Public law, legal services and the legal system
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177 Terms
What is the purpose of a codifying Act?
To bring together both statutory and common law relating to a subject.
What is a Private Members’ Bill?
Legislative proposals put forward by MPs and Lords who are not government ministers - will need to receive the backing of the government or they will fall.
What is an aid and what is the difference between an intrinsic vs extrinsic aid?
Common law and statutory rules developed to mitigate the risk of the law being applied capriciously, unpredictably, inconsistency or partially - they set out various rules and presumptions to be applied to the law.
Intrinsic aids are aspects of the law itself (e.g. the statute’s short and long titles and explanatory memorandum).
Extrinsic aids are aids to interpretation that are not the law itself (e.g. the Interpretation Act, international conventions, official reports).
What does the common law presume when Parliament makes law?
that Parliament is fully informed and knowledgeable about the matters surrounding the topic of the law and that
as such, the resultant law should be interpreted in a similarly comprehensive way
What is a Royal Commission?
A major government public inquiry into an issue.
What is the common-sense construction rule?
Where there are two opposing interpretations of the Act, the courts should prefer the construction that is the most common sense on the basis that Parliament would have intended such a result.
What is the rectifying construction rule?
The courts will presume that the legislature would want judges to rectify errors in the statute (e.g. where the text is garbled, there is an error in meaning, there is a missing case or a wrongly included case, there is a conflict in the text or where the statute was created on a legal error).
The court will only be entitled to rectify the meaning where it is absolutely sure:
of the intended purpose of the enactment
that the draftspeople had made an error
of the nature of the provision
What is the updating construction rule?
It is often presumed that the law should be construed on a dynamic basis to keep up with changes to contemporary life and society - when being interpreted, the law should reflect technological, societal, scientific and other changes and should not be frozen in time at the date of enactment.
What is the mischief rule?
The courts consider that, when the legislature passes a law designed to address a mischief or problem, that enactment should be interpreted in a way that suppresses that problem (Heydon’s case (1584)).
What is the golden rule?
The courts presume that the legislature does not enact law that creates an absurdity - that is against sense and reason.
The courts will strive to construe a statutory provision against an unworkable or impracticable result, an inconvenient result, an illogical result, a futile or pointless result or an artificial result.
What is the purposive construction rule?
The court will presume that the legislature wants the court to construe a law to give effect to the true purpose of the law - courts will not interpret the law literally where that approach would defeat the purposes of the legislation.
What is the modern approach to statutory interpretation?
To have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose.
What two main presumptions will judges rely on when construing legislation?
Presumption against retrospectivity - enactments that change the lay only do prospectively and retrospective application is rare and will only be done where it is expressly stated or be by necessary implication (particularly strong in criminal law and fiscal provisions).
Presumption against avoiding the law - courts will presume that their interpretation should not result in the law being evaded or circumvented.
What are the main rules that judges follow when undertaking their interpretative duty?
The executive has no power to suspend the operation of an Act of Parliament
Judges cannot anticipate the ‘coming into force’ of an Act of Parliament - they must make decisions on the basis of what the current law is
The courts will presume that the legislature did not intend to pass a law that overrides fundamental common law rights
The geographical extent of an Act of Parliament - Acts of the UK extend to the whole of the UK (regardless of any devolution in Wales/Scotland/NI)
The application of an Act - generally, Acts of UK parliament only have legal effect within the UK but can have application in other sovereign states on a mutual basis (e.g. with regard to activities of UK citizens abroad of foreign nationals who are in the UK)
The effect of Acts - acts may impose statutory duties on anyone and ignorance of the law is no defence (e.g. ECHR does require that any interferences with human rights will only be acceptable where they are ‘prescribed by law’, which requires that the law is both adequately accessible and formulated with suitable precision
What are the main principles of legal policy?
