Public Assembly Offence: Does a Conviction Need to Be a Proportionate Interference With Convention Rights?

Introduction

The handing down of the decision in DPP v Eastburn comes at a time when the law relating to public protest has undergone important changes, the policing of demonstrations has generated adverse media headlines, particularly with regard to the arrests of protestors in connection with the coronation of King Charles III, and when a flurry of injunctions relating to protests have been granted by the courts. While new protest-related offences such as ‘locking on’ have been added to the statute book by the Public Order Act 2023, and were rapidly brought into force prior to the coronation (see the Public Order Act 2023 (Commencement No.1) Regulations 2023, SI No.502, reg 2(a)–(d)), the present appeal by way of case stated was concerned with an offence which has been on the statute book for some time, but which has also undergone change as a result of recent statutory amendment. While Eastburn was concerned with s 14 of the Public Order Act 1986 in its unamended form, it is worth noting that in addition to increasing the number of triggers which entitle the police to impose conditions on a public assembly (see further below), recent reforms have widened the potential subject-matter of conditions as well as refining the mens rea requirement of the s 14(5) offence. Thus, it is now an offence where a defendant who fails to comply with a condition ought to have known, or knew, that it had been imposed: see s 14(5A) of the 1986 Act, as inserted by s 75(10) of the Police, Crime, Sentencing and Courts Act 2022.

The Authorities

In the first instance, the Deputy District Judge was referred in particular to the Divisional Court decision in James v DPP [2015] EWHC 3296 (Admin), and the Supreme Court decision in DPP v Ziegler [2021] UKSC 23. In the former, in contrast to Eastburn, a protestor who had been convicted of knowingly failing to comply with a condition contrary to s 14(5) of the 1986 Act, appealed unsuccessfully against the first instance decision. Whilst counsel for the protestor argued that a proviso ought to be read into s 14(5) to the effect that a defendant would not be guilty of the offence if a conviction would amount to a disproportionate interference with rights under Articles 10 and 11 of the ECHR, this was rejected by the Divisional Court. In the judgment of Ouseley J, it was ‘necessarily implicit in section 14(5) that the direction containing the conditions must be lawful’, otherwise ‘acquittal would follow, if it were not’ (at [39]). The fact that a decision to impose conditions on a public assembly must be based on a reasonable belief that it may result in one of the circumstances envisaged in s 14(1) materialising, e.g. serious public disorder or serious disruption to the life of the community, and that the conditions must be such as appear to the officer to be necessary to prevent such disorder, etc., meant that:

…proof of the ingredients of the offence itself would demonstrate the proportionality of the condition, non-compliance with which underlines the offence. (at [40])

In a briefer judgment in James v DPP, Davis LJ observed:

Section 14(5) of the Public Order Act 1986 has to be read in the context of articles 10 and 11 of the Convention, which confer qualified rights. The justification in any particular situation for the qualification of those rights and the proportionality of the restrictions on freedom of speech and of assembly imposed are capable of being accommodated by the express words of the relevant statute or measure as applied to the facts of the particular case. (at [51])

It is evident from these remarks, therefore, that the s 14(5) offence falls into a category of offences where it is unnecessary to undertake a separate fact-sensitive ‘proportionality consideration’, given that the matter is inherent in a finding that the ingredients of the offence have been made out. The same had previously been held in relation to the offence of aggravated trespass contrary to s 68 of the Criminal Justice and Public Order Act 1994: see Bauer v DPP [2013] 1 WLR 3617. In Ziegler, the Supreme Court identified various factors which would be relevant to an evaluation of whether a conviction would be a proportionate interference with rights under Articles 10 and 11 of the ECHR. These included: the extent to which the continuation of the protest would breach domestic law; the importance of the precise location to the protestors; the duration of the protest; the extent of the actual interference which the protest caused to the rights of others; and whether the views giving rise to the protest relate to very important issues ([2021] UKSC 23 at [71]—[78]). In the subsequent case of DPP v Cuciurean [2022] EWHC 736 (Admin), however, Lord Burnett CJ remarked:

…it is impossible to read the judgments in Ziegler as deciding that there is a general principle in our criminal law that where a person is being tried for an offence which does engage articles 10 and 11, the prosecution, in addition to satisfying the ingredients of the offence, must also prove that a conviction would be a proportionate interference with those rights. (at [67])

On the basis of this and other subsequent authorities, it is clear that the rule established in Ziegler is nuanced. Rather than being of general application, it does not apply where ‘a conviction would be proportionate if the offence is one where proportionality is satisfied by proof of the very ingredients of that offence’ (per Lord Burnett CJ in DPP v Cuciurean [2022] EWHC 736 (Admin) at [69]). This was further confirmed by the Supreme Court itself in In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 (also referred to in Eastburn), where Lord Reed PSC observed, delivering the judgment of the court:

