Right to Protest: Your Rights Explained

This is a slightly different post to our usual, but that does not mean it’s any less important. Due to the current political climate, we at the Legal Line Up believe it is increasingly important for individuals to know their rights when protesting. The recent events in America are shocking but sadly happen far too much, resulting in many taking to the streets to protest for equality. Knowing your rights is key, please read on as author Annabel Smith helps to make these a little clearer.

Please remember, if you are protesting to adhere to the Government social distancing policy and to remain safe at all times by wearing both gloves and a mask.

Disclaimer: this information is for general guidance regarding rights and responsibilities. This is not formal legal advice.

Your Right to Protest

The freedom to peacefully protest is enshrined in human rights law in the UK, but it is not always plain sailing. Protests can often cause disruption to businesses and communities and the police must conduct a balancing act between minimising disruption and protect the human right.

Although it is your right to protest, you cannot protest without giving advance notice to the police (this applies to the organiser of the protest, not those attending it) (Section 11 of the Public Order Act 1986). There are some exceptions to this, but for the vast majority of protests occurring currently re Black Lives Matter, this would not count as an exception.

A senior police officer can impose conditions on the protest if they reasonably believe the protest will result in serious public disorder, serious damage to property or serious disruptions to the life of the community (Section 12 of the Public Order Act 1986). Or where the purpose of the protest is to intimidate others. The conditions can include the route of the process, prohibiting the procession from entering a particular place among others.

Now you know whether you can protest, and what the police can control regarding how and where the protest can take place, what are your rights during the protest?

Challenging Police Conditions

Although the police have the power under the law to impose restrictions on a protest, if you believe these to be unfair, you may be able to make a case on three grounds:

  1. The decision-making process behind the restrictions was unsatisfactory e.g. false or assumed information was factored into the decision
  2. The restrictions would contravene the right to protest
  3. The decision was otherwise completely unreasonable or irrational

The police can only impose restrictions on a protest for the reasons as stated above; reasonable belief that it will result in property damage, disruption of the community or serious public disorder. Judicial challenges against such restrictions can only be made at the High Court, if you protest without regard for the restrictions you are liable to be placed under arrest.

Stop & Search at a Protest

Contrary to some information currently circulating online, the police powers to stop and search are the same at a protest as they are anywhere else. The police MUST have a reasonable cause to stop and search you. Attending a protest alone does not constitute a reasonable cause.

The police can stop you at any time and ask you:

  • What you are doing
  • Why you’re in a certain area
  • Where you are heading and where have you been.

You do not need to answer these questions, this is known as a Stop and Account. For a Stop and Search, the police need reasonable belief that you may be carrying something illegal or something that can be used to commit an offence. There are two exceptions to this known as blanket search powers. These blanket powers allow the police to search a large group of people with no reasonable suspicion, which are normally used at protests, carnivals or sports games. The two powers are held in:

  1. Section 60 Criminal Justice Act 1994: This power allows an officer to search anyone in a specific area for offensive weapons.
  2. Section 47A Terrorism Act 2000: this allows an officer to search anyone where they reasonably suspect that an act of terrorism will take place.

What can you be searched for?

The police can only search you for (other than a blanket power) the following items if they have a reasonable suspicion:

  • Articles for burglary/theft
  • Stolen goods
  • Offensive weapons
  • Bladed articles
  • Items that may be used to commit criminal damage

Reasonable suspicion

Unless using a blanket search power, before an officer searches you they need to reasonably suspect that you are might be carrying items that can be used to commit an offence.

Personal Details

You are not required to give your personal details under any Stop and Search power. Police forces are only required to record 7 items of information:

  • Ethnicity
  • Grounds for search
  • Object of Search
  • Identity of police officer
  • Date
  • Time
  • Place

You do not need to assist them by providing any information.

If you have chosen to not give the police any personal details, then you may not be happy with them going through your wallet. If in the course of the search they find something with your name on it, then they can record this as part of a description of you. You cannot avoid this unless the reasonable suspicion makes it unlikely for the officer to look in your wallet. For example, if the reasonable suspicion is that you match the description of someone who has spray painted a wall. The police would be searching you for chalk or spray paint. This is unlikely to be found in your wallet, but on your person or in your bag.

An officer cannot make you unlock your phone to find more information.

What happens when you get searched?

The police must follow a set procedure when they are searching people. The most effective way to hold police officers to account for their actions is by understanding the laws that they are using against you. Police officers MUST specify before they search you, who they are and where they are from, what they are looking for, why they suspect you and search only in the places that they might find the items.

You do not have to be actively compliant and do not need to answer their questions, however this may result in escalation. If the police find an item that they aren’t looking for but infringes the law, then they can change their reasonable suspicion on the basis of this new information.

If you’re in a public space, the police can only ask you to remove outer clothing, such as a hat and coat, to empty your pockets and give you a ‘pat down’. Removal of any further items of clothing can only occur in a private space where jumpers, hoodies and shoes can be removed. A police van is considered a private space.

If the police find something that incriminates you, they can confiscate it. At this point they have grounds for arrest. The police have the power to arrest you in order to determine who you are if you refuse to give your name and address at this point.

Kettling

Sometimes on a protest, police surround demonstrators to keep them in a particular place. This is called a ‘kettle’ or ‘containment’. The size of Kettles vary depending on the police risk assessment of the threat. The key feature of a kettle is that people are held within it until the police decide to let them go. Kettles of large demonstrations such as the student protests in December 2010 were in place for eight to ten hours. This is legal. In a number of recent incidents, police have decided against releasing kettled protesters, and instead have carried out a mass arrest of everyone held.

The police can lawfully impose a kettle if they believe it is necessary to prevent disorder or protect public safety. They should not use a kettle to ‘directly or indirectly stifle or discourage protest’.  

Police can kettle a group or crowd of people, even if they have done nothing to suggest they will cause a breach of the peace, if it is necessary to prevent disorder by others. If there is no longer an imminent threat of a breach of the peace, the police do not have the power to detain further, but the police have a great deal of discretion in deciding when such a threat has past.

Removal of Masks

Under section 60AA of the Criminal Justice Act 1994, the police can ask you to remove a mask if it is covering up your face. This may be applicable in the current climate as many will be protesting with a facemask on, it is within their right to ask you to remove this. Failure to remove the item can result in arrest.

I hope this makes it clearer, please feel free to message me on LinkedIn if you have any further questions. Remember, stay safe.

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