The Liberty guide to Human Rights

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Human Rights Act 1998

24 Human Rights Act 1998

The Act has effectively incorporated the convention in to UK law. Whereas in the past you had to go to the European court in Strasbourg to seek a remedy under the convention, the Human Rights Act 1998 was designed to “bring home” the convention, enabling people to use it directly within UK courts. This could potentially have an enormous effect on the development of case law in the UK.

From now on, wherever possible, courts must interpret both existing and future legislation so as to be compatible with articles of the convention. If the courts are unable to do this, then they must enforce the legislation anyway and issue a “declaration of incompatibility” that the legislation is inconsistent. But many commentators believe that judges will be reluctant to do this, and more inclined to interpret the law – and alter its literal meaning if necessary - so as to be consistent with the convention.

The police are also now under a duty not to act in breach of your human rights.

24.1 Relevant Sections

Section 3(1) of the Act states that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Section 6(1) of the Human Rights Act 1998 states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Police officers’ functions are of a public nature and they can therefore be sued under the Act.

Section 6 can therefore be used against the police in all manner of ways where they abuse their power. If for example they make you stop handing out leaflets outside a business premises, you could sue them for acting inconsistently with your rights under Article 10 of the convention – the right to freedom of expression.

Section 4(2) states that if the court is satisfied that a legislative provision is incompatible with a Convention right, it may make a declaration of incompatibility.

24.2 Effect of the Act

The Act could have a big influence on future judicial interpretation of public order law. Articles 10 and 11 of the convention assert the rights of everyone to freedom of expression and freedom of assembly respectively. These are not unlimited rights, of course, and Parliament may impose legislative restrictions on them for the prevention of crime, public disorder etc.

But these restrictions imposed have to be proportionate to the objective being sought i.e. public disorder, crime. And if the police interpret the legislation in a way that is disproportionate to that objective, then they are acting illegally and can be sued.

Anyone who goes on animal rights demos these days will be familiar with the Section 12 and 14 orders which the police routinely use to control marches and assemblies. This legislation in itself is not incompatible with the convention. It is supposedly designed to balance the rights of protestors to demonstrate with the rights of others to go about their normal business and to be protected from crime.

But nowadays the police often abuse their powers under Section 14, so as to negate entirely the effect of a demonstration. If you can show this to be the case then you can use it as a defence when charged with failing to comply with a Section 12 or 14 direction.

Similarly in the case of Section 42 of the Criminal Justice and Police Act 2001 (the legislation on home demos) the police are currently abusing the discretion granted by them in the legislation. As a result, a number of protestors have sued the police under Section 6 of the Act.

Other police powers have also already been affected by the incorporation of the convention in to UK legislation. For example, the High Court has ruled that it is illegal for the police to detain prisoners held in custody for breach of the peace, where there are no grounds for suspecting that they will cause a further breach when they are released. It has also been ruled that the Protection from Harassment Act 1997 should not be used to stifle legitimate protest, as this would be incompatible with Article 10 of the convention.

25. Suing the Police

If you have been arrested and released without charge you may be able to sue the police for assault, battery, and false imprisonment. When the police arrest you they must have reasonable grounds to suspect you of an offence. Even if you’re released without charge the police may still have had good reason to suspect you – it will depend on the circumstances. Conversely you may be convicted of an offence and still be able to sue for wrongful arrest. For example you may be convicted of affray but the arrest was unlawful, because affray is not an arrestable offence.

If you have been prosecuted and had the charges dropped, you may be able to sue for malicious prosecution if you can show that the police lacked an honest belief that you were guilty of the offence.

You can sometimes sue the police even if you haven’t been arrested. If the police shove or punch you on a demo then they will be liable for assault or battery, if they did so without lawful authority or excuse – for example where a Section 14 notice was unlawful.

When suing the police, you would normally sue the chief constable of the police force in question – he is “vicariously liable” for the actions of his officers whilst in the course of duty.

25.1 How much can you claim?

The amounts awarded against the police can be considerable. If, for example, you are unlawfully detained for as little as six hours you can claim for damages of around £2,000. But if you have been unlawfully handcuffed, strip-searched or treated to any unwarranted force during the course of the arrest, you may well receive much more.

The courts may additionally award “exemplary” damages against the police if it can be proved that they have abused their power or acted oppressively. If the police think you have a good chance of winning your case, they may award you out of court damages by way of a settlement.

25.2 Legal Aid

If you think you may have grounds to sue the police, contact a solicitor who specializes in actions against the police. If you are on Job Seekers Allowance, Income Support or a low wage, you may be entitled to Legal Aid. The Legal Aid system enables claimants on a low income to sue, where they can show that they have a reasonable chance of success. You may still be able to get legal aid if you are working, but you could be asked to part fund the action yourself.

The Legal Aid board will review the case as it goes along as more evidence comes to light. If as a result of evidence presented by the defendant it appears that your case has little chance of success, legal aid will be withdrawn. Legal aid may also be refused if the costs of bringing the case exceed the amount of money you are likely to win if you are successful. So long as you have legal aid, not only will your solicitors and barrister’s fees be paid for you, but usually the defendant’s costs as well if you go to trial and lose.

25.3 Human Rights

You can now sue the police for breach of Section 6 of the Human Rights Act 1998, for acting in a way, which is incompatible with your European convention rights. You could do this, for example, if they moved you for obstructing the highway when leafleting outside a fur shop, as they would be disregarding your right to freedom of expression under Article 10 of the European Convention on Human Rights.

The problem with suing in situations for such relatively minor breaches however is that you will be unlikely to be granted legal aid. Without legal aid you will be liable for the defendant’s costs if you lose – thousands of pounds if the case goes to trial – even if you can afford your own legal fees or are representing yourself. There is a process known as the small claims procedure where costs are not awarded against you if you lose. But although this is generally the procedure used for claims below £5,000 it is not normally deemed to be suitable for actions against the police.

The following firm of solicitors specialise in legal actions against the police:

Irwin Mitchell Solicitors,
St Peter's House,
Hartshead,
Sheffield. S1 2EL
Tel: 0870 1500 100
Fax: 0114 275 3306
Web: http://www.imonline.co.uk

Complaints against the Police

23.1 Why Complain?
23.2 The New Independent Police Complaints Commission
23.3 The Complaints Procedure
23.4 Local Resolution or Formal Investigation
23.5 What to write in your letter
23.6 Location of the Interview
23.7 The Interview
23.8 What Happens Next

23.1 Why Complain?

Many people are perhaps justifiably cynical about the police’s methods of dealing with complaints. After all, the investigation is usually conducted by the police themselves, rather than an independent body. But there are many good reasons for complaining. It’s a simple procedure and will only take at most a few hours of your time. By contrast it will cost the police force being investigated a relatively large amount of time and money.

If formal complaint proceedings are continually brought against the same police officers these will become a major headache to the police forces in question. All complaints have to be recorded by the police force, and any complaints that are upheld will adversely affect the police force’s statistics.

Complaints may directly affect the way in which police behave on demos. If the police act unlawfully or discriminately towards you and you take no action, then they will think they can get away with it and continue to abuse the rights of other activists in the future. But if they regularly receive complaints about their behaviour and find themselves under constant investigation then they may have to reconsider their actions.

Even if your complaint is not upheld, it could lead to a complete change in policy by the police in their attitude to activists.

23.2 The New Independent Police Complaints Commission

On 1st April 2004, the new Independent Police Complaints Commission (IPCC) replaced the Police Complaints Authority (PCA) as the body responsible for overseeing complaints against the police. The change came about as a result of calls for greater openness and an independent element in the investigation of police complaints. The main differences in the new procedure are that the IPCC can actively initiate and manage police investigations and can carry out the most serious investigations itself.

There is a duty of disclosure on the police, whereby they have to keep the complainant informed about an investigation. It is uncertain at this stage whether this will include details of witness statements or other primary evidence, but it will certainly an improvement on the previous situation.

Also a number of appeals are now available to the complainant. These are appeals:

• Against a decision not to record a complaint
• About the procedure adopted during the local resolution of a complaint
• About the disclosure of information by the police
• About the outcome of an investigation

All these reforms are designed to instill greater public confidence in the complaints procedure. Only time will tell if the reforms do in fact lead to greater accountability. Contact details for the IPCC are:

Independent Police Complaints Commission
90 High Holborn
London, WC1V 6BH
Tel: 08453 002 002 (local rate)
Email: enquiries@ipcc.gsi.gov.uk
Web: http://www.ipcc.gov.uk/

23.3 The Complaints Procedure

If you wish to make a complaint to the police you can write either directly to the IPCC or to the Chief Constable of the relevant police force. In all but the most serious cases, complaints will be handled by the police themselves, and if you write to the IPCC they will forward the complaint to the police with your consent. The complaint will then be investigated by the actual police force in question. When the investigation is complete the investigating officer (IO) will decide what action if any to take. This could include disciplinary action against the police officer concerned or even referring the case to the Crown Prosecution Service if there is enough evidence for a criminal prosecution.