…many commonly encountered criminal offences, such as offences of violence, and offences concerned with damage to property, are likely to be defined in such a way as to make an assessment of proportionality unnecessary, either because the conduct in question falls outside the scope of protection under the Convention or because proportionality is inherent in the ingredients of the offence. (at [55])

These remarks are significant and as Bean LJ noted in Eastburn, they were decisive of the present appeal ([2023] EWHC 1063 (Admin) at [25]). They mean, in effect, that if the elements of an offence strike what Lord Reed referred to as the ‘proportionality balance’, a conviction does not constitute a disproportionate interference with a defendant's Convention rights. Conversely, if an offence is defined in such a way as to fail to meet the requirements of proportionality, as is the case in some of the offences under the Public Order Act 1986 where ‘the proportionality of the prohibitions or restraints on expression or assembly, form part of the statutory defence that the accused's conduct was reasonable’ (per Ouseley J in DPP v James [2015] EWHC 3296 (Admin) at [34]), it will be incumbent on the prosecution to separately establish that a conviction would be a proportionate interference with Convention rights.

Serious Disruption to the Life of the Community

At the time that the events in Eastburn took place, there were four statutory triggers which entitled the police to issue a direction imposing a condition or conditions on a public assembly. Now, as a consequence of an amendment made by s 75 of the Police, Crime, Sentencing and Courts Act 2022, two further triggers have been added to s 14 of the 1986 Act. Both relate to noise and its effect or impact on people working or living in the vicinity of a public assembly: see s 14(1)(aa) and (ab). They are controversial for several reasons, not least of which is that noise is a highly subjective concept and a key feature of the paradigm of a protest.

In Eastburn, the sole trigger which was relied on to impose the conditions on the Parliament Square protest was that it may result in serious disruption to the life of the community. This is in contrast to other reported cases on s 14, where officers have reasonably believed that more than one of the statutory triggers applied. Thus, in R (on the application of Brehony) v Chief Constable of Greater Manchester [2005] EWHC 640 (Admin), for example, in addition to the serious disruption trigger, the Chief Constable was also of the view that demonstrations outside a Marks and Spencer's shop in Manchester city centre may result in serious public disorder.

For more than 35 years, the phrase ‘serious disruption to the life of the community’ was not defined by the 1986 Act despite the fact that it was ‘the most contentious’ of the triggers, what with its ‘rather oppressive “them and us” flavour that is counter-intuitively at odds with human rights discourse and values’: see Mead, The New Law of Peaceful Protest (Hart Publishing, 2010), pp.185–186. This is no longer the case. Some clarification as to the meaning of the phrase has now been provided by s 14(2A) and (2B) of the 1986 Act, as inserted by s 74(5) of the Police, Crime, Sentencing and Courts Act 2022. Thus, for example, serious disruption to the life of the community may occur where there is ‘prolonged disruption of access to any essential goods or essential service’, including a system of communication, a transport facility, an educational institution or a service relating to health: see s 14(2A)(b)(ii), (iv)–(vi). At the time of writing, draft regulations have been published which seek to amend the 1986 Act further so as to provide greater clarity as to the meaning of ‘serious disruption to the life of the community’. The Home Office claims that they are needed because ‘over the past year there have been circumstances where serious disruption has been caused to communities, but the police have been reluctant to act as they have not been certain that they have the power to do so’ (Explanatory Memorandum to the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, para 7.4).

Conclusion

Eastburn represents a further occasion when the courts have been required to consider the implications of the Supreme Court judgment in Ziegler as they relate to a specific criminal offence other than s 137 of the Highways Act 1980. It is evident from the decision, and that of a differently constituted Divisional Court in the earlier case of James v DPP, that it is unnecessary to read a proportionality test into s 14(5) of the Public Order Act 1986 to make it compatible with Articles 10 and 11 of the ECHR. Instead, proportionality is satisfied by proof of the ingredients of the offence.

Where it is believed that a direction or condition imposed under s 14 constitutes a greater interference with the rights of a protestor than the circumstances demanded then, as noted in Eastburn itself, this ‘could be challenged either by judicial review or by way of a defence to a criminal charge’ ([2023] EWHC 1063 (Admin) at [17]). That said, the example provided by Bean LJ to confirm the point, where serious disruption is anticipated at a specific location but a direction is given relating to ‘the whole of London’, is at the far end of the proportionality spectrum. In practice, while the lawfulness of a s 14 direction or condition may be challenged, the courts are likely to defer to the professional experience and judgment of officers who are responsible for maintaining public order, save where they have clearly erred. The decision in R (on the application of Jones and others) v Commissioner of Police for the Metropolis [2019] EWHC 2957 (Admin), provides a rare example of where this occurred, since it was held that ‘separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one assembly within the meaning of s.14(1) of the 1986 Act’ (at [72]). Treating them as such therefore constituted an unlawful exercise of the condition-imposing power.