Core principles and legislation

Core principles

The following core principles should be read in conjunction with command and command considerations (gold, silver, bronze).

Policing style and tone

• Commanders need to set the policing style and tone at the start of an operation and be aware of the potential impact on public perceptions.
• Police should be impartial, fair, approachable, accessible and legally compliant.
• Policing by consent should underpin operations.
• Police should be readily identifiable.

Communication

• Use engagement and dialogue whenever possible.
• Establish and maintain links with communities, groups, partners, event organisers and others to build trust and confidence.
• Messages should be planned, unambiguous, clear and coordinated.
• Neighbourhood policing teams and other local policing assets should have established a network of local information and intelligence sources capable of highlighting increasing community tensions.
• Opportunities for disseminating and receiving information provided through open-source and other social media channels should be explored.
• Media (including social media) should be used to explain police activity.

Use of the national decision model (NDM) and joint decision model (JDM)

• The NDM is the key framework for operational decision making.
• Use audit trail to record decisions and show rationale.
• The JDM is applied in dealing with a multi-agency response to events.

Command

• Public order commanders must be trained, accredited and operationally competent.
• Commanders should consider the use of specialist advice.
• Command structure should be appropriate and resilient to meet the requirements of an operation.

Proportionate response

• Demonstrate consideration and application of relevant human rights principles.
• Police powers should be used appropriately and proportionately.
• Planning should be based on information and intelligence.
• Commanders should make professional judgements based on information and experience and not just rely on formally assessed intelligence.
• Use of force implications considered.

Capacity and capability

• Public order resources trained to the agreed national standards (for Northern Ireland, training to a standard deemed appropriate by the Police Service of Northern Ireland (PSNI) Association of Chief Police Officers (ACPO) public order lead which is reviewed annually in line with debrief and review processes).
• Deployed equipment and vehicles meet national requirements.
• Sufficient trained and accredited resources and equipment are available to meet local and national public order commitments.
• Police support unit (PSU) deployments both in force and out of force comply with the national definition of a PSU.
• Plans are developed to mobilise PSUs and these are subject to regular testing.

Legal framework

The police have statutory and common law powers and duties in relation to public order policing which must be used in accordance with the European Convention on Human Rights (ECHR). See Human Rights Act 1998. The police statutory powers and duties in relation to the policing of protest include those set out in the:

• Public Order Act 1986
• Criminal Justice and Public Order Act 1994
• Criminal Law Act 1967
• Police and Criminal Evidence Act 1984
• common law powers and duties, including powers to prevent breaches of the peace

See the variations for Northern Ireland.

The right to peaceful assembly (basics – the right to protest)

ECHR Articles 9, 10 and 11 form the basis of an individual’s right to participate in peaceful protest. See Human Rights Act 1998.

The right to freedom of peaceful assembly under ECHR Article 11 protects the right to protest in a peaceful way (including static protests, marches, parades and processions, demonstrations and rallies). It does not include participation in violent protests. ECHR Article 11 places both negative and positive duties on the police.

For case references see:

• Bukta and Others v Hungary (2007) (App. No. 25691/04) 51 EHRR 25
• Plattform Ärtze für das Leben v Austria (1988) 13 EHRR 204

Negative duty

The police must not prevent, hinder or restrict peaceful assembly except to the extent allowed by ECHR Article 11(2). They must not impose unreasonable indirect restrictions on persons exercising their rights to peaceful assembly, for example, imposing a condition on the location of a protest which effectively negates the purpose of the protest. Pre-emptive measures taken by the police which restrict the exercise of the right to peaceful assembly will be subject to particular scrutiny.

Positive duty

In certain circumstances, the police have a duty to take reasonable steps to protect those who want to exercise their rights peacefully. This applies where there is a threat of disruption or disorder from others. This does not mean that there is an absolute duty to protect those who want to protest, but the police must take reasonable measures in particular circumstances.

Starting point for policing public protest – the presumption in favour of peaceful assembly

Under the Public Order Act 1986 s 11, organisers of public processions are required to provide notice to the police of the event’s location and routes that the procession will follow unless this is not reasonably practicable. Failure to provide such notice results in the organisers being in breach of the Act, but does not render the protest/procession unlawful.

