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Public Protests

Introduction

This guidance on public protests specifically applies to cases where offences may have been committed during demonstrations or protests (referred to in this document collectively as "public protests"). Protests may take many different forms: ranging from action by one person acting alone to a demonstration attended by thousands of people. The guidance aims to ensure that such cases are dealt with proportionately and consistently. This guidance is not intended to address incidents of violent disorder, as there is separate guidance on "Public Disorder".

This guidance should be read in conjunction with the:

  • DPP's Guidance on Charging (5th Edition)
  • DPP's Guidance on Conditional Cautioning
  • DPP's Guidance on Conditional Cautioning Youth
  • ACPO/CPS Joint Charging Standards on Public Order offences
  • Home Office Circular 16/2008, Simple Cautioning of Adult Offenders Magistrates' Court Sentencing Guidelines
  • CPS Legal Guidance on Youth Offenders
  • CPS Legal Guidance on Public Disorder - August 2011
  • HMIC - "A review of national police units which provide intelligence on criminality associated with protest 2012"

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Human Rights

Freedom of speech and the right to protest peacefully are protected by the law (both the common law and the Human Rights Act 1998). Under the European Convention on Human Rights (ECHR), which is given effect by the Human Rights Act, Articles 10 (Freedom of Expression) and 11 (Freedom of assembly and association) are most relevant.

However, freedom of speech and the right to peaceful protest are not absolute and the exercise of those rights can be restricted so long as any restriction:

  • is prescribed by law;
  • is necessary; and
  • proportionate.

In accordance with section 3 of the Human Rights Act 1998, legislation must, as far as it is possible to do so, be read and given effect in a way which is compatible with Convention rights. The issue was considered by the Administrative Court in Munim Abdul v DPP [2011] EWHC 247 (Admin). The case concerned the prosecution of protesters for offences contrary to section 5 of the Public Order Act 1986. The offence (and in particular the statutory defence of reasonable conduct under s5(3)) must be read and given effect in a way which is compatible with Article 10 and Article 11 of ECHR.

In this case, the appellants were charged with a section 5 Public Order Act offence but contended among other things that they had a legitimate right to protest and that it was unfair for them to be tried. The Court, in dismissing the appeal, held that the prosecution of the appellants did not breach Article 10 ECHR. The Court set out a number of principles in its judgment that govern the relationship between section 5 and Article 10 ECHR, which can be summarised as follows:

  • The starting point is always the importance of the right to freedom of expression and it must be recognised that legitimate protest can be offensive at least to some and Article 10 cannot simply protect those holding the majority view. The restrictions on Article 10(2) should be narrowly construed.
  • There cannot be any universal test for when speech goes beyond legitimate protest and becomes criminalised under section 5 Public Order Act 1986 as 'threatening, abusive or insulting'. But in striking the balance, the focus on minority rights should not result in overlooking the rights of the majority.
  • Even if there is a prima facie case that speech has crossed the line or other elements of section 5 are present, it still must be proportionate to bring a prosecution and necessary for preserving public order.

In R (on the application of Gallastegui) v Westminster City Council & Ors & (1) Commissioner of Police of the Metropolis (2) Secretary of State for the Home Department (Interested Parties) [2013] EWCA Civ 28, the appellant appealed against a decision ([2012] EWHC 1123 (Admin), [2012] 4 All E.R. 401) that sections 143 and 145 of the Police Reform and Social Responsibility Act 2011 (PRSRA) were compatible with the ECHR. The appellant had been a campaigner camping in Parliament Square, London, in pursuance of a round-the clock protest until she was given a direction to move on under section 143. The Court found that section 143 and 145 PRSRA, which conferred powers on the police and authorised officers of the local authority to stop protesters erecting and keeping tents in Parliament Square, were not incompatible with Articles 6, 10 and 11 of the ECHR.

This case follows earlier authority on the issue: Norwood v DPP [2002] EWHC 1564 (Admin), Hammond v DPP [2004] EWHC 69 (Admin) and Dehal v CPS [2005] EWHC 2154 (Admin). The case is concerned with a particular type of public protest, but the principles set out by the Administrative Court provide helpful guidance on the extent of Article 10 and the criminal law.

