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Britain’s Long Fight Over the Right to Protest

The Police Crackdown Bill is a threat to our right to protest, but that right has been contested for centuries – and from Peterloo to Cable Street, it has often been defended by breaking the law.

The Police, Crime, Courts and Sentencing Bill may seem like a sudden turn towards protest suppression, but the roots of political control in the UK go far deeper. In fact, the range of charges applied to shut down protests in this particular piece of legislation each have their own origins and histories, which reveal the gradual erosion of legal protest methods over the last 200 years.

‘An unlawful assembly is the first degree or the beginning; a Rout the next step or proceeding; and a Riot the full effect and consummation of such a disorder and forbidden action.’ This was the definition of three common law offences—riot, rout, and unlawful assembly—formulated by jurist William Lambard in 1581. Despite lacking clarity over the number of people involved, their intentions, and their actual actions, elements of it persisted right up until the Public Order Act passed by the Thatcher government in 1986.

Common Law

‘Unlawful assembly’ was the most unclear, and the most versatile measure used against public protest. Common law held that an unlawful assembly was a meeting of three or more people with the intention of using violence to achieve a certain goal, though sometimes the threat of behaving in a ‘tumultuous manner’ was enough – it was essentially an interrupted or unsuccessful riot in which no actual violence occurred.

If a group has assembled for a lawful purpose, such as delivering a petition or listening to a speech, they could be declared an unlawful assembly if their actions could be interpreted as threatening violence or tumult. A riot only occurred if this group of three or more actually proceeded to use public violence to achieve their goal.

As part of the continuum of riot-related offences, unlawful assembly was presented as a crime against the public, and defendants were charged as acting in terrorem populi, a Latin phrase meaning ‘to the terror of the people’.

The ambiguity of these terms meant that, particularly in the eighteenth century, unlawful assembly charges could be used against a variety of different offences: unlicensed gambling houses, violent disputes between neighbours, and preparations for riots are all described as ‘unlawful assemblies’ in the records of the Old Bailey between 1674 and 1820.

Up to this point, however, these were crimes of public order, used to prosecute unruly groups, but rarely with a political object, and rarely in the context of a peaceful meeting or protest.

Political protest and dissent were instead covered by the charge of seditious libel, which criminalised any criticism of the monarch or their government or parliament. In this period, ‘libel’ didn’t necessarily mean untrue statements: it just meant anything that caused a public scandal and damaged the reputation of the plaintiff. In cases of seditious libel against the Crown or ministers, it was not a defence that the statements made were in fact true.

Cases of political crimes charged as seditious libel, as well as the more serious charge of high treason, were usually very rare, but during periods of political unrest prosecutions accelerated. According to Michael Lobban’s analysis, the first 90 years of the eighteenth century in England saw an average of two prosecutions a year for seditious libel, which more than doubled during the French Revolution and Napoleonic Wars, with spikes of more than a dozen in some years.

The 1792 Libel Act, introduced to Parliament by Whig reformer Charles Fox, would ultimately undermine the government’s ability to prosecute dissenting speech and writing as seditious libel by giving juries the ability to decide whether or not the offending words constituted libel at all, where previously they had been restricted to ruling only of whether or not the defendant had written or said the words publicly.

Difficulty in proving both elements of the charge led government prosecutors to make use of a new and politicised reading of the old offences of unlawful assembly and riot.

In the aftermath of the Peterloo Massacre in August 1819, the government set about prosecuting organisers of the meeting and sympathetic reformist MPs: in keeping with government practice on political dissenters, MP Francis Burdett, journalist James Wroe, orator Henry Hunt, and others were all charged with seditious libel at York and Leicester Assizes. By the 1840s, however, the charges against members of the Chartist movement were mostly for riot and unlawful assembly.

The legal reasoning ran that a group who gathered to listen to a political speech were at risk of being incited to violence, even if they did not set out with that intention. When it had become difficult to convict on the basis of political opinions, prosecutors turned their attention to the supposed public danger that the context of political speech posed.

The Twentieth Century

The growing tide of political unrest and extremism in the 1920s and ’30s posed new issues in the development of protest regulation. The growth of the British Union of Fascists and other far-right organisations in the United Kingdom saw military-style marches and uniforms on the streets, and the government considered the adoption of paramilitary tactics to be no idle threat given the fascist takeovers by paramilitary groups in Europe.

Tensions between the BUF and their opponents culminated in the Battle of Cable Street in October 1936, in which 3,000 Blackshirts attempted to march through a Jewish neighbourhood in east London escorted by police, and were met by around 20,000 anti-fascist protestors.

Their defeat increased the BUF’s deep unpopularity among the public, and two months later—despite having refused to ban the march in the first instance—the Home Secretary John Simon introduced the Public Order Act 1936, which criminalised the wearing of ‘uniforms in connection with political objects’, as well as ‘quasi-military organisations’.

Section 5 of the 1936 Act also gave the police broad powers to arrest people who use ‘threatening, abusive or insulting words or behaviour’ which threated a breach of the peace. The ambiguity of this clause, much like unlawful assembly, lent itself to a variety of situations, and meant that the particular meaning of ‘threatening, abusive or insulting’ was down to the arresting officer.

It was these powers under Section 5 and the politicised reading of riot and unlawful assembly that formed the mainstay of protest policing in the post-war period; sentences under Section 5 were increased in 1963.

The 1984-85 Miners’ Strike, disputes with New Age Travellers, and protests during the Troubles in Northern Ireland were all policed using this Act. This spike in civil unrest in the late 1970s and ’80s led to a Law Commission report on public order offences in 1983, and many of the recommendations were adopted wholesale into the Public Order Act 1986.

The 1986 Act replaced the common law offences of riot, unlawful assembly, and affray with new statutory equivalents with fixed sentences, and abolished the obsolete offence of rout. It also contained its own controversial Section 5, which prohibited ‘abusive or insulting’ speech which was likely to cause ‘harassment, alarm or distress’.

This use of ‘insulting’ meant that the legislation could be applied in a range of usually non-criminal instances, including the well-reported case of student Sam Brown who was arrested and charged under the Act for calling a police horse ‘gay’ in 2006. Between 2001 and 2003, thousands of children were charged under the Act.

After campaigning by the group ‘Reform Section 5’ the threshold was raised, and in 2013, the word ‘insulting’ was amended to ‘abusive’. Other elements of both 1936 and 1986 Acts are still on the law books. Section 14 of the 1986 Act allows officers to prevent individuals from proceeding towards a protest, a power used in 2009 to prevent journalists from observing parts of the London G20 demonstrations.

The general trend of protest legislation in the last 200 years has been to represent political threats to the government as public threats to the peace. Framing these police actions as protecting the public from ‘alarm’ or ‘distress’ allows the government to criminalise the necessary context of public free speech, while nominally defending the right to speak freely against what are often imagined culture war enemies.

Today, the endpoint of this conflation is evident in a political and public consciousness which puts peaceful demonstrations and protest in the same category as riots, undermining their credibility, and justifying increasingly authoritarian and draconian restrictions.