Commonly held/customary processions, or funeral processions, whether they routinely follow the same route or a different route each time, are exempt from the requirement for notice.

There is no legal basis for describing a public protest as inherently unlawful. Neither the Public Order Act nor the law on obstruction of the highway renders a protest unlawful.

A breach of the notification requirement in the Public Order Act 1986 s 11 does not render a protest unlawful under the Act or mean that an otherwise peaceful procession falls outside the protection of ECHR Article 11. See Human Rights Act 1998. The section applies only to public processions and not to other assemblies. It does not make criminal the participation in such a procession. By failing to meet the notification requirements, only the organisers commit an offence.

The obstruction of a highway does not render a public assembly unlawful. Many activities obstruct the highway or cause disruption to traffic. Only unreasonable obstructions of the highway are unlawful. See variations for Northern Ireland.

Organisers’ intentions

Peaceful intentions should be presumed unless there is compelling evidence that those organising or participating in a particular event will themselves use, advocate or incite violence. Peaceful in this context includes conduct that annoys or offends persons opposed to the idea or claims a public procession or assembly is promoting.

See variation for Northern Ireland.

The possibility of extremists with violent intentions, who are not members of the organising association, joining the demonstration does not take away the right to peaceful assembly. Even if there is a real risk of a public assembly or procession resulting in disorder by developments outside the control of those organising it, such a procession or assembly does not for this reason alone fall outside the scope of protection guaranteed by ECHR Article 11. See Human Rights Act 1998.

Restricting the right to peaceful protest

The rights and freedoms provided under the Human Rights Act, Articles 9, 10 and 11 ECHR are qualified rights. This means that they may be interfered with or restricted in certain circumstances if necessary and for a legitimate aim.

The police can impose restrictions on the freedoms of belief, expression and peaceful assembly provided any such restriction is:

• prescribed by law
• in pursuit of one or more legitimate aims specified in paragraph 2 of the Article in question
• necessary and
• proportionate

Section 12 and section 14 of the Public Order Act allow the police to impose conditions on a public procession or assembly if the police reasonably believe that it may result in:

• serious public disorder
• serious damage to property
• serious disruption to the life of the community or
• the purpose of those organising it is the intimidation of others

See variations for Northern Ireland.

A restriction on a peaceful protest will not satisfy the requirement that it should be necessary in a democratic society just because the majority are in favour of it. A balance which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position must be achieved.

For case reference see Chassagnou and Others v France (1999) 29 EHRR 615.

Principle of proportionality

This principle requires there to be a link between the purpose for the restriction and the measures employed to achieve that purpose.

Considerations

• Is the purpose sufficiently important to justify the restriction (that is, are there relevant and sufficient reasons to justify the restriction)?
• Will the measures proposed achieve that purpose?
• Are the measures to be taken the least restrictive to achieve the intended purpose?
• Are the restrictions to ECHR rights necessary to meet the legitimate aims set out in the ECHR rights concerned?

If the answer to all four questions is yes, then the conditions or restrictions imposed on a public procession or public assembly under the Public Order Act 1986 s 12 or s 14 will be proportionate. See variations for Northern Ireland.

Under s 12, conditions which may be imposed by the police on a public procession include restrictions on the route of the procession or prohibiting a procession from entering a particular area.

Under s 14, conditions which may be imposed on a public assembly are, however, restricted to the location of the assembly, the maximum number of persons who can participate and the duration of the assembly. If the police attempt to impose restrictions which do not comply with ECHR Articles 9(2), 10(2) or 11(2), those restrictions will be an unlawful interference with the rights protected and are likely to constitute a violation of these Articles. See Human Rights Act 1998.

Protests on private land

The right to peaceful assembly under ECHR Article 11 generally only applies in public places. If individuals protest on private land without the permission of the occupier, they are trespassing.

ECHR Article 11 does not grant any freedom of forum for the exercise of that right. Regard must also be given to the rights of owners of private property under Article 1 of Protocol No 1 to the ECHR.

Protesters do not, therefore, have the right to select the exact location on which to demonstrate and may face restrictions on private land.

Note: For further information concerning the policing of onshore oil and gas exploration see National Police Chiefs' Council (NPCC) (2015) Policing Linked to Onshore Oil and Gas Operations.

