Demonstrating respect for rights? A human rights approach to policing protest - Human Rights Joint Committee Contents


69. Witnesses expressed a range of views about the human rights compatibility of current legislation dealing with protest. Some, like Huntingdon Life Sciences, concluded that current police powers are necessary.[125] The Association of the British Pharmaceutical Industry (ABPI) said:

    The introduction of SOCPA 2005, improved policing and the use of injunctions has helped to protect companies, their employees, customers and suppliers from animal rights extremists, whilst allowing peaceful protest.[126]

Noting its collection of data since 2002 on attacks and protests by the animal rights movement, the ABPI said "this data clearly indicates that the new legislation, effective policing and use of civil injunctions has reduced the levels of attacks on peoples' homes, while the level of protest has remained virtually unchanged."[127] However, it is not clear to us whether the drop in attacks can be attributed solely to the new legislation, or to other factors such as the remand of some protestors or better policing.

70. On the other hand, others argued equally strongly that existing legislation failed to respect "the need to balance any competing rights or, in the case of protest, balance the right under Article 11(1) with wider social interests in Article 11(2)".[128] David Mead, Senior Lecturer in Law at the University of East Anglia, suggested that insufficient attention has been given in the law on protest generally to the concept of rights:

    English law relating to protest has been informed by the imperative of order maintenance alongside a political need to (be seen to) respond to individual events/perceived social ills (rather than as a structured and balanced framework) and not by any concept of rights.[129]

71. Some generic concerns, applying to a number of laws governing protest, were summarised by Justice in the following terms:

  • overbroad or excessively vague legislation leading to wide discretion being given to police officers and an unclear line between lawful and unlawful conduct
  • progressive and increasingly severe legislative limitation of the right to protest resulting in "a bewildering array of [overlapping] powers and offences in relation to protest activities" which decreases the foreseeability and predictability of the law;[130] and
  • reluctance of the courts to provide clear limits on overbroad powers under section 3 Human Rights Act 1998 (the duty to interpret legislation compatibly with human rights).[131]

72. Fleshing out concerns about overbroad legislation and its interplay with human rights standards, Justice told us:

    Overbroad legislation is often justified on the basis that the police and other officials will not be able to use it in circumstances contrary to the Human Rights Act 1998 … In effect the individual police officer or protestor is being asked to determine - sometimes in circumstances where an urgent response is required - whether his or her actions, while within the statutory power, are in accordance with the HRA. This is a complex question and clear guidance is necessary.[132]

73. Liberty argued that the starting point must be the legislation itself, not guidance on its application:

    If you are going to ensure Convention compliance, it is the legislators that should do that at the outset. You should avoid passing legislation which is so broad that it could be applied in a non-Convention compliant manner. It is much better that narrow legislation is passed in the first place, rather than the police and other public bodies, who need to make a decision very quickly, having to decide themselves at the time whether they are acting in a Convention compliant manner or not.[133]

74. A number of witnesses pointed to legislation which was not specifically designed to deal with protests, but which had "since become part of the police's toolkit."[134] The stop and search power under the Terrorism Act 2000, the criminal offence of harassment and the use of civil injunctions have already been noted. Witnesses also referred to the use of anti-social behaviour orders and dispersal powers against protestors. [135]

75. The Minister accepted the need for greater clarity in relation to the exercise of police discretion stating:

    Discretion is important and does happen in different circumstances across the country, but there is a need for greater clarity about how some of the powers of the police are used and how the officer on the beat uses the powers he has available to him.[136]

76. We agree with the Minister that there needs to be greater clarity about how broad police powers are used. However, in our view, the better approach is to draft legislation itself in sufficiently precise terms so as to constrain and guide police discretion, rather than to rely on decision makers to exercise a broad discretion compatibly with human rights.

77. Below we turn to consider the most significant legal provisions in this area and suggest ways in which they could be amended or applied differently in order to ensure that their impact on protest is more likely to be compatible in practice with the UK's human rights obligations.

