For a lot of, the week following the demise of the Queen has been a time of mourning. It has additionally been one among stress across the query of free speech and protest. There have been a number of cases of police arresting or questioning protesters expressing anti-monarchy sentiment in London, Oxford and Edinburgh.
It’s troublesome to see what felony offences protesters may need dedicated by shouting “not my king” or “abolish the monarchy” because the royal procession of the casket made its approach alongside the streets, or at public proclamations of King Charles III the brand new monarch.
The proper to peacefully protest is protected in home legislation, and the European conference on human rights’ safety without cost expression (article 10) is enshrined domestically within the Human Rights Act. European case legislation makes clear that these protections cowl speech that offends, shocks or disturbs the state or any sector of the inhabitants.
The Metropolitan Police has mentioned, “The general public completely have a proper to protest and we have now been making this clear to all officers concerned within the extraordinary policing operation presently in place.”
It’s not solely clear what powers police relied on to make arrests in every case, however there are three possible prospects: part 5 of the Public Order Act 1986, public nuisance (underneath the brand new Police, Crime, Sentencing and Courts Act 2022, and arrest to forestall breach of the peace.
In home UK legislation, there is no such thing as a proper not be offended, and so no crime premised primarily on inflicting offence. To breach part 5 of the Public Order Act, one must be utilizing threatening or abusive language that possible causes another person harassment, alarm or misery (or engages in disorderly behaviour).
Within the case of those arrests then, we have now to think about whether or not the chants or placards in query had been threatening or abusive. It will be very troublesome for police to argue both – significantly within the case of protesters holding clean placards or just shouting, “Who elected you?”
The case in opposition to protesters would have been stronger earlier than 2013, when “insulting language” was intentionally eliminated from part 5 to supply higher free speech safety. There’s a higher case in opposition to the Edinburgh protester who was arrested whereas holding a “Fuck imperialism, abolish monarchy” placard. She was arrested in reference to a breach of the peace relatively than for threatening and abusive behaviour, underneath the Felony Justice and Licensing (Scotland) Act 2010, the equal to part 5 north of the border.
In free speech instances, context is essential. Unwittingly encountering such profanity could be very totally different to any anticipated or warned-about profanity in theatrical efficiency. That mentioned, if we arrested and prosecuted anybody who mentioned “fuck” in public, our prisons could be pretty full. The difficulty right here then is about differential policing, treating political speech in a different way, certainly counter-intuitively as lesser than different speech.
Even when the placards had been thought of to be abusive, part 5 of the Public Order Act accommodates a “affordable conduct” defence. That is the place the safety of free speech as a human proper is available in. Briefly, protesters can argue that if all they’re doing is exercising their free speech proper underneath the European conference on human rights, meaning their conduct is “affordable”.
There’s supreme court docket authority to that impact within the context of a disruptive roadblock: a protester ought to solely be arrested, definitely solely charged, with obstruction of the freeway the place it’s proportionate to take action. With that balancing equation in thoughts, these arrests would very possible represent a disproportionate response.
Public nuisance and breaching the peace
Equally, it’s arduous to see expenses of public nuisance (newly created within the 2022 Police, Crime, Sentencing and Courts Act) being made good. First, it requires critical misery and critical annoyance to the general public or a bit thereof. And second, the act additionally accommodates an affordable excuse defence. Not one of the arrests seem to have been made underneath the brand new act.
The likeliest justification for formal police intervention may be underneath the extensive and unsure energy in frequent legislation to “forestall a breach of the peace”. The legislation right here is barely totally different, by way of set off take a look at, in Scotland and England. Actually, the arrests of republican protesters in Scotland had been made underneath that energy.
In England and Wales, case legislation establishes that the police have the ability to take proportionate motion to forestall breaches of the peace. Whereas there are not any studies of precise violence, the ability to step in – and certainly arrest – may come up the place the police moderately consider violence to an individual or property may imminently be completed at one among these occasions.
The query is then: who ought to they arrest? The placard-holders and shouters, or these lining the route who’re starting to indicate irritation and will flip to violence?
It helps to look to a 1999 case, Redmond-Bate v Director of Public Prosecutions, the place three strident and vociferous Christian fundamentalists had been preaching in Wakefield. A number of folks objected. The preachers refused to quieten and had been arrested for obstruction.
They appealed their arrest, and the court docket laid down this distinguishing take a look at: had been the preachers being so provocative that somebody within the crowd may moderately be moved to violence? Or had been passersby taking the chance to react and trigger hassle?
The reply to that is clearly a judgement name for officers on the spot. Within the case of the republican demonstrators, with none proof of possible violence, the police most likely shouldn’t have acted. The remainder is context-specific. Even with heightened present public sensitivities, being provoked by a easy signal proclaiming “not my king” might be not affordable.
Maybe these arrests may now deliver into query whether or not such an open-ended frequent legislation policing discretion – one by no means set out in an act of parliament – sits properly in a liberal democracy.