumstances on protesters. Additional, and extra worrying, if creating noise goes to be interpreted as “emitting sound out of your mouth” relatively than “quantity”, that goes towards all of the coverage proposals and debates which have been premised on empowering police to control noisy protests, with amplifiers or foghorns. Such a studying of the brand new powers would threat exposing numerous protesters to intervention, the fear expressed by many commentators that this ushered in an existential risk to protest. This all reveals that at coronary heart, our potential to train rights to free speech and to dissent are capabilities not solely of the formal wording of the legislation however as a lot (and fairly presumably way more) of police understandings, their coaching, the political temper music, our authorized consciousness – are we conscious of what we will and can’t do? – and of the ineffectiveness of latest problem. Having the ability to go to court docket some weeks later and have my rights vindicated just isn’t the identical as having the ability to stand for a protracted interval and make my level in sight and sound of my goal. It’s these issues we have to tackle, not merely “what does the legislation say?”
