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29 November 2019

Extinction Rebellion: A public assembly?

Earlier this autumn, Extinction Rebellion scheduled its Autumn Uprising (XRAU). Multiple sites across London were to be occupied by protesters for a fortnight, aiming to cause disruption and inconvenience to the public and bring Extinction Rebellion’s ‘three demands bill’ to politicians’ attention.

The XRAU was banned by the police on 14 October 2019, five days ahead of its scheduled finish. A group of claimants was successful in bringing a judicial review of that ban, with judgment being given in their favour on 6 November 2019.

What was the legal basis for the ban?

The ’ban’ was actually a condition imposed by superintendent Duncan McMillan (the superintendent) purportedly under s14(1) of the Public Order Act 1986 (the Act):

If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that:

  • it may result in serious public disorder, serious damage to property or serious disruption to the life of the community; or
  • the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

He may give directions imposing on the persons organising or taking part in the assembly such conditions […] as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

On his assessment that the XRAU fell within s14(1), in that it was a ’public assembly’ which aimed to disrupt the community, the superintendent imposed the following condition:

’Any assembly linked to the Extinction Rebellion “Autumn Uprising” (publicised as being from 7 October to 19 October at 6.00pm) must now cease their protest(s) within London (MPS and City of London Police Areas) by 9.00pm  14 October 2019.’

A ‘public assembly’

One main focus in the judgment was whether the XRAU was a ’public assembly’ and, accordingly, whether it was capable of being subject to such a condition. The court examined the nature of the XRAU: part of the associated strategy was for the protesters to gather, wait for the police to respond and then splinter and disperse, creating multiple new groups in different locations at different times.  The court considered whether this gave rise to a single public assembly, on which conditions could be imposed, (an argument advanced by the Police Commissioner on the basis that all of the gatherings were linked together under the umbrella of the XRAU), or whether the situation was better viewed as one of a series of smaller assemblies, as submitted by the claimants. Each party relied on the ’natural interpretation’ of s14 of the Act, but unsurprisingly the court noted that they could not both be right.

Interpreting the Act

The court considered the broader purpose of the Act and examined the following sections in particular:

  • s14(1): defines ’the senior police officer’ as:
    ‘the most senior rank of the police officers present at the scene’. The court considered that the words ’at the scene’ indicated that there should be one scene, not various different scenes across London;
  • s16: defines a ‘public assembly’ as:
    ‘an assembly of 2 or more persons in a public place which is wholly or partly open to the air’. The court considered that this implied a single location which was wholly or partly open to the air, rather than a series of separate locations across London; and
  • s9(1) of the Public Order Act 1936: defines a ‘public place’ as:
    a place ’to which the public or any section of the public has access’. The court found that this could not include the whole of the police areas in question, which included private residences to which the public does not have access.

Accordingly, the court concluded that a ’public assembly’ requires one particular location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can be fairly described as a ’scene’. The XRAU did not fall within this definition and therefore the superintendent did not have the power to impose the condition.

The court granted some of the claimants permission to apply for judicial review of the ban and ruled that the superintendent’s decision to impose the condition be quashed.

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