Helga Law Journal - 01.01.2021, Page 133

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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of Parliament for which the police had not been notified, but which nevertheless
took place without authorisation.12 It is likely that these provisions were
specifically aimed to apply to Brian Haw’s “permanent peace protest” against the
Iraq War in Parliament Square.13 In assessing the operation of SOCPA in its
seventh report, the Joint Committee on Human Rights (JCHR) referred to the
prosecutions of the peace campaigners Maya Evans and Milan Rai for organising
an unauthorised demonstration contrary to section 132 of SOCPA. The
Divisional Court (DC) upheld their convictions, citing the ECtHR rulings in
Ziliberberg v Moldova and Rassemblement Jurassien Unité v Switzerland that “subjecting
peaceful demonstrations to a prior authorisation procedure does not encroach
upon the essence of the Article 11 right.”14 Despite this, the JCHR concluded
that the SOCPA provisions in question were “unjustifiable and disproportionate
interferences with the Convention rights to freedom of expression and
assembly.”15 Confident that adequate measures of policing protest around
Parliament already exist under the POA, the JCHR recommended that sections
132-138 of SOCPA be repealed, and Parliament duly did so in the Police Reform
and Social Responsibility Act 2011.
A rather negative recent development is the bringing of charges against
protesters for offences not intended to apply to the regulation of protest. These
include the offence of aggravated trespass under section 68 of the Criminal
Justice and Public Order Act 1994, anti-social behaviour orders and anti-
harassment injunctions.16 Until its repeal in 2012, section 44 of the Terrorism
Act 2000 was also used against peaceful demonstrators. It allowed a chief police
officer to designate areas where the police may stop and search people and
vehicles for “articles of a kind which could be used in connection with
terrorism,” without needing to have any ground for reasonable suspicion.17 The
whole of Greater London had been designated as such an area.18 The JCHR
considered that while “there may be circumstances where the police reasonably
believe… that a demonstration could be used to mask a terrorist attack or be a
target of terrorism,” stop and search powers under the Terrorism Act should not
be applied in a blanket manner against peaceful protesters.19

12 Joint Committee on Human Rights, Demonstrating Respect for Rights? A Human Rights Approach to
Policing Protest (seventh report) (hereinafter JCHR seventh report) at [40]; Section 137 also made the
unpermitted use of loudspeakers in the designated area a criminal offence.
13 Mead (n 4) 148; Haw’s ‘peace camp’ opposite Carriage Gates began in 2001 and lasted for almost
ten years, blocking the main vehicle entrance to the House of Commons. His loudspeakers had been
audible inside parliamentary buildings: JCHR seventh report (n 19) at [111].
14 Rassemblement Jurassien Unité v Switzerland App no 8191/78 (ECtHR, 10 October 1979).
15 JCHR seventh report (n 19) at [114].
16 David Mead, ‘Dropping the case against the Fortnum protesters is not as interesting as their charges
of aggravated trespass. This is yet another threat to the freedom to protest’ (Blog post from London
School of Economics and Political Science, 25 July 2011).
17 In Gillan and Quinton v UK App no 4158/05 (ECtHR, 12 January 2010) the ECtHR ruled that
section 44 was incompatible with Article 8 ECHR.
18 JCHR seventh report (n 19) at [41].
19 ibid. at [92].
1.4 Breaches of the Peace and Permissible Restrictions on
Protest Under the Common Law
The statutory framework outlined in the previous section is complemented by
common law principles guarding the balance between the protection of the
exercise of the right to protest and the prevention of public disorder. Arguably,
the common law power – in fact duty – of police officers to enter and remain on
private premises without warrant, to arrest, or to take action short of arrest so as
stop or prevent actual or anticipated breaches of the peace,20 has proved so broad
as to “defea[t] any claim as to the existence of a ‘right.’’’21
In Thomas v Sawkins, it was established that as “part of [his] preventive duty,”
“a police officer has ex virtute officii full right” not only to enter premises to stop
a breach of the peace which was taking place at the moment of his intervention,
but also “when he has reasonable ground for believing that an offence is
imminent or is likely to be committed.”22 In the same vein, in Duncan v Jones, Lord
Hewart CJ held that when a police officer “reasonably apprehended a breach of
the peace … [it] became his duty to prevent anything which in his view would
cause that breach of the peace,” even in the absence of any unlawful conduct.23
Until the turn of the millennium, this decision was used in cases brought by
protesters against whom the police had exercised their powers to stop or prevent
breaches of the peace, or who had been bound over by magistrates to keep the
peace or to be of good behaviour.24 Seemingly further widening the scope of
permissible restrictions on the right to protest, in R v Morpeth Ward Justices ex parte
Ward the DC held that “it is not necessary to show that that person put anyone
in bodily fear if his disorderly conduct would have the natural consequence of
provoking others to violence.”25 In Nicol v DPP, a group of at most ten protesters
were bound over for disrupting an angling competition by throwing sticks into

20 Breach of the peace was defined in R v Howell [1981] 3 All ER 383 as ‘harm … actually done or
likely to be done to a person or, in his presence, his property or is put in fear of being harmed through
an assault, affray, riot, unlawful assembly or other disturbance’.
21 Salát (n 9) 15.
22 The appellant had addressed a public meeting at The Caerau Library Hall in Glamorgan to protest
against the Incitement to Disaffection Bill. The venue had been privately hired for the event, and the
police had been repeatedly refused entry. The DC agreed with the Glamorgan justices that the ‘police
officers had reasonable grounds for believing that, if they were not present at the meeting, there
would be seditious speeches and other incitements to violence and breaches of the peace would
occur’: Thomas v Sawkins [1935] 2 KB 249, 252-255.
23 Neither the appellant, Mrs Duncan, nor anyone else present at the public meeting held in front of
the unemployed training centre in Deptford, ‘committed, incited or provoked any breach of the
peace’. However, when Mrs Duncan had spoken at a public meeting at exactly the same venue the
previous year disturbance had taken place. This was sufficient evidence on which the police officer
could base his ‘reasonable apprehension’ that a breach of the peace would be committed again this
time if he did not arrest Mrs Duncan upon her refusal to discontinue the meeting: Duncan v Jones
[1936] 1 KB 218, 223 (Lord Hewart CJ) (emphasis added).
24 Mead (n 4) 329.
25 R v Morpeth Ward Justices ex parte Ward [1992] 95 Cr App R 215 was a judicial review of a decision
of a magistrates’ court to bind over protesters who ‘invaded a field where a pheasant shoot was in
progress, shouting and swearing in an attempt to stop the shoot’ (emphasis added).