23.4 Local Resolution or Formal Investigation

Local resolution is the new name for what used to be called “informal resolution”. Under the old rules, you could ask for an informal investigation and if were still not happy you could insist on a formal one as well. Under the new law you can still insist on a formal investigation, but if you consent to local resolution you cannot then insist on a formal investigation if you are unhappy with the outcome. You cannot appeal against a local resolution decision unless the police have failed to follow the correct procedure.

If it seems to the Chief Constable that your complaint is suitable for informal resolution then he is under a duty to try to resolve the matter in this way and will appoint an officer within his force to do so. This would apply to relatively trivial complaints such as rudeness where the police officer’s conduct is not alleged to be of a criminal nature.

The police are likely to want to resolve complaints informally wherever possible, as this is the most cost effective way to deal with it and reduces the burden on police resources. An example of an local resolution would be where the chief constable verbally apologises or offers reassurance that there will be no repeat of the behaviour.

However, it is your right by law to insist on a formal investigation whatever the nature of the complaint.

Therefore if you state in your initial letter to the IPCC that you do not wish to have the matter resolved by local resolution then no attempt should be made to resolve it informally.

We would normally advise that you opt for a formal investigation. This will ensure that your complaint is investigated as thoroughly as the law allows. And you will have the right of appeal if you are unhappy with the outcome. There will be times however where local resolution may be preferable, for example where you wish to negotiate with the police about harassment of activists on demos. Here local resolution might provide a speedy solution whereas a formal investigation could take several months to resolve.

23.5 What to write in your letter

It’s best to keep the original letter of complaint fairly brief, as you will usually have to make another statement to the police for purposes of the investigation. State the name of the officer or officers against whom you are complaining, and the particular police force to which they belong. If you do not have their names, identify them by their number if possible.

If you cannot do this, you should provide the police with any other identifying evidence, for example a photo, or description stating the time and location of the incident, the officer’s vehicle registration or anything else that may assist in the identification. Give brief details of the nature of your complaint and details of any witnesses who have agreed to make statements on your behalf. State that you do not wish to use local resolution unless you are happy for this procedure to be used.

23.6 Location of the Interview

A tactic commonly employed by the police is to send the investigating officer to your home, who then attempts to persuade you not to bring formal complaint proceedings and use local resolution instead. If you do not wish this to happen, you should state in your initial letter that you wish to arrange to make a formal statement at your local police station and that you do not wish the police to visit you at home.

23.7 The Interview

Once the chief constable determines that the complaint is to be resolved formally an investigating officer (‘IO’) will be appointed to investigate your complaint, and you will receive a letter to inform you of this. IO will usually be from the ‘professional standards’ department of the same police force, unless the complaint is very serious. He will not be a colleague of the officer who is the subject of your complaint.

You should contact the IO and arrange to make a formal statement at a location of your choice - either at your home or at the nearest police station. The statement is usually taken in a fairly relaxed and informal manner. Remember you are the one making the complaint and the officer is there solely in order to facilitate this.

If you wish, you may have a friend or solicitor with you. You will dictate the statement to the officer who will make a handwritten record. You can say exactly what you want to say in the statement, and the officer may not add his own comments.

When you have finished you will be invited to read the statement and to sign at the bottom of each page. You are free to alter anything you’re not happy with, so make sure the statement is exactly right, as this will form the substance of your complaint. If you have any independent evidence – for example, video evidence or names and addresses of witnesses – you should supply a copy of these to the IO. Once he has taken your statement the officer will then make further enquiries. These will include taking statements from the officer being investigated and from any other relevant parties.

23.8 What Happens Next

The IO is under a duty to keep you regularly informed of the status of the investigation. It is not known at present what details this information will consist of, but hopefully it will include police witness statements and any other evidence they are relying on in their defence. When the investigation is concluded, the IO will decide what action if any to bring and inform you of this in writing.
You have the right to appeal against his decision and have 28 days in which to do so. The appeal will be dealt with by the IPCC, not the police. You cannot appeal against complaints conducted or managed by the IPCC itself.

Offences agains the person

14.1 Common Assault and Battery
14.2 Assault Causing Actual Bodily Harm (ABH)
14.3 Wounding and Assault causing Grevious Bodily Harm (GBH)
14.4 Alternative Charges

14.1 Common Assault and Battery

Assault and battery are “common law” offences. Although the term assault is often used to cover situations involving both assault and battery, they are in fact two separate offences.

14.1.1 Assault

Assault is defined at common law as “any act which puts a person in fear of immediate and unlawful violence”. So if you go to throw a punch at somebody and they fear that you will carry it out, this is enough to constitute the offence. The victim does not have to be actually afraid – he will be deemed to “fear” violence, if he anticipates that the punch will be carried out.

14.1.2 Battery

Battery is defined at common law as “the application of unlawful violence” by the accused on the victim. The slightest touching is enough to constitute a battery, but the courts have recognized that everyday life involves many incidents of contact between persons which should not be treated as criminal.

14.1.3 Points to note on battery and assault

For both assault and battery, the prosecution must show that the violence was unlawful. If on a demo you see the police attacking someone using unreasonable force – eg punching or kicking someone on the ground - then you would be entitled to use reasonable force to defend them.

If you were then arrested for assault and / or battery, it would be a possible defence to say that you were using reasonable and therefore lawful force in preventing crime or in self-defence. It would be for the magistrates to decide whose force was reasonable in the circumstances, and of course video or independent evidence is vital in these circumstances.

It would not be a battery for a police officer to tap you on the shoulder to get your attention or for you to do likewise.

The police cannot use force to detain you against your will and this could amount to assault or battery unless you have been arrested or are being searched.

Assault can be committed by words as well as actions, so long as the threat of violence is immediate.
Assault and / or battery are punishable summarily by up to 6 months imprisonment or a fine.

Neither assault nor battery are “arrestable offences” but the police do have several powers of arrest where they reasonably suspect you of these offences. They may arrest you

i) at common law to prevent a breach of the peace, or
ii) using a statutory power of arrest – eg for assaulting a police officer in the execution of his duty or
iii) under any of the general arrest conditions apply under Section 25 of PACE, or
iv) for an “arrestable” offence – eg assault causing actual bodily harm, or violent disorder.

The police may then charge you after arrest with common assault or battery.

14.2 Assault Causing Actual Bodily Harm (ABH)

Assault causing actual bodily harm (ABH) is an offence under Section 47 of the Offences Against the Person Act 1847. Such an assault is a defined as an assault or battery, which in addition causes actual bodily harm. This need not be permanent or serious, but more than just a push or shove on a demo. There does not necessarily need to be a bruise or swelling if the victim is caused sufficient pain or discomfort.

Arrest and Punishment
ABH is an “either way” offence, which carries a maximum sentence of 5 years on indictment or 6 months summarily. It is therefore arrestable under Section 24 of PACE.

The police may often arrest you on suspicion of ABH or GBH (see below) where their arrest powers are otherwise insufficient – for example, after an assault has taken place – and then later drop the charge to common assault or battery.

14.3 Wounding and Assault causing Grevious Bodily Harm (GBH)

The Offences Against the Persons Act 1847 contains two offences of wounding or causing GBH under Section 18 and 20. Section 18 is by far the most serious as it carries a maximum sentence of life imprisonment, whereas the maximum for Section 20 is 5 years. The difference is that the prosecution must prove that you intended to cause serious bodily harm under Section 18, whereas they need only show that you acted recklessly under Section 20.

Under both sections, an assault causing grievous bodily harm or wounding is defined as follows.
To constitute a wound the whole skin must be broken. It must be more than a scratch, but one drop of blood would be sufficient.

Grievous bodily harm must be “really serious harm”, an obvious example of which would be a broken bone. There is no legal definition however, and it is a question of fact for the jury to decide.

Arrest and Punishment
Both offences under sections 18 and 20 are arrestable under Section 24 PACE and triable on indictment only.

14.4 Alternative Charges

For all of the above assault charges, the prosecution will need to prove that some harm has been inflicted. For this they will need a victim to give evidence to that effect. Where they are unable to do this, alternative charges may be brought under the Public Order Act 1986.

Under several sections of this act, a conviction may be secured if it can be shown that a person was likely to fear violence etc, and no “victim” need actually testify to this effect. This is why public order offences are often charged as an alternative to more serious assault charges.

Police powers to regulate processions and assemblies

13.1 Section 12 - Public Processions
13.2 Section 14 - Public Assemblies
13.3 Frequently Asked Questions
13.4 Police Powers at Common Law to Control Assemblies
13.5 Police Powers to Disperse - Section 30 Anti-Social Behaviour Act

Sections 12 &14 Public Order Act 1986

If you engage in regular protest you will inevitably encounter the police’s use of Sections 12 and 14 of the Public Order Act 1986.

13.1 Section 12 - Public Processions

This confers power on the senior officer to impose conditions on processions, which he reasonably believes are necessary to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community. He may also impose such conditions if he believes that the purpose of the persons organising it is the intimidation of others with the view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

If he reasonably believes any of the above, then he may impose conditions on persons taking part in the procession as are reasonably necessary to prevent the above, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.

Anyone who knowingly fails to comply with a condition is guilty of an offence.