Law should be predictable, coherent and self-consistent - citizens should be able to understand the law and regulate their conduct to remain on the side of the law, law should be consistent and not contradictory (except HR laws)
Changes to the law should not be casual - changes should be a deliberate act, based on measured deliberation and evaluation, particularly in relation to common law and where the proposed change would be a major break with prior law
De minimis principle - the law does not concern itself with trifling matters
The law should be just and fair - judge’s interpretation of the law should not lead to injustice or unfairness, courts must take decisions that further the ends of justice
Judges should be impartial - no one should be judge in his own cause or where there are any apparent biases (i.e. a conflict of interest), any pecuniary interest in a case will render the decision void and any other grounds of bias will render the decision voidable
Right to be heard - any legal dispute the other side has must be heard, both parties to a legal dispute must have an opportunity to state their case
Double jeopardy - no one should be tried twice in relation to the same events (other than retrials allowed under statutory exceptions for certain serious crimes)
Volenti non fit injuria principle - when a person consents to something, that action cannot amount to a legal injury although certain extreme actions entered into voluntarily will not absolve the participants of liability
Act of God - a natural disaster or some other unavoidable calamity should not cause legal injury to anyone, the resulting loss may be recovered by governmental funding or the statutory imposition of an obligation to compensate on certain bodies
Impotence, impossibility and necessity - people should not be punished for not doing something they could not do/prevent, or that was impossible, or for taking action that is necessary
Law should serve the public interest - judges should interpret laws in a way that promotes the public benefit and laws should be operated in good faith, public interest is also served by protecting the security of the state and safeguarding the King’s peace
Illegality - people alleging their own disrepute should not be entertained, a wrongdoer should be prevented from taking legal action or raising a defence
Protection of morality - law, in general, should promote and protect morality
What principles (in terms of the ECHR) does general legal policy uphold?
The concept of family (Art 8 - respect for private life, home, family and correspondence and Art 12 - right to marry)
The sanctity of human life and human health (Art 2 - right to life)
Personal liberty (Art 4 - prohibition of slavery and forced labour, Art 5 - right to liberty and security)
Religious freedom (Art 9 - freedom of thought, conscience and religion, R v Lemon (1979))
Freedom of expression (Art 10 - freedom of expression and information)
Freedom of peaceful assembly and association (Art 11 - right of assembly and association)
Property rights and economic interests (Art 1 of Protocol 1, Entick v Carrington (1765))
What is the requirement of Art 10 ECHR in respect of free speech?
That free speech be restricted for protecting the reputation or rights of others.
What is the principle of clear penalties?
People should not be penalised inadvertently, by mistake or in error.
What is ‘sanctity of the home’?
‘An Englishman’s home is his castle’ - extends to relations between family members and protection against the entry of state officials into the home.
How should law under s3 HRA 1998 generally be interpretated?
So far as possible, primary and secondary legislation must be read and given effect in a way which is compatible with the Convention Rights.
The terms of the ECHR should be taken into account when interpreting UK law, unless it is declared incompatible.
What is ‘assimilated law’?
Parts of EU law that have been incorporated into the UK legal system post-Brexit transition period (31 December 2020).
UK Supreme Court:
What is tried here?
What are the legal professionals of this court called?
Appeals only (from CoA and High Court), on points of law in either the Criminal or Civil Division
Justices of the Supreme Court
Court of Appeal:
What is tried here?
What are the legal professionals of this court called?
Appeals only (from High Court, Crown Court and Tribunals), on points of law of constitutional or public importance for the UK (civil cases) or England & Wales and NI (criminal cases)
Lord Chief Justice, Heads of Division, Court of Appeal Judges
High Court:
What is tried here?
What are the legal professionals of this court called?
Made up of three divisions:
Chancery
King’s Bench
Family
All hear appeals from other courts (magistrates, county and family) and first instance cases
High Court and Deputy High Court Judges
Crown Court:
What is tried here?
What are the legal professionals of this court called?
Jury trial for all indictable and some either-way criminal offences
Hears appeals against conviction and sentence from the magistrates’ court
Circuit Judges, Recorders and juries
Magistrates’ Court:
What is tried here?
What are the legal professionals of this court called?
Trial for most criminal offences and some civil matters - all criminal cases will start here
Magistrates, District Judges (Magistrates’ Court), Deputy District Judges (Magistrates’ Court)
County Court:
What is tried here?
What are the legal professionals of this court called?
Trial for most civil cases in England and Wales
Circuit judges, Recorders, District Judges, Deputy District Judges
Family Court:
What is tried here?
