The Police and the Expansion of Public Order Law in Britain, 1829-2014

Iain Channing

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781136179693
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de la Grande-Bretagne

Incidences of public disorder, and the manner in which they have been suppressed, have repeatedly ignited debate on the role of policing, the effectiveness of current legislation and the implications for human rights and civil liberties. These same issues have reverberated throughout British history, and have frequently resulted in the enactment of new legislation that reactively aimed to counter the specific concern of that era. This book offers a detailed analysis of the expansion of public order law in the context of the historical and political developments in British society.

The correlation of key historical events and the enactment of consequent legislation is a key theme that resonates throughout the book, and demonstrates the expanding influence of the law on public assemblies and protest, which has continued to criminalise and prohibit certain social behaviours. Crucial movements in Britain's social and political history who have all engaged in, or have provoked public disorder, are examined in the book. Other incidents of riot and disorder, such as the Featherstone Riot (1893), the Battle of Cable Street (1936), the Inner City Riots (1980s) and the UK riots (2011) are also covered.

By positioning legal developments within their historical context, the book demonstrates the ebb and flow between the prominence of the competing demands of the liberties of free expression and assembly on the one hand and the protection of the general public and property on the other. This book is essential reading for academics and students in the fields of criminology, history and law.

1
The development of public order law

‘The police will become the arbiter of the right of people to manifest their views. This represents a serious change in liberty of assembly and police powers.’¹

Introduction

The introduction of new public order legislation is usually challenged in Parliament on the grounds that it endangers the valued liberties of public assembly and protest. This is demonstrated in the introductory quote by Plaid Cymru MP Dafydd Elis-Thomas, who signalled his warning over clauses 11 and 14 of the Public Order Bill 1986 which provided police with the discretion to apply conditions on assemblies. At the same time, other Members of Parliament have argued in favour of the liberties of others. For instance, in the same debate Conservative MP Nicholas Lyell praised the Bill, arguing ‘I believe that it will protect and enhance the liberty of our society as a whole.’² New legislation is also usually a response to some failings in public order management or a new perceived threat from radical groups. This chapter first examines the concept of residual freedom and human rights in English law and then provides an overview of the principal Statutes related to public order which are examined in more detail throughout this book.

Residual freedom, civil liberties and human rights

Notions which identify the state’s obligation to preserve public order are necessarily associated with the protection or the suppression of civil liberties and human rights. Yet whose liberty should be protected? The concept of liberty in the late eighteenth century was appropriated by both the establishment and the radical alike. E. P. Thompson revealed the popular belief that the Revolutionary settlement of 1688 and the subsequent Constitution of King, Lords and Commons guaranteed the liberty of free-born Englishmen. Nevertheless, decisive definitions of liberty itself are obscured by subjective philosophies and values. For instance, in the name of freedom Burke denounced the French Revolution while Paine championed it.³ Furthermore, Thompson stated, ‘Patriotism, nationalism, even bigotry and repression, were all clothed in the rhetoric of liberty.’⁴ This inherent ambiguity in notions of late eighteenth century and early nineteenth century liberty was interpreted by Thompson to mean freedom from foreign domination, absolutism and arbitrary searches of one’s home and arrest. It also included equality before the law and the limited liberties of thought, speech and conscience.⁵

Within this ‘top-down’ hierarchy of liberties was a structure which was directed to preserve the power of the state. From this perspective, freedoms such as speech and thought were necessarily limited in order to manage and suppress radical thinkers and militants who threatened the stability of the Constitution. Yet to the political activist or public protester, absolute freedom of speech was fundamental to their philosophy of liberty. Without it there could be no challenge to state autocracy. These diverse perceptions of liberty have been the mainspring between several violent clashes between the state and its subjects. Without the right to vote, the political involvement of the working classes was particularly limited. Yet, as Thompson observed, the people could still ‘parade, huzza and jeer on the hustings’, and reformers and radical candidates received overwhelming support during election times, while the ‘authorities were forced to build barracks and take precautions against the ‘revolutionary crowd’.⁶

Before the Human Rights Act 1998 (HRA) and the incorporation of the European Convention on Human Rights (ECHR), there was no legally defined ‘right’ of public meeting or freedom of speech. Previously, people were at liberty to exercise freedom of speech or assembly, provided that their actions did not contravene any existing law. Since the HRA, Articles 10 and 11 of the ECHR (freedom of expression and freedom of assembly and association respectively) have provided positive legal protection of these rights in UK law. Nevertheless, Article 9 Bill of Rights 1688 provides MPs with freedom of speech in Parliament. Without a written Constitution that guaranteed such ‘rights’, the notion of residual freedom was prevalent in English law. Since the nineteenth century there have been various legal references to such rights, but as lawyer Davis Mead suggests, there ‘is no time at which one can easily plot the entry of a right of assembly and protest into legal and judicial discourse in England.’⁷ Mead cites Bonnard v Perryman⁸ as possibly the earliest mention of a right of free speech.⁹ Here Lord Coleridge CJ stated, ‘The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done’.¹⁰

In An Introduction to the Study of the Law of the Constitution, A. V. Dicey offered a contradictory view. Although the first edition of this work fell six years before Bonnard, Dicey continued to amend the text until 1908, and his latest version omitted this case. Dicey clearly rejected the notion that any rights to freedom of speech existed in English law.

