Offences during Protest, Demonstrations or Campaigns

|Legal Guidance

Headlines

  • The rights of freedom of speech and to protest peacefully are protected by the law. However this right is not absolute, and it is unlikely to provide any defence when aggressive and threatening behaviour prevents people going about their daily lives.
  • Prosecutors must apply the principles of the European Convention on Human Rights (the Convention), in accordance with the Human Rights Act 1998, at each stage of a case. It is a defence to prove the conduct was reasonable and in accordance with the freedom of expression and other freedoms. If these freedoms are engaged, a justification for interference with them (by prosecuting) must be established. A prosecution may only proceed if it is necessary and proportionate.
  • Criminal law in respect of public order offences is intended to penalise the use of violence and/or intimidation by individuals or groups. In addition, behaviour which is repeated and unwanted by the victim and which causes the victim alarm or distress may constitute harassment. Such behaviour may also motivated by hostility to race or religion or other protected characteristics.
  • A person may not however rely on a Convention right such as freedom of expression where they engage in any activity or perform any act aimed at the destruction or limitation of any of the rights and freedoms of others protected by the Convention. In these cases, the Convention right is not engaged and a suspect may not rely upon it.

Public Protests

  1. Protests may take many different forms, ranging from action by one person acting alone to a demonstration attended by thousands of people. 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.
  2. Examples of case law that considered these issues can be found within the full legal guidance, here. A non-exhaustive list of offences that may be committed arising out of a public protest can be found within the full guidance, at Annex A.
  3. The evidential stage should consider factors such as how an offender is identified in potentially large crowds, whether there was an element of planning before the commission of the offence can be proved, and if any electronic evidence to demonstrate an involvement in the commission of an offence is available. Some points to consider at the evidential stage can be found here.
  4. At the public interest stage, prosecutors must apply the public interest factors set out in the Code, as well has having regard to some of the factors set out here.
  5. For further details see the full guidance on Public Protests here.

Public Order Offences

  1. Related public order legislation ensures individuals rights to freedom of expression and assembly are balanced against the rights of others to go about their daily business unhindered. Relevant offences contrary to the Public Order Act 1986 may include threatening, abusive or insulting words or behaviour, or display of visible representations, which:
    • Are likely to cause fear of, or to provoke, immediate violence: section 4
    • Intentionally cause harassment, alarm or distress: section 4A
    • Are likely to cause harassment, alarm or distress (threatening or abusive only words or behaviour only – not insulting): section 5.
  2. It is a defence to section 4A and section 5 for the accused to demonstrate that their conduct was reasonable, which must be interpreted in accordance with the freedom of expression and other freedoms. If these freedoms are engaged, a justification for interference (by prosecution) with them must be convincingly established. A prosecution may only proceed if necessary and proportionate. Reference should be made to the charging standard purpose and the charging standard practice.
  3. The full guidance on Public Order Act offences can be found here.

Harassment and Stalking Offences

  1. The offence of harassment contrary to the Protection from Harassment Act 1997 is committed where a person engages in a course of conduct which amounts to the harassment of another person, and they know it amounts to harassment or they ought to know. Course of conduct is a fact-specific assessment. It requires behaviour on more than one occasion but this need not be the same behaviour on each occasion. Behaviour which begins as a legitimate complaint or inquiry may turn into harassment if unreasonably prolonged or persistent. Further information on elements of the offence of harassment can be found here.
  2. It is a defence to prove the conduct was reasonable which must also be interpreted in accordance with the freedom of expression and other freedoms. If these freedoms are engaged, a justification for interference with them (by prosecuting) must be convincingly established. A prosecution may only proceed if necessary and proportionate.
  3. The offence of stalking is committed when the harassment amounts to stalking; a non-exhaustive list of examples can be found here.
  4. Related charging guidance helps set out the difference between someone who is stalked and someone who is harassed, and if both could be applied.
  5. The full guidance can be found here.

Hate Crime

  1. Sections 28 to 32 of the Crime and Disorder Act 1998 provides that, where a series of existing offences including assault, criminal damage, stalking, harassment and public order offences are committed, and such an offence (i) was motivated by hostility to race or religion, or (ii) was accompanied by hostility to race or religion proximate to the commission of the offence, that a separate racially or religious aggravated offence is committed attracting a greater penalty.
  2. Any potential offence of incitement to racial or religious hatred or hatred because of sexual orientation should be referred to the Special Crime and Counter Terrorism Division for review.
  3. For those offences not covered but where hostility or hostile motivation towards race or religion is present, or hostility or hostile motivation towards disability, sexual orientation or transgender is present, this must be treated as an aggravating factor at sentence and stated as such in open court: sections 145/146 Criminal Justice Act 2003.
  4. Prosecutors must adopt a proactive approach to seeking evidence from the police to help them to decide if a case can be prosecuted as a racially or religiously aggravated hate crime and that there is evidence that should be presented to the court at sentence.
  5. If the case passes the evidential stage and it is a case of racial or religious hate crime, or it is motivated by discrimination against the victim's ethnic or national origin, or religion or belief, it is more likely that a prosecution is required in the public interest.
  6. For further details, see the full guidance here

Communications Offences and Social Media

  1. Communications sent via social media may involve the commission of a range of existing offences against the person, public justice, sexual or public order offences. They may also involve the commission of communications offences (the communications offences) contrary to section 1 Malicious Communications Act 1988 (section 1) and / or section 127 Communications Act 2003 (section 127).
  2. Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 criminalise the sending of certain communications including those alleged to be indecent, grossly offensive or menacing.
  3. Menacing means creating a sense of apprehension or fear in the likely recipient. There is a high threshold to meet the objective test of whether or not the communication is grossly offensive. A prosecution is only viable where the communication in question crosses the high threshold necessary to protect freedom of expression, even unwelcome freedom of expression, particularly in the course of robust political debate. Communication which is merely any one of the following, is likely to be protected as freedom of expression:
    • Offensive, shocking or disturbing; or
    • Satirical, iconoclastic or rude comment; or
    • The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it; or
    • An uninhibited and ill thought-out contribution to a casual conversation where participants expect a certain amount of repartee or give and take.
  4. A prosecution is only likely to be viable where a communication goes beyond the above. This is with reference to contemporary standards... the standards of an open and just multi-racial society assessing whether the particular message in its particular context is beyond the pale of what is tolerable in society.
  5. Prosecutors must be satisfied that a prosecution is required in the public interest and, where Article 10 of the ECHR is engaged, this means on the facts and merits of the particular case that it has convincingly been established that a prosecution is necessary and proportionate. Particular care must be taken where a criminal sanction is contemplated for the way in which a person has expressed themselves on social media. The full guidance sets out some relevant public interest factors to consider.
  6. Cases involving communications sent via social media that fall within category (4) of the guidelines except those charged by CPSD out of hours. The case will be reviewed for "grossness" and returned to Area to prosecute and/or communicate the decision.
  7. For further details, see the full guidance here

Public Interest Stage

  1. Prosecutors should apply section 4 of the Code for Crown Prosecutors and all factors in favour and against a prosecution should be carefully balanced. Relevant factors to consider in this type of case might include:
    • A prosecution is (also) more likely if the offence has been committed against a victim who was at the time a person serving the public.
    • It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victims actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics.
    • Impact of the Community which is not restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group.
  1. Further factors tending in favour of a prosecution in the public interest include:
    • 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.

Further factors tending against a prosecution in the public interest include:

  • 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.

ECHR stage

  1. The first step is to consider whether the activity involve freedom of expression and/or freedom of assembly and association. If it does, prosecutors should consider whether the activity is aimed at the destruction or limitation of any rights and freedoms in Schedule 1 of the Human Rights Act 1998. If protections of freedoms are engaged, the prosecution must be necessary and proportionate.

Conclusion

  1. This guidance cannot cover every eventuality but intends to address in outline some of the possible criminal offences that may be encountered. Although each case must be considered on its own facts and on its own merits, there are general principles that apply in every case. All decision making must be in line with the Code for Crown Prosecutors, CPS policy and guidance and in particular, where freedoms are protected elsewhere in law, justification for interference with them must be established. A prosecution may only proceed if necessary and proportionate.