13.2 Section 14 - Public Assemblies

As with Section 12, the senior officer may impose conditions on public assemblies, which he considers are reasonably necessary to prevent serious public disorder etc. But unlike Section 12, the conditions he may reasonably impose are in this case limited to specifying:

a) the numbers of people who may take part,
b) the location of the assembly, and
c) its maximum duration.

On most big animal rights demos these days there is a Section 14 notice in place, which gives the location where the assembly may and may not take place, and the time at which it must finish.

An assembly is defined by Section 16 of the Act as consisting of two people or more.

Anyone who knowingly fails to comply with a condition is guilty of an offence.

13.3 Frequently Asked Questions

Doesn’t there need to be more than two people to form an assembly?
Not any more. Section 57 of the Anti-Social Behaviour Bill 2003 amended Section 16 of the Act to reduce the numbers of people necessary to form an assembly from twenty to two. This amendment was introduced after intensive lobbying by the police and the pharmaceutical industry for more powers to be available to deal with animal rights protests where less than twenty people were present. They finally got what they wanted, so activists can expect even more widespread use of Section 14 in the future.

What is a “public place”?
Section 16 of the Act states that a public procession or assembly is one which takes place in a public place. It defines what is meant by “public place” as follows: any highway, or any place to which the public has access, on payment or otherwise, as of right or by virtue of express or implied permission. This therefore includes supermarket car parks and garage forecourts for example, to which the public has “implied permission” to enter.

Do I have to apply for permission from the police if I am organising a procession or an assembly?
If you are organising a public assembly, then you do not have to inform the police in advance. But if you are organising a procession then you have to give the police written notice in advance. This notice must specify the date when it is intended to hold the procession, the time when it is intended to start it, its proposed route, and the name and address of the person (or of one of the persons) proposing to organise it. It must be given to the relevant police station for the area of the procession at least 6 days beforehand or as soon as practicable.

It is an offence – punishable by a fine - to organise a demo if the notice provisions are not complied with, or if the date, the time or route of the actual procession differs from the date, time or route specified in the notice. It is a defence to show that you had no reason to know of these differences.

Can I be arrested for a Section12 or 14 offence, and what is the maximum punishment?
Offences under sections 12 and 14 are only punishable by a fine. Breach of Section 12/14 is not, therefore, an “arrestable offence”. There is only a very limited statutory power of arrest namely where a constable in uniform reasonably suspects you of committing the offence. As the offences are not “arrestable”, you cannot be arrested after the offence has been committed (for example, the next day) and if you are arrested your house cannot be searched.

Does a Section 14 or 12 notice have to be in writing?
A Section 12 or 14 notice only has to be in writing where it is issued in advance by the chief constable of police.

Who is the “senior officer”?
The powers conferred can only be exercised by the “senior officer”. The identity of the senior officer depends on the nature of the procession. If it is an advertised march or assembly and a Section 12 or 14 notice is issued in advance, then it can only be exercised by the chief constable of police and it has to be in writing. But in the case of impromptu marches or processions, where there is no advance notice, then the power must be exercised by the senior officer present at the scene and does not have to be in writing.

A notice is invalid if issued by the wrong officer. For example, in 2002 police officers arrested some animal rights activists for assembling in Derby town centre, contrary to a Section 14 notice. On the day in question the activists had taken the police by surprise, as the advertised assembly was elsewhere in the neighbouring county.

This meant that no advance Section 14 notice had been issued to control the assembly in Derby on that day. A section 14 direction was then issued to deal with the protestors in Derby. However this was not issued by the senior officer at the scene, but by a more senior officer based at the police headquarters. This meant that the Section 14 notice was issued illegally and all of the activists were subsequently acquitted

Can I be arrested if I have not been told about the conditions?
It is an offence knowingly to fail to comply with one of the Section 12 or 14 conditions. So it would be a defence to say that you had no actual knowledge of the conditions – for example because you had not been told or, in the case of a notice issued by the chief constable, you had not received or been shown a written notice.

The police sometimes use a megaphone to issue a Section 14 notice at the scene of an assembly, Activists arrested for breach of Section 14 are often subsequently acquitted because they simply could not hear what the police were saying and therefore had no knowledge that a Section 14 notice was in existence.

If I am marching, can the police still use Section 14?
No they can’t, they would have to use Section 12, which governs marches. The police sometimes wrongly seem to think that Section 14 gives them the power to outlaw any form of protest other than the assembly on the day in question. In April 2003, the police in Cambridgeshire attempted to use Section 14 to control a march - and failed.

On the day in question, there had been an advertised demonstration at Huntingdon Life Sciences in Huntingdon. A Section 14 was issued here, and this stated amongst other things that no other assemblies could take place anywhere in the county.

Some activists marched that day through Cambridge town centre (in the same county). They were stopped by the police from marching, and then arrested for assembling contrary to the Section 14 notice, which had been issued at Huntingdon.

The case was eventually dismissed when it was shown that the only reason why they were assembling was because they had been forced to do so when stopped by the police. They had been attempting to march and this was not a failure to comply with the Section 14 direction.

Were the conditions legal?
The police can only impose conditions, which are authorized by the statute. The police cannot, for example, impose a condition on an assembly stating that you cannot blow whistles or bang drums. Such a condition would be unlawful, and you could not be convicted for failing to comply with it. However, the presence of one such unlawful condition does not in itself invalidate the entire Section 14 notice.

According to a High Court case, the police cannot impose conditions under Section 14 as to the route protestors take to and from an assembly, nor can they restrict the numbers of people who may leave the assembly at any one time.

The police often include a condition in a Section 14 notice nowadays that you cannot assemble anywhere in the entire county other than the area they have designated. Although this point has yet to be decided in court, we believe that such conditions are unlawful, as the power only exists to regulate a particular assembly.

Are Sections 12 and 14 compatible with my human rights?
As with all legislation, the police must not issue conditions, which are incompatible with your fundamental right to protest. Any condition imposed must be “proportionate” to the harm – for example, serious disorder etc – that the police are seeking to prevent.

If, for example, the police sought under section 12 to divert a procession planned to go through a city centre to the outskirts of the city, you could argue in court that this amounted to a denial of your right to freedom of expression as it was not necessary to divert the march to prevent disorder. If the judge agreed, this would render the Section 12 direction unlawful and any failure to comply with such an unlawful direction would not be a criminal offence.

Can the Police Ban a Procession or Assembly?
The police can ban public processions if they fear that they will result in serious public disorder. And they can ban “trespassory assemblies” for similar reasons. But these powers are rarely used, especially now that assembly on the verge of a public highway can amount to “reasonable use” of the highway.

The police have no power to ban public assemblies under Section 14, and if they impose conditions which effectively amount to a ban – for example a condition that an assembly may only last for 5 minutes – these can be challenged in court.

13.4 Police Powers at Common Law to Control Assemblies

The police do not always use Section 14 to control assemblies. The police’s duties at common law include preventing a breach of the peace, and protecting public safety. They are empowered to take all reasonable steps to prevent a breach of the peace and to protect the safety of the public where they reasonably suspect that it is necessary to do so.

This common law power is most likely to be used by the police where they reasonably suspect that a breach of the peace will occur. They then have the power not only to arrest those whom they believe are causing the peace, but also to take any other steps necessary to prevent one from occurring. These include ordering a crowd of protestors to disperse and stipulating where a demonstration may take place.

The common law power to prevent a breach of the peace is used extensively by the Metropolitan police officers in London. The police often use (or abuse) this power to contain protestors for hours on end, not allowing them to move at all. This has happened on numerous demonstrations by Stop Huntingdon Animal Cruelty (SHAC) and also on a couple of the ‘May Day’ protests in London where thousands of protestors were penned in for several hours. These tactics are currently the subject of claims by several of the protestors for unlawful imprisonment and for denial of their rights to freedom of assembly.

This power can also be used by the police to enter and remain in public meetings, and even to enter domestic dwellings, where they reasonably believe that a breach of the peace is likely.

Now that the Public Order Act 1986 defines assemblies as consisting of only two people or more, we anticipate that the police will be more likely to use Section 14 to control assemblies in future rather than using their powers at common law. This is because it is often difficult for the police to prove that a breach of the peace is about to occur, and they have been sued extensively in the past for wrongful arrests and assaults as a result. It will be much easier for the police to use Section 14, because they do not have to reasonably apprehend an immediate breach of the peace.

13.5 Police Powers to Disperse - Section 30 Anti-Social Behaviour Act

Section 30 Anti-Social Behaviour Act 2003 empowers a police officer in uniform to disperse groups consisting of 2 persons or more where he reasonably believes that their behaviour or presence has resulted or is likely to result in members of the public being alarmed or distressed.

Failing to comply is an offence publishable by up to 3 months’ imprisonment. An officer in uniform can arrest anyone whom he reasonably suspects to have committed an offence. The maximum penalty is 3 months’ imprisonment or a fine.

There must be an authorisation in force covering the relevant locality. This must be issued by an officer of at least the rank superintendent and must be in writing. There is no requirement that the officer directing the group to disperse has to produce a written copy of the authorisation. But you could always check at the local police station to make sure there is an authorisation in force.

