Intimidation, including conditions as to the route of the procession

or prohibit it from entering any public place specified in the

directions (s. 12). A senior police officer is either the chief constable,

Metropolitan police commissioner, or the senior officer present on

the scene (s. 12 (2)). Intimidation requires more than merely causing

discomfort and must contain an element of compulsion (Police v.

Reid (1987)).

. All public processions, or any class of public procession, can be

banned if the chief constable or Metropolitan police commissioner

reasonably believes that the power to impose conditions is not

adequate in the circumstances (s. 13). The decision is for the local

authority, with the consent of a secretary of state (in practice the

Home Secretary).

478 General Principles of Constitutional and Administrative Law

. There are powers to impose conditions upon public assemblies for

the same purposes as in the case of processions (s. 14). For this pur-

pose a public assembly is an assembly of 20 or more people in a

public place which is wholly or partly open to the air (s. 16). Unlike

processions, the police have no power to ban a lawful assembly but

can control its location, timing and the numbers attending. However,

the Criminal Justice and Public Order Act 1994 s. 70 (inserting ss. 14

A, B, C into the Public Order Act 1986), confers power on a local

authority with the consent of the Secretary of State to impose a

blanket ban upon certain assemblies in a place to which the public

have no right of access or only a limited right of access. This includes

private land and buildings where the public is invited, for example

ancient monuments such as Stonehenge, meeting rooms, shops,

sports and entertainment centres and libraries. The chief constable

must reasonably believe that an assembly:

(a) is a trespassory assembly, being likely to be held without the

permission of the occupier or to exceed the limits of his permis-

sion or of the public’s rights of access, and

(b) may result in serious disruption to the life of the community or,

where the land or a building or monument on it is of historical,

architectural or scientific importance, may result in significant

damage to the land, building or monument. A ban can last for

up to four days within an area of up to five miles. The ban

covers all trespassory assemblies and cannot be confined to

particular assemblies.

The Terrorism Act 2000 imposes further wide restrictions on meet-

Ings because of its broad definition of terrorism. This includes the use

or threat for the purpose of advancing a political, religious or ideo-

logical cause, of action which . . . involves serious violence against

persons or property . . . or . . . creates a serious risk to the health or

safety of the public or a section of the public (s. 1). The Secretary of

State can proscribe organisations within this definition (s. 3). By vir-

tue of s. 12, a person commits an offence who arranges or helps to

arrange a meeting (of three or more persons) which he knows sup-

ports or furthers the activities of a proscribed organisation or which is

addressed by a person who belongs to or professes to belong to a

proscribed organisation, irrespective of the subject of the meeting.

Vague concepts such as ‘ideological’, ‘violence’ and ‘safety’ mean that

the law might include campaigning organisations such as parents

groups and campaigners against human rights violations overseas.

. A police officer (and indeed any citizen) has a common law duty to

prevent a breach of the peace. Where a breach of the peace is taking

479

Freedom of Political Expression

place or reasonably anticipated the police have a summary power to

arrest anyone who refuses to obey their reasonable requirements.

A charge of obstructing the police is also possible (Police Act 1996

s. 89 (1)). The meaning of breach of the peace may be confined to

violence or the likelihood of violence (see R. v. Howell (1982)).

However, in R. v. Chief Constable of Devon and Cornwall (1981) 3 All

ER 826 at 832 Lord Denning MR thought that there is a breach of

the peace ‘wherever a person who is lawfully carrying out his work is

unlawfully and physically prevented by another from doing it’ –

protesters lying in front of a drilling machine. Thus passive resistance

might be a breach of the peace. Lord Denning also thought that in

deciding whether to intervene the police did not need to go into the

rights and wrongs of the matter and could clear the site irrespective

of who is to blame.

The power to prevent a breach of the peace includes for example a

right of entry to private premises (Thomas v. Sawkins (1935)), a right

to control the number of pickets on a picket line (Piddington v. Bates

(1960)) and even a right to prevent people from travelling to a

demonstration held several miles away (Moss v. McLachlan (1985)).

It is not clear how ‘imminent’ or likely a breach of the peace must be.

In Moss v. McLachlan the court emphasised that the matter is for the

judgement of the policeman on the spot, who must consider on the

basis of some evidence that there must be a ‘real risk’ of a breach of

peace ‘in the sense that it is in close proximity both in space and

time’. The statutory power to ban processions (above) is in one

respect wider because it allows bans to be imposed well in advance.

In other respects the common law power is considerably broader.

All the above powers are characterised by wide discretion and there

are no specific safeguards for freedom of expression or assembly. The

courts are reluctant to interfere with police discretion and have applied

the minimal ‘Wednesbury’ test of unreasonableness according to which

they will interfere only where the police decision is irrational. The

main consideration seems to be that of efficiency in giving the police

the power to control the disturbance as they see fit within the resources

reasonably available to them (see R. v. Chief Constable of Devon and

Cornwall (1981); R. v. Chief Constable of Sussex ex parte International

Traders Ferry Ltd (1999)).

Furthermore the principle in Beatty v. Gillbanks (1882) seems to

have been discarded according to which someone peacefully demon-

strating on the highway cannot be penalised for a disturbance un-

lawfully created by opponents. In Beatty, a temperance march by the