For case reference see Appleby v UK App No. (2003) 37 EHRR 783.

Banning a public procession

There is a power to ban a public procession under the Public Order Act, but no power to ban a public assembly. Banning a public procession is justified only in extreme circumstances where there is a real threat of serious public disorder which cannot be prevented by other less stringent measures. The mere fact that a public procession may annoy others, or even offend them, is not a sufficient basis for banning it. See variations for Northern Ireland.

Section 13 of the Public Order Act allows a chief officer of police to apply to the local council for an order prohibiting the holding of a public procession for a period of up to three months where the chief officer of police reasonably believes that in the particular circumstances the powers to impose conditions on a public procession will not be sufficient to prevent serious public disorder. The council must obtain the consent of the secretary of state before making a banning order.

The blanket application of a ban of all public processions in a particular district raises issues regarding proportionality, as there is no ability to consider the particular circumstances of each individual procession when such a ban is imposed.

The rights to freedom of belief and expression

The right to freedom of thought, conscience and religion under ECHR Article 9 and freedom of expression under Article 10 include the freedom to manifest one’s religion or beliefs and to hold opinions and to receive and impart information and ideas. See Human Rights Act 1998.

Freedom of expression applies not only to information, ideas or opinions that are popular or favourable or regarded as inoffensive or a matter of indifference, but also to those that offend, shock or disturb.

The manner, as well as the content of expression, is protected under ECHR Article 10. Words, pictures, electronic transmissions, video and conduct intended to convey ideas or information, such as wearing particular clothes, are all protected.

Lawful restrictions may be imposed on the rights to freedom of belief and expression. Restrictions on racist opinions or ideas can be lawful. Statements which incite violence and hate speech are not protected by ECHR Articles 9 or 10.

Restricting the right to freedom of expression

ECHR Article 10 is a qualified right. This means that lawful restrictions may be imposed on the exercise of the right to freedom of expression, provided any such restriction:

• is imposed in accordance with the law
• has one or more legitimate aims such as public safety, the prevention of disorder or crime or the protection of the rights of others and
• is necessary and proportionate

There is little scope under ECHR Article 10(2) for restrictions on political speech or on debate of questions of public interest.

There may be occasions when persons overstep their rights to freedom of belief and expression and, through the public expression or publication of their views, opinions or beliefs, commit criminal offences. The following powers are available to the police to restrict or prevent the public expression of such views and opinions.

For case reference see Wingrove v UK (1997) 24 EHRR 1.

Breach of the peace

This is committed when an individual causes harm, or appears likely to cause harm, to a person, or in that person’s presence, to his/her property, or puts that person in fear of such harm being done through an assault, affray, a riot, unlawful assembly or other disturbance.

The basic principle is that a police officer may take reasonable action including arrest to stop a breach of the peace which is occurring, or to prevent one which the police officer reasonably anticipates will occur imminently. Reasonable action may also be taken where a breach of the peace has been committed and it is reasonably believed a recurrence of the breach is threatened.

To be compatible with the ECHR, action must be necessary, proportionate, legal and carried out for one of the purposes set out in Articles 9(2) or 10(2), for example, to prevent disorder or crime. See Human Rights Act 1998.

Police action

Police action should target the persons responsible for the breach of the peace – action taken which is not directed at the person committing the breach will generally be unlawful.

Action cannot be taken against individuals on the basis that they are acting in a manner the likely consequence of which would be to provoke violence in others, if their conduct is reasonable or the actual or potential violence provoked in others is ‘wholly unreasonable’. The guiding principle is that lawful conduct will rarely, if ever, be other than reasonable – and conversely, a violent reaction to the lawful conduct of others will rarely, if ever, be other than wholly unreasonable.

Where – and only where – there is a reasonable belief that there are no other means whatsoever to prevent a breach of the peace, the lawful exercise by innocent third parties of their rights may be restricted by the police. This is a test of necessity, which can only be justified in truly extreme and exceptional circumstances.

Before the police can take any steps which restrict in any way the lawful exercise of rights by innocent third parties, they must take all other possible steps (including making proper and advance preparations) to ensure that the breach, or imminent breach, is prevented and the rights of third parties are protected.