The phrases “freedom of discussion” or “liberty of the press” are rarely found in any part of the Statute-book nor among the maxims of the common law… At no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech.¹¹

Similarly, in respect of the right of public meeting, Dicey also stated that the constitution did not recognise any specific right of public meeting.¹²

In the 1930s, when the issue was directly related to political protest and activism, Lord Hewart CJ emphatically quashed any notion of such rights in Duncan v Jones,¹³ ruling that ‘English Law does not recognise any special right of public meeting for political or other purposes.’¹⁴ This particular case is discussed in more detail in chapter three. However, 40 years later in Hubbard v Pitt¹⁵ Lord Denning cited Bonnard v Perryman to convey the importance of the right to protest, ‘As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic’.¹⁶ Despite these sporadic and inconsistent references to the rights of free speech and public assembly, the confusion is often caused by the terms right and liberty. In Hubbard, Stamp LJ agreed with Denning and described it as the ‘liberty to speak, [and] the liberty to assemble’,¹⁷ which is more consistent with the notion of residual freedom than expressly defined and legally protected rights. David Mead emphasises the difference that the HRA had made, by stating that the move from a ‘residual, liberty based system to one based on positive rights brings a shift in the burden of proof.’¹⁸ This means that public authorities must now provide an objective basis for any ban or condition that they impose on public assemblies and all restrictions must be justified in relation to Article 11(2) of the ECHR. Effectively Chief Constables are required to enforce the least restrictive measures open to them in relation to the potential for disorder, when imposing conditions on public assemblies.

The development of public order law

While these contested arguments on the status of civil liberties and human rights evolved during the last 200 years, restrictive public order legislation has had a significant impact on such liberties being enjoyed. These developments were usually a reaction to particular concerns that faced successive governments during this period. This book examines these developments by identifying particular themes which public order legislation has been mandated to regulate.

Under the common law, the breach of the peace doctrine empowers the police to make an arrest without warrant when such a breach is committed in their presence or is reasonably anticipated. This was significantly authorised by Watkins LJ in R v Howell,¹⁹ although in his judgment he also acknowledged previous common law authority on the powers of arrest in the anticipation of a breach of the peace such as R v Light.²⁰ It is a significant power which has provided the police with wide discretionary powers due to its ambiguous meaning. The powers of the police relating to the common law offence of breach of the peace are analysed in more detail in the next chapter.

The Riot Act 1714 is the first significant Act of Parliament which traverses a substantial portion of this time period. It was enacted during a period of considerable disorder across England which was highlighted by the Sacheverell Riots 1710 and the Coronation Riots 1714. The Riot Act represented the ultimate power of the State: its reading at a scene of disorder by a magistrate created a felony punishable by death to any person who had not dispersed within an hour. Most significantly, mere presence at the scene was enough to warrant the death penalty and no specific act or intention was necessary to prove guilt. This is analysed in chapter three.

The Riot Act was finally repealed with the passing of the Criminal Law Act 1967. During the Criminal Law Bill’s progress through Parliament the opportunity for the Riot Act to be read before its ultimate repeal presented itself in Stockport, as a crowd of 1,000 trade unionists were reported to have caused disorder outside a factory in the Cheshire town. The District Secretary for the Amalgamated Engineering Union argued that the union members only responded with violence because of police provocation which included some ‘roughness’ and three police charges on the initially peaceful protest. Interestingly, although the authority of reading the Riot Act fell to the ‘head officer’ of the town or city, the influence of the Chief Constable on whether the Act was read in this case was dominant. The Town Clerk revealed to The Times that he discussed the issue with the Chief Constable and ultimately took his advice not to read the Act as reinforcements were expected.²¹ In the House of Lords, Labour peer Lord Stonham argued that the Riot Act ceased to be wanted with the establishment of modern police forces and no longer served any useful purpose.²² Although the Riot Act was still utilised after the creation of the modern police force, this use did diminish and its last recorded use was in 1919 during the police strikes. In the Liverpool area there were a significant number of police officers that supported the strike and widespread looting occurred. The Riot Act was read in Birkenhead where 96 police officers, from the total force strength of 225, were on strike. Despite there being ‘700 military with machine guns in the town’, The Times recorded that although the Riot Act was read, ‘extreme measures were not resorted to.’²³ With the repeal of the Riot Act, the magistrates also lost their influence in times of serious disorder. Writing in the same year the Criminal Law Act was passed, Williams highlighted how the Chief Constable, rather than the magistrate, was now more likely to cooperate with the military authorities during severe disorder.²⁴

Following a period of public discontent and economic instability, there was a series of civil disorders which culminated with the Peterloo massacre. Because of the State’s concern over radical political activity, a flurry of legislation was passed to counter the Government’s fear of revolutionary movements. Most significant among these Acts were the Unlawful Drilling Act 1819 and the...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of illustrations
• Acknowledgements
• Series editor introduction
• Abbreviations
• Table of statutes
• Table of cases
• Introduction
• 1 The development of public order law
• 2 ‘I predict a breach of the peace’: police discretion and the tension between liberty and order
• 3 Riot and violent disorder: controlling spontaneous disorder and excessive police violence
• 4 Freedom of assembly and public processions: regulation and policing before the Public Order Act 1936
• 5 Freedom of assembly and public processions: regulation and policing after the Public Order Act 1936
• 6 Public meetings and freedom of expression: the criminalisation of words and political censorship
• 7 Public meetings held on private premises: the roles of the steward and the police
• 8 Dressed for disorder: the criminalisation of political uniforms
• Conclusion
• Bibliography
• Index