The Right to Protest And When Can a Protest Become a Criminal Matter?

Scenes in Dover involving hundreds of masked protesters blocking roads have renewed discussion about the boundaries between lawful protest, public disruption and potential criminal offending. The right to peaceful protest is an important part of UK democracy, but it is not unlimited – and the same criminal law applies regardless of the political cause involved.

Dover Protest Raises Wider Questions About Protest Law

Kent Police responded to what the force described as a spontaneous protest in Dover on Saturday 5 September, involving a large group of people, many dressed in black and wearing face coverings.

Roads around the port were blocked and traffic was disrupted before those involved dispersed. Kent Police subsequently confirmed that no arrests had been made.

The political motivation behind any particular demonstration can attract considerable debate. From a criminal law perspective, however, a more useful question is where the boundary lies between exercising the right to protest and conduct capable of resulting in police intervention, arrest or prosecution.

Is There a Legal Right to Protest in the UK?

Freedom of expression and freedom of peaceful assembly are protected by Articles 10 and 11 of the European Convention on Human Rights, incorporated into UK law through the Human Rights Act 1998.

Those protections are important, but they are qualified rights rather than an unrestricted entitlement to behave in any manner chosen by protesters.

Police have statutory powers to impose conditions on certain protests and assemblies, while conduct during a demonstration can potentially engage public order, highway and other criminal legislation.

The circumstances of each incident therefore matter considerably.

When Does Blocking a Road Become a Criminal Offence?

Protest frequently involves some degree of disruption, and the existence of disruption does not automatically establish criminal liability.

However, deliberately obstructing a highway can potentially amount to an offence. Depending upon the circumstances and conduct involved, other public order offences may also be considered.

This has become an increasingly important area of protest law following demonstrations involving roads, transport infrastructure and other public spaces.

Whether an offence has been committed cannot simply be determined from the political message of those involved. Police and ultimately the courts must consider the relevant legislation and the particular facts.

Does Wearing a Balaclava at a Protest Break the Law?

The sight of large numbers of people wearing face coverings can understandably be perceived as intimidating, but wearing a balaclava or other face covering does not by itself establish that somebody has committed a criminal offence.

There are, however, circumstances in which police have powers relating to face coverings, particularly where specific statutory powers have been authorised and an officer reasonably believes a covering is being worn wholly or mainly to conceal identity.

Again, context matters. Clothing that appears threatening to an observer is not automatically evidence of criminal intent.

Protest, Intimidation and Public Order Offences

The legal position can change significantly where conduct moves beyond peaceful expression into threats, violence, harassment or other prohibited behaviour.

Public order legislation contains offences covering different forms of threatening or abusive conduct, with the precise requirements depending upon the offence alleged.

Physical confrontation can potentially result in allegations ranging from common assault to considerably more serious offences where injuries are caused.

A person who attends a demonstration intending only to protest can therefore find themselves facing a criminal investigation because of something that happens during a confrontation rather than because of the demonstration itself.

When Can Race, Nationality or Ethnicity Become Relevant?

This is particularly important where demonstrations concern immigration, nationality or identity.

People are entitled to express political opinions about immigration policy, including views that others may find deeply objectionable. Holding or expressing an opinion about government policy does not automatically amount to a criminal offence.

There is, however, an important distinction between debating immigration policy and targeting an individual because of their actual or perceived race, nationality, ethnic or national origins.

Depending upon what is said or done, conduct involving hostility based on race can engage specific criminal offences or affect the treatment of another offence where racial aggravation is established.

Protesters should therefore understand that the protection afforded to political expression does not provide immunity for otherwise criminal conduct directed towards individuals or communities.

The Same Criminal Law Applies Regardless of the Cause

One of the difficulties surrounding high-profile protests is that discussion about policing can quickly become political.

Questions are often raised about whether one protest movement has been treated differently from another.

From a criminal defence perspective, the underlying principle should be considerably simpler. A person’s political beliefs should not determine whether their conduct amounts to an offence.

Whether somebody is demonstrating about immigration, climate change, an international conflict or another political issue, any arrest or prosecution must be capable of being justified by the law and the evidence relating to that individual’s conduct.

Being Present at a Protest Does Not Automatically Make Someone Guilty

Large demonstrations also create an important evidential issue: being present where other people allegedly commit offences does not automatically establish individual criminal responsibility.

Police investigations may involve CCTV, body-worn video, social media footage, witness evidence and mobile phone material to establish what particular individuals are alleged to have done.

This distinction can become especially important where hundreds or thousands of people are present and only a relatively small number are suspected of criminal conduct.

Protest Rights and Criminal Responsibility Must Be Considered Together

The events in Dover provide a timely reminder that the right to peaceful protest remains an important legal protection, including for people expressing unpopular or controversial opinions.

That protection does not mean protests exist outside the criminal law.

Obstruction, violence, threats, intimidation and conduct involving racial hostility can all potentially create separate legal consequences depending upon the circumstances.

Equally, controversial political views, distinctive clothing or simply being present at a demonstration should not be treated as substitutes for evidence that an individual has committed an offence.

Anyone arrested, interviewed or investigated following a protest should obtain legal advice at an early stage. Morton’s Solicitors provides criminal defence representation for individuals facing public order and related allegations, including advice and representation at the police station.

How We Can Help.

If you have any questions relating to public order offences at a protest or criminal investigations relating to any other alleged criminal activity – then don’t hesitate to call us now on 0161 477 1121 or email us.