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Other Police Powers to Restrict Right to Protest

In addition to the public order powers that the police have to control processions and assemblies, the police have a broad range of powers to control crowds and members of the public that can be used to restrict protest.

Powers to Stop and Search

The police do not have a general power to stop and search members of the public. All their powers to stop and search derive from various statutes. So when they stop and search a protester they must always specify on what grounds they are conducting the search. (for more information on your rights when being searched see Police Powers to Stop and Search Persons and Vehicles)).

However, there is a very wide range of legislation that grants stop and search powers. Most of them can only be exercised where the officer has ‘reasonable suspicion’. This includes the power to search a person for illegal drugs under the Misuse of Drugs Act 1971 and the power to search for stolen or prohibited items under PACE. But recent legislation has granted the police power to stop and search members of the public without having to show reasonable suspicion. These powers, which have been used extensively on demonstrators, derive from Section 44 of the Terrorism Act 2000 and Section 60 of the Criminal Justice and Public Order Act 1994.

Section 44 of the Terrorism Act 2000 allows the Chief Constable to designate an area within which individuals may stop and search a vehicle, driver, passenger, pedestrian and anything carried by a pedestrian for the purpose of searching for articles which could be used in connection with terrorism. There need not be any grounds for suspecting the presence of such articles. Failure to stop and/or obstructing a police constable acting under section 44 is a criminal offence. Currently, the whole of greater London has been designated as such an area under s44.

Under Section 60 of the Criminal Justice and Public Order Act 1994, a police officer of the rank of inspector or above may issue a written authorisation for additional search powers on the basis of a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons in the area without good reason. The powers relate to pedestrians and vehicles in a specified locality, for a specified period, not exceeding 48 hours at a time.

Where an authorisation has been issued, any constable in uniform may stop and search any pedestrian or anything carried by the pedestrian, or any vehicle or anyone in it, for offensive weapons and dangerous instruments and may seize any such items which are found. In addition, the police may require you to remove any item which they reasonably believe you are wearing wholly or mainly for the purpose of concealing your identity. Again, the police do not need to have reasonable suspicion that the person is in fact carrying offensive weapons before stopping and searching under these powers.

Powers to Prevent a Breach of the Peace

A breach of the peace is not in itself a criminal offence, but a police officer or any other person have a power of arrest where there are reasonable grounds for believing a breach of the peace is taking place or is imminent. For a breach of the peace to occour, there must be an act done or threatened which harms a person, or his property in his presence, or which puts a person in fear of such harm. Something which merely distresses or offends someone will not normally amount to a breach of the peace.

A recent case (R (Laporte) v Chief Constable of Gloucestershire Constabulary) has helped to clarify when and how the police may exercise their powers in relation to breaches of the peaces in the context of protests. In this case, police officers stopped a coach that was carrying demonstrators and traveling to a demonstration from London. The officers concluded that some (although not necessarily all) of the passengers intended to cause a breach of the peace and ordered the passengers to return to London. The coach was escorted back to London and the passengers were prevented from leaving the coaches until they had reached London (a journey of 2 ½ hours). The Court of Appeal held that the police might have been entitled to stop the protesters and to prevent them from continuing to the demonstration if they had reasonable grounds for believing that this was necessary to prevent an imminent breach of the peace. However, they were not entitled to detain the protestors in the coach and to force the coach back to London. This was a disproportionate interference with the protesters' right to liberty.

Powers to Prevent Anti-Social Behaviour

ASBOs

An ASBO (Anti-social behaviour orders) can ban an individual from specific activities or from entering particular areas. The only criteria that the magistrate must use in deciding to impose an ASBO is that the individual has behaved in a manner ȁc;that caused or was likely to cause harassment, alarm or distress". If an ASBO is imposed and, breaching it is a criminal offence.

So far no ASBOs have been imposed on peaceful protesters and in a recent case where an ASBO was applied for against a peace protester, the Judge held that it was not appropriate to impose it as the law clearly intended the orders to be used against ‘oafish and intimidating’ behaviour and this was not demonstrated by the defendant. However, the Judge did warn that the right to protest did not override the right of others to use the highway, or of police officers to carry out their duties and he said that ȁc;there could be circumstances where anti-social behaviour orders may be used against those engaging in political or other protests, if they indulged in intimidating behaviourȁd;.

Dispersal Orders

Section 30 of the Anti Social Behaviour Act 2003 allows a senior police officer to give authorisation for officers to issue dispersal orders in areas where he has reasonable grounds for believing that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence of behaviour of groups of two or more person and if anti-social behaviour is a significant and persistent problem in the area.

Once an authorisation is in place, an officer in uniform may order groups of two or more people to disperse or to leave the area if he or she has reasonable grounds for believing that their behaviour is, or is likely to, cause members of the public to be intimidated, harassed or distressed.

In a recent case it was held that even if the initial authorisation was granted because of completely unrelated anti-social behaviour it still enabled a dispersal order to be made in relation to a group of protesters. However, it is only when behaviour moves beyond legitimate protest and becomes behaviour that gives a constable reasonable grounds for believing that is has resulted or is likely to result in intimidation, harassment, alarm or distress that the constable can actually direct the group to disperse. A dispersal order cannot be given to those who are taking part in a public procession to which section 11(1) of the Public Order Act 1986 relates.

Knowingly contravening a dispersal order or direction under this section is a criminal offence.

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