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Legal Principles

As with all offences, prosecutors must apply the Full Code Test as set out in the Code for Crown Prosecutors. The Full Code Test has two stages: (1) the evidential stage; and (2) the public interest stage. The evidential stage must be considered before the public interest stage. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. Where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

When deciding whether to charge an individual in relation to public protest cases, prosecutors should focus on (a) is a prosecution necessary and (b) is a prosecution proportionate. Paragraph 6 of the Code of Crown Prosecutors should also be considered for further guidance on selecting charges.

Each individual case must be considered in accordance with the Code for Crown Prosecutors, and this guidance should be read in conjunction with the Code, as it sets out the key considerations for prosecutors when they are deciding whether to prosecute a suspect for an offence arising out of a public protest. The guidance is to help prosecutors get the balance right between protecting the right to free speech and right to protest peacefully on the one hand, whilst ensuring that individuals and property are protected by the criminal law on the other hand.

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Observations on the Evidential Stage

In public protest cases, there may well be conduct which provides sufficient evidence to satisfy the evidential stage of the Full Code Test in respect of more than one offence. For example, a person acting as part of a large and violent group might individually commit another, non public order offence, such as arson, criminal damage or going equipped. Prosecutors are reminded that in such circumstances they have the discretion to charge both for a public order offence (such as violent disorder) and for the further offence. Prosecutors should have in mind the principles which surround a joint criminal venture and may wish to refer to Archbold for further guidance, and to the CPS Legal Guidance for assisting or encouraging or the guidance relating to accessories.

The most likely offences to be charged arising out of public protests are listed in Annex A, along with their mode of trial, sentence and whether the responsibility for charging is with the CPS or the police.

Public protests can vary hugely in organisation and size. However, if a protest becomes chaotic and/or involves very large groups of people, it can present significant evidential challenges, particularly concerning identification of offenders and the role they played. It is therefore essential that the evidence in public protest related cases is carefully scrutinised, especially where those involved have covered or partially covered their faces and/or where arrests take place some time after the incident in question. Prosecutors should have particular regard to whether there is evidence that a person had come to the protest equipped with clothes or mask to prevent identification, items that could be considered body protection, or an item that can be used as a weapon, as it may indicate the person came in anticipation of disorder at the protest or there was an element of planning before the commission of the offence.

In addition, prosecutors should also consider whether there is evidence of telephone or computer records or social network activity that show that the suspect was closely involved in the commission of the offence. There may also be CCTV coverage or video footage from the police or videos made by protestors uploaded onto the Internet that may provide evidence of a person's participation in an incident. In some cases, there could even be images in national and local media coverage that may also provide evidence of a person's participation in an offence.

Further more detailed guidance on the identification of offenders from CCTV can be found in the legal guidance on Identification. The authorities were reviewed in Attorney General's Reference (No2 of 2002) - Archbold 14-45. Code D PACE was revised in March 2011.

The latest revision of Code D PACE contains a new section (B) dealing with recognition from CCTV etc by non-eye witnesses (including police officers). Paragraph D 3.35 provides that the images should be shown on an individual basis and that the showing shall as far as possible follow the principles in Annex A Code D (if the suspect is known) and Annex E (if the suspect is not known). Paragraph D 3.36 sets out a detailed list of information which must be recorded at the time of the viewing. The information will enable the court to gauge the reliability of the recognition and ascertain whether the safeguards in Annex A or Annex E (as appropriate) have been adhered to.

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The Public Interest Stage

It has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied. This was recognised by the House of Lords in Purdy (R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45) where Lord Hope stated that: "It has long been recognised that a prosecution does not follow automatically whenever an offence is believed to have been committed." He went on to endorse the approach adopted by Sir Hartley Shawcross, the Attorney General in 1951, when he stated in the House of Commons that: "It has never been the rule...that criminal offences must automatically be the subject of prosecution".

Accordingly, where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

In public protest cases, prosecutors must apply the public interest factors set out in the Code, having regard to this guidance. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal.

Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.