Although this legislation is relatively new, there are already reports of it being used against protestors. It is open potentially to widespread abuse by the police as it is in the nature of protest that someone is likely to be alarmed or distressed by it.

Section 1-5, Public Order Act 1986

12.1 Sections 1-3
12.2 Section 1 - Riot
12.3 Section 2 - Violent Disorder
12.4 Sections 3 - Affray
12.5 Sections 4, 4A and 5
12.6 Section 4 – Fear or Provocation of Violence
12.7 Section 4A - Intentionally causing harassment, alarm or distress
12.8 Section 5 - Conduct likely to cause harassment, alarm or distress

12.1 Sections 1-3, Public Order Act 1986

Sections 1-3 of the Public Order Act 1986 are the most serious and carry the most serious penalties. Riot carries up to 10 years, Violent Disorder 5 yeas and Affray 3 years. The underlying thread for each is that violence must be used or threatened and that this would cause a hypothetical person of reasonable firmness to fear for their personal safety.

Thus the test for whether or not an offence has been committed is an objective one, and the prosecution do not have to rely on witnesses who were actually in fear. In practice there will usually be witnesses, however, as it would otherwise be very difficult to prove the offence. But the witnesses themselves do not necessarily have to attest that they feared for their personal safety.

Riot is indictable only. Violent disorder and affray are “either way” offences, triable in magistrates or the Crown Court. Charges of violent disorder and affray may often be used as an alternative to assault causing actual or grievous bodily harm if there is insufficient evidence in such a case.

12.2 Section 1 - Riot

This is the most serious offence under the Public Order Act 1986 and is very rarely used. Although you are unlikely ever to get charged with riot, it is useful to have an understanding of it, in order to put the other offences in to context.

In order to be liable for the offence the accused person must use violence and:

a) 12 or more persons (including the accused) who are present together use or threaten violence for a common purpose, and
b) their conduct taken together is such as would cause a person of reasonable firmness to fear for their personal safety and
c) the accused’s use of violence was for the common purpose.

Notes on Riot
There are several possible reasons why this offence is not often used. Unlike the offence of violent disorder it must be proved that the accused himself actually used rather than merely threatened violence, and the violence of the group must be used or threatened for a common purpose. This can be quite difficult to prove and the prosecutor will not usually deem an offence so serious as to incur these added complications, when one of the lesser public order offences will suffice.

The prosecution has to show that you intended violence or were aware that your conduct might be violent.

Arrest and Punishment
Riot carries a maximum sentence of 10 years in prison, and is thus an “arrestable offence”.

12.3 Section 2 - Violent Disorder

This is the more likely charge in the case of serious public disorder. In order to be liable the accused must use or threaten violence in the following circumstances:

a) where three or more people (including the accused) use or threaten unlawful violence and
b) the conduct of them taken together is such as would cause a person of reasonable firmness to fear for their personal safety.

Notes on Violent Disorder
The difference from riot is as follows:

a) Only 3 persons who are present together are required to use or threaten violence (unlike ‘affray’- see below)
b) The accused person may be guilty if he merely threatens violence.
c) There is no requirement that the violence be used or threatened for a common purpose.

The prosecution must show that you intended to use or threaten violence or were aware that your conduct might amount to violence or the threat of violence.

Charges of violent disorder are usually only brought where there has been serious disorder. In animal rights cases it is usually only used where missiles have been thrown at persons or property.

The police will sometimes arrest you initially on suspicion of violent disorder simply because it is an “arrestable offence” and therefore carries with it far greater powers of arrest and search. For example, you can be arrested after the incident has taken place. And if you are arrested on a demonstration for violent disorder, your house can be searched while you are in detention, whereas if you are arrested for Section 4A intentional harassment (non-arrestable) it cannot.

Research suggests that charges of violent disorder rather than affray will be brought where the police believe the violence is planned or premeditated.

Arrest and Punishment
‘Violent disorder’ is triable either way although it will usually be tried on indictment. It carries a maximum sentence of 5 years on indictment or 6 months before magistrates and is therefore an “arrestable offence”. At a trial on indictment, a jury will usually have the alternative option of convicting the defendant of the lesser offence of threatening behaviour (Section 4 of the act).

12.4 Section 3 - Affray

The offence of “affray” looks very similar to violent disorder. It is supposed to be reserved for serious cases involving the use or threat of violence.

Under Section 3, a person is guilty of affray if

a) he uses or threatens unlawful violence towards another, and
b) his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

Notes on Affray
Unlike riot and violent disorder the use or threat of violence by one person alone will suffice and no one else need take part other than the accused. Legal commentators, however, have contended that the offence should not be extended to cover every case of common assault as this was not intended by Parliament when the act was passed. Affray is a public order offence designed for the protection of the bystander and there are other offences – eg “assault causing actual bodily harm” - for the protection of persons at whom the violence is aimed.
Another significant difference from the other sections is that the threat of violence cannot be made by the use of words alone – either orally or in writing. There must be some act or gesture amounting to a threat of unlawful violence.

The prosecution must show – as with violent disorder - that you intended to use or threaten violence or were aware that your conduct might amount to violence or the threat of violence.

Arrest and Punishment
Affray is an “either way” offence and is punishable by up to 3 years imprisonment on indictment or up to 6 months imprisonment on summary conviction. It is therefore not an “arrestable offence”. But as with Sections 4, 4A and 5 it does carry a limited power of arrest: a constable may arrest anyone whom he reasonably suspects is committing an affray.

12.5 Sections 4, 4A and 5

These offences are much less serious than Sections 1-3. Sections 4 and 4A carry a maximum sentence of 6 months imprisonment, whilst Section 5 carries a maximum of a fine. Sections 4A and 5 are the ones you will most often encounter on demos.

12.6 Section 4 – Fear or Provocation of Violence

A person is guilty if he either

a) uses towards another person threatening, abusive or insulting words or behaviour, or
b) distributes to another person any writing or sign which is threatening, abusive or insulting

and either

i) he intends to cause that person to believe that immediate unlawful violence will be used against him or another by any person or to provoke such immediate violence, or
ii) it is likely that the person will believe that such violence will be used against him, or it is likely that such violence will be provoked.

Notes on Threatening Behaviour
There is no legal definition as to what is meant by “threatening, abusive or insulting” and it will be up to the magistrates to decide in each particular case. However, words or behaviour have to be directed towards an actual human target who is affected by them. And they cannot be held to be threatening etc. simply because someone finds them offensive or rude.

As with Sections 1-3, the offence can be committed in public and private places, except where both the accused and the victim are in a dwelling.

No-one need actually believe that immediate violence will be used against them or actually be provoked. It is enough that the accused intends to cause such a belief or to provoke violence, or that this is the likely outcome.
The violence must be immediate - ie likely to occur within a relatively short time span.

As intent is usually difficult to prove, the prosecution will be more likely to rely on the second limb namely that the provocation of violence or fear of violence is “likely” – that is, probable. This test is therefore objective and you can be convicted even if you did not intend to provoke or cause fear of violence, so long as the court decides that this was in fact the likely consequence of your behaviour.

The prosecution must prove that you intended the words etc. to be threatening, abusive or insulting or were aware that they might be.

Arrest and Punishment
Section 4 is triable summarily only, and the maximum penalty is 6 months imprisonment. As with Sections 3, 4, 4A and 5 it is not an “arrestable offence”. A constable may only arrest someone whom he reasonably suspects to be committing the offence.

12.7 Section 4A - Intentionally causing harassment, alarm or distress

A person is guilty if, with intent to cause a person harassment, alarm or distress, he

a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

Notes on Intentional Harassment
Although Section 4A was originally introduced as an amendment to the act in order to address the problem of racial harassment, it is not limited to such conduct and is frequently used against protestors.

There are three basic ingredients to the offence. Firstly, your behaviour must be threatening, abusive, insulting or disorderly. Secondly you must intend to cause someone harassment alarm or distress by that behaviour. Thirdly, in contrast to Sections 4 and 5, someone must be actually caused harassment, alarm or distress by your behaviour.

There must be an actual “victim”, although it does not have to be the intended victim. And you must not only intend your behaviour or words to be insulting, but also intend that they cause harassment, alarm or distress.
Unlike Section 4, the words or behaviour need not actually be addressed to another directly.

Defences
Under this section and Section 5 there is a statutory defence that your conduct was reasonable. If you are charged with an offence under this section on a protest, then the court will usually have to rule on whether the charge was compatible with your European Convention right to freedom of expression under Article 10.

It has been ruled in court that in this kind of case, there is a presumption in favour of your right to freedom of speech. The onus is on the prosecution to show that interference with this right by way of criminal proceedings is proportionate in all the circumstances.

Arrest and Punishment
Section 4A is triable summarily only and carries a maximum sentence of 6 months imprisonment. It is therefore not an “arrestable offence”. However, a constable may arrest anyone whom he reasonably suspects to be committing an offence.

