FFS explains: The Queen's death and the right to protest 4

FFS explains: The Queen’s death and the right to protest

Since the death of Queen Elizabeth II on Thursday, 8 September there has been controversy about the policing of protests at state events around the country.  A number of arrests have been made in connection to these protests.

Ferret Fact Service looked at the right to protest and how that is impacted by the events surrounding the death of the Queen.

Ferret Fact Service | Scotland's impartial fact check project

Protests and arrests

Since 8 September there have been three arrests.

A 22-year-old woman holding a sign reading “abolish monarchy” and “fuck imperialism” was arrested on Sunday, 11 September at St. Giles’ Cathedral in Edinburgh, ahead of the accession proclamation of King Charles III in the city. 

Police Scotland confirmed she had been charged with breach of the peace and her case is due to be heard at Edinburgh Sheriff Court.

On the same day in Oxford 45-year-old Symon Hill was arrested by Thames Valley Police at the proclamation event for King Charles III held in Oxford.  He shouted: “Who elected him?” and said he was approached by police who handcuffed him and took him to a police van. He was later “de-arrested” without charge according to Thames Valley Police.

Its statement added that he was “engaging with us voluntarily as we investigate a public order offence”. 

On Monday, 12 September Police Scotland arrested a 22-year-old man and charged him with breach of the peace after an incident  in Edinburgh’s Royal Mile. He allegedly shouted insults at Prince Andrew as the royal walked past with the Queen’s funeral cortege. 

The incident was captured on video and circulated widely on social media.

Also on Monday videos circulated of a woman being led away by police while holding up a sign that said: “Not my king”.

Barrister Paul Powlesland, 36, from Barking claimed he asked police  what would happen if he wrote anti-monarchy statements on a blank piece of paper he was holding near Downing Street and said he was told he risked arrest.

Pictures also circulated on social media of people outside St Giles in Edinburgh on Tuesday, 13 September, holding up a blank banner and blank pieces of paper.

What are the rules around protests in Scotland?

In Scotland peaceful protests, which include both static and moving gatherings, either in public and private, are protected under the European Convention on Human Rights

Article 10 of the convention covers the right to freedom of expression and Article 11 the right to freedom of peaceful assembly and association.

According to a recent guide by Amnesty Scotland and legal firm Just Right Scotland, public authorities in Scotland such as the Scottish Government, local councils and Police Scotland must not unlawfully restrict assemblies.

Legally they must protect the right to freedom of assembly. This may include ensuring access to first aid services and medical attention for protestors.

The right to freedom of assembly includes the person planning or organising a protest and social media can be used to encourage people to assemble. 

The primary duty of police attending is to facilitate peaceful protest, and to de-escalate conflict, with force used as a last resort.

Amnesty Scotland has claimed that it is “incredibly important that at all times – even those of national mourning – that the rights to freedom of expression and peaceful protest are upheld”.

What legal restrictions on protests are in place?

Civil disobedience can be used as a legitimate and legal form of protest in Scotland.

However at protests where people become violent, incite hatred or stir up violence, legal restrictions can be imposed in Scotland and the rest of the UK.

Police or other authorities must only put in place restrictions in very specific situations. They can do so with the aim of protecting national security or public safety. They can also act to prevent disorder and to protect the rights and freedoms of other people. 

In such cases the right to protest must be weighed up against the reason to impose restrictions. If, for example, protesters block traffic this could be seen to be a legitimate form of protest. However if they were blocking the route of emergency services this could be deemed to be endangering public safety, meaning protesters could be removed.

The police can also stipulate that public processions or public assemblies comply with certain conditions, including location, time and number of people. The can be used when groups with different and polarised views both want to assemble on the same day in a similar location, for example.

The policing and public order bills

The controversial Police, Crime, Sentencing and Courts Bill was finally passed on 26 April 2022, bringing it into law. The Public Order (Act) 1986 has been updated as a result. 

In Scotland this had a limited impact but means that police can remove trespassers from unauthorised encampments. It could increase penalties for breaching restrictions placed on a protest.

But in England and Wales it goes much further, giving police increased powers to place conditions on protests including being able to ban noisy protest. Static demonstrations are now subject to the same restrictions as moving assemblies and one-person protests are also subject to police control.

Restrictions were already in place around UK Parliament buildings but the restricted area has now been increased to include more roads with an SW1 postcode around London’s Parliament Square Gardens.

In response to protests held by environmental campaign group Insulate Britain which involved group members blocking major roads, the UK Government sought to further expand the PCSC Bill.

The amendments it put forward in response were rejected by the House of Lords. But the government is continuing to pursue the measures by reintroducing them through the Public Order Bill

Breach of the peace and public order offences

Two of those arrested in recent days in Scotland have been charged with breach of the peace.

Generally it is considered that breach of the peace must encompass  “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”’. Its origins are in Scottish common law. 

Its scope is wide ranging and includes relatively minor allegations of shouting, swearing to sending abusive text messages to those of sustained, violent behaviour and brandishing weapons.

The charge has been criticised for not being specific enough. Smith v Donnelly is considered to be a significant piece of case law from 2001 regarding breach of the peace.

The case was brought to the High Court by Pamela Smith, who was charged with breach of the peace in February 1999 for protesting against nuclear weapons at Faslane naval base in Argyll and Bute. She was said to have conducted herself “in a disorderly manner” by lying in the road to stop traffic.

She claimed it seemed arbitrary whether or not this would  lead to arrest and as such her charge contravened Article 7 of the European Convention on Human Rights which requires that citizens know what actions will break the law.

The court refused her appeal. It stated that breach of the peace could usually be said to be “breach of public order”. If  there was no evidence of “alarm”, conduct considered “flagrant” could also lead to a conviction. 

In Scotland the maximum penalty for a breach of the peace offence in the Sheriff Court is a 12-month prison sentence, or a fine of up to £5000, or both.

Crimes of disorderly conduct are now most commonly prosecuted under Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

In England and Wales there are equivalent public order charges, imposed where action is “likely to cause fear of, or to provoke, immediate violence”. 

Treason

Under the Treason Felony Act 1848 it is technically treason to “compass, imagine, invent, devise, or intend death, destruction, any bodily harm to the King or his successors, to “deprive him or dispose him” of the Crown or to “stir any foreigner… to invade this Realm”. 

The same Act stipulates that declaring any of this in writing would also constitute treason, with offenders should “suffer pains of death”. As the death penalty has been abolished this would constitute life in prison in comtemporary times.

Though the Act has not technically been repealed, it last led to prosecution in 1879. 

In May 2019, the then Home Secretary, Sajid Javid, announced that the government would consider reforming the law of treason but it has yet to publish proposals.

Image thanks to Istock/naumoid

Hi! You can login using the form below.
Not registered yet?
Having trouble logging in? Try here.

    Sign-up for our free weekly email

    Or become a member to get unlimited access, personalised email alerts, online training and more. You can join us for just 69p per week.