Protest and the law

Protesting is legal and the right to protest is a core part of our democracy. Direct action is a particular type of protest and so we will explore that separately.

Demonstrations, marches and stunts are all forms of ‘protest’. Despite their distinctions, what these different forms of protest have in common is that they are the most visible and public campaigning tactic.

Because of their public nature, protests may face restrictions under the Criminal Justice and Public Order Act 1994, The Protection from Harassment Act 1977, The Highways Act 1980, or the Serious Organised Crime and Police Act (SOCPA) 2005. As with other aspects of campaigning, the law does also enshrine the rights to protest. A protestor’s most powerful legal ally is the Human Rights Act 1998 which protects free speech and peaceful protest.

There is an important distinction between the law around demonstrations and marches:

• A ‘demo’ will take place in one location. With demos, these can take place anywhere, except for a ‘designated area’ around Parliament as defined by SOCPA. You also have to ensure that it is not obstructing any roads or paths that the public have the right of access to. As long as they remain peaceful and non-threatening, protests should not be accused of aggravated trespass, as defined by the Criminal Justice and Public Order Act 1994. As we will see in the case study below, in practice even peaceful demonstrations have been stopped under this law.
• A march, by its very definition, will move along a route. As such, you must notify the Police beforehand. This is discussed in more detail in SOCPA, but basically you need to notify the Police six days in advance wherever possible, and provide the names and contact details of the main organisers. You also need to provide the exact date, time and route.

The law, and in particular the balance between your rights to protest and the Police’s rights to ‘manage’ protest, are very complex, and the subject of much debate and analysis. For a far more detailed yet very readable analysis of your rights to protest, go to Liberty's Your Rights website.

Key factors to peaceful protests

Quoted directly from the Civil Rights Movement website.

There are a number of rights and regulations that pertain to peaceful protestors. These rights include:

• The right to assemble and protest on the public highway without permission from the police, council or other authorities.
• Protestors are not committing any crime as long as they are peaceful and do not use violence or threatening behaviour
• Protestors can assemble on the public highway as long as they do not completely block rights of way
• Trespassing on private land without permission is not a criminal offence
• Protestors can be removed from private land forcibly but should not be arrested unless they have used intimidation or aggravation
• Peaceful protests are not unlawful providing conduct is kept reasonable

Case study

In September 2011 three protesters dropped a banner (saying: “Traitors not welcome – Hate Clegg, Love NCAFC”) from a bridge in Birmingham during the Liberal Democrat conference that was to be taking place. All three were taken into custody, and while two were released, one man remained in jail for the next ten days until his trial.

The charges the men received were for road offences; however the decision to keep this man in prison for such minor offences was problematic for his supporters. It is worth exploring any reasons why you might be breaking the law if you decide to protest or campaign. Furthermore you should discuss if there might be any health and safety problems that you will be putting yourself or other people at risk from. Read here about this case in Birmingham.

Case study

In 1995 two protestors were arrested at Stonehenge and convicted of ‘trespassory assembly’, a new criminal offence under The Criminal Justice and Public Order Act 1994 (which is an amendment of the 1986 Public Order Act).

After a four year legal battle, the conviction was overturned by the High Court in a landmark legal victory based on the right to peaceful assembly.

Margaret Jones and Richard Lloyd had been arrested after they and other protestors had draped banners over the perimeter fence around Stonehenge. This had been an annual gathering for many years, and in anticipation of it the Police had obtained an order prohibiting trespassory assemblies (under the act, this is defined as a gathering of 20 or more people within a defined area). So, the protestors were in breach of this order, and had broken the law.

But the High Court reversed the conviction stating that there is a "public right of peaceful assembly on the highway". So as long as a protest is peaceful and non-obstructive, the rights to protest are preserved. Furthermore, the ruling recognised that upholding the conviction would have contradicted Article 11 of the European Convention on Human Rights which confers a "right to freedom of peaceful assembly".

The law lords did add, however, that “"The law of trespass will continue to protect private landowners against unreasonably large, unreasonably prolonged or unreasonably obstructive assemblies upon these highways."

"We started out to protest the Criminal Justice and Public Order Act. We have ended up with the first assertion in British law of a positive right to peaceful assembly”

Margaret Jones, 1999

"I just wish we hadn't had to go through a four- year legal battle to stand peaceably by a road."

Richard Lloyd, 1999