In recent months, the police have demonstrated their willingness to abuse their powers to criminalise and restrict anti-monarchy protest activity. Protesters have been arrested in the days following Queen Elizabeth II’s death and during King Charles III’s coronation.

These arrests have relied on a heavy-handed misuse of a range of police powers, including those introduced by the Police, Crime, Sentencing & Courts Act 2022, and by the new Public Order Act 2023. They remind us of the dangers of handing broad and poorly-defined powers to the police. Below, we detail the arrests that have been made and the specific powers that have been used.

ARRESTS IN THE AFTERMATH OF QUEEN ELIZABETH II’S DEATH

On Sunday 11 September 2022, a man was arrested in Oxford after saying “who elected him?” during the reading of a proclamation declaring King Charles III to be the new monarch. He said he had been told by police officers that he had been arrested under the new Police, Crime, Sentencing & Courts (“Policing”) Act 2022, but the police later indicated that he had been arrested on suspicion of committing an offence under Section 5 of the Public Order Act 1986. He was later de-arrested.

A man was also questioned by police, asked for his details, and threatened with arrest under the Public Order Act 1986 on Monday 12 September, after he held up a blank sheet of paper in Parliament Square – on the basis that he was intending to write ‘not my king’ on it and this “may offend people”. This came after a woman holding a piece of paper reading ‘not my king’ outside Parliament had been led away by police and asked to stand on the other side of the road, but was not arrested.

Several other people were reportedly arrested in Scotland for ‘a breach of the peace offence’ – and later charged with the offence of ‘threatening or abusive behaviour’ under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. A woman was arrested (and later charged) in Edinburgh on Sunday 11 September, after holding up a sign saying “f*** imperialism, abolish monarchy”. On Monday 12 September, a man was arrested (and later charged) after publicly criticising Prince Andrew as he walked past in the royal procession along Edinburgh’s Royal Mile.

ARRESTS DURING KING CHARLES III’S CORONATION

Some provisions of the Public Order Act 2023 came into force on 3 May 2023. Ahead of the coronation, the Metropolitan Police indicated that their “tolerance for any disruption, whether through protest or otherwise, will be low” adding that they “will deal robustly with anyone intent on undermining this celebration.”

During the coronation on 6 May 2023, the police arrested 64 protesters, including on suspicion of conspiracy to cause a ‘public nuisance‘, to prevent a ‘breach of the peace‘, and for ‘being equipped for locking on‘.

• Police arrested Republic protesters (including the organisation’s CEO) while they were unloading placards from a van. They also seized what they determined they had “reasonable grounds to believe” could be ‘lock-on’ devices (Republic explained were actually straps used to secure their placards).
• Police arrested Animal Rising protesters in East London, while attending a training session.
• Police arrested Just Stop Oil protesters on the Mall and at Downing Street.
• Police arrested three City of Westminster ‘Night Stars’ volunteers carrying rape alarms on suspicion of conspiracy to cause a ‘public nuisance’, in the early hours of the morning, claiming that they had “received intelligence” that people were planning to “throw rape alarms to disrupt the coronation” and that they might “scare the horses”.
• Numerous reports indicate that police threatened protesters with arrest should they shout “anything that may be deemed offensive.” An officer, when asked by a protester whether they could chant “not my king”, responded: “I wouldn’t advise it, no”. When questioned further, the officer indicated that they could “maybe… possibly” be arrested for ‘public nuisance’ for doing so.

YOUR RIGHT TO PROTEST

You are legally allowed to express your opposition to the institution of the monarchy, and to criticise public figures for their actions, including in the form of a protest.

Your right to protest is protected by Article 10 and Article 11 of the European Convention on Human Rights (‘ECHR’), which is given effect in the UK by the Human Rights Act (‘HRA’) 1998 by:

• requiring ‘public authorities’ (including the police) to act in a way that is compatible with your rights; and
• allowing you to bring a claim in UK courts when your rights are violated by a public authority.

More information about how the HRA 1998 works is available here.

The police also have an obligation to facilitate peaceful protests – i.e. take steps to ensure that you are able to exercise your right to protest.

Your Article 10 and Article 11 rights are ‘qualified’, however. This means that the police can lawfully restrict them, but only where it is:

• in accordance with law (e.g. using their powers under the Public Order Act 1986, the Policing Act 2022, or the Public Order Act 2023);
• for a ‘legitimate aim‘, set out in the Articles themselves (they include preventing crime or disorder, or protecting the rights of others); and
• proportionate (there are no other less restrictive measures available to the police).

More information about how you can use the HRA 1998 to challenge the actions of the police during a protest is available here.

The main laws the police have recently used when arresting people protesting against the monarchy (or otherwise protesting during the coronation) are:

• the Scottish common law ‘breach of the peace’ offence and the statutory offence under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and the common law power in England to prevent ‘breach of the peace’ [*We will explain what ‘breach of the peace’ is in England & Wales, as we do not advise on the law in Scotland];
• ‘harassment, alarm or distress’ under Section 5 of the Public Order Act 1986;
• Conspiracy to cause a ‘public nuisance’, under Section 78 of the Policing Act 2022;
• ‘Being equipped for locking on’ under Section 2 of the Public Order Act 2023.