Public Order Act

78. The Home Office suggested that the Public Order Act enabled the police to strike a balance between competing rights.[137] It summed up its position by quoting from Blackstone's General Policing Duties 2008:

    Public order law and the policing of it 'involves balancing opposing rights of individuals with one another against wider entitlements and requirements of society - a task that, in practical terms, can seem like trying to satisfy the insatiable.'[138]

79. Witnesses expressed different views as to whether the Public Order Act was sufficient for policing protests generally, or whether specific legislative solutions were required for specific areas. According to both ACPO and the Metropolitan Police, the Act was not suitable for policing everywhere as specific legislation was required for the area around Parliament.[139] Other witnesses disagreed.[140] We address this issue in the next Chapter.

80. A number of witnesses drew specific attention to section 5 of the Act, which criminalises "threatening, abusive or insulting" words or behaviour in certain circumstances.[141] Some witnesses said this section "can be used in a way which … illegitimately stifles protest"[142] or has a chilling effect on free speech.[143] Liberty provided an example of the police citing section 5 of the Act where a young man demonstrating outside the Church of Scientology's London headquarters was issued with a summons by the police for refusing to take down his sign, which read "Scientology is not a religion, it is a dangerous cult". The police alleged that the used of the word "cult" violated section 5, although they did not subsequently proceed with a prosecution.[144]

81. The Metropolitan Police gave an example of the arrest under section 5 of a protestor at a free speech rally for wearing a picture of a cartoon depicting the prophet Mohammed, which had been published in the Danish press, explaining:

    That was during a very tense period … we chose to wait until somebody came forward to us and said "I fear that that will cause a breach of the peace; I am offended by that" and then we took action against the individuals.[145]

82. We asked police witnesses whether they considered that existing police powers under section 5 were too broad or used too often. AAC Allison disagreed, suggesting that "if [people] felt that we were acting inappropriately or making excessive use of our powers then they had the right to challenge us about it."[146]

83. As with freedom of assembly, freedom of expression imposes both positive and negative obligations on the state. We were pleased to note that the Home Office Minister, Vernon Coaker MP, accepted that "the police's job is to try and ensure that you facilitate free speech".[147] When we asked the Minister about potentially inappropriate uses of section 5, including an example where an Oxford student was arrested for allegedly calling a police horse "gay", he said "I do not think section five should be used arbitrarily. It is an important power that the police have."[148] He added "You do get these examples that are brought up which do sometimes make people wonder whether the power was used appropriately. I will take those examples back, talk to the police about them and see whether we can clarify and get some guidance out of it."[149] The Minister agreed to raise with ACPO the examples which we had discussed and "see what sort of guidance and better support could be given to police officers with respect to the use of section 5."[150]

84. There is an inextricable and fundamental link between the right to protest and free speech. We are concerned by the evidence that section 5 has, on occasions, been used to prevent people from freely expressing their views on matters of concern to them, and thereby has stifled otherwise legal, peaceful protest. Whilst we agree that people should be protected by existing laws preventing incitement on a number of grounds, free speech in the context of protest and dissent has long been protected by the common law because of its importance for the functioning of a democratic society. It is inevitable that some protests will cause others to be offended. As one witness told us, "protest is always going to upset somebody - that is the nature of protest".[151]

85. Section 5 of the Public Order Act gives the police a wide discretion to decide what language or behaviour is "threatening, abusive or insulting". Whilst arresting a protestor for using "threatening or abusive" speech may, depending on the circumstances, be a proportionate response, we do not think that language or behaviour which is merely "insulting" should ever be criminalised in this way. Whilst we welcome the Minister's agreement to discuss the examples we raised with ACPO in order to see whether guidance or support to police officers would improve matters, we do not consider that improving guidance will be sufficient to address our concern. We recommend that the Government amend section 5 of the Public Order Act 1986 so that it cannot be used inappropriately to suppress the right to free speech, by deleting the reference to language or behaviour that is merely "insulting." This amendment would provide proportionate protection to individuals' right to free speech, whilst continuing to protect people from threatening or abusive speech. We suggest such an amendment:

    Harassment, alarm or distress: insulting words or behaviour

    To move the following clause:

    '(1) The Public Order Act 1986 (c. 64) is amended as follows.