There is no need for a warning prior to arrest unlike under Section 5. This is why the police will often arrest under Section 4A and then drop the charges to Section 5. It is often difficult to prove the necessary intent or to produce a witness who is prepared to say that they were caused distress. Section 5 is generally much easier to prove.

12.8 Section 5 - Conduct likely to cause harassment, alarm or distress

This is by far the most commonly used piece of legislation on demos, and the one with which activists will be most familiar. A person is guilty of this offence if he

a) uses threatening, abusive words or behaviour, or disorderly behaviour, or
b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress.

Notes on Section 5
The police will often warn you under Section 5 simply as a preventive power to control behaviour on a demo and they often have no intention of following it through with an arrest, especially where no threatening behaviour has been used.

Unlike Section 4A there is no requirement that anyone actually be caused harassment, alarm or distress and therefore no need for a witness to that effect. The police need only say that your conduct took place within the sight or hearing of a potential victim, although it will obviously help to prove their case if they can produce a witness.

Section 5 differs from Section 4A in that there is no need to show that you intended to cause the harassment, only that it was likely to be caused. This means that to a certain extent your behaviour will be judged objectively on the effect it was likely to have, rather than on the effect it actually had on any victim.

Section 5 and the Police
It is often said that the police cannot be caused harassment, alarm distress under Section 5, but this is not strictly true. The current law is stated in the case of DPP v Orum, where the court was asked to decide on whether or not a constable can in law be caused harassment, alarm or distress.

It was decided that although police officers can be caused harassment, they were far less likely than ordinary members of the public to be caused distress by insulting words and behaviour. Whether or not the police were actually caused harassment is a question of fact for the magistrates to decide having regard to all the circumstances: the time, the place, who the police officers were etc.

Displays of Upsetting Pictures
The police sometimes threaten protestors with prosecution under Section 5 for displaying upsetting pictures eg of dead animals. It has been held in court that an upsetting picture can be “insulting” within the ordinary meaning of the word, in a case where pictures of aborted fetuses were displayed to persons attending an abortion clinic.

However, in our opinion most animal rights placards could not similarly be held to be insulting in the ordinary meaning of the word. This is especially so as the prosecution must also show that you intended or were aware that your conduct might be insulting (see below).

Megaphones
The police occasionally tell activists that it is an offence under Section 5 to use a megaphone or other instrument to amplify sound. This is clearly not the case. Use of a megaphone does not, in itself, amount ‘threatening, insulting, abusive or disorderly behaviour”. However, if you were to shout insulting and abusive comments through a megaphone or point it deliberately in someone’s face, this could amount to an offence. Also bear in mind that there are sometimes local bye-laws prohibiting amplified sound in public areas.

Defences
It is a defence to show that you had no reason to believe that there was any person within sight or hearing likely to be caused harassment etc. This is an objective test and you will be judged on what you ought to have believed rather than what you actually believed.

The prosecution also has to show that you intended your words or behaviour to be threatening, insulting or abusive or were aware that they might have this effect. So if you are charged with displaying an upsetting picture or placard under Section 5, you will have a defence under this section – ie that you had no idea that the picture was threatening insulting or abusive”

You have a statutory defence that your conduct was “reasonable” – see notes on Section 4A above.

Arrest and Punishment
Section 5 is triable summarily only, the maximum penalty is a fine, and it is not an “arrestable offence”. A constable may only arrest if:

a) a person engages in offensive conduct which a constable warns him to stop, and
b) that person engages in further offensive conduct immediately or shortly after the warning.

The constable need not be in uniform, and the arresting constable need not be the same one who issued the warning. He must warn you regarding the offensive conduct while it is actually happening and not afterwards.
You can only be arrested if the further offensive conduct takes place within a short time span. This is not defined, but conduct taking place over an hour later could not, in our view, be defined as taking place shortly afterwards and an arrest here would be unlawful.

You might receive several arrest warnings under Section 5 during the course of a demo and still not be arrested. This is because the warning is usually used to control public order, although the police may well arrest you if the disorderly conduct continues. You can often tell whether the police genuinely mean to arrest you or not. There is also the power of arrest for breach of the peace and under Section 25 PACE .

Many activists assume that if they are warned under Section 5 and commit no further offence, then they will not be prosecuted. Although this is usually the case, you can actually be prosecuted – by way of a summons – for just one breach of Section 5. Recent overzealous policing tactics at animal rights protests has consisted of police demanding peoples’ names and addresses under Section 25 of PACE in order to serve them with a summons for a single offence under Section 5. As Section 5 is a non-arrestable offence, the police do have the power to do this, and can arrest you if you refuse to give your detail.

Police Powers Of Arrest

11.1 Overview
11.2 Section 24 PACE –Arrestable Offences
11.3 Definition of Arrestable Offence
11.4 Statutory Powers of Arrest
11.5 Section 25 PACE - General Power of Arrest for Non-Arrestable Offences
11.6 Notes on Section 25 PACE
11.7 Arrest under Warrant
11.8 Common Law Arrest for Breach of the Peace

11.1 Overview

Police arrest powers are governed by the following:

• Section 24 PACE
• Statutory power of arrest within the act itself
• Section 25 PACE
• Magistrate’s warrant
• At common law to prevent a breach of the peace

11.2 Section 24 PACE –Arrestable Offences

It is important for activists to be able to distinguish between arrestable and non-arrestable offences. If an offence is “arrestable” then you may be arrested for it afterwards if the police have reason to suspect you. And the police enjoy certain powers of search which they cannot use for non-arrestable offences. So whether or not an offence is arrestable will determine not only the power of arrest, but the power to search your house and your ability to sue afterwards for false imprisonment as well.

11.3 Definition of Arrestable Offence

Many minor public order offences only carry a limited power of arrest, and are not strictly speaking “arrestable offences”, as defined by Section 24 PACE. This section defines what is meant by the term “arrestable offence”. It states that any offence is arrestable if it is punishable by 5 years’ imprisonment or more upon first conviction. On top of this it lists a set number of offences that are also arrestable. This list is periodically added to, and it includes some fairly minor offences, eg refusal to remove a face mask. Examples of arrestable offences are:

• Criminal damage
• Theft
• Burglary
• Violent Disorder

Examples of non-arrestable offences are:

• Sections 3, 4, 5, 12,14 of the Public Order Act 1986
• Section 68 Criminal Justice and Public Order Act 1994 (aggravated trespass)
• Section 42 Criminal Justice and Police Act 2001 (home demos)

11.4 Statutory Powers of Arrest

Many non-arrestable offences do, however, carry a limited statutory power of arrest, namely where the police officer suspects that you are actually committing the offence at the time. This statutory power only exists where it has been actually inserted in to the law itself.

For example, s4 (3) Public Order Act 1986 states:
A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section. Where there is no such power inserted in to the act, police powers of arrest without warrant are limited to the general power under Section 25 PACE or at common law to prevent a breach of the peace.

Here is an illustration of the above point. You shout abuse at a vivisector driving out of an animal testing laboratory, and you are recorded on the security camera. The police arrive half an hour later, view the camera and decide you have breached Section 4A of the Public Order Act 1986. They have no power to arrest you for this offence as it is no longer taking place, and can only ask that you give your name and address, so that they can serve you with a summons for having committed a non-arrestable offence. If you fail to comply, then you could be arrested under Section 25 PACE.

If you are lawfully arrested at the time of the offence for a “non-arrestable offence” eg for Section 4A intentional harassment, the police have no power to carry out a search of your home. They only have the power to search your home if you have been arrested for an “arrestable offence”. They cannot delay your right to see a solicitor or to have someone informed of your arrest. They may only do this if you are under arrest on suspicion of having committed a “serious arrestable offence”.

The distinction between “arrestable” and “non-arrestable” offences may well seem very confusing and contradictory. However there is a practical reason explaining why the police sometimes have a power of arrest for “non-arrestable” offences, namely in order to maintain public order. It used to be the case that only indictable offences carried a power of arrest and summary offences could only be prosecuted by way of a summons. Then Parliament began to confer statutory powers of arrest on police officers for fairly minor public order offences. The justification for this is that the police would be hindered in their ability to control public order if they could not arrest people as they were actually committing the offence.

11.5 Section 25 PACE - General Power of Arrest for Non-Arrestable Offences

Where the police reasonably suspect you of committing or having committed a non-arrestable offence, then they may only arrest you if they believe that the service of a summons is impractical because any one of the general arrest conditions under Section 25 of PACE is satisfied.

The general arrest conditions are as follows:

(1) The police cannot establish your name or they think you have given a false one, OR
(2) The police cannot establish an address suitable for the service of a summons or they think you have given a false one, OR
(3) The police have reasonable grounds to believe arrest is necessary to prevent you from doing any of the following:

(i) causing physical injury to yourself or any other person, or
(ii) suffering physical injury; or
(iii) causing loss of or damage to property; or
(iv) committing an offence against public decency, or
(v) causing an unlawful obstruction of the highway.

This power is most commonly used on demos where your name and address cannot be established or to prevent an unlawful obstruction of the highway.