These offences will be explained further below.

‘BREACH OF THE PEACE’

WHAT IS ‘BREACH OF THE PEACE’?

In England & Wales, ‘breach of the peace’ is defined as an act which:

• harms a person, or their property (in their presence); or
• is likely to harm a person or their property (in their presence); or
• puts a person ‘in fear’ of being harmed or their property being harmed.

i.e. ‘breach of the peace’ = violence or threatened violence towards people or property.

‘Breach of the peace’ is not a criminal offence in England & Wales, and you cannot be charged with or convicted of it. Instead, the police have the power to arrest you where you have breached, or are about to breach, the peace, and you may then be subject to a court order requiring you to refrain from breaching the peace.

The arrest must only be for the purposes of preventing a breach of the peace or bringing it to an end. Therefore, the police must release you once it is clear that you no are longer breaching, or about to breach, the peace. If your behaviour is lawful, but harm is still likely (e.g. because others might be provoked to commit violence), exercising the power of arrest must be exceptional – ‘only in the clearest of circumstances, and when they are satisfied on reasonable grounds that a breach of the peace is imminent.’

In some circumstances, a breach of the peace may also involve other offences (e.g. assault or criminal damage). You might therefore be charged with such offences, depending on the circumstances.

WHAT ARE THE POSSIBLE OUTCOMES OF A ‘BREACH OF THE PEACE’ ARREST?

If you are arrested for breach of the peace, you may be:

• de-arrested or, if taken to a police station, released from custody if, at any point, there is no longer a real danger that you will breach the peace in the near future; or
• brought to the magistrates’ court and given a court order to keep the peace – known as ‘binding over to keep the peace’. The court must specify the conduct or behaviour you must refrain from doing. If you refuse to consent to the court order, the court has the power to imprison you for up to six months or (if sooner) until you consent to the order. If you breach the court order to keep the peace, you can be charged with contempt of court. However, you can appeal the magistrates’ court order in the crown court.

‘Breach of the peace’ is a very broadly-framed legal concept, giving the police considerable power, and has been misused in the past by police officers.

If you are arrested for breach of the peace, it may be advisable to talk to a solicitor who specialises in actions against the police to assess whether the power was used lawfully or not. More information on how you can find a lawyer is available here.

‘HARASSMENT, ALARM OR DISTRESS’

In England & Wales, Section 5 of the Public Order Act 1986 provides for the offence of ‘harassment, alarm or distress’. To commit this offence, you must be:

• using ‘threatening or abusive words or behaviour, or disorderly behaviour’ / displaying (e.g. on a placard) ‘any writing, sign or other visible representation which is threatening or abusive’; and
• within sight or hearing of someone who is ‘likely to be caused harassment, alarm or distress’.

WHAT IS 'THREATENING OR ABUSIVE WORDS OR BEHAVIOUR'?

WHAT IS 'DISORDERLY BEHAVIOUR'?

WHAT IS 'HARASSMENT'?

WHAT IS 'DISTRESS'?

Note that you don’t have to actually cause another person to be harassed, alarmed or distressed to commit this offence.

However, you can only be guilty of this offence if:

• you intended (or were at least aware) that your words / behaviour /written representations would be threatening or abusive; or
• you intended (or were at least aware) that your behaviour would be disorderly.

It is a defence for you to prove that (more likely than not):

• you had ‘no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress’; or
• your conduct can be said to have been ‘reasonable’.

If you are convicted of this offence, you may be liable for a fine of up to £1000.

Note that there is an additional, more serious offence under Section 4A of the Public Order Act 1986, for circumstances in which you:

• use ‘threatening, abusive or insulting’  words or behaviour’ with the intention of causing harassment, alarm or distress to another person; and
• you actually cause harassment, alarm or distress to another person.

If convicted of this more serious offence, you may be liable for imprisonment for a term not exceeding 6 months or a fine not exceeding £5000.

‘PUBLIC NUISANCE’

Under Section 78 of the Policing Act, it is an offence to intentionally or recklessly do something / fail to do something you are legally required to do, which…

• risks or causes ‘serious harm‘ to the public; or
• obstructs the public in the exercise/enjoyment of their rights.

WHAT IS 'SERIOUS HARM'?

It is a defence for you to prove that you had a ‘reasonable excuse’.

If you are convicted of this offence, you are punishable with:

• imprisonment for up to 6 months, a fine or both, if a summary conviction; or
• imprisonment for up to 10 years, a fine or both, if on indictment.

‘LOCKING ON’ & ‘BEING EQUIPPED FOR LOCKING ON’

Section 1 and Section 2 of the Public Order Act 2023, which came into force on 3 May 2023, criminalise ‘locking on’ and ‘being equipped for locking on’ respectively. Below we will explain these new offences.