What are the legal professionals of this court called?
Trial for most family cases
High Court Judges, Circuit Judges, Recorders, District Judges, Deputy District Judges and Magistrates
First-tier Tribunal:
What is tried here?
What are the legal professionals of this court called?
Appeals from executive agency decisions
Tribunal Judges and members
Upper Tribunal:
What is tried here?
What are the legal professionals of this court called?
Appeals from the First-tier Tribunal
Upper Tribunal Judges
Employment Tribunal (England & Wales’; Scotland):
What is tried here?
What are the legal professionals of this court called?
Claims about employment matters
Employment Judges and members
Employment Appeal Tribunal:
What is tried here?
What are the legal professionals of this court called?
Appeals from the Employment Tribunals
Employment Appeal Judges and members
What are the ‘senior courts’ of England and Wales?
Court of Appeal and High Court.
How many judges will sit in a High Court?
One, unless it is sitting as a Divisional Court in which case there will be at least two judges on the bench.
What courts sit under the King’s Bench Division?
Commercial Court
Admiralty Court
Technology and Construction Court
Financial List (both)
What courts sit under the Chancery Division?
Business List (general business, pensions, financial services and regulatory)
Insolvency and Companies List
Financial List (both)
Competition List
IP List
Revenue List
Property, Trusts and Probate List
What is the ratio decidendi?
The principle established by a previous case - this should be upheld and followed in future.
What is the concept of stare decisis?
A court hearing a case should generally follow the precedent set out in an earlier judgment that is in point (relevant to the present case).
Where a court positively deals with previous case law, what three things will it be said to have done?
Approved the case - where a higher court considers that a case of a lower court was correctly decided
Applied the case - where a court applies the reasoning of a previous case to its current case, but where the facts are different from those of the previous case
Followed the case - where a court is bound by the previous decision of a co-ordinate or superior court and the material facts are substantially the same
What are the rules around following decisions of other first instance judges?
A judge at first instance may choose to depart from the decision of another first instance judge if they consider that decision to be wrongly decided
Where there are a number of conflicting decisions from conflicting courts, a later judgment should be preferred if it fully considered previous decisions
Are courts bound by decisions of a coordinate court?
No.
Are judgements of a Divisional Court binding on judges?
They will be binding on first instance judges, but not for the Employment Appeal Tribunal.
When may the Court of Appeal depart from its own decisions?
Where there are two or more conflicting decisions that are potentially applicable - the CoA must prefer one of them
If it is clear that an existing judgment or its won directly conflicts with an existing decision of the Supreme Court - the CoA must refuse to follow that decision
Where that decision is deemed to have been given per incuriam (through lack of care to facts or law) - other than where the decision was made by the Supreme Court
In criminal cases, where the applicant is considered to be in prison unlawfully, the court considers that the law was misunderstood/misapplied and is acting in its duty to set out principles and guidelines on sentencing
When may the Supreme Court depart from earlier decisions?
Where it appears ‘right to do so’
Where it deems the previous decision as being obscured, an outlier case or where the ratio was deemed too broad
If the ratio is difficult to determine - the SC may refer back to a previous line of cases in order to adjudicate
Where slavish adherence to that precedent may result in injustice or may unduly restrict development of the law
What decisions are the Employment Appeal Tribunal bound by?
Supreme Court and Court of Appeal - it is not bound by High Court decisions but they are highly persuasive.
What are the three general divisions of the royal prerogative?
Those of the sovereign as regards the constitution - the sovereign has the right to advise, encourage and warn ministers, to appoint the prime minister and to grant royal assent to the legislative proposals
The legal prerogatives of the Crown - they are legally entitled to animals such as sturgeon, swans and whales, and are only bound by statute where that is expressly stated in the law or will extend to the Crow by necessary implication
Executive powers such as signing and ratifying international conventions, diplomacy and deployment of the armed forces - all now routinely exercised by ministers by virtue of the constitutional convention
What are the main principles behind the separation of powers?
The same persons should not form part of more than one of the three organs of government
One organ of government should not control or interfere with the work of another
One organ of government should not exercise the functions of another
What is the rule of law?
The equal subordination of governmental bodies to the substantive and procedural requirements of the law, so as to prevent them exercising purely arbitrary and discretionary power.
Embodies the idea that everyone is equally subject to the law and that the rights of citizens are protected by the legal system.
What are constitutional conventions?
Informal political rules adopted by those who participate in the process of government, which are considered binding to a varying extent but which are not enforceable in the courts.
What are the main features of the UK’s consitution?
It is uncodified - distributed across multiple documents
Relies on constitutional conventions to regulate aspects of its day-to-day operation
A democracy headed by an unelected head of state
Members of the government also sit in Parliament
It is a product of largely uninterrupted historical development
It is developing a devolved system of government and law-making within its constituent nations
What are the 8 broad principles underpinning the modern rule of law?
The law should be accessible and predictable
Legal questions should be determined according to law, not by the exercise of discretion
The law should apply equally to all, except where objective differences justify differentiation
Public officers must exercise their powers in good faith, fairly, for the purpose for which the powers were conferred - reasonably and without exceeding their power’s limits
The law should seek to protect fundamental human rights
The state must provide a way of resolving disputes which parties cannot themselves resolve, quickly and without high cost
Adjudicative procedures should be fair
The state must comply with its obligations in international law as in national law
What rule did Cherry/Miller 2 establish?
That a decision to prorogue Parliament will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and the body responsible for the supervision of the executive.
What is the principle of legality?
Two meanings:
it regulates the relationship between parliamentary sovereignty and the expectation that parliamentary enactments will generally be expected to conform to the rule of law and respect fundamental rights
government interference with people and property must only be undertaken by exercise of a statutory power or through the common law and must be exercised lawfully - necessity does not justify the state acting to interfere with an individual’s rights or liberties except from in cases of urgency where the state is incapacitates
What are the three powers of the UK?
Legislative
The executive
The judiciary
What can be done where a judicial decision is tainted by bias?
The decision can and must be set aside to maintain faith in judges.
Is there a complete separation of powers in the UK?
No - there is a fusion between the executive and legislature branches of the state.
How can a solicitor advertise additional services to clients to the public?
By making an unsolicited approach to advertise the additional service to current and former clients.
What is judicial review?
The power of the courts to review the lawfulness of various decisions (including failure to act and exercising public functions) taken by public bodies or bodies exercising public functions.
To ensure that decisions have not been taken ultra vires (unlawfully), are rational and reasonable, proportionate and in compliance with stated processes and procedural protections.
What is the difference between judicial review and an appeal?
Appeals test the appropriateness of a decision through reappraisal of how an earlier, lower-level decision maker applied the law to the facts of the case.
Judicial review ensures that the decision maker had the power to make the decision, acted rationally in the application of those powers and that the correct processes were followed etc.
Does judicial review include the supervision of private bodies?
Only when they are exercising public functions, otherwise only public bodies are supervised.
What are Stages 1 and 2 of the judicial review pre-action protocol?
Parties should be encouraged to consider whether ADR may be preferable to judicial review before the case goes to court
The claimant is required to send a pre-action letter of claim to the defendant(s), to which the defendant(s) usually have 14 days to respond
At what point does a judicial review claim commence?
When the applicant has filed:
their completed claim form and documentation
the requisite fee at the Administrative Court Office
copies of the form to all defendants in the action
What will a judge assessing a judicial review application have regard to?
The claimant’s standing and the viability of the claim - permission will generally only be granted where the claimant has shown an arguable ground for judicial review and that they have a realistic prospect of success.
What is the hearing stage of a judicial review and what happens at this stage?
Where an application is successful, the claim will proceed to a substantive hearing
If permission/leave is granted, the defendant and any interest parties must then submit detailed grounds of their defence
Which bodies are amenable to judicial review?
Any body making a decision that is in the public nature
Where the body’s power stems from a statute or secondary legislation, the body’s decisions will normally be judicially reviewable
Where the decision-making power of the body derives from a contract, such decisions will almost invariably be beyond the scope of judicial review (e.g. trade unions, business associations and social clubs)
Who can bring a judicial review against the relevant bodies?
Applications are limited to those who are able demonstrate a ‘sufficient interest in the matter to which the application relates’ (locus standi - the rules on standing)
Where the sufficiency of an applicant’s interest is not clear at the permission stage, applicants should be granted standing where there is a prima facie question for a public body to answer and where there is no better placed applicant who has presented themselves
When will an issue be justiciable for judicial review?
Within what timeframe must a judicial review be brought?
What factors should be taken into account in determining whether a private body/person should be reviewable?
The significance of the public function being performed - the greater the significance and consequences of the decision, the greater the need for judicial review
Court will apply the ‘but for’ test - but for the existence of the body, would the functions undertaken by that body be exercised by a public body under statute?
Whether the body was set up under legislation and is endowed with extensive or monopolistic powers
The implications of the decision - does it affect public law rights or the legitimate expectations of a person?
Whether the decision making is to be exercised in a judicial way
Whether there is a private law right to challenge
The court are increasingly likely to determine that the actions of a private body who run activities that were performed by the state in the past (e.g. transport companies, privatised water companies, psychiatric hospitals) will be reviewable
What factors will the court consider when determining standing?
The importance of ensuring that the rule of law is maintained
The importance of the issue that is in contention in the decision - the more important the issue, the greater the need for judicial review
The applicant’s interest in the case on the basis of a number of factors
The relative strength, importance and merits of the grounds of challenge
The proximity of the claimant to the impugned decision - the closer they are to the decision, the more the court will grant standing
The availability (or otherwise) of an alternative remedy
The nature of the duty breached - if the duty is more public-law focused, the more judicial review will be necessary
The position of the claimant, particularly their role, position, the extent of their interest and other alternative claimants who could instigate judicial review
The extent and nature of the remedy asked
Who may courts permit to participate in applications and judicial review cases? What may these parties do?
Interested third parties - someone who is not the claimant or defendant but who is directly affected by the claim
Interveners - typically campaign groups, gov. departments or companies indirectly affected by the claim
These parties are entitled to submit evidence to court and make representations.
Do individuals need to show a direct link or impact on their legal rights to justify bringing a claim for judicial review?
No
Will the courts permit standing for concerned citizens?
Yes, where they are challenging an issue of significant public importance.
How must legal change be done?
Through an Act of Parliament - not by use of prerogative power.
What is an ouster clause?
Any provision of an Act of Parliament which purports to limit or exclude the supervisory jurisdiction of the High Court.
Why are ouster clauses disputed between the courts, Parliament and the government?
They are statutory enactments - legislation passed by a sovereign Parliament
They purport to insulate decisions of the executive from judicial scrutiny, contrary to the rule of law
In circumventing ouster clauses, the courts may uphold the rule of law and assert a particular vision of the separation of powers, but they seem to ignore the sovereignty of Parliament
What are the rules around timings for instituting claims for judicial review cases? When does this timeframe start from?
Generally, applicants need to institute a claim promptly and, in any event, no later than three months after the event
Planning cases must be instituted within 6 weeks
Procurement cases mist be lodges within 30 days
The time limit begins to run from the date on which the grounds for making the claim first arose (i.e. when the impugned decision was made).
What are the main grounds that cases can be contested at judicial review?
Illegality
Procedural unfairness
Irrationality
Proportionality
Compatibility of decisions with the Convention
What is illegality? When does this most often occur?
Where a decision-maker has misdirected themselves in law and has exercised a power incorrectly/that it did not have (ultra vires).
Often occurs:
where inferior courts, tribunals and quasi-judicial bodies such as regulators/ombudsmen make a jurisdictional error
where a lawful power to take a decision becomes unlawful by being exercised for an improper purpose - by taking a decision that frustrates the purpose of the legislation
Where a decision maker has unlawfully delegated its power to another
Where a body takes irrelevant considerations into account/fails to take into account relevant considerations
What is procedural unfairness or impropriety? When will this most often occur?
A procedural ground of challenge - legal processes should comply with the principles of natural justice.
Typically arises where the decision-maker has not followed the applicable statutory procedures for taking a decision (e.g. failure to consult others or not giving reasons for a decision).
What is the test for bias in decisions under judicial review?
The Porter v Magill test - there must have been a ‘real possibility’ of bias.
What is the rule against bias?
The rule against bias - where bias is found, the decision will automatically be rendered illegal. Courts must utilise the Porter v Magill test to determine whether there has been a ‘real possibility of bias’.
What is the right to be heard? When will this most often occur?
The right to be heard - it is a fundamental requirement that a defendant receives a fair trial in compliance with Art 6 ECHR and evidence against this (particularly consultation) will typically ground a claim for judicial review.
What is the right to reasons?
The right to be given reasons for a decision - the court has the power to imply a duty to give reasons, particularly where the decision-makers is making decisions in a judicial fashion.
Failure to be given reasons means that the parties will be unable to determine for themselves whether the decision taken was lawful or unlawful.
The need to publicise reasons for a decision invariably leads to qualitatively better decision-making, since the decision-maker will be subject to greater levels of scrutiny (concentrates the mind).
Giving reasons satisfies the principle that justice should be done and seen to be done - ensures that reviews and appeals against decisions can be more effectively targeted against the offending elements of the decision.
What constitutes procedural unfairness or impropriety?
Illegality (irrational or Wednesday unreasonableness)
Natural justice
Rule against bias
Right to reasons
Legitimate expectations
What are legitimate expectations?
Closely aligned with procedural impropriety - the courts can examine whether a body or person has, through their previous actions or express statements, made their view on a matter so clear such that the claimant was entitled to expect that the body or person would act in a particular way.
The expectation must be legitimate - no one can reasonably rely on an expectation that a public authority will act unfairly or ultra vires.
Rarely arise as the courts appreciate that public bodies should be free to make a decision as they see fit, even including changing their mind - courts will only acknowledge a legitimate expectation where the public body has abused its power and the claimant has reasonably relied on the expectation.
What is Wednesday unreasonableness?
Where a decision-maker makes a decision that is ‘so absurd that no sensible person could ever dream that it lay within the powers of the authority’ to make that decision (it is irrational).
In determining the reasonableness of a decision, the court would enquire as to whether the decision-maker:
took into account relevant or irrelevant factors
did not exercise their discretion in an absurd manner
had acted in good faith
GCHQ case further reiterated the definition of irrationality by stating that it ‘applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.
In practice it is difficult to successfully argue that a decision-maker has acted irrationally.
What is proportionality, in relation to judicial review?
A decision-maker should not take steps which are unnecessary to achieve the outcome sought, and should only take action so far as it is necessary to meet the objectives pursued.
In terms of human rights, a restriction on rights would be legitimate in certain situations where one right is being balanced against another - there is a balance to be struct between the two in particular situations proportionate to the goals sought and relative weight given to the rights etc.
What remedies are available if a judicial review claim is successful?
Remedies specific to judicial review
quashing orders - the decision is declared invalid and is set aside by the court, may be temporarily suspended to give time for the offending body to remedy the problem or may be retrospectively limited so that certain acts remain lawful.
prohibiting orders - prohibits the decision-maker from acting beyond it’s powers and acts as a restraint on future illegal action, less common now as injunctions are typically preferred.
mandatory orders - requires the decision-maker to fully comply with its legal duties, can be used with a quashing order to quash an original decision and then force the decision-maker to make a new decision in compliance with the court’s decision.
Common remedies
declaration - a definitive statement by the court (can be interim or final) as to the correct legal position or statement as to the parties’ rights, will typically be given where other remedies are inappropriate or where legal issues potentially affect a large number of people.
injunctions - can be interim or final and are available to prevent the body from acting ultra vires or unlawfully, or to force the body to perform its duty in a similar way to a mandatory order (failure to comply will be treated as a contempt of court).
damages - only available where they are specifically pled by a claimant and are sought in conjunction with another remedy where a claimant has lodged a claim based on a private law right or under the common law (e.g. breach of duty, claim for negligence or under HRA).
What is the ‘no substantial difference’ rule?
The court is prevented by statute from granting a remedy if the nature of the unlawful/procedurally improper/irrational/unreasonable/disproportionate conduct is such that it did not materially affect the outcome reached.
Helps to relieve administrators and courts from the burden of having to deal with claims where the judicial review process will not actually alter the outcome.
In what circumstances will judicial review not be appropriate?
