Out-Law News | 08 Nov 2019 | 5:46 pm | 2 min. read
The police imposed the ban under section 14 of the 1986 Public Order Act, which allows them to restrict "public assemblies" which, among other things, "may result in serious public disorder". The court found that this could not be used to restrict multiple separate gatherings over a spread of dates, of the type planned by the group.
"In our judgment a public assembly in section 14 must be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can fairly be described as a scene," the court said in its judgment. "Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one public assembly within the meaning of [the Act]."
We continue to see an increase in protest activity, in particular in relation to environmental matters.
Separate powers in the Act could lawfully be used by the police "to control future protests deliberately designed to 'take police resources to breaking point', to use the words set out [by XR]", the judges said. However, use of these powers was not an issue before the court.
The ban related to the Extinction Rebellion Autumn Uprising (XRAU), a series of protests planned to take place at multiple sites across London between Monday 7 and Saturday 19 October. On 14 October, the police issued a notice under section 14 of the Public Order Act banning "any assembly linked" to the XRAU, on the grounds that it was "an assembly" that "may result in serious disruption to the life of the community". The ban was lifted on 18 October.
The court heard how XR intended to pursue "a clear strategy of taking police resources to a breaking point", and that it had encouraged protesters to "be water" and "split up into fast moving groups and pairs" in order to cause maximum disruption.
It was common ground between the parties that the 14 October notice treated XRAU as a single 'public assembly'. However, the judges, considering the wording of the Public Order Act, found that this was incorrect. Words and phrases in the relevant sections of the Act "strongly support the interpretation that 'a public assembly' must be in a particular location to which the public or any section of the public has access, which is wholly or partly open to the air, and which location can be fairly described as a 'scene'", they said.
Additionally, the superintendent who issued the order was "not the most senior police officer present in the whole of the Metropolitan and City of London police areas", meaning that he was not the person to whom the powers granted by the Act applied. The wording of the order also enabled the police to "prohibit intended future gatherings" linked to the XRAU action, which again was outside the scope of the particular power used.
Litigation expert Steven Blane of Pinsent Masons, the law firm behind Out-Law, said: "We continue to see an increase in protest activity, in particular in relation to environmental matters".
"Whilst the decision of the court on the powers of the police turned on a question of statutory interpretation, businesses which assess a risk of targeted protest should consider liaising with their local police to ensure that lines of communication are established, that the police are aware of the issues that might arise and the need for support," he said.
"Where required, businesses can ask the courts to prohibit, by way of an injunction or interdict in Scotland, or to order the cessation of targeted protest activity. This might not offer a solution to immediate disruption, and police support may still be necessary," he said.
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