Journalists & legal observers / Protest / Public Order Act
EXPLAINER: Monitoring & Reporting on Protests
We explain the law relevant for those seeking to monitor or observe the police at protests, and for journalists reporting on protest activity.
Disclaimer: this article is for general information. It’s not intended to be used as legal advice. For information on how to get legal advice, please see our page here or find contact details of law firms with protest law expertise on our bust cards.
The information on this page was correct as of 3 July 2023, and includes provisions in the Public Order Act 2023 that limit the exercise of police powers in relation to journalists and legal observers.
While the national protest operational advice from the College of Policing and National Police Chiefs’ Council states that “‘legal observer’ is not a term that has, or indicates, any specific status” and they are “not automatically entitled to be treated differently to any other person”, legal observers – along with journalists – are integral to the safeguarding of our right to protest, and their role and status has been explicitly recognised by the UN Human Rights Committee:
“The role of journalists, human rights defenders, election monitors and others involved in monitoring or reporting on assemblies is of particular importance for the full enjoyment of the right of peaceful assembly. Those persons are entitled to protection under the Covenant. They may not be prohibited from, or unduly limited in, exercising these functions, including with respect to monitoring the actions of law enforcement officials. They must not face reprisals or other harassment, and their equipment must not be confiscated or damaged. Even if an assembly is declared unlawful or is dispersed, that does not terminate the right to monitor.”
Below we explain the relevant UK laws for those monitoring, observing or reporting on protests, including new protections introduced by the Public Order Act 2023.
Filming the police
You are legally allowed to film/photograph the police (e.g. when observing/intervening in a stop & search or arrest, or otherwise monitoring/reporting on their conduct at a protest).
The police have no power to stop you, unless the footage/photos are:
“likely to be useful to a person committing or preparing an act of terrorism.”
The police may try to prevent or deter you from filming through misinformation, abuse of power or intimidation, but the above reason is the only lawful basis for preventing you from filming.
However, if you are observing a stop and search or arrest, you should ask the person being stopped and searched or arrested whether they consent to being filmed, and focus your camera on the police.
If the police ask you why you are filming or otherwise try to speak to you, you have no legal obligation to respond.
You do not have to answer police questions, unless the police have ‘reason to believe’ you have been engaging in / are engaging in “anti-social behaviour” (you are causing/likely to cause “harassment, alarm or distress”). Even in these circumstances, they can only legally require you to provide your name & address. It is a criminal offence for you to withhold this or provide false them with information.
Refusing to answer police questions is not, in itself, a lawful basis for the police to then carry out a stop & search. They must have additional grounds for doing so.
Observing and reporting on protests
After recent arrests of journalists and photographers – on suspicion of conspiracy to cause a ‘public nuisance’ (under the Police, Crime, Sentencing & Courts Act 2022) – while reporting on Just Stop Oil protests, the Public Order Act 2023 has introduced protections for those observing or reporting on protests.
Under Section 78 of the Police, Crime, Sentencing & Courts Act 2022, it is an offence to intentionally or recklessly do something / fail to do something you are legally required to do, which…
- risks or causes ‘serious harm’ to the public; or
- obstructs the public in the exercise/enjoyment of their rights.
‘Serious harm’ is defined very broadly as including:
- ‘death’ / ‘personal injury’ / ‘disease’;
- loss of, or damage to, property’; or
- ‘serious distress’ / ‘serious annoyance’ / ‘serious inconvenience’ / ‘serious loss of amenity’.
It is a defence for you to prove that you had a ‘reasonable excuse’.
If you are convicted of this offence, you are punishable with:
- imprisonment for up to 6 months, a fine or both, if a summary conviction; or
- imprisonment for up to 10 years, a fine or both, if on indictment.
In responding to the arrest of four journalists at recent Just Stop Oil protests, Hertfordshire Police commissioned an investigation which acknowledged that in making these arrests, “police powers were not used appropriately“. They