Answers
Thread 5
What legal authority, if any. does Inspector Ringo have to tell the crowd to go home?
Bearing mind what was said in Thread 1 about the Human Rights Act 1998, there are two distinct areas of law to consider here, namely s.12 Public Order Act 1986 and the common law relating to breach of the peace.
S.12 POA 1986
Firstly the existence of a public procession must be established (see Thread 4 above)
Secondly, it must be established that Inspector Ringo is the senior police officer present at the scene (s.12(2)(a)).
Thirdly, it must be established that a reasonable senior police officer would feel that action is needed to prevent one of the consequences in s.12(1). Note the use of ‘serious’ in relation to three of the four consequences (s12(1)(b) is largely aimed at mass picketing). This indicates that imposition of conditions should not be a routine matter.
Fourthly the action taken must be within the range permitted by the section. (Is anything not permitted by s.12??)
Fifthly the action taken must be proportionate to the social need, ie public safety and order, which is being pursued. This is to reflect the need to comply with the ECHR.
Taking these together, is Ringo acting lawfully? NB - you could usefully consider at this point whether or not there is a substantive difference between the tests of reasonableness and proportionality?
Breach of the Peace
Breach of the peace is rooted in the citizen’s obligation to keep the monarch’s peace. Breach of the peace is not per se a criminal offence. However the police have wide powers to act to prevent a breach of the peace.
The zenith of these powers was the power to set up roadblocks during the Miners’ Strike 1984-5 (see Moss v. McLachlan [1984] IRLR 76). In a series of cases, the courts ruled that the police had a duty to keep the peace and the power to do anything reasonable in order to fulfil this duty. (see eg Humphries v. Connor (1874) Ir CLR 1,Thomas v.Sawkins [1935] 2 KB 249 and Duncan v. Jones [1936] 1 KB 218. ) Note that the courts have in recent years reined in what they will allow the police to do (eg R (Laporte) v. CC of Gloucestershire and ors [2006] UKHL 55)
The need for the existence of breach of the peace at common law has been questioned (see Stone, R [2001] 2 Web Journal of Current Legal Issues) but it still exists and needs to be considered.
Points to consider
Firstly is there a breach of the peace occurring (note that this could be easier to establish the state of affairs needed to engage s.12 Public Order Act 1986)?
Secondly, is ordering the complete dispersal of the protest ‘reasonable’ and / or ‘proportionate’?
Consider the difference between the statutory and common law schemes for
control of processions. Do both comply with the ECHR? Is one easier than
the other for the police to use? Are they consistent and complementary
or do they simply add confusion?