    (2) In sections 5(1)(a) and 5(1)(b), the words "abusive or insulting" are replaced by "or abusive".'

Counter-terrorism powers

86. A significant number of witnesses expressed serious concerns at the use of counter-terrorism powers on protestors, particularly the power under section 44 of the Terrorism Act 2000 to stop and search without suspicion.[152] Witnesses suggested that the use of the powers contravened the OSCE/ODIHR Guidelines[153] which note:

    Domestic legislation designed to counter terrorism or "extremism" should narrowly define these terms so as not to include forms of civil disobedience and protest; the pursuit of certain political, religious, or ideological ends; or attempts to exert influence on other sections of society, the government, or international opinion.[154]

87. The National Union of Journalists complained that the police had relied on the Terrorism Act 2000 to prevent journalists from leaving demonstrations.[155] Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat.[156] The following comment by David Mead reflects the views of a number of witnesses:

    … there can be no justification to call upon anti-terrorism legislation to police protests/protestors and such use debases the very real threat terrorists are capable of posing to us all.[157]

88. High profile examples of the inappropriate use of counter-terrorism powers include: preventing Walter Wolfgang from re-entering the Labour Party conference in Brighton in 2005, following his physical ejection for heckling the then Foreign Secretary Jack Straw MP; and stopping and searching a protestor and a journalist at an arms fair at the Excel Centre in Docklands, East London in 2003.[158] Less well-known examples include the use of stop and search on demonstrators at military bases[159] or people wearing slogans on t-shirts.[160]

89. The Research Defence Society and the author and commentator Richard D. North both distinguished protestors (including animal rights extremists) from terrorists.[161] Mr North said "terrorism is a word we ought to reserve for some kind of insurgency, or guerilla or asymmetrical warfare".[162] In contrast, Huntingdon Life Sciences argued in relation to protest against its activities by animal rights activists, however, that "insufficient consideration was given to counter-terrorism powers in what was widely considered in practice (but not in name) to be domestic terrorism".[163]

90. When we asked police representatives whether it was appropriate to use counter-terrorism powers against protestors, AAC Allison replied that "there are occasions when we do need to use our counter-terrorism powers: I would say that that is why we have them".[164]

91. Addressing the same question, the Minister was clear that counter-terrorism powers should only be used in relation to terrorism. He noted that the Prime Minister had ordered a review into the use of stop and search powers[165] and as a result new guidance had been published. [166] He pointed out, however, that:

    If you have a big protest near a big power station or airport, [...] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by one or two who may have other desires.…[167]

92. The new guidance on stop and search notes that the powers to stop and search under sections 43 and 44 of the Terrorism Act 2000 only allow an officer to "search for articles or evidence that relate to terrorism" and that "[the section 44] power should be used sparingly".[168] In the light of the decision of the House of Lords in Gillan,[169] which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the Docklands in London, the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria.[170] The guidance refers to protests, noting that section 44 may be appropriate for large public events that may be at risk from terrorism, but states "officers should also be reminded at briefings that stop and search powers under the Terrorism Act 2000 must never be used as a public order tactic."[171] The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment: it suggests that "the requirements of the Human Rights Act 1998" should be included in the community impact assessment.[172] Although not specifically referring to journalists, the guidance states that the Terrorism Act 2000, even where a section 44 designation is in place, does not prevent people from taking photographs. In addition, although film and memory cards may be seized as part of a search, officers do not have a legal power to delete images or destroy film.[173]

93. Whilst we accept that there may be circumstances where the police reasonably believe, on the basis of intelligence, that a demonstration could be used to mask a terrorist attack or be a target of terrorism, we have heard of no examples of this issue arising in practice. We are concerned by the reports we have received of police using counter-terrorism powers on peaceful protestors. It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately. Whatever the reason, this is a matter of concern. We welcome the Minister's comments that counter-terrorism legislation should not be used to deal with public order or protests. We also welcome the recommendation in the new guidance to human rights being included in community impact assessments. We recommend that the new guidance on the use of the section 44 stop and search power be amended to make clear that counter-terrorism powers should not be used against peaceful protestors. In addition, the guidance should make specific reference to the duty of police to act compatibly with human rights, including, for example, by specifying the human rights engaged by protest.

