The Government response to covid-19: freedom of assembly and the right to protest Contents

5Impact on the police and public

Impact on the police

65.The lack of clarity outlined above with regards the right to protest clearly leaves the police in a difficult situation. In evidence to us John Apter, National Chair of the Police Federation, quoted statistics saying that “nine out of ten officers felt the regulations were not clear”, and we are sympathetic to this given the complexities in the law.54 Lochlinn Parker described to us his experiences of dealing with police forces who did not appear to understand the law: “some forces have treated protests as being banned, except when protest was specifically exempt. Forces have also just got it wrong in general”.55 Following the clashes between police and members of the public on Clapham Common on 13 March, after the Reclaim These Streets event was cancelled, the Metropolitan Police Commissioner welcomed a review and said that “this is fiendishly difficult policing.”56

66.Ambiguous or confusing law poses a challenge to those tasked with enforcing the law as well as those seeking to abide by it. The police should not be required to enforce laws that are unclear, as this could lead to interferences with human rights that do not have a proper basis in law.

67.Nevertheless, the police have an obligation not to misstate the law. Professor David Mead of the University of East Anglia’s written evidence provides examples of the police’s confusion over the law causing troubling errors in their communication with the public. He refers to a 31 October 2020 tweet from the Metropolitan Police warning those planning a protest outside the French Embassy that they “must submit a risk assessment where applicable” when the regulations only require that a risk assessment is carried out.57 More concerningly, he also drew our attention to an 18 December 2020 video appeal from West Midlands police ahead of a planned demonstration which stated that the police had not been able to identify an organiser “and therefore such protests are unlawful.”58 As Professor Mead noted, this was not what the Public Order Act 1986 or any coronavirus regulations said.

68.The senior police officers who gave oral evidence to us recognised that the coronavirus regulations, even during lockdown, did not remove the right to engage in protest. It is to be hoped that this message has been properly communicated to the officers policing protests on the street. Yet even with the law properly understood, too much of the policing of protest, and the difficult question of respecting Articles 10 and 11 ECHR during a pandemic, has been left to police discretion and particularly police interpretation of what constitutes a “reasonable excuse”.

69.This has led the Metropolitan Police, on at least one occasion, to seemingly leave it to the public to decide for themselves whether they are committing an offence. In an “open letter to persons organising and/or participating in public gatherings” tweeted during the November lockdown, the Met informed readers that “if you attend a gathering that breaches the regulations, you may be committing an offence”, directed them to the Government’s legislation website and stated that “it is your responsibility to check the current position and ensure you are not committing an offence by being involved in a gathering”.59 It is not clear what they expected a reader to do when they checked the regulations and, if they could identify the relevant provisions, found that they prohibited protest but did not render it criminal if there was a ‘reasonable excuse’. This leads us to consider the impact of these regulations on the public.

Impact on the public

Sanctions that may be incorrect

70.Police officers not being clear on the content of the law they are tasked with enforcing presents a challenge to the rule of law. It creates a substantial risk of the police wrongly interpreting the law and misapplying it, thereby sanctioning individuals who have not behaved illegally, in breach of their Convention rights. This applies to protest as much as anything else, and indeed, there have been serious sanctions given out to people for engaging in protest when the illegality of their behaviour is far from certain.

71.For example, as noted above, the organiser of a demonstration in Manchester against the recommendation of a 1% pay rise for nurses was issued with a £10,000 FPN after around 40 others attended the protest.60 This is a very significant amount of money, and the fine was imposed in a context where the police were left to resolve whether the protest was a criminal offence or a “reasonable excuse” to leave home and to gather.

Deterrent

72.Despite ambiguities in the law and inconsistencies in its application, it is clear that many people did still gather to engage in public protest over the course of the pandemic—even during lockdown. But the fact that some protests did go ahead does not mean that many others were not dissuaded from organising or attending demonstrations and exercising their Article 10 and 11 rights because they were uncertain whether protesting would be legal.

73.It is positive that the lockdown regulations provide a reasonable excuse defence for those accused of gathering unlawfully. It is important that this has been identified by the courts as protecting the right to free assembly under Article 11. This defence means that protests may be lawful despite the law failing to provide for them.

74.However, this protection is of relatively limited use in practice. Firstly, the police power to disperse gatherings and to direct or remove people home, which has applied throughout the national lockdowns, appears to be available without the need for the police to assess whether there is a “reasonable excuse”. While a participant in an assembly might have a defence to a charge of failing to comply with a direction to disperse, that would not help them when a police officer exercises his or her power to use reasonable force against them.

75.Secondly, and crucially, it is not obvious how to determine whether any individual protest amounts to a “reasonable excuse”. This is a problem not only for a prospective protester unsure whether a local demonstration will lead to an FPN, but also for the police officer faced with that demonstration. The authorities cannot decide whether a protest falls within a ‘reasonable excuse’ on the basis of the particular cause being promoted or the policy challenged. Indeed, it is not clear what they can base such a judgement on other than an assessment of the implications of the protest for the spread of covid-19.

76.In the absence of specific guidance for the police and public, the question of whether a protest amounts to a “reasonable excuse” can only be answered definitively through legal proceedings—whether that is a criminal trial following an FPN being issued or a judicial review. As Professor David Mead noted in his written submission to the Committee:

“We should not have to rely on going to court to have our rights upheld. The protection of rights should be equal for all, not simply (using the focus of this paper) to those political campaigners who are legally trained, or who have access to such advice (and/or have significant wealth to afford it).”61

77.We agree. The uncertainty in the application of the regulations has made and continues to make it difficult for individuals to confidently exercise their rights within the law. Lochlinn Parker told us about “the deterrent effect and the fact that inconsistency and lack of clarity in rules might deter people from getting involved in protesting.” Furthermore, as Kirsty Brimelow QC reminded us, “in order for a law to be lawful it has to be clear and accessible so that people will understand that they have committed an offence.”62 If people have to go to court to establish whether their actions are lawful or criminal, it is questionable whether the law is meeting the standards of accessibility and foreseeability required by the Convention.

78.Beyond the individuals deterred from attending or organising protests, there are stories of gatherings being cancelled after interventions from the local council or police force. The most high-profile example of this was the vigil planned to take place on Clapham Common after the tragic murder of Sarah Everard in March. Reports said that after initially seeking to find a way to facilitate the event, the Metropolitan Police then told the group it would be “unlawful” and that the organisers “could” face £10,000 fines. Yet, as the events on Clapham Common on 13 March 2021 showed, cancelling formally organised events can result in less well organised gatherings taking place in their stead, potentially posing a greater risk to public health.

54 Oral evidence taken on 24 February, HC (2019–21) 1004, Q35

55 Oral evidence taken on 24 February, HC (2019–21) 1004, Q35

58Our appeal to the community ahead of planned demonstration”, West Midlands Police, 18 December 2020 (youtube clip)

61 Professor David Mead (CIL 1514)

62 Oral evidence taken on 24 February, HC (2019–21) 1004, Q29




Published: 19 March 2021 Site information    Accessibility statement