11.6 Notes on Section 25 PACE

The main point to note is that this power is only triggered where the police reasonably suspect that you are committing or have committed a non-arrestable offence. Where they are seeking to establish your name and address, they will use a number of methods to check it out. First they will check it on the police national computer and the electoral register.

If it is not on there then they may use a number of other techniques to establish your details. They might ask you for a friend’s phone number who will confirm your identity, and they will normally ask for some means of identification. You do not have to provide any of these but if they cannot establish your name and address then you could be arrested. They will usually ask you for your date of birth - you do not have to give them this.

The police will sometimes cite Section 25 simply in order to get your details. You should be able to tell whether they are blagging or whether they genuinely mean to arrest you if you don’t give your details. A situation often encountered is when the police pull your car as you arrive for a demo. They will get the driver’s details and ask for all the passengers’ details as well – in this situation a passenger would definitely not have to give their name and address.

The police will sometimes use Section 25 to get your details even when they could arrest you. There are obvious practical reasons for this – eg on demos when arresting you would mean at least two officers having to leave the scene leaving the police short on numbers.

As noted earlier (section 2), you only have to give the police an address suitable for the service of a summons, which need not necessarily be your residential address. If you give the police the phone number of a solicitor, for example, who is prepared to confirm that his address can be used, then this ought to be acceptable to the police.

As part of the “zero-tolerance” strategy being operated against certain animal rights campaigns, the police will sometimes demand your details in order to summons you for breach of Section 5 of the Public Order Act 1986 (disorderly conduct). Normally you can only be arrested for this if you are warned and then commit an offence again a short time later. But the police can actually begin a prosecution against you for just one such offence, and may demand your name and address in order to do so.

11.7 Arrest under Warrant

Under Section 1 (1) of the Magistrates’ Courts Act 1980 the police may apply to a magistrate for an arrest warrant. The offence alleged must be punishable by imprisonment or the accused’s address must be insufficiently established for the service of a summons.

In the case of minor offences, the police would usually apply for a summons rather than an arrest warrant. They do occasionally use this power to arrest activists, however, as a vindictive measure, where they have no other grounds to make an arrest.

11.8 Common Law Arrest for Breach of the Peace

11.8.1 Introduction

The police may threaten you with arrest for breach of the peace when their other powers of arrest are inadequate. This is an ancient “common law” power that pre-dates Parliament. The police can exercise it if they reasonably believe that you are using or about to use violence against persons or, in their presence, against their property.

The police can also arrest you for breach of the peace, if they reasonably believe that by your actions you are provoking or will provoke the use of violence by others. This boils down to property rights according to the courts. If you take part in a hunt sab, or are occupying office premises, then according to current case law your arrest for breach of the peace could be lawful.

This is because you will be deemed to be interfering with the legitimate property rights of others and thus by your actions provoking the use of violence by others. If, by contrast, you are engaged in peaceful leafleting outside a shop, an arrest for breach of the peace would probably be unlawful - even if people find your leaflets offensive - so long as the leaflets do not provoke violence.
The police have often threatened activists with arrest in the past for occupying private property – eg banks, offices - during the course of a protest. They are more likely to use the new power of arrest for “aggravated trespass” which has now been amended to include activity occurring inside as well as outside premises – see section 21.

Where no violence has previously occurred then the police must suspect that violence is about to take place or imminent before making an arrest.

Don’t forget that the police will usually warn you first before they arrest for breach of the peace. For example, if you’re occupying private premises, the police will usually ask you to leave and tell you that you will be arrested for breach of the peace if you go back in. The police are entitled to act as agents of the landowner and use reasonable force to eject you from the premises. If you resist you could then be arrested for causing a breach of the peace and you could also be charged with wilful obstruction of a police officer. Nowadays you would be more likely to be arrested for “aggravated trespass” in this situation.

11.8.2 Breach of the Peace and Human Rights

In recent years judges have considered the importance of the ECHR in determining the various police powers of arrest. Now that the convention has been incorporated in to UK law by the Human Rights Act 1998 this is even more likely to be the case in the future.

The police will no longer be able to abuse their common law powers of arrest to stifle fundamental human rights. Many police forces are no longer keen on using this power of arrest, because of the difficulty in establishing reasonable suspicion that violence was imminent. One force in particular – we do not know which – has a policy not to arrest for breach of the peace. This comes as no surprise - the police have been sued on countless occasions for false arrest for breach of the peace.

11.8.3 Arrest Procedure

If you are arrested for breach of the peace, the police will either let you go after a “cool-down” period, usually of up to 6 hours, or you will be kept overnight and brought before a court the next day to be charged. If the police decide to charge you with causing a breach of the peace, normal practice is to hold you overnight to appear in court the next day. However, a recent High Court decision ruled that this is unlawful unless there is a genuine suspicion that you will cause a breach of the peace shortly after release.

11.8.4 Bindovers

If you do appear in court, you will be offered a “bindover” which you can either accept or refuse. If you refuse, a date will be set for a hearing where the prosecution would have to establish that by your actions you caused or provoked the likelihood of imminent violence.

If you are “bound over” to keep the peace you have to agree not to cause a further breach within a specified period. If you cause a further breach within that period, you are liable to pay part or all of a fixed sum to the court – anything up to £100 usually. If you refuse to agree to the bind over following a hearing you can be sent to prison for a few weeks.

A bindover is not a criminal conviction and the police cannot take your fingerprints and DNA if you were arrested merely for breach of the peace, as it is not a “recordable offence”. The prosecution may sometimes offer a bindover in court as an alternative to charges for a minor public order offence

Face Masks

10.1 Introduction
10.2 The Legislation
10.3 Notes

10.1 Introduction

The police power to remove face masks was conferred by Section 60 of the Criminal Justice and Public Order Act 1994 (CJA). This was originally only available where a Section 60 CJA ‘stop and search’ authorization was in force, whereby a Superintendent had to fear acts of serious violence in a locality. So if there was no Section 60 – as on many demos - then the police could not demand that you remove your facemask. The police complained to the Home Office about this, who announced they would be changing the law as part of the much-vaunted “package of measures” against animal rights extremists.

10.2 The Legislation

Under the Anti-Terrorism, Crime and Security Act 2001, Section 60AA was added to the CJA. This states that where an officer of the rank Inspector or above reasonably believes

(a) that activities in any locality in his area may involve the commission of offences, and
(b) that it is expedient, in order to prevent or control those activities to give an authorization under this section,

then he may make a Section 60AA authorisation.

A Section 60AA authorisation confers power on an officer in uniform:

(a) to remove any item which the officer reasonably believes is used wholly or mainly for the purpose of concealing his identity and
(b) to seize any item which the officer reasonably believes any person intends to wear wholly or mainly for that purpose.

Failure to comply with a request to move a mask is an offence. It is triable summarily and is punishable by up to 1 month’s imprisonment or a fine.

Although this would normally means that it was a non-arrestable offence, it was added to the list of “arrestable offences” under Section 24 of PACE. This means that you could be arrested for failing to comply with a requirement to remove a mask some time after you allegedly committed the offence.

10.3 Notes

It is not in itself an offence to wear a mask or other means of concealing your identity. The offence is committed by refusing to hand such a mask over when required to do so by an officer in uniform.

This power is clearly a far wider power than under the previous law. It can potentially be applied on any protest, given the wide range of minor public order offences that could be committed.

Note that the power can also be used to seize any item of clothing that the officer reasonably believes you intend to wear. So the police could use the section to seize balaclavas or scarves before you have even put them on.
In bad weather, it will be hard for the police to argue that you are wearing a hooded top or hat “wholly or mainly” for the purpose of concealing your identity. Whether or not a hat or a hood conceals your identity will be a question of fact for the magistrates to decide.

The power is still exercisable, as before, whenever a Section 60 is in force as well.

If a disguise has been seized, you can get it back by writing to the Chief Constable of the relevant police force along with evidence of ownership. If further retention is not necessary for criminal proceedings then the item must be returned. The police must retain such items for 2 months before they may dispose of them.

The section cannot be used to prevent you from disguising your identity by other methods, eg face painting.

Police Personal Search Powers

6.1 Safeguards applicable to all personal search powers
6.2 Stop and Search of vehicles and/or persons
6.3 Sections 43 & 44 of the Terrorism Act 2000
6.4 Intimate and Strip Searches
6.5 Other Powers of Search

6.1 Safeguards applicable to all personal search powers

Before any of the above search powers listed below are exercised, the constable must inform you of the following:

a) The constable’s name and the police station to which he is attached.
b) The object of the proposed search
c) The constable’s grounds for proposing to make it.
d) The fact that you are entitled to a copy of the search.

If the police do not provide you with the above information, then the search is illegal. This means that you would be able to sue them for assault and / or battery. Evidence obtained illegally, however, is admissible in criminal proceedings at the discretion of the court.

6.2 Stop and Search of vehicles and/or persons

Police have the powers to stop and search you or your vehicle under either Section 1 of PACE, Section 60 of the Criminal Justice and Public Order Act 1994 or Sections 43 and 44 of the Anti-Terrorism Act 2000.

