The line between legitimate protest and anti-social behaviour

30 August 2019 by

Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.

The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?

There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council [2019] EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.

The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.

Legal and factual background

Chapter 2 of the 2014 Act empowers local authorities to make PSPOs if the two main conditions in section 59 are met.

The first condition is that:

(i) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or

(ii) it is likely that activities will be carried on in a public place within that area and that they will have such an effect

The second condition is that if the effect of the activities is or is likely to be

(i) of a persistent or continuing nature

(ii) is, or is likely to be, such as to make the activities unreasonable, and

(iii) justifies the restrictions imposed by the notice.

Two issues lay at the heart of this appeal:

(i) whether a local authority had the power to make a PSPO where the activity to be regulated impacted only or primarily on the quality of life of occasional visitors to the locality rather than on those who reside or work in the locality or visit it regularly; and

(ii) whether the restrictions imposed by the PSPO were compatible with the rights to freedom of religion, expression and assembly under the European Convention on Human Rights.

The appellants had for many years congregated immediately outside the Marie Stopes clinic to persuade the women visiting it from having abortions. They did this by trying to dissuade them from entering the clinic, handing out leaflets, displaying posters depicting foetuses at various stages of gestation and holding group vigils. Pro-choice activists also protested outside the clinic. The local authority unsuccessfully encouraged the opposing groups to reach a compromise. It launched a public consultation which concluded that the activities outside the clinic were having a detrimental effect on the locality. Witnesses submitted evidence of the activists’ behaviour including:

  • The display of lifelike foetus dolls;
  • Threats that users of the Centre would go to Hell;
  • Referring to users of the Centre as “Mum”.
  • The handing out of rosary beads to users and passers-by;
  • Pursuing users of the Centre with leaflets;
  • Not leaving users with enough room to pass into the Centre;
  • The playing of loud music and chanting from pro-choice activists;
  • The taking of photographs of persons using the clinic;
  • Young children passing by exposed to images of foetuses.

Ealing imposed a PSPO which prohibited all abortion-related protests within a substantial safe zone around the clinic save as to limited protest within a designated area 100 metres away from the clinic entrance.

The judge rejected the appellants’ challenge to the validity of this order.

Arguments before the Court of Appeal

The appellants submitted that the judge had erred in a number of respects, including

(1) holding that the phrase “those in the locality” in s.59(2)(a) of the Act applied to occasional visitors such as women who visited a clinic for abortion procedures;

(2) holding that the Article 8 rights of those using the clinic were engaged;

(3) giving too little weight to the appellants’ rights under Articles 9, 10 and 11 of the Convention, when considering whether the PSPO constituted an interference that was necessary in a democratic society.

(4) giving insufficient consideration to whether the terms of the PSPO could have been formulated in a less restrictive way.

The Court of Appeal’s decision

It was clear from the terms of the Act that Parliament had deliberately decided not to limit the expression “those in the locality”. There was no reason to construe “those in the locality” as narrowly as those who lived and worked in the area. The appellants had relied upon the view of May J in  Summers v London Borough of Richmond Upon Thames [2018] EWHC 782 (Admin), [2018] 1 WLR 4729, at [24], that the expression “those in the locality” in section 59 of the 2014 Act “must be read to include those who regularly visit or work in the locality, in addition to residents”.

But the expression “those in the locality” in s.59 covered not only residents and those who regularly visited or worked in the locality but also others depended on the precise local circumstances. Such a rigid and hard edged limitation as that for which the appellants contended,

would also apparently apply to patients in hospitals and hospices and medical services generally and those visiting such patients, would not only be unworkable in practice in distinguishing regular from irregular visitors but would potentially produce considerable uncertainty as to the legality of a PSPO and is highly unlikely to have been the intention of Parliament.

That interpretation was not consistent with the Home Office’s statutory guidance on PSPOs. Turner J in the court below had found that some of those who visited the clinic had been left with significant emotional and psychological damage which has lasted substantial periods of time due to the protestors’ conduct. The local authority had therefore been correct to interpret the expression “those in the locality” in s.59(2)(a) as capable of embracing occasional visitors and to decide that the women, their family members and supporters visiting the clinic fell within that section.

The appellants also contended that the Article 8 rights of the visitors to the Centre had not been engaged. They submitted, inter alia, that the activities which were the subject of the PSPO were in a public place, and that the activists were doing no more than taking advantage of a public highway. They had not kept any record or publication of what the women visiting the clinic were doing. Finally, they sought to convince the court that there could be no expectation on the part of the service users that they would not engage with those who entered the Centre, as abortion is a controversial topic of general public importance. On the contrary, the expectation was that there would be some engagement by protesters with those seeking to use the services of the Centre.