Where the rules on standing may preclude a claimant from pursuing a claim
Where the existence of another form of redress will generally preclude recourse to judicial review
Where the case has become academic, the court will refuse to hear it
Where the outcome of the review would not materially change their legal position
It is incompetent for a judicial review claim to be taken against decisions of the superior courts
When making a police application for an SDPO, what must the court consider/be satisfied of?
The court must be satisfied that the subject of the complaint, on the balance of probabilities, has committed at least two separate protest-related offences or protest-related contempt of court offences in the past 5 years
In calculating the 5-year period, the court must not take into account any conduct of the person that took place when they were 15 years old or younger, or conduct taking place before the coming-into-force of s21 POA 2023 (05 April 2024)
What are the key provisions under the POA 2023?
Public processions (marches)
Advance notice of a procession
Power to impose conditions on processions
Power to ban processions
Assemblies in public places
Power to impost conditions on assemblies
Public meetings
Riot
Violent disorder
Affray
Fear or provocation of violence
Intentional harassment, alarm or distress
Harassment, alarm or distress (disorderly behaviour)
Incitement to hatred (racial, religious and sexual orientation)
Stirring up hatred (racial, religious and sexual orientation)
Publishing or distributing written material
What will amount to:
Public processions (marches)
Advance notice of a procession
Power to impose conditions on processions
Power to ban processions?
Public processions (marches)
a body of people moving along a route open to the public, demonstrating support for/opposition to the views or actions of a person or group of people, to publicise a campaign or commemorate an event
a public procession is presumed to be lawful, even where the notification requirements have not been followed
Advance notice of a procession
written notice should be given to local police at least 6 clear days before it is due to start, unless it is not reasonably practicable to do so
the notice must set out the proposed date and start time, proposed route and organiser’s details
written notice is not required for processions commonly or customarily held in the relevant police area, or for funeral processions
it is an offence for organisers to fail to notify or to provide incorrect details of the procession unless they do not know of the failure/incorrect details
Power to impose conditions on processions
conditions may be imposed in advance or during a procession
conditions can only be imposed where the most senior police officer present or chief police officer (for future processions) reasonably believes the procession may result in serious public disorder, damage to property, disruption to life of the community, intimidation of others or significant noise disruption
conditions include banning entry to certain public places, limiting the duration of the procession or number or people attending
if police act unreasonably in imposing conditions, their actions would be challengeable by judicial review
it is an offence for an organiser or participant of a procession to knowingly fail to comply with conditions or incite another to ignore conditions
it is a defence to show that failure to comply with conditions was due to factors beyond a person’s control
Power to ban processions
if the police think the risk of serious disorder cannot be managed by imposing conditions, they can apply to local authority for an order banning processions for up to 3 months
local authority can only grant such an order with consent from the Secretary of State - power is not exercised lightly
What will amount to:
Assemblies in public places
Power to impost conditions on assemblies
Public meetings?
Assemblies in public places
a gathering of more than two people in a public place that is wholly or partly open to the air
can be stationary or mobile
Power to impost conditions on assemblies
conditions can be imposed by the most senior police officer present where they reasonably believe that the conditions are necessary to prevent serious public disorder, damage to property, disruption to community life or the intimidation of others
cannot be banned, but conditions can be attached to the conduct of a static assembly where it is so noisy as to constitute serious disruption to the activities of an organisation in the vicinity, or otherwise has a significant impact on the people in the vicinity (harassment, intimidation, alarm or distress)
police may seek interim injunctions to prevent people from participating or civil injunctions against people who engage/threaten to engage in anti-social behaviour
Public meetings
meetings open to the public, for free or on payment, which take place in any public place or in a private venue
intentionally disrupting a meeting by acting in a disorderly manner is an offence, as is encouraging others to do so - common law allows for disruptive attendees to be ejected
where police are present, the chairperson can ask the police to force the disruptor to give their name and address - failure to do so is a criminal offence
What will amount to:
Riot
Violent disorder
Affray
Fear or provocation of violence?
