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Do Police Approaches To Public Order Enforcement Aim To Impose A Unanimous Reaction To Queen Elizabeth II’s Death?

What has happened?

Following the passing of Queen Elizabeth II and the proclamation of King Charles III in the days that followed, there has been a spate of arrests of members of the public displaying anti-monarchist sentiments. This included a man in Oxford who called out “Who elected him?” towards the new King. In Edinburgh it is reported that at least four people were arrested in connection with breach of the peace including a woman holding a sign reading “Fuck imperialism, abolish the monarchy”, and a man who heckled Prince Andrew during the procession of the hearse. The number of protesters arrested in total remains unconfirmed.

On the day of the funeral and national bank holiday, an anti-monarchist protest took place at Windrush Square in Brixton, at which one attendee suggested that grief was being “enforced on the whole country”. The protest has been reported to have been entirely peaceful with no arrests made. Perhaps police presence was concentrated elsewhere on the largest one-day operation by the Met police in history. However, the lack of arrests at a protest that took place well away from the funeral procession highlights a possible disparity in the way anti-monarchist sentiment was treated by the police when it was out of sight of the parade.

Under what laws are people being arrested?

Despite widescale Kill the Bill demonstrations in 2021, the recent Police Crime Sentencing and Courts Act 2022 allows for the imposition of conditions upon “one-person protests” (See section 79) and codifies the offence of intentionally or recklessly causing public nuisance (see Section 78) to replace the common law offence. As shown by the protests surrounding the passing of this law, many felt that these updates were coming into force in response to an increase in demonstrations around public issues in 2020 and 2021.

Although some feared that the arrests this weekend were made under the increased powers of the Police Crime Sentencing and Courts Act 2022, reports are that the police have instead been charging under Section 5 of the Public Order Act 1986, which was also used to quell BLM and Extinction Rebellion protests in recent years.

To be found guilty of the Section 5 offence in England and Wales, a person must be found to have used threatening, abusive or disorderly words or behaviour or displayed threatening writing, signs or other visual representation likely to cause harassment, alarm or distress. In Scotland protesters may instead face a charge of breach of the peace under Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Under Scottish jurisdiction it is a criminal offence and can carry a prison sentence of up to twelve months in the Sherriff Court. In England and Wales breach of the peace is a common law concept and although you can be arrested and detained you cannot be charged for this.

Has this happened before?

Although many will find the arrests disquieting, and in particular the implications for freedom of speech and the right to assembly (Articles 10 and 11 European Convention on Human Rights), this is not a new issue. At most large scale royal events, such as the Golden Jubilee or the wedding of the Prince and Princess of Wales, there have been arrests of peaceful protesters demonstrating anti-monarchist viewpoints.

The combination of loosely defined powers of arrest for “breach of the peace” with the use of an old law in the Public Order Act 1986 to criminally charge protesters has undeniably concerning human rights implications. This was highlighted by barrister and activist Paul Powlesland who stood with a blank piece of paper in front of Parliament during this week. Upon asking an officer what would happen if he wrote “Not my King”, he was told that he would be arrested under public order offences because “it might offend someone”. After a video of this interaction went viral, the Met’s Deputy Assistant Commissioner Stuart Cundy was prompted to clarify “The public absolutely have a right to protest and we have been making this clear to all officers involved in the extraordinary policing operation currently in place and we will continue to do so.” Notwithstanding this later comment, any heavy-handed use of police powers to arrest and charge in recent days should be closely scrutinised by the courts against human rights defences.

This is unquestionably a conflicted time for the United Kingdom as the monarchy passes into the hands of the next appointed figurehead. In the broader context of the energy crisis and nationwide strikes as we move into the winter, it will be important for legal observers to continue to monitor operational and individual police approaches to protests both under the Public Order Act 1986 and as the Police Crime Sentencing and Courts Act 2022 settles into usage.

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