Memorandum by The Home Office (Ev 57)
This Memorandum sets out the Home Office's position
on the main relevant legislation that would apply to policing
protest around Parliament should sections 132 to 138 of the Serious
Organised Crime and Police Act 2005 (SOCAP) be repealed. This
does not comprise an exhaustive list of possible applicable legislation.
(a) Public Order Act 1986: Sections 11, 12
1. If the SOCAP provisions were repealed the
Public Order Act 1986 would apply to the policing of static demonstrations
and marches around Parliament as it does elsewhere in England
and Wales. Sections 11 & 12 of the Public Order Act covering
processions (marches) already apply around Parliament.
2. Section 11 of the Public Order Act 1986
requires the organisers of public processions to give written
notice to the police 6 days in advance, giving the date, time
and route of the march and name and address of person organising
it, unless not reasonably practicable.
3. Sections 12 & 14 of the Public Order
Act give the police the power to impose conditions on public processions
and public assemblies, as appear necessary to prevent:
serious public disorder;
serious damage to property;
serious disruption to the life of
the community; or
the intimidation of others with a
view to compelling (see paragraph 31) them not to do an act they
have a right to do.
4. In the case of processions, the conditions
that can be imposed are not specified but may include conditions
as to the route to be followed or prohibiting the procession from
entering any specified public place etc.
5. In the case of assemblies, conditions
which can be imposed are limited to those governing:
the place where the assembly may
the maximum duration; and
the maximum number of participants.
6. A public assembly is defined in the Public
Order Act as an assembly of 2 or more persons in the open air.
Currently, under SOCAP a demonstration in the vicinity of Parliament
can consist of one person. The powers can be exercised in advance
or once the procession or assembly has begun. A person who organises
or takes part in a public procession or public assembly who knowingly
fails to comply with a condition imposed by a police officer is
guilty of an offence.
7. By way of example, if two competing demonstrations
occurred around Parliament, the police could impose conditions
to prevent serious public disorder on the organisers or those
taking part in either demonstration if they had good reason to
think that the demonstrations might result in serious public disorder
etc and where those directions appeared necessary to prevent it.
8. Equally, if a protest started becoming
violent or a crowd of protestors decided to storm Carriage Gates,
the police would have powers to impose conditions on the basis
of preventing serious public disorder. In addition to powers to
impose conditions, the police would be able to arrest a person
involved in the commission of a criminal offence if there were
reasonable grounds for believing that the person's arrest was
necessary for ascertaining the person's name and address (where
they cannot otherwise readily be ascertained), or preventing either
physical injury, loss or damage to property, public indecency
or an unlawful obstruction of the highway.
(b) The Metropolitan Police Act 1839: Section
9. Additionally, the Commissioner has powers
under section 52 of the Metropolitan Police Act 1839 to make regulations
from time to time, and as occasion shall require, for preventing
obstruction in the streets during public processions etc and to
give directions to the constables for keeping order and for preventing
any obstruction of the thoroughfares in the immediate neighbourhood
of her Majesty's palaces and the public offices, the High Court
of Parliament, etc and in any case when the streets or thoroughfares
may be thronged or may be liable to be obstructed.
10. The 1839 Act could be used to give constables
directions to prevent disorder around Parliament and to keep access
to the Houses of Parliament free from obstruction, for example.
But any directions issued would need to be reasonable, proportionate
and balanced to meet ECHR requirements.
Section 54 Prohibition of nuisances by
persons in the thoroughfares
11. Every person shall be liable to a penalty
not more than [level 2 on the standard scale], who, within the
limits of the metropolitan police district, shall in any thoroughfare
or public place, commit any of the following offences; (that is
9. Every person who, after being made acquainted
with the regulations or directions which the commissioners of
police shall have made ... for preventing obstructions during
public processions and on other occasions herein-before specified,
shall wilfully disregard or not conform himself thereunto:
14. Every person, ..., who shall blow any
horn or use any other noisy instrument, for the purpose of calling
persons together ...
[There are 17 nuisances listed under section
54. The two set out above are the most relevant in relation to
12. It is important to note that the Sessional
Order on the Commissioner has no effect beyond the walls of Parliament.
While it can provide an indication of the House's expectations
of the Commissioner, it confers no powers on the Commissioner.
It should not be confused with the provisions of section 52 of
the Metropolitan Police Act 1839.