‘LOCKING ON’

Section 1 of the Public Order Act 2023 criminalises protesters who attach themselves to others, objects, or buildings. The offence will apply where protesters:

• attach themselves to another person, an object or land;
• attach a person to another person, an object, or land; or
• attach an object to another object or to land; and
• their activities cause or can cause ‘serious disruption’ [defined below] to two or more people or to an organisation in a public place.

An individual would commit this offence both if they intended for their acts to cause serious disruption or they were reckless as to whether their acts would cause serious disruption.

There is a defence of ‘reasonable excuse’  for this offence.

If convicted, this offence is punishable with up to 6 months’ imprisonment, a fine, or both.

‘BEING EQUIPPED FOR LOCKING ON’

Section 2 of the Public Order Act 2023 criminalises those who are ‘equipped for locking on’.

Six Republic protesters were arrested on the morning of the coronation, while unloading ‘Not My King’ placards from a van. The police seized what they determined they had “reasonable grounds to believe” could be ‘lock-on’ devices. Republic protesters explained they were actually straps being used to secure their placards.

An individual will commit this offence if they are:

• carrying an object in public; and
• intending to use the object ‘in the course of or in connection with’ themselves or any other person committing the offence of locking on.

If convicted, this offence is punishable with an unlimited fine.

More information about the new offences introduced by the Public Order Act 2023 is available here.

'SERIOUS DISRUPTION'

WERE THE ARRESTS LAWFUL?

Following the arrests made in the aftermath of the Queen’s death, the National Police Chiefs’ Council issued (unpublished) guidance, as a response to these recent arrests, re-iterating to police officers that the “the ability to protest is a fundamental part of democracy” and indicating that language or placards expressing anti-monarchy sentiments are unlikely to reach the threshold required to commit an offence under Section 5 of the Public Order Act 1986 – which further suggests that the arrests were unlawful and the police were misusing their powers.

Additionally, the Chair of the Metropolitan Police Federation actually suggested that police officers do not understand the powers they have, stating – in response to the arrests after the Queen’s death – that: “It was clear that some of my colleagues weren’t aware what people can and can’t do in terms of holding up pieces of paper.”

Following the numerous arrests made during King Charles’s coronation, the Metropolitan issued a statement confirming that Republic protesters were facing no further action and expressing “regret” that the Republic protesters “were unable to join the wider group of protesters in Trafalgar Square and elsewhere on the procession route.” They indicated that they had been “unable to prove intent to use [the items they seized] to lock on and disrupt the event.” They also confirmed that the three ‘Night Stars’ volunteers have been released with no further action being taken. Westminster City Council is demanding an apology.

Government ministers defended the Metropolitan Police’s handling of the coronation. Health Minister Neil O’Brien indicated that they “did a pretty good job”. Policing Minister Chris Philip told the House of Commons that “at the point the arrest was made, the police reasonably believed there were grounds to do so.”

Metropolitan Police Commissioner, Sir Mark Rowley, also defended the policing of the coronation, stating that “while it is unfortunate that the six people affected by this were unable to join the hundreds of peaceful protesters, I support the officers’ actions in this unique fast-moving operational context.”

Liberty’s Director has said that the police’s “overzealous”, “inappropriate” and “heavy-handed” approach during the coronation “demonstrates the dangers of handing broad and poorly-defined powers to the police – who we know by now are all too happy to use and abuse those powers.”

WHAT ARE YOUR RIGHTS IF YOU ARE ARRESTED?

You can find more information about the police’s power to arrest you here. You can also find information about your rights if arrested at a protest here.

If you’re arrested for either of the offences above, the police must tell you:

• that you are being arrested; and
• why they are arresting you.

If they do not give you this information as soon as is practicable, the arrest is unlawful.

After being arrested, you must be taken to a police station as soon as possible. When you arrive, the custody officer must also be informed of the reasons for your arrest. This custody officer must review the facts and decide whether it’s necessary to detain you, and then keep the necessity of your detention under ongoing review.

If you’re under 18, the police must contact your parents, guardian or carer as soon as possible after your arrival at the police station after being arrested.

You have the right to:

• tell someone that you’ve been arrested;
• an interpreter if your first language isn’t English; and
• an appropriate adult, if you are under 18 or otherwise vulnerable.

If you are arrested:

• do not accept a caution (as this is an admission of guilt) until you have received free legal advice from a specialist solicitor;
• say “no comment” to all questions – including chats with the police – until you have received free legal advice from a specialist solicitor; and
• seek legal advice and representation from a solicitor with expertise in protest law – see contact details for specialist solicitors on our bust cards.

WHAT CAN YOU DO IF THE POLICE UNLAWFULLY ARREST YOU?

If you think you have been unlawfully arrested, or otherwise mistreated by the police, when exercising your right to protest against the monarchy, you should contact a solicitor specialising in ‘actions against the police’ (see top ranked firms here). As we’ve noted above, you can find contact details for solicitors with protest law expertise on our protest bust cards.

You may also wish to make a police complaint. You can find more information about how to do this here.