Riot
where there are more than 12 people present together the use, or threaten to use, unlawful violence for a common purpose
where this collective conduct would cause a person of reasonable firmness present at the scene to fear for their own safety
can take place in public and private
prosecution must prove that the person rioting intended to use violence or was aware that their conduct could be violent
maximum prison sentence of 10 years
Violent disorder
where only 3 or more people are present (less than for a riot) presenting use, or threatened use, of unlawful violence for a common purpose
where this collective conduct would cause a person of reasonable firmness present at the scene to fear for their own safety
can take in public and private
prosecution must prove that the person intends to use/threaten violence or was aware that their conduct could be violent or threatened violence
Maximum sentence of 5 years in prison
Affray
usually an individual offence - when an individual (or two or more people) use/threaten to use unlawful violence towards someone
where that conduct would cause a person of reasonable firmness present at the scene to fear for their own safety
violent acts in private can only be charged as affray where there is an actual possibility of a hypothetical bystander witnessing the events
prosecution must prove that the person intends/threatens to use violence or was aware their conduct could be violent/threatened violence - a threat cannot be through words alone
Fear or provocation of violence
the use of threatening, abusive or insulting words or behaviour towards another person or the distribution or display to another person of threatening, abusive or insulting materials
the perpetrator must have:
1) intended to make the targeted person believe that immediate unlawful violence would be used against them or another person, by any person;
2) intended to provoke the immediate use of unlawful violence by the targeted person or another;
3) used threatening or abusive words or behaviour and the person targeted is likely to believe that unlawful violence will be used; or
4) used such words or behaviour and it was likely that unlawful violence would be provoked
the perpetrator must have intended or been aware that their words, behaviour or material were threatening, abusive or insulting
it is not an offence where the words, conduct or display occurs inside a swelling and the other person is also inside any dwelling
a defendant cannot be found guilt of two versions of the offence relating to one set of circumstances
What will amount to:
Intentional harassment, alarm or distress
Harassment, alarm or distress (disorderly behaviour)
Incitement to hatred (racial, religious and sexual orientation)
Stirring up hatred (racial, religious and sexual orientation)
Publishing or distributing written material?
Intentional harassment, alarm or distress
use of threatening, abusive or insulting words or behaviour, including where manifested at a later point in time
can be committed in public or private other than where both people are inside any dwellings (it is for the defence to provide they were in a dwelling)
the defendant will not be guilty where they can prove their conduct was reasonable
Harassment, alarm or distress (disorderly behaviour)
same as above but including engaging in disorderly behaviour or displaying threatening/abusive materials within the hearing or sight of a person likely to suffer harassment, alarm or distress
the person must intend or be aware that their words, behaviours or display of materials are/could be threatening, abusive or disorderly
the prosecution need not prove intention
can be committed in public or private, but not in a dwelling
it is a defence if the accused had no reason to believe anyone was within earshot or eyesight who was likely to be harassed, armed or distressed, or where the accused’s behaviour was reasonable (e.g. in self-defence or to protect property)
Incitement to hatred and stirring up hatred (racial, religious and sexual orientation)
hatred against a group of people on the grounds of colour, race, nationality or ethnic/national origin
use of threatening, abusive or insulting words or behaviour to stir up hatred - extends to online activity and includes the publication or distribution of written material
not committed where the conduct takes place within a dwelling
it is for the accused to provide they did not intend or were not aware that their words, behaviour or the written material was threatening, abusive or insulting
Publishing or distributing written material
not a criminal offence but carried the potential for serious interferences with individual liberty
peace is breached whenever harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, affray, riot or other disturbance
What does ‘being present together’ mean?
No more than simply being in the same place at the same time - it does not need to be proved that there was a common purpose between the people.
What laws exist to deal with various miscellaneous public order offences?
Obstructions and nuisances - the Town Police Clauses Act 1847 prohibits the placing of obstructions on public streets and behaviour that annoys or endangers residents or passengers in vehicles
Vagrancy, begging and rough sleeping - under the Vagrancy Act 1824 and Anti-Social Behaviour, Crime and Policing Act 2014
Drunkenness -the CJA 1967 sets out the summary offence of disorderly behaviour whilst drunk in a public place
What is the ‘mirror principle’?
The extent to which UK courts should be guided by Strasbourg jurisprudence - the courts should follow any clear and constant jurisprudence of the European Court of Human Rights