13. The directions of the Commissioner should
be understood to relate to those assemblies which are capable
of being obstructive etc (ie in accordance with section 52 of
the Metropolitan Police Act, irrespective of the wording of the
sessional order) or else risk being ultra vires. [Papworth
v Coventry 1967]
(c) Local Authority Byelaws
14. The byelaws which apply to Parliament
Square Garden under the Trafalgar Square and Parliament Square
Garden Byelaws 2000 would continue to apply as they do for Trafalgar
Square. These byelaws require prior notification and permission
by the Mayor for assemblies on the Garden [see paragraph 35 for
15. As well as setting out the powers the
police have to manage protests, the Public Order Act also includes
a range of criminal offences associated with public disorder that
would apply on repeal of SOCAP as they currently apply. There
is also other legislation that can potentially apply to criminal
acts committed in the course of a demonstration.
(a) Sections 1 to 5 of the Public Order Act
16. Section 1offence of riot where
a group of 12 or more people use or threaten unlawful violence
for a common purpose and the conduct of them taken together is
such as would cause a person of reasonable firmness present at
the scene to fear for his personal safety. It's rare for a charge
of riot to be brought.
17. Section 2 offence of violent
disorder where a group of three or more people use or threaten
unlawful violence and; the conduct of them taken together is such
as would cause a person of reasonable firmness present at the
scene to fear for his personal safety.
18. Section 3offence of affray where
a person uses or threatens unlawful violence towards another and
his conduct is such as would cause a person of reasonable firmness
present at the scene to fear for his personal safety. In order
to prove this offence the threat of unlawful violence has to be
towards a person present at the scene.
19. Section 4 of the Public Order
Act 1986 contains the offence of using threatening, abusive or
insulting words or behaviour or displaying threatening abusive
or insulting writing or signs. The behaviour must be directed
to a person with intent either to cause him to believe immediate
unlawful violence will be used; or to provoke such violence; or
to cause him to believe such violence will be used.
20. Section 4A of the 1986 Act also criminalises
the use or display of such words or behaviour. The person must
intend to cause harassment, alarm or distress and must actually
do so. It is a defence for the accused to show his conduct was
reasonable. Taking photographs or video film of a person in a
"threatening" manner could constitute an offence under
21. Section 5 of the 1986
Act makes it an offence to use or display such words or behaviour
within the hearing or sight of a person likely to be caused harassment,
alarm or distress. The conduct need not be directed against a
particular person but the accused must intend his words or behaviour
to be threatening, abusive or insulting or be aware that they
may be. It is a defence to show that there was no reason to believe
there was anyone within sight or hearing likely to be caused harassment,
alarm or distress. It is also a defence if the accused can show
his conduct was reasonable. A police officer can be caused harassment,
alarm or distress under this section, and the offence does not
require the act causing harassment alarm or distress to be directed
towards the officer.
(b) Protection from Harassment Act 1997
22. Pursuing a course of conduct (including
verbal conduct) which amounts to harassment of another, including
alarming, distressing or putting in fear of violence will be an
offence under section 2 or 4 of the Protection from Harassment
23. It is an offence under section 2 of
the Protection from Harassment Act 1997 to pursue a course of
conduct which amounts to harassment of another (or of two or more
persons, where the intention is to deter them from carrying out
lawful activitiesthis was added by section 125 of the Serious
Organised Crime and Police Act 2005)harassment includes
alarming or causing a person distress and conduct includes speech.
An intention to cause harassment is not necessary, but it is necessary
to show that a reasonable person would think the behaviour amounted
to harassment. It is a defence to show that the course of conduct
was reasonable in the particular circumstances.
24. It is an offence under Section 4 of
the Act to pursue a course of conduct causing another to fear
that violence will be used against him. The court may make a restraining
order on conviction for either offence and a victim of harassment
may take civil proceedings under the Act for an injunction and
damages for any resulting anxiety or financial loss. The perceived
limitations of the powers are that they require a "course
of conduct" which in the case of harassment of a single person
means conduct on at least two occasions and in the case of harassment
of two or more persons, means conduct on at least one occasion
in respect of each person.
25. The course of conduct could include
aiding, abetting, counselling and procuring such harassment ("collective
harassment") by virtue of s7 of the Act as amended by the
s43 of the Criminal Justice and Police Act 2001.
(c) Breach of the Peace
26. There is a breach of the peace wherever
(even on private premises):
harm is actually done, or is likely
to be done, to a person, whether by conduct of the person against
whom a breach of the peace is alleged or by someone whom it provokes;
harm is actually done, or is likely
to be done, to a person's property in his presence; or
a person is genuinely in fear of
harm to himself or to his property in his presence as a result
of an assault, affray, riot or other disturbance.
27. The common law power to arrest to prevent
a breach of the peace may also be available, but only where an
imminent risk of violence could be established
(d) Obstructing police officers
28. Resisting or obstructing a police officer
in the execution of his duty is an offence under section 89 of
the Police Act 1996.