The list of public interest factors to consider as set out below in this paragraph and paragraph 22 are not exhaustive. Prosecutors must also have regard to the public interest considerations set out in the Code. Prosecutors should bear in mind that a prosecution for offences committed during a public protest is more likely to be required where:

  • Violent acts were committed that caused injury or it is reasonable to believe they could have caused injury;
  • The suspect took a leading role in and/or encouraged others to commit violent acts;
  • The suspect was in possession of a weapon at the time of the offence;
  • The suspect took steps to conceal their identity;
  • Significant disruption was caused to the public and businesses;
  • Significant damage was caused to property;
  • The suspect has a previous history of causing violence, damage, disruption or making threats at public protests;
  • Threats were made against an individual or business that caused or it is reasonable to believe they could have caused alarm, fear or distress.

Applying the public interest factors set out in the Code, prosecutors should bear in mind that a prosecution is less likely to be required where:

  • The public protest was essentially peaceful;
  • The suspect had no more than a minor role;
  • The suspect has no previous relevant history of offending at public protests or in general;
  • The act committed was minor;
  • The act committed was instinctive and in the heat of the moment.

Prosecutors should consider the incident as a whole in order to assess the context in which the offence was committed. It may be that the alleged act committed is so remote from the main action that it cannot be considered part of it and should be considered as an incident on its own. If so, prosecutors should consider whether they need to refer to any other guidance such as that listed in the introduction.

If an act is committed by a youth, prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people, and prosecutors must consider the interests of the youth when deciding if it is in the public interest to prosecute. For example, the case may be more suitable for disposal by a youth reprimand or final warning given by a police constable under section 65 of the Crime and Disorder Act 1998 rather than prosecution.

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Alternatives to prosecution - dealing with cases out of court

When considering the Public Interest in any case, an important early consideration will be whether the case can be appropriately dealt with by way of an out of court disposal. What is appropriate in the circumstances of each individual case will depend on the seriousness of the offence, the results of the offending behaviour, the antecedents of the offender and the likely outcome at court, particularly where it may be a nominal penalty.

The CPS is responsible for deciding whether to offer an offender a conditional caution in certain cases and prosecutors must follow the relevant Code of Practice and the DPP's Guidance on Conditional Cautioning when deciding whether to offer an offender a conditional caution.

Prosecutors may sometimes direct the police that a simple caution is an appropriate disposal and advise the police of this course of action.  The Code for Crown Prosecutors briefly describes (at section 7) the circumstances in which the prosecutors will authorise the offer of a simple caution by the police in accordance with Home Office Circular 16/2008.

Prosecutors must be satisfied that the Full Code Test is met and that there is a clear admission of guilt in any case disposed of by an out of court disposal.

Prosecutors may suggest to the police, for example, the issue of a Penalty Notice for Disorder.  The issue of a Penalty Notice for Disorder is, however a decision for the police. These notices do not require there to have been an admission of guilt but can only be given by the police in respect of certain offences such as the following (the full list of which is in the Schedule to the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002, as amended):

  • section 5 of the Public Order Act 1986 (behaviour likely to cause harassment, alarm or distress);
  • section 1(1) of the Theft Act 1968 (theft);
  • section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property);
  • section 80 of the Explosives Act 1875 (throwing fireworks in a thoroughfare); and
  • section 91 of the Criminal Justice Act 1967 (disorderly behaviour while drunk in a public place).

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Applying for ancillary orders

In all cases, it is the prosecutor's duty to apply to the court for appropriate ancillary orders. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the needs of victims, including the question of his or her future protection.

In prosecutions arising from public protests, prosecutors should identify appropriate ancillary orders that may be relevant at the pre-charge and pre-trial stage and also upon conviction. Prosecutors should be ready to assist the court to reach the appropriate decision as to sentence, which includes drawing the court's attention to its powers to award compensation and inviting them to make such an order where appropriate.

Victims may have suffered considerable distress, personal injury or financial loss and they are entitled to have these facts and requests for compensation put to the court. The courts attach considerable importance to the making of compensation orders and must give reasons where they do not make an order. Prosecutors should note what compensation was requested, what orders were made and what comments the court may have made in making an award or reducing the amount ordered.

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Annex A - Offences

This is a non exhaustive list of offences that may be committed arising out of a public protest.

Annex A

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