94. Concerns have recently been expressed in the media that a new provision in the Counter Terrorism Act 2008 makes it a criminal offence to take and publish a photograph of a police officer. Section 76 of the 2008 Act makes it an offence to elicit or attempt to elicit information about an individual who is or has been a constable "which is of a kind likely to be useful to a person committing or preparing an act of terrorism."[174] As the Explanatory Notes to the Counter Terrorism Bill correctly stated, the new offence will only be committed where the information in question is "such as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism, and must be of a kind that was likely to provide practical assistant to a person committing or preparing an act of terrorism."[175] That is the effect of a decision of the Court of Appeal in a case in 2008[176] interpreting the same statutory language in the separate terrorism offence of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism.[177]

95. We therefore do not share the concerns expressed in the media that the new offence criminalises taking photographs of the police. However, we do regard as significant the fact that this is being widely reported as a matter of concern to journalists. Legal uncertainty about the reach of criminal offences can have a chilling effect on the activities of journalists and protestors. We therefore recommend that, to eliminate any scope for doubt about the scope of the new offence in section76 of the Counter Terrorism Act 2008, guidance be issued to the police about the scope of the offence in light of the decision of the Court of Appeal, and specifically addressing concerns about its improper use to prevent photographing or filming police.


96. Some witnesses welcomed the increased use by companies of injunctions against protestors[178] which "allow their employees to go about their lawful business without intimidation, while balancing the ability of … protestors to lawfully protest".[179] Huntingdon Life Sciences praised the use of injunctions as "one of the most effective tools in controlling various criminal and tortuous protest activity" but noted the cost and inconvenience of obtaining them.[180]

97. Liberty and some protestors pointed out, however, that injunctions can stop protest without an opportunity being provided for protestors to put forward their case.[181] We received evidence from two witnesses about the injunction granted to NPower in relation to its proposal to use lakes in Oxfordshire for disposing of ash from a local power station. Dr Peter Harbour, from Save Radley Lakes, complained that the company's application for an injunction was heard without him being given notice, was based on accusations against him which had not been brought to the attention of the police, and was impossible for him to challenge because of the cost of applying to the High Court.[182] We also heard from a photo journalist, Adrian Arbib, who had been issued with an injunction which prevented him from taking photographs at the same site. He successfully challenged the injunction in the High Court, which led to the media being excluded from its scope.[183]

98. The Practice Direction to Part 25 of the Civil Procedure Rules requires anyone making an application for an injunction without notice to the other side to explain in the evidence supporting the application the reason why notice was not given.[184] Even where notice is not given, unless secrecy requires it, the person or organisation against whom the injunction is sought should ordinarily be notified informally of the proposed application.[185] Although the general rule in civil proceedings is that hearings will be in public,[186] this rule is reversed for a number of types of proceedings, including applications under the Protection from Harassment Act 1997, which will be listed in the first instance in private[187] unless the judge orders otherwise.[188]

99. We appreciate that injunctions bring benefits to those who have experienced violent and intimidatory protest, especially at their homes. However, we are concerned that the Protection from Harassment Act 1997 (which was not designed to deal with protestors, but has developed over time to encompass this area of activity) has the potential for overbroad and disproportionate application. We do not consider that, in the usual course of events, there is any pressing need for applications against protestors to be made without providing the possibility for protestors to make representations on the proposed injunction. This is particularly so given the potential risk of substantial costs faced by protestors who seek to amend or revoke an injunction once it has been granted.

100. We recommend that the Government reverse the presumption that hearings for protection from harassment injunctions are held in private, where they relate to the activities of protestors. Practice Direction 39 to the Civil Procedure Rules should be amended to make clear that applications for injunctions relating to protests are not covered by paragraph 1.5. In addition, and applying the same reasoning, we recommend that Practice Direction 25 be amended to ensure that applications for injunctions relating to protest activities may not be made without notice being given to any individuals or organisations named on the application. These recommendations will assist the courts in ensuring that injunctions against protestors are necessary and proportionate within the context of the rights to freedom of speech and peaceful assembly.