(e) Trade Union and Labour Relations (Consolidation)
29. Under section 241 of the Trade
Union and Labour Relations (Consolidation) Act 1992, it is an
offence to do any of the following wrongfully and without legal
authority and with a view to compelling a person to do or abstain
from doing anything he has a right to abstain from or do:
to use violence, intimidate a person
or his family or injure his property;
persistently follow him;
hide tools or other property;
watch or beset his house or other
place where he is;
follow him in a disorderly manner.
The offence does not have to be connected to
a trade dispute.
30. The behaviour must be "wrongful"
ie it must amount to a civil wrong such as nuisance, intimidation
31. The section has its origins in the Conspiracy
and Protection of Property Act 1875 and is most obviously relevant
in the context of trade disputes. However, it is not limited in
its terms to such a dispute and one of the leading cases concerns
a demonstration outside an abortion clinic. That case (DPP
v Fidler 1 WLR 91) may also illustrate the difficulties in
prosecuting for the offence in the context of pickets and demonstrations
as it turned on the difference between "compelling"
and "persuading". The defendants argued successfully
that their actions were designed to persuade, not to compel women
not to have terminations. The offence will also only be available
where the protestors' action is tortious. If the demonstration
is entirely peaceful and does not involve trespass or intimidation
or amount to a public nuisance, no offence under section 241 may
(a) Unlawful Obstruction of the Highway
32. Under section 137 of the Highways Act
1980, if a person without lawful authority or excuse in any way
wilfully obstructs the free passage along a highway, he is guilty
of an offence and liable to a fine not exceeding level 3. The
onus is on the prosecution to prove that the defendant was obstructing
the highway without lawful authority or excuse. A constable may
arrest a person where necessary to prevent unlawful obstruction
of the highway under section 24 of the Police and Criminal Evidence
33. In October 2002, Westminster City Council's
claim for an injunction to remove Brian Haw's display of banners
which they alleged was an obstruction of the highway was dismissed
on the basis that the Claimant's use of the highway was not unreasonable
in the circumstances, having regard in particular to his right
to freedom of expression under Article 10 of the European Convention
on Human Rights 1950 (ECHR): Westminster City Council v Haw
 EWHC 2073 (QB).
34. Article 10 cannot be used to circumvent
highway regulations, but it is a significant consideration when
assessing the reasonableness of any obstruction to which protest
gives rise. Courts also account for the duration, place, purpose
and effect of obstructions.
(b) ByelawsTrafalgar Square and Parliament
Square Garden Byelaws 2000
35. These are enforced by the heritage wardens
employed by the Greater London Authority. Section 5 lists the
acts within the Squares for which written permission is required.
5. Unless acting in accordance with permission
given in writing by:
(b) any person authorised by the Mayor to
give such permission
no person shall within the Squares:
(5) use any apparatus for the transmission,
reception, reproduction or amplification of sound, speech or images,
except apparatus designed and used as an aid to defective hearing,
or apparatus used in a vehicle so as not to produce sound audible
to a person outside that vehicle, or apparatus where the sound
is received through headphones;
(7) camp, or erect or cause to be erected
any structure, tent or enclosure;
(10) organise or take part in any assembly,
display, performance representation, parade, procession, review
or theatrical event;
36. Breach of these bye-laws is an offence
punishable on summary conviction with a fine not above level 1
of the standard scale (s385(3) Greater London Authority Act 1999).
37. The Joint Committee asked witnesses
about the implications of the police losing powers to impose conditions
on a protest to prevent a security risk and a risk to public safety
if sections 132 to 138 of SOCAP were repealed.
38. If SOCAP were repealed, the police would
not have a specific power to impose conditions on a public procession
or assembly on the grounds of a security or public safety risk
under sections 12 & 14 of the Public Order Act 1986.
39. As set out in paragraph 3, sections
12 & 14 of the Public Order Act 1986 give the police the power
to impose conditions on public processions and public assemblies,
as appear necessary to prevent:
serious public disorder;
serious damage to property;
serious disruption to the life of
the community; or
the intimidation of others with a
view to compelling them not to do an act they have a right to
40. The Home Office view is that preventing
public safety risks can be managed under the criteria for imposing
conditions outlined above, to the extent that they fall within
preventing serious public disorder and that the measures available
would be effective.
41. In so far as preventing a risk to security
is concerned, since sections 132 to 138 of SOCAP came into force,
physical security measures around Parliament have been increased.
There are operational measures in place for the protection of
the Government Security Zone including regular mobile and foot
patrols of the area and certain sites.
42. Other measures to manage security risks
around Parliament are set out below:
(a) Trespass on designated sites
43. Sections 128 to 131 of the Serious Organised
Crime and Police Act 2005 created the offence of criminal trespass
on a protected site. On 1 June 2007 an order designating a number
of sites as protected sites came into force. The order included
the Palace of Westminster and Portcullis House.
(b) Section 60 of Criminal Justice and Public
Order Act 1994
44. Section 60 of the Criminal Justice and
Public Order Act 1994, as amended by the Knives Act 1997, gives
the police powers to stop and search in anticipation of violence.
45. Section 60 (1) contains a power under
which if a police officer of or above the rank of inspector reasonably
that incidents involving serious
violence may take place in the locality in his police area, and
that it is expedient to give an authorisation under this section
to prevent their occurrence; or
that persons are carrying dangerous
instruments or offensive weapons in any locality in his police
area without good reason;
46. The officer may give an authorisation
that stop and search powers without suspicion can be used in a
defined area for a specified period not exceeding 24 hours.
(c) Section 44 of the Terrorism Act
47. An authorisation under section 44 of
the Terrorism Act gives the police the power to stop and search
pedestrians, vehicles, drivers and passengers for the purposes
of preventing terrorism. Authorisations must be confirmed
by the Secretary of State within 48 hours in order for it to remain
valid after that period. The powers can be authorised in particular
locations and for a particular period of time.
48. Section 137 of the Serious Organised
Crime and Police Act 2005 bans the use of loudspeakers at any
time and for any purpose (subject to a number of exceptions, including
where consent of local authority has been granted) within the
designated area around Parliament.
48. Repeal of section 137 will remove the
general offence for using a loudspeaker in the designated area.
Repeal of SOCAP will also remove the police's power to impose
requirements as to maximum permissable noise levels where necessary
to prevent disruption to the life of the community (section 134
(4) (f)) The use of loudspeakers will continue to be governed
under Section 62 (1) of the Control of Pollution Act 1974 and
section 8 of the Noise and Statutory Nuisance Act 1993. Section
62(1) of the Control of Pollution Act makes it an offence to operate
a loudspeaker in a street between the hours of 9pm and 8 am, for
50. However, under section 62(3A) of the
1974 Act, subsection 1 does not apply to the operation of a loudspeaker
in accordance with a consent granted by a local authority under
Schedule 2 to the Noise and Statutory Nuisance Act 1993. In other
words, the 1993 Act allows a person to apply to the local authority
to use a loudspeaker between 9pm and 8 am but the consent may
itself be subject to conditions.
51. Section 2 of the Noise and Statutory
Nuisance Act amended section 79 (1) of the Environmental Protection
Act to make noise in street a statutory nuisance. It added paragraph
(ga) to the list of statutory nuisances in subsection 1, "noise
that is prejudicial to health or a nuisance and is emitted from
or caused by a vehicle, machinery or equipment in a street".
However subsection 1 (ga) does not apply to noise made by traffic,
by any naval, military or air force of the Crown or by a visiting
force; or by a political demonstration or a demonstration supporting
or opposing a cause or campaign.
52. Use of amplification equipment on Parliament
Square Garden requires the prior permission of the Mayor of London
under the Trafalgar Square and Parliament Square Garden Byelaws.
53. The Joint Committee asked witnesses
what powers would be available to the police and others to prevent
noise disturbance upon repeal of section 137 of SOCAP. It was
suggested that the police already had powers under section 14
of the Public Order Act to impose a condition on the maximum duration
of an assembly, on the grounds that use of a loudspeaker was causing
serious disruption to the life of the community.
54. The Home Office simply notes that it
would be a question of fact as to whether individuals were causing
sufficient disruption to the life of the community with loudhailers
to justify the police imposing a condition on the basis of disruption
to the life of the community and whether, consequently, a condition
could be imposed limiting the duration of an assembly. As there
would be no specific power to impose conditions limiting the use
of a loudspeaker, the only option would be to tolerate the loudspeaker,
or to limit the whole assembly. There may be questions about whether
limiting the whole assembly is a proportionate response to loudspeaker
55. The police would additionally have to
recognise the exemption of noise from political demonstrations
as a statutory nuisance under the Noise and Statutory Nuisance
Act 1993, as well as any local authority consent that had been
granted under the 1993 Act.
56. In accordance with section 24 of the
Police and Criminal Evidence Act (PACE) a constable may, without
warrant, arrest a person involved or suspected of involvement
or attempted involvement in the commission of a criminal offence
if there are reasonable grounds for believing that the person's
arrest is necessary for one of the specified grounds at s24(5)
PACE. These grounds include ascertaining the person's name and
address (where they cannot otherwise readily be ascertained),
and preventing either physical injury, loss or damage to property,
public indecency or an unlawful obstruction of the highway. It
is the latter ground (at s24(5)(v) PACE) which is of most obvious
relevance in the context of large protests.