6.2.1 Section 1 & 2, PACE 1984

Under Section 1 of PACE the police may search you and / or your vehicle, if they have reasonable grounds to suspect that you have stolen goods, offensive weapons or for articles used for burglary or theft. Under the Criminal Justice Act 2003, they may now also search you for items they suspect are being used for criminal damage.

Unless you are the driver of a vehicle you do not have to give your name and address. You can be searched in public places, or on private land if this is “readily accessible” to the public at the time of the search, but you may not be searched in a dwelling.

Always ask the police what the reasonable suspicion is – it has to be something more than the fact, for example, that you are a known protestor.

In public places they can only search outer clothing, more thorough searches must be made out of sight, in a police van or station.

Reasonable minimum force may be used to search you. You are entitled to get a report of the search from the police station within a year.

6.2.2 Section 60, Criminal Justice and Public Order Act 1994 (CJA)

Under section 60 of the CJA a police officer of the rank of superintendent or above may authorize all persons and vehicles within a locality to be searched regardless of suspicion, if serious violence is expected in an area. This power may be exercised by an inspector if he believes violence is imminent and no superintendent is available.

The police do not need to have reasonable suspicion that you are carrying an offensive weapon to search you under Section 60.

The “safeguards” (above), which require that the police have to give you certain information prior to the search, apply to Section 60 as they do to any other search. The police have been known to say that they don’t need to give this information for a Section 60 search. Section 2 PACE, however, states that the information must be given before the exercise of any search, apart from a couple of search powers which are not relevant here.

6.3 Sections 43 & 44 of the Terrorism Act 2000

6.3.1 Overview

The definition of "terrorism" under the Terrorism Act 2000 is defined so as to include serious damage to property as well as violence to people. The use of such violence must also be designed to influence the government or to intimidate the public or a section of the public, and it must be used for the purpose of advancing a political, religious or ideological cause

.
It's clear therefore that certain types of animal rights and other protest actions - eg arson and possibly even serious public order offences such as violent disorder - could fall within this definition of terrorism, and therefore enable the police to use the associated draconian powers against them conferred by the act.

Although we're not aware of this happening to animal rights protestors yet, the metropolitan police in London have used the blanket search power conferred by Section 44 of the act against anti-war protestors in London and the power to do this has recently been upheld in the High Court. This is not too surprising in the current political climate.

6.3.2 Section 43 of the Terrorism Act 2000

This states that a constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether they have in their possession anything which may constitute evidence that they are a terrorist.

This gives the police wider search powers than they would enjoy under Section 1 of Pace or Section 60 CJA above. Basically they can search you for just about anything.

Unlike Section 44 (below) the police officer must have reason to suspect the person to be a terrorist.

6.3.3 Section 44 of the Terrorism Act 2000

An authorisation under this subsection authorises any constable in uniform to stop a person or a vehicle in an area or at a place specified in the authorisation, and to search the person or vehicle and its occupants for articles associated with terrorism.

This is a blanket search power - much like Section 60 CJA above - and does not therefore require that the constable reasonably suspects the presence of articles used for terrorism.
The authorisation has to be given by a police officer of the rank assistant chief constable (or ‘commander’ in London) and may remain in place for up to 28 days.

The police are obliged to provide you with a written statement that you or the vehicle was stopped, if you apply for it within 12 months.

Certain safeguards apply to this and most other searches conducted by the police, according to which the police have to provide certain information during and after the search – see page 10.
Failure to stop when required to do so or obstructing the police during the exercise of these powers is an offence punishable by either a fine or 6 months in prison or both. A constable can arrest anyone he reasonably suspects to be committing or about to commit any offence under this section.

6.4 Intimate and Strip Searches

6.4.1Definitions of “strip” and “intimate” search

An intimate search means a search which consists of the physical examination of a person’s body orifices. A strip search is a search involving the removal of more than outer clothing.

6.4.2 Conditions for intimate and strip searches

Intimate and strip searches can only be carried out on persons in police custody.
An “intimate search” must be authorised by a superintendent who must reasonably believe either:

(i) that a detained person may have concealed on him anything which he could use to cause physical injury to himself or to others, and which he might so use while he is in police detention or in the custody of the court, or

(ii) that a detained person has a Class A drug concealed on him and was in possession of it before his arrest.

An officer may not authorize an intimate search of a person for anything unless he reasonably believes that this is the only way it can be found.

Generally an intimate search can only be carried out by a medical practitioner unless the superintendent does not consider it practicable and the search is to take place under (i) above. A search under (ii) can only be carried out at a hospital, surgery or other medical premises.

A strip search may only take place if the custody officer considers it necessary to remove an article that the detained person would not be allowed to keep.

Where either an intimate or a strip search is carried out by a police officer, the officer must be of the same sex as the person searched. No other non-medical person of the opposite sex must be present and no person should be there whose presence is not necessary.

6.5 Other Powers of Search

There are a few other powers of personal search available to the police under other legislation which does not directly concern activists. These include the power under the Misuse of Drugs Act 1971 to search for controlled substances and the power under the Firearms Act 1968 to search for firearms.

The same safeguards listed at the top of this section apply to these searches as well.

Cautions and Conditional Cautions

5. Cautions and Conditional Cautions

Contents

5.1 Cautions
5.2 Conditional Cautions
5.3 Should I accept a caution or a “conditional caution”?

5.1 Cautions

Sometimes the police may offer you a ‘caution’ as an alternative to being charged with an offence. This is to be distinguished from the ‘caution’ they have to give to you prior to questioning advising you of the right to remain silent.

A formal ‘caution’ in this sense is issued by an officer of the rank Inspector or higher if the following conditions are satisfied:

i) The suspect must admit to the offence
ii) There must be enough evidence to prosecute
iii) The suspect must agree to the caution, having been informed that it may be mentioned in court in the case of future offending.

Some police forces have a policy of offering cautions for certain minor offences, where the suspect has no previous convictions. The police keep a record of formal cautions for at least 5 years.

5.2 Conditional Cautions

Under the Criminal Justice Act 2003 the CPS now have the power to instruct the police to offer the suspect a “conditional caution”. This will not replace the ordinary caution but is aimed to cover situations where the CPS believe that charges are not necessary but the ordinary caution is inadequate.

There are five requirements that must be satisfied before a conditional caution can be offered as follows:

1. There must be evidence that the suspect has committed an offence.
2. The prosecutor decides that there is enough evidence to charge with the offence and that a conditional caution is appropriate.
3. The suspect admits to the offence.
4. The effect of the caution is explained to the suspect along with the fact that failure to comply with a condition could lead to prosecution for an offence.
5. The offender must sign a document containing the details of the offence, an admission that he committed the offence, consent to the caution being issued and the conditions attached to the caution.

The conditions that may be attached to such a caution must have either or both of the following objectives:

i) ensuring or facilitating the rehabilitation of the offender,
ii) ensuring that he makes reparation for the offence.

If a suspect fails to comply with one of these conditions without reasonable excuse, criminal proceedings may be brought for the offence. The document mentioned in point 5 above is admissible in such proceedings.

The rationale behind the conditional caution seems to be as follows. As things stand the police can either charge you, caution you or let you go. The caution is perceived to be not very effective in preventing further crime, particularly in the case of young offenders. So the new conditional caution will be used when it is deemed that the ordinary caution is insufficient, but that it is not in the public interest for the case to go to court.

The scheme is not yet in force nationally and is currently being piloted in selected areas.

5.3 Should I accept a caution or a “conditional caution”?

In our view, the “conditional caution” should be regarded by activists in the same way as the traditional caution. There are no firm guidelines either way as to whether or not to accept them, but activists need to be aware of the reason why one might be offered.

Often the police will offer a caution when there is not enough evidence to go to trial, but it may also be offered where the likely penalty for the offence is so low that it does not justify the court costs. Accepting a caution is a decision activists will have to make based on the case and their own circumstances.

Some people will never accept cautions on principle. Others will accept them even if there is a fair chance that they will get off, simply in order to get the case out of the way. The exact nature of the conditions will be prepared later in a Code of Practice prepared by the secretary of state. They are likely to include such measures as confronting the victims of crime or community service.

A caution does amount to an admission of guilt, and it may be cited in future court proceedings as part of your criminal record.

If you accept either type of caution, the police may take your fingerprints and DNA and keep them indefinitely.

At The Police Station

3. At the Police Station

Contents

3.1 Your Rights
3.2 Stay calm and don't panic
3.3 Injuries
3.4 Solicitors
3.5 Interviews
3.6 Right to silence and the “Adverse Inference”
3.7 Photographs, Fingerprints & DNA
3.8 Processing, holding and release

3.1 Your Rights

If you are arrested you should be told by the arresting officer that you are under arrest and the reason why - make a note of this. You should then be taken to the nearest police station, unless the police want to issue you with “street bail” – see section 4.

You have the right to remain silent, and you should exercise this at all times, other than to give your name and address. You don’t have to say anything, but if the police cannot establish your name and address you won’t get bail if you are charged with an offence.

