Image courtesy of Stefan Weil – support his work here
The protest exemption has been re-instated in Steps 1 and 2 of the new Coronavirus Regulations. Read our advice about what to do if you are arrested here.
The Coronavirus laws have caused confusion amongst the public, the police, and politicians alike. In March 2020, the police were handed additional powers with no idea how to use them, and this lead to some worrying results. For example, during April and May of that year the Crown Prosecution Service admitted that every single one of the charges they brought against people under the Coronavirus Act had been incorrect.
Disappointingly, this confusion has repeatedly resulted in the police enforcing discriminatory practices once again. The National Police Chiefs Council admitted in July 2020 that Black and Asian people were almost twice as likely to receive fines under the Coronavirus regulations as their white counterparts. And when there were fewer people on the streets during lockdown, stop and searches actually went up, and continued to be used almost 10 times more frequently against Black people.
Despite the easing of lockdown, the police have continued to misuse the powers they have. As we reported previously, Ken Hinds was wrongfully threatened with Coronavirus laws to intimidate a protest his charity was involved in, and we have heard reports of other protesters being threatened with the vague justification of “Coronavirus powers”.
This article gives a brief explanation of the current Coronavirus regulations, and what you can and cannot do. This article refers to the regulations in England under Step 2 and is correct as of 12 April 2021.
The full regulations can be found here.
What do the Coronavirus regulations actually say about protests?
The Step 1 regulations brought in on 29 March 2021, and the Step 2 regulations brought in on 12 April 2021, confirmed that protests are allowed if they are (see exception 18 here):
- organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body, and
- the gathering organiser has taken the required precautions
The required precautions for the organiser to take are defined as:
- having carried out a risk assessment that would satisfy certain requirements (see below), and
- having taken all reasonable measures to limit the risk of transmission of coronavirus, taking into account the risk assessment and any guidance from the government (e.g. social distancing and mask wearing)
If a protest conforms with the above, then it will be lawful, and the police have no right to interfere with it.
What are ‘Charitable’ or ‘political’ bodies?
Protests are generally organised by charities or politically motivated groups.
Charitable groups are defined in legislation, and include groups focusing on “the advancement of human rights … the promotion of religious or racial harmony or equality and diversity”.
The definition of political bodies covers political campaigning organisations. These are defined in legislation as a person or group intending “to promote, or oppose, changes in any law applicable in the United Kingdom or elsewhere”.
The Metropolitan police have confirmed that, for example, Black Lives Matter are a political body.
An individual can also be a political body.
What are ‘Risk assessments’?
The Coronavirus regulations ask that organisers produce a risk assessment in line with s.3 of the Management of Health and Safety at Work Regulations 1999(a).
You must consider the protest you are planning, what risks might be present, and produce a plan for those risks.
What are ‘Reasonable measures’ in practice?
Essentially, an organiser is required to assess the risks to the health and safety of everyone attending or impacted by the protest.
For Coronavirus, a risk assessment could, for example, confirm that everyone attending is encouraged to wear face coverings, use hand sanitiser and socially distance.
These should be reasonable measures to take to limit the risk of transmission. You should communicate these measures to everyone who is attending your protest.
Can the police stop me from attending a lawful protest under Coronavirus rules?
Image courtesy of Stefan Weil – support his work here
Not in Steps 1 or 2.
Keeping a 6-foot distance from others is good practice and should be maintained as much as possible. However, you do not legally have to do this, so the police cannot threaten you with anything if you are unable to maintain this distance (e.g. when in a crowd).
Wearing a mask is also good practice and we recommend wearing them as much as possible. However, as a protest will not be taking place in public transport or a shop – or any other place in which the other face covering law is relevant – you are not required to wear it by law. Therefore, the police cannot threaten you with anything if you need to take your mask off (e.g. to eat and drink).
What ARE the police powers under coronavirus rules?
The police powers mainly relate to unlawful gatherings (e.g. illegal raves) and people who refuse to comply.
The police can issue on the spot fines for attending/organising an illegal gathering, or for not wearing a face covering on public transport or in a shop.
These fines are known as Fixed Penalty Notices (FPNs). FPNs essentially say that you are guilty of a crime, but if you pay the fine within 28 days then you will not actually be convicted, and it will not appear on your criminal record. If you fail to pay the fine within that time, then the police can start criminal proceedings. You can also refuse an FPN if you believe that you have not committed a crime, but this will also allow the police to start criminal proceedings. See our FPN article for more information.
Remember that you do have the right to defend yourself in criminal proceedings. BPLS have a network of expert lawyers who can help to support and represent BLM protesters. Contact us here if you wish to discuss this.
The fines for attending an illegal gathering start at £200 for a first offence and then double for each following offence, reaching a maximum of £6,400. This amounts are greater if the illegal gathering is of more than 30 people and inside (in certain locations).
The fines for organising an illegal gathering is £10,000.
Under Regulation 10 of the Steps Regulations, the police can require individuals at an illegal gathering to disperse or to specifically return to their home. This power can only be used if it is “necessary” and “proportionate” in order to limit transmission of Coronavirus.
This should not be confused with Dispersal Orders. The police have powers outside of the Coronavirus regulations to disperse protests. These other powers are related to antisocial behaviour and crime. The Coronavirus powers are separate to these.
Use of Force
The police are allowed to use “reasonable force” in dispersal. However, “reasonable” is an important limit, and the police must not overstep that line.
If you ever believe the police have used too much force against you, or you witnessed it being used against someone else, it is worth contacting an expert on police law.
We have a network of expert lawyers who may be able to help BLM protesters on a pro bono basis. Contact us here to discuss this.
If an individual refuses to comply with a dispersal or otherwise breaches an officer’s lawful instructions, this is an offence and they can be arrested. The punishment is an unlimited fine and a criminal record.
If the officer’s instructions are unlawful (e.g. if the protest they are trying to disperse conformed with regulations) then any arrest would be wrongful. If you are wrongfully arrested at a BLM protest, contact us here or call a number on the bustcards which our Legal Observers will provide at protests.