Protest in designated areas under SOCPA

101. We deal with protest around Parliament, which is a designated area under SOCPA, in the next Chapter. In this section, we consider other designated sites under section 128 of the Act, such as nuclear facilities.

102. Many witnesses were concerned that there should not be a blanket ban on protest in designated areas.[189] Dr Michael Hamilton and Dr Neil Jarman pointed out that such bans:

    ... risk being disproportionate because (1) they preclude a timely assessment of the specific facts of a given case, (2) their geographical boundaries may go beyond that which could routinely be said to raise concerns which relate to "legitimate aims" (such as national security), and (3) their reach often extends to entirely innocuous activities.[190]

103. A number of witnesses were unconvinced that criminalising trespass on nuclear and designated facilities was proportionate, nor that it added anything to existing criminal law.[191] Justice criticised the fact that section 128 permitted the Secretary of State to designate any site in the interests of national security:

    It is a perfect example of what we have indicated post the Human Rights Act of legislation not containing any specific safeguards in relation to necessity. The common argument of Parliamentary draftsmen is of course any powers have to be exercised consistently with Convention rights and interpreted consistently with Convention rights, but there is nothing in section 128 which requires the Secretary of State to consider whether it is necessary to designate a site.[192]

104. Some witnesses advocated the repeal of section 128 of SOCPA, suggesting that the Public Order Act 1986 and other existing law was sufficient.[193] As Milan Rai said:

    I cannot see why we should be making walking around peacefully a criminal activity, wherever it is taking place. If someone is taking implements to blow something up or whatever, we will capture that under other laws. Simply walking around peacefully, which is what that law is about, I do not see why we should have a law banning that.[194]

105. On the other hand, the Association of Electricity Producers and Drax Power Limited suggested that it would be proportionate to extend section 128 SOCPA to include coal-fired power stations, which were not automatically covered.[195]

106. When our predecessor Committee scrutinised the Serious Organised Crime and Police Bill during its passage through Parliament, it expressed doubts about whether the provision would, in practice, be operated in a manner compatible with the ECHR or that appropriate safeguards were in place to ensure compatibility, short of challenge before the courts.[196]

107. We wrote to the Minister on 13 November 2008 to ask him whether section 128 remains necessary in relation to protected and designated sites and why general public order or criminal law was insufficient to deal with protest around protected and/or designated sites. We received his reply very shortly before we agreed this Report.[197]

108. Many of the concerns which we expressed during the passage of the Bill which became the Serious Organised Crime and Police Act 2005 have been borne out in practice: we do not have confidence that section 128 has been implemented in a manner compatible with Convention rights, or that appropriate safeguards are in place to secure compatibility. We recommend that section 128(3)(c) be amended to permit the Home Secretary to designate sites on the grounds of national security only where it is necessary to do so. An amendment to section 128, which we may wish to table for debate in Parliament when an appropriate opportunity arises, is suggested below:

    Offence of trespassing: designation of sites

    To move the following clause:

    "(1) Section 128 of the Serious Organised Crime and Police Act 2005 (c. 15) is amended as follows.

    (2) In subsection (3)(c), after "appropriate" the words "and necessary" are inserted.".

Cyber protest

109. Several witnesses drew attention to the problems that could be caused by forms of internet or email protest. David Taylor MP told us that he received approximately 6,500 emails in advance of a debate in the House of Commons on the expansion of Heathrow Airport, which seriously interfered with his work and led to the loss of constituency emails.[198] Huntingdon Life Sciences also has experience of internet protest and noted that there was often an international dimension, which made it more difficult for the police to intervene effectively.[199] A number of witnesses, including the Minister, agreed that the best way to deal with this issue was to use the existing criminal law to deal with underlying criminal behaviour.[200] We recommend that the police should be proactive in using the existing criminal law to prosecute protestors who are carrying out threatening or abusive protest via the internet. Further, we recommend that the Home Office review the existing law to ensure that it adequately protects both the rights of protestors and those who are targeted by such protests.