When you arrive you will be booked in by the custody sergeant, who then becomes responsible for your detention at the police station. His job is to ensure that your rights are complied with and to keep a “custody record” of your detention. He should inform you of the following:

• You are entitled to speak to a solicitor free of charge. If you know the name of your chosen firm of solicitors, the police will be able to find the phone number and contact them. If you do not have a solicitor, you can use the duty solicitor – but see below.
• You are entitled to have someone informed of your arrest. At the custody officer’s discretion you can usually speak to that person on the phone.
• You are entitled to consult the PACE codes of practice. This manual details the manner in which the police are bound by law to treat detained persons.

The police can never delay your right to have someone informed of your arrest or to speak to a solicitor unless you have been arrested for a “serious arrestable offence”. We advise that you speak to a solicitor straight away. This will enable you to have people informed that you are under arrest and let the police know that you know your rights and are not a soft touch.

If you choose not to exercise any of your rights when you are booked in, you may still exercise them at any point in the future. You should work on the assumption that any phone conversation you make will be listened in to by the police. Despite what the police may say, do not sign to say that you do not wish to speak to a solicitor or have someone informed of your arrest.

If you are in any doubt as to the reason why you are being detained then ask the custody sergeant, who is under a duty to tell you.

You will be searched and you will have your personal belongings including any watch or belt taken from you and placed in a bag. Under recent legislation, the custody sergeant is no longer obliged to log all your personal property and may do so at his discretion. If your property is logged, you will be asked to sign a form to confirm that this is your property, so – if you choose to sign - make sure the inventory is correct, and sign directly underneath the last item, so the police can’t add anything afterwards. You will then be taken to a cell, where you will usually have to wait a few hours before being interviewed or released.

As part of your custody record, the custody sergeant will ask you for your date of birth, occupation, height and other details. You are under no obligation to answer any of these questions and you should not feel pressurized in to doing so.

3.2 Stay calm and don't panic

The most important point to remember during your time in police custody is to stay calm and relaxed and not to talk to the police. The experience of being arrested for the first time can be quite unnerving. The whole process is designed to scare and intimidate you. Many people find the hardest part is being alone and powerless in a cell, with the added disorientation that you do not know the time, as your watch will have been taken from you.

You may feel that you should just tell them anything in order for them to let you go. If the police sense that you are unfamiliar with the process, they will use all manner of tricks to make you think that it is in your best interests to give an interview, so don’t fall in to this trap. Stay calm, stay quiet and you will usually be out within a few hours.

3.3 Injuries

If you have any injuries – for example bruising from handcuffs - make sure these are logged by the custody sergeant/ You can also insist on seeing the police doctor, who should make a note of your injuries. This may not only help you with any criminal charges brought against you, but may also get you more money if you sue the police later.

3.4 Solicitors

A free duty solicitor is available at the police station. Sometimes the duty solicitor can be very good, but it’s usually better to speak to your own one as many duty solicitors are ex-police officers and often will have more in common with the police than they do with you. In any case, you’re better off speaking to a solicitor experienced in dealing with protest cases – see the list at section 27. If you know the name or firm of your solicitor, the police should be able to locate them, but it’s better if you already have their phone number on you.

3.5 Interviews

Do not agree to be interviewed without a solicitor present. Any interview will be tape-recorded and you are entitled to have a solicitor present free of charge, regardless of your income. These safeguards exist to prevent the police from fabricating evidence or being too aggressive.

Before questioning you the police must caution you along the following lines: “You have the right to remain silent, but it may harm your defence if you fail to mention now anything which you later rely on in court. Anything you do say may be used against you.”

You have the right to remain silent and you should exercise this right during interview and at all other times. If the police sense that you are scared or in any way unsure, they may use any number of tricks to try to get you talking. Eg:

• The sooner you make a statement the sooner you can go home.
• If you don’t make a statement then you won’t get bail.
• If you’re innocent then you have nothing to hide.
• We just want to hear your side of the story.

These are all just tricks to get you talking. The only reason you are being interviewed is because the police are seeking more evidence to charge you with an offence. The interview is for their benefit, not yours.

One trick they sometimes use is to say that the main activists – “the ringleaders” – won’t risk getting arrested themselves and are using you and letting you take the rap. Don’t be taken in by it. This is a classic ploy adopted by the police to turn people against each other in order to gain evidence. They have arrested you, because the arresting officer thinks you are guilty of an offence. The custody sergeant has authorized your detention in order to gain more evidence to secure a conviction by questioning you.

Anything you say outside the taped interview may also be used in evidence against you – for example an informal chat in the police car after you have been arrested. The police often try to engage you in friendly conversation as they are taking your fingerprints or DNA – make no mistake, this is an attempt to gather evidence and you should not be taken in by it. If you are in any doubt about this, have a look at news archives on the internet and you will find any number of cases in which evidence was produced of what a suspect said outside the interview room.
You should also be aware that the police sometimes bug police cells and any evidence obtained in this way is admissible in court.

3.6 Right to silence and the “Adverse Inference”

Despite what the police or anyone else might tell you, the right to silence has not been abolished. A magistrate or jury may take in to account the fact that you remained silent during interview and draw an “adverse inference” from this (ie this could count towards evidence that you are guilty). Because of this solicitors sometimes advise suspects to make a short statement to the police. Our advice however is to remain silent for the following reasons.
Firstly, the police are only interviewing you because they are looking for evidence in order to charge you. They cannot charge you simply on the basis that you refused to make a statement.

Secondly by talking to the police, you may not only implicate yourself in crime, but also others as well. Your interview could lead to other people being arrested and charged. They may then make statements implicating you.Your solicitor may not care what happens to other activists, but you should.

Thirdly, most people – even experienced activists - find that once they have started talking it is very difficult to stop. If you try to lie you may soon end up tying yourself in knots and making matters worse.

3.7 Photographs, Fingerprints & DNA

Photographs
The police can take the photograph of anyone under arrest, and use force if necessary. This power was introduced in the Anti-Terrorism, Crime and Security Act 2001 in the wake of the September 11th attacks on America.

Fingerprints / DNA
The police can now take the fingerprints and DNA of anyone who has been arrested for a “recordable offence”. The National Police Records Regulations 2000 defines an offence as “recordable” if it is punishable by imprisonment or if it is a “specified offence”. This covers just about every public order offence other than “breach of the peace”. Unless your arrest was unlawful, the police may keep your fingerprints and DNA on file indefinitely regardless of whether or not you are subsequently charged with or convicted of an offence.

3.8 Processing, holding and release

a) How long will I be held?
The police can hold you for up to 36 hours, if you have been arrested for an “arrestable offence”. However, if you have been arrested for an offence that is not strictly speaking “arrestable”, then the maximum time they can hold you is still 24 hours as before. The Home Office guidelines indicated that the power to detain for up to 36 hours should be exercised sparingly. See “Police Powers of Arrest” (page 15) for more on “arrestable offences”.

The period of detention begins from when you arrive at the police station, and not from the time of your arrest. For most minor public order offences, you are unlikely to be detained for longer than 6 hours. An officer of the rank Inspector or higher has to authorise your continued detention after the first 6 hours, then every 9 hours after that.

In serious cases, the police can apply to magistrates to detain you for longer – up to a maximum of 96 hours without charge.

b) What happens next?
Once the police have processed you, taken your fingerprints / DNA and interviewed you, they will have to decide whether or not to charge you with an offence.

c) Release After Charge
If the police charge you, this means that they think they have sufficient evidence to secure a conviction. You will usually then be bailed to appear before magistrates within the next couple of weeks. You are only likely to be refused bail if you have been charged with a serious offence, or the police cannot establish your name and address, or if you are already on bail for other offences. If so, the police have to bring you before the first available magistrates’ court where they will apply for you to be remanded in custody. If this happens consult a solicitor straight away.

If you do get bail it may well have conditions attached. These typically include conditions not to enter a certain area, not to approach certain people and to reside at a certain address.

If you feel that the bail conditions are too harsh you can ask the custody sergeant to review them. If he insists on imposing the conditions, then you can either accept them or stay overnight until court the next day and challenge them there. If you do accept the conditions, you can still challenge them at your next court appearance. The prosecution may also apply in court for extra conditions that were not originally imposed by the police.

d) Release Without Charge
If the police decide they have not got enough evidence with which to charge you, they have to let you go – even if they haven’t established your name and address. You may be either released unconditionally or released on “police bail” under a duty to appear at a specified police station at a later date. This will be to enable the Crown Prosecution Service to decide what offence, if any, to charge you with.

The police cannot presently attach conditions to this kind of bail, other than that you attend a police station at the time and date specified. However under the new law due to come in to force around the end of 2004, the police will sometimes be able to conditions on police bail even when you have not been charged. This will be when they have enough evidence to charge you, but need to refer the case to the CPS (see “Release on Police Bail”, section 4).

e) Cautions
The police may offer you a “caution” – see section 5.

f) Bail Offences
If you are bailed to appear in court or at a police station and fail to do so, you could commit an offence under Section 6 of the Bail Act 1976. In your defence you can say that you had a “reasonable excuse” – eg you were sick or stuck in traffic. It is not a criminal offence to breach any other bail conditions, but if you are caught the police will probably arrest you and put you before magistrates.