The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (‘the regulations’) imposed various regulations to combat the spread of Covid-19.
From the end of March until 31st May 2020, it was prohibited to have gatherings with more than 3 people in a public place. The police forces across England and Wales had powers to disperse and direct groups to return home. Any police officer enforcing these regulations could do so with reasonable force.
The regulations also prevented members of the public from being outside their home without reasonable excuse, however, on 1st June 2020, the regulations were relaxed. Now you can stay overnight anywhere other than your home with reasonable excuse, and the regulations permit gatherings of fewer than 6 people.
Your right to protest
Given the current civil protesting in memory of the late George Floyd, I thought it would be worthwhile for people to know their rights when participating in peaceful protests.
The European Convention for Human Rights gives you the right to protest. Article 10 allows the freedom of expression and Article 11 allows freedom of assembly and association. You should, however, note that Article 10 and 11 are not without limits.
When exercising these freedoms, they may well be subjected to restrictions or conditions which are prescribed by law and are necessary in a democratic society in the interests of national security or public safety. Click here to read the limitations in full.
Lockdown and Protesting
From 1st June 2020, a gathering of 7 or more people outdoors is unlawful, therefore, any form of protest with more than 7 people is unlawful under the regulations.
1. If I go out alone would I still be in breach?
In my view, if you are there because of an organised activity and are doing the same activity as others, then this would be classed as a gathering so you would be in breach of the regulations.
2. Can I socially distance and protest lawfully?
In my view, you would still likely be breaching the regulations. We will all be too familiar with “social distancing” and the “2-metre rule” guidance from the Government. It is important to remember that it is just that, guidance, it is not a lawful requirement to socially distance. If you attend a gathering of more than 6 people and socially distance, you will be in breach of the regulations.
3. It is my Human Right to protest!
I take the view that the regulations do not consider whether a gathering for exercising a lawful right to protest has been considered. Therefore, a Court will no doubt have to eventually look at whether the regulations infringe on that right and whether the regulations are a legitimate exception.
5. Are the regulations a legitimate exception to my right to protest?
Given the limitations to your rights, namely the limitation of “public safety” and “protection of health” coupled with the fact that these regulations are temporary, a Court may well accept that the regulations justify the infringement on the right to protest.
If you do go out to protest remember the following:
The Criminal Justice and Public Order Act 1994
If a section 60 is authorised in a specific area, a police officer can stop and search any person or vehicles within a specified area and time frame (no more than 24 hours), without any requirement for suspicion or reasonable grounds.
If a Section 60 order or a Section 60aa order is in place, a constable in uniform can ask any person to remove any item which a constable reasonably believes that person is wearing for the purpose of concealing their identity.
In the current climate with Covid-19 and the social issues causing protests, wearing a face mask would be the norm and will be compulsory for public transport users from 15th June 2020. However, this law has not been amended to take account of this. Failure to remove the item is a criminal offence that can lead to imprisonment.
Remember, government guidance and actual law are often two different things. Do not be caught out by the above position on facemasks.
Conditions on Protests
The Police can impose conditions on protests, by way of limiting the number of people involved, the location, and its duration. This can lead to dispersal, forcing people to leave and not return to a certain place within a specified time frame. Again, failing to comply may lead to prison time.
Containment or Kettling
This is a tactic police forces can use to keep protestors in a specific area, in some situations this is lawful, therefore make sure you are well prepared by taking water, medication, or anything essential. In some cases, police forces have used this as an opportunity to collect individual data such as names or addresses.
Unless you have been involved in anti-social behaviour, then you are not required to give your personal details. If you are asked for your details, then you can ask the police officer what power they are using.
Know your rights
I want to finish this post with some useful guidance on basic police powers, which may well come in useful if you or your family/friends ever come in to contact with police.
Throughout my time practising as a solicitor, I am surprised by the number of people who do not know their basic rights. I urge all parents to speak to their children about police powers, as most of the time, people are educated too late.
In addition, a lot of people think that all police officers are honest and act with integrity, and therefore children can be reluctant to speak with parents/guardians due to the fear of being disbelieved. I have had second-hand experience of children being subjected to police mistreatment, and only due to body cam footage have we been able to demonstrate a positive case.
This, of course, does not apply to all police officers, however as we know, most fruit baskets are known to have bad apples, from time to time.
If you do experience an issue with a public body, I would strongly recommend you seek legal advice.
General points to note on police powers:
Stop and search powers
- A police officer can stop and search you if they have reasonable/genuine grounds to suspect you are carrying a weapon, prohibited/stolen article, or controlled drugs.
- The area you are in is not enough for the police officer to suspect you have a weapon, prohibited/stolen articles, or controlled drugs.
- It is not lawful for police to stop and search you based on ‘intelligence’ they have of illegal activity in a certain area, their intelligence must be specific to the suspect they are seeking to stop and search.
- The police officer must take reasonable steps to tell you their name and the name of the police station to which he/she is attached, and the object/grounds of the proposed search before the search takes place.
Power to request details
- There is no lawful requirement for you to answer a police officer’s questions such as “why are you in the area?” or “where are you going?”. You are free to leave.
- However, you can be asked for your personal details under s.50 of the Police Reform Act 2002. This power can only be exercised if the officer holds reasonable/genuine belief that you have been engaged in anti-social behaviour.
- Please be aware that providing false details may be classed as obstructing a police officer, which in some circumstances, can lead to imprisonment.
Power of Arrest
- The most used power is s.24 of the Police and Criminal Evidence Act 1984 (‘PACE’). This allows officers to arrest individuals if they have reasonable suspicion to suspect you have or were about to commit an offence. The officer arresting you must believe your arrest is necessary.
- Once you have been arrested, you must be advised as soon as practicable, why you have been arrested.
- Whilst you are in custody, you must be reviewed in accordance with s.40 of PACE and be allowed to give representation as to why your detention is no longer necessary.
Whilst it is accepted that we are experiencing unprecedented times and police forces across the country are facing huge challenges and immense pressure to uphold the rule of law, this is no exception to poor policing and mistreatment of individuals.
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Written by Demi Drury.
Demi Drury is a solicitor and head of our actions against the police department. She has been successful in numerous actions against almost every police force in England and Wales. Demi accepts instructions on a wide variety of police matters including, wrongful arrest, assault and battery, malicious prosecution, misfeasance in public office, human rights breaches, and data protection breaches.
Follow Demi on Twitter, @HNKPoliceAction.