125   Ev 146. Back

126   Ev 88. Back

127   Ev 89. Back

128   Ev 169. Back

129   Ev 170. Back

130   Ev 149, para. 3: Including the offence under section 5 Public Order Act 1986, the Serious Organised Crime and Police Act 2005, the Protection from Harassment Act 1997, the Terrorism Act 2000 and the Anti-Social Behaviour Act 2003. Back

131   Ev 149, para. 3. Examples of cases falling within the third category included R (Singh) v Chief Constable of the West Midlands [2006] EWCA Civ 1888 (dispersal of protestors under Anti-Social Behaviour Act 2003) and R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12. Back

132   Ev 149. Back

133   Q 56. Back

134   Ev 196. Back

135   Ev 151 and 162 Back

136   Q 308. Back

137   Ev 142. Back

138   Ev 143. Back

139   Qq 271 & 276.  Back

140   E.g. Q 45. Back

141   See also above, Chapter 2, para. 38. Back

142   Q 59. Back

143   Ev 84, 158, para. 21 and Ev 171. Back

144   Ev 158, para. 21. Back

145   Q 248. Back

146   Q 250. Back

147   Q 315. Back

148   Q 301. Back

149   Q 30. Back

150   Q 301. Back

151   Q 130. Back

152   E.g. Ev 77, 99, 106, 107, 108, 155 and 203. Back

153   Ev 184. Back

154   OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly, para. 77. Back

155   Ev 175. Back

156   Ev 103 and 107. Back

157   Ev 155 and 169. Back

158   The protestor and journalist challenged the police's use of their counter-terrorism powers: R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12. Back

159   Ev 107 and 162. Back

160   Ev 103. Back

161   Ev 178 and 188. Back

162   Ev 178. Back

163   Ev 147. Back

164   Q 269. Back

165   Ev 107. Back

166   Qq 296 & 329. Back

167   Qq 342 & 344. Back

168   National Policing Improvement Agency, Practice Advice on Stop and Search in Relation to Terrorism, 2008, pp. 11 and 13. Back

169   [2006] UKHL 12. Back

170   National Policing Improvement Agency, p. 14. Back

171   National Policing Improvement Agency, p.17. Back

172   National Policing Improvement Agency, p. 23. Back

173   National Policing Improvement Agency, p.19. Back

174   Inserting new s. 58A into the Terrorism Act 2000. Back

175   Explanatory Notes, para. 233. Back

176   R v K [2008] EWCA Crim 185. Back

177   Section 58 Terrorism Act 2000. The Court of Appeal held (at paras 13-14) that it is not legitimate under section 58 for the Crown to seek to demonstrate, by reference to extrinsic evidence, that a document, innocuous on its face (such as a copy of the London A-Z), is intended to be used for the purpose of committing or preparing a terrorist act. Back

178   Ev 88, 94, 135 and 188. Back

179   Ev 88. Back

180   Ev 88, 94 and 146. Back

181   Q 59. Back

182   Ev 139. Back

183   Ev 87. Back

184   Practice Direction to Part 25 Civil Procedure Rules, para. 3.4. Back

185   Practice Direction to Part 25 Civil Procedure Rules, para. 4.3. Back

186   Civil Procedure Rules, r. 39.2. Back

187   Practice Direction to Part 39 Civil Procedure Rules, para. 1.5. Back

188   Practice Direction to Part 39 Civil Procedure Rules, para. 1.8. Back

189   Ev 185, 196 and 203. Back

190   Ev 185. Back

191   Ev 77, 97, 107 and 155. Back

192   Q 51. Back

193   Qq 53-54.  Back

194   Q 166. Back

195   Ev 92 and 135. Back

196   See in particular Fourth Report of Session 2004-05, Scrutiny: First Progress Report, HL Paper 26, HC 224 and Eighth Report of Session 2004-05, Scrutiny: Fourth Progress Report, HL Paper 60, HC 388, especially paras 2.68-2.69. Back

197   Ev 67-69. Back

198   Ev 194. Back

199   Q 108. Back

200   Qq 108, 162 & 331. Back

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