The Court of Appeal disagreed. A woman’s decision whether to have an abortion is an “intensely personal and sensitive matter” which falls within Article 8. This has been repeatedly confirmed both by local courts and the ECtHR (P v Poland [2012] ECHR 1853). In Re Northern Ireland’s Human Rights Commission’s application for judicial review [2018] UKSC 27[2019] 1 All ER 173 at [6] Lady Hale observed that

for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will, there can be few greater invasions of their autonomy and bodily integrity.

The protestors’ activities therefore engaged the Article 8 rights of those visiting the clinic both in terms of their right to autonomy in wishing to carry through their decision to have an abortion and their reasonable desire and legitimate expectation that their visit would not receive any more publicity than was inevitably involved in accessing and leaving the clinic across a public space and highway.

As for the appellants’ rights to manifest their religion or beliefs under Article 9, there was no question that these were engaged, and the judge below had not underplayed their significance. The Article 9 rights could not have carried more weight in the balancing exercise than the protestors’ rights under Articles 10 and 11 to which the local authority was required by s.72 to have regard when deciding whether to make the PSPO.

Engagement of the protestors’ Article 9 rights could not have tipped the balance against the making of the PSPO if the local authority had otherwise been justified in making it.

Finally, the CA concluded that the judge had been entitled to find that, on the particular facts of the case, the Article 8 rights of the service users visiting the clinic outweighed the rights of the appellants and other pro-life protestors under Articles 9, 10 and 11, and that the terms of the PSPO were proportionate. Furthermore, the PSPO’s terms were not impermissibly vague or excessive.


This case shines a light on one of the most contentious issues of our time: the policing of ideas. However much one may disapprove of the activities of the protesters, none of them were actively preventing a legal abortion taking place. Startling children with pictures of foetuses may be in bad taste, but it’s not illegal. Whichever side one stands on the pro-life/pro-choice divide, it’s worth a thought experiment. Would extinction rebellion fit within the criteria for PSPO? What about anti- or pro-Brexit marches, etc?

The Home Office statutory guidance document describes the purpose of PSPOs thus:

Public Spaces Protection Orders are intended to deal with a particular nuisance or problem in a specific area that is detrimental to the local community’s quality of life, by imposing conditions on the use of that area which apply to everyone. They are intended to help ensure that the law- abiding majority can use and enjoy public spaces, safe from anti-social behaviour.

The objective of this legislation is to “put victims first”. In the context of public protests, this means that

In deciding to place restrictions on a particular public space, councils should consider the knock on effects of that decision and ensure that this is a reasonable and proportionate response to incidents of anti-social behaviour in the area. Introducing a blanket ban on a particular activity may simply displace the behaviour and create victims elsewhere.

As the guidance document points out, anti-social behaviour powers should only be exercised with “due regard to issues of proportionality: is the restriction proposed proportionate to the specific harm or nuisance that is being caused?”

The Extinction Rebellion protests which started in April 2019 have continued and extended across central London. Initially, the police issued numerous orders under the Public Order Act 1986 to move the climate protestors to an area near Marble Arch and limit their ability to disrupt transport networks. The process of issuing orders and arresting those who were non-compliant was slow and some commentators questioned why the police were not using force to move the protestors. The police response was that they had “no legal basis to do so”:

These are peaceful protesters; while disruptive their actions are not violent towards police, themselves or other members of the public. We are looking at other tactics such as tighter police cordons, but again that is resource intensive in terms of officer numbers and more often than not it just shifts the protesters to another location nearby, and does not assist in reopening roads. (House of Commons Library Briefing Paper, No. 03658, 2 May 2019 “Protests around Parliament”)

Since the referendum on Britain’s membership of the European Union in 2016 protestors have regularly gathered in and around Parliament Square to demonstrate both in favour and against Brexit. College Green and other parts of this area are governed by specific legislation that governs protest near parliament. But the Metropolitan Police Commander assured the Joint Committee on Human Rights that officers had not engaged in the confrontations with MPs outside parliament because “the criminal threshold had not been reached”.

With regard to the ER protests, Adrian Usher told the JCHR that “the legislation associated with policy protest is quite dated … policing and protest has moved on and …legislation should follow suit”.

Perhaps legislation has moved a little too far, from the prevention of illegal action to the deplatforming of unpopular ideas.

Philip Havers QC and Alasdair Henderson of 1 Crown Office Row acted for the appellants in this case.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: