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DPP issues guidance to prosecutors in public protest cases


Keir Starmer QC, the Director of Public Prosecutions (DPP), has today issued Crown Prosecution Service prosecutors with new guidance on dealing with people who may have committed an offence during a protest or demonstration.

From today, prosecutors have a clearer guide on the evidential and public interest factors they should consider before deciding whether or not to charge a suspect or continue a police-charged prosecution in these circumstances.

Mr Starmer said: "This guidance will help prosecutors to differentiate between violent or disruptive offenders who risk causing damage and injury to others, and those whose intent was essentially peaceful and whose role or act was considered minor. It seeks to balance the public's rightful expectation that offenders should face justice, with our legally enshrined, and age-old tradition, of peaceful protest.

"So criminals bent on disruption and disorder are warned they will not get an easy ride.

"My intention is that this guidance should ensure these difficult cases are dealt with proportionately and consistently."

The guidance follows several recent large public protests, but does not cover violent disorder, as was witnessed in August 2011, as prosecutors have existing guidance on that. It also follows a 2011 High Court judgment which ruled, in relation to a public order offence, that the starting point for law enforcers should be an individual's right to freedom of expression.

In determining whether there is sufficient evidence for a realistic prospect of conviction, as set out in the Code for Crown Prosecutors, prosecutors are asked to work with investigators to ensure that evidence is carefully scrutinised, especially where those involved have covered their faces or where arrests take place some time after the protest.

Prosecutors are also asked to consider whether an individual attended the protest equipped with anything that could be used as a weapon, for protection or to hide their face.  If so, it may indicate the suspect was planning criminal activity, and so provide evidence to support a prosecution.

And as well as checking telephone or computer records, the DPP asks prosecutors to work with investigators to consider whether social network activity may provide evidence that they were closely involved in planning criminality.

If a prosecutor is satisfied that there is sufficient evidence for a realistic prospect of conviction, they must then consider whether it is in the public interest to prosecute.  It has never been the rule that a prosecution will automatically follow where there is sufficient evidence for a realistic prospect of conviction.

Applying the public interest factors as set out in the Code for Crown Prosecutors, the guidance indicates 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. 

Considering 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. 

The DPP reminds prosecutors that 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.

In drawing up the guidance, the CPS invited feedback from the Association of Chief Police Officers, Liberty and JUSTICE.


Notes to Editors

  1. You can read the legal guidance on public protests in the Legal Resources section of our website.
  2. The 2011 case referred to above is Munim Abdul v DPP [2011] EWHC 247 (Admin).  In this case, the court acknowledged that legitimate protest can be offensive at least to some people, and the law cannot simply protect those holding the majority view. In this case, the appellants were charged with a section 5 Public Order Act offence.
  3. For media enquiries call the CPS Press Office on 020 3357 0906; Out of Hours Pager 07699 781 926
  4. The DPP has set out what the public can expect from the CPS in the Core Quality Standards document published in March 2010.
  5. The CPS consists of 13 Areas in total, each headed by a Chief Crown Prosecutor (CCP). In addition, there are three specialised national divisions: Central Fraud Division, Special Crime and Counter Terrorism, and Organised Crime. From 1 September 2011, The Department for Environment, Food and Rural Affairs (Defra) prosecution function was transferred to the CPS.  A telephone service, CPS Direct, provides out-of-hours advice and decisions to police officers across England and Wales.
  6. In 2010-2011 the CPS employed around 7,745 people and prosecuted 957,881 cases with 116,898 of these in the Crown Court, and the remaining 840,983 in the magistrates' courts. Of those we prosecuted, 93,106 defendants were convicted in the Crown Court and 727,491 in the magistrates' courts. In total 86% of cases prosecuted resulted in a conviction. Further information can be found on the CPS website.
  7. The CPS, together with ACPO and media representatives, has developed a Protocol for the release of prosecution material to the media. This sets out the type of prosecution material that will normally be released, or considered for release, together with the factors we will take into account when considering requests. Read the Protocol for the release of prosecution material to the media.