For case references see:

• R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55
• Redmond-Bate v DPP [1999] Crim LR 998
• Percy v DPP (1995) 1 WLR 1382
• Austin v United Kingdom [2012] ECHR 459

Offences of intentional harassment, alarm or distress (the Public Order Act 1986 ss 4A and 5)

See variations for Northern Ireland.

ECHR Article 10(1) protects in substance and in form a right to freedom of expression which others may find insulting or offensive. See Human Rights Act 1998.

For case references see:

• DPP v Orum [1989] 1 WLR 88
• Norwood v DPP [2003] EWHC 1564 (Admin)
• Percy v DPP [2001] EWHC Admin 1125

Individuals taking part in a peaceful protest engage the Public Order Act s 4A only when their conduct involves threatening, abusive or insulting words or behaviour, or disorderly behaviour intended to cause harassment, alarm or distress. They engage the Public Order Act s 5 only when their conduct involves threatening or abusive words or behaviour, or disorderly behaviour likely to cause harassment, alarm or distress within the hearing or sight of a person.

When assessing whether words or behaviour amount to offences under ss 4A or 5, the following factors should be considered.

• Content of the words or behaviour.
• Context/circumstances of the words or behaviour.
• Intention of the person speaking or acting.
• Probable impact.

Note: As of 1 February 2014, the Crime and Courts Act 2013 s 57 amends the Public Order Act ss 5(1) and 6(4) to remove the word ‘insulting’. Guidance on the Amendment to Sections 5(1) and 6(4) of the Public Order Act 1986 outlines relevant legal and operational implications.

The types of conduct which could amount to threatening, abusive (or in relation to s 4A only, insulting) words or behaviour include threats made towards innocent bystanders or individuals carrying out public service duties, and the throwing of missiles by a person taking part in a demonstration or other public gathering, where no injury is caused.

The constituent elements of ss 4A and 5 of the Public Order Act offence are:

• action – a person uses threatening, abusive (or in relation to s 4A only, insulting) words or behaviour, disorderly behaviour or displays any writing, sign or other visible representation which is threatening, abusive (or in relation to s 4A only, insulting)
• intent – a person intends such words, behaviour, writing or representation to be threatening, abusive (or in relation to s 4A, insulting), or his behaviour to be disorderly or is aware that they may be so
• impact – the suspect action was within the hearing or sight of a person intentionally caused harassment, alarm or distress (s 4A) or was within the hearing or sight of a person likely to be caused harassment, alarm or distress (s 5)

The courts have held that a police officer can be caused harassment, alarm or distress. However, police officers are expected to display a degree of fortitude and for an officer to be caused harassment, alarm or distress, the conduct complained of must go beyond that which he or she would regularly come across in the ordinary course of police duties.

Defences to this offence are:

• the person had no reason to believe that there was anyone within hearing or sight who was likely to be caused harassment, alarm or distress
• the person was inside a dwelling and had no reason to believe that the words or behaviour, or the writing or visible representation, would be heard or seen by a person outside that dwelling, or
• the person’s conduct was reasonable. (The test is whether the individual’s conduct was objectively reasonable)

Section 31(1)(b) and (c) of the Crime and Disorder Act 1998 creates racially or religiously aggravated forms of offences under ss 4A and 5. A person commits an offence which is ‘racially or religiously aggravated’ if at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

Section 146 of the Criminal Justice Act 2003 provides that where at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on any of the following, the court must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and must state in open court that the offence was committed in such circumstances:

• the sexual orientation (or presumed sexual orientation) of the victim
• a disability (or presumed disability) of the victim, or
• the victim being (or being presumed to be) transgender, or that the offence is motivated (wholly or partly):
  • by hostility towards persons who are of a particular sexual orientation
  • by hostility towards persons who have a disability or a particular disability
  • by hostility towards persons who are transgender

Incitement to hatred

Restrictions on the expression of racist ideas or opinions, statements which incite violence and hate speech are generally legitimate under ECHR Article 10(2) and ECHR Article 17. See Human Rights Act 1998.

The Public Order Act 1986 Parts 3 and 3A include offences where a person uses threatening, abusive or insulting behaviour, or displays threatening, abusive or insulting material, which is intended to stir up (or is likely to stir up) racial hatred or religious hatred. Section 29AB of the Public Order Act adds the offence of inciting hatred on the grounds of sexual orientation. This means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).

See variation for Northern Ireland.

Racial hatred

This means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins. Jews and Sikhs have been deemed by the courts to be racial groups. Muslims and Christians, for example, have been considered as religious rather than racial groups.

It is a defence for an individual to prove that he or she did not intend his or her words or behaviour, or written material, to stir up racial hatred and he or she was not aware that his or her words or actions or written material might be threatening, abusive or insulting.

Religious hatred

This means hatred against a group of persons defined by reference to religious belief or lack of religious belief. The reference to ‘religious belief or lack of religious belief’ is a broad one, and is in line with the freedom of thought, religion and conscience guaranteed by ECHR Article 9. See Human Rights Act 1998. Although this is not a definitive list, it includes religions widely recognised in the UK such as Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, Rastafarianism, Baha’ism, Zoroastrianism and Jainism. Equally, branches or sects within a religion can be considered as religions or religious beliefs in their own right. It also includes groups of persons defined by reference to a lack of religious belief, such as Atheists and Humanists. The offences are designed to include hatred against a group where the hatred is not based on the religious beliefs of the group (or even on a lack of any religious belief) but on the fact that the group does not share the particular religious beliefs of the perpetrator.

Section 29(J) of the Public Order Act provides that the offences of stirring up religious hatred are not to be given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of those who hold such beliefs. Note: This paragraph does not apply to Northern Ireland.

Supporting or glorifying terrorism

Section 1 of the Terrorism Act 2006 makes it an offence to publish, or cause another to publish, a statement intending members of the public to be directly or indirectly encouraged to commit, prepare or instigate acts of terrorism, or being reckless as to whether such a result will occur.

The offence applies to statements which are likely to be understood by some or all of the members of the public to whom they are published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences. This includes every statement which glorifies the commission or preparation of such acts or offences; and from which it could reasonably be inferred that it is being glorified as something that should be emulated by members of the public.

Using freedom of expression to destroy the human rights of others

The right to freedom of expression guaranteed under ECHR Article 10 may not be used to abuse or destroy the rights of others. See Human Rights Act 1998.

ECHR Article 17 prevents extremists from using rights such as freedom of expression or peaceful assembly to engage in activities aimed at destroying or negating the rights and freedoms of others.

The general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the ECHR.

For case reference see Glimmerveen and Haganbeek v Netherlands (1982) 4 EHRR 260.

Threats to life

ECHR Article 2 requires the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. See Human Rights Act 1998. Where the police know, or ought to know, of the existence of a real and immediate risk to the life of an individual from the criminal acts of another, they must take reasonable measures in the circumstances to mitigate the risk.

Under ECHR Article 2 the police have, in certain circumstances, a positive duty to take preventive operational measures to protect an individual whose life may be at risk from the criminal acts of another individual. The difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, mean, however, that such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.

There will be a violation of the positive duty under Article 2 where it is established that the police did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge.

For case reference see Osman v UK (2000) 29 EHRR 245.

Use of containment as a crowd control measure

Police use of containment as a crowd control measure does not infringe the right to liberty of individual members of the crowd provided the tactic is:

• resorted to in good faith
• proportionate to the situation making the measure necessary and
• enforced for no longer than is reasonably necessary

For case reference see Austin v United Kingdom [2012] ECHR 459.

If the use of containment does not meet these criteria, its use may be found to be arbitrary and in violation of ECHR Article 5. It should be noted from Austin that the:

• question of whether there has been a deprivation of liberty is based on the particular facts of each case
• coercive nature of containment points towards a deprivation of liberty, and the court will take into account the type and manner of implementation to determine whether liberty has been deprived

For further information see:

• R (on the application of Moos and another) v Commissioner of Police for the Metropolis [2012] EWCA Civ 12
• R (on the application of Castle) v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin)
• R (on the application of Mengesha) v Commissioner Police of the Metropolis [2013] EWHC 1695 (Admin)
• R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55
• Joseph Wright v Commissioner of Police for the Metropolis [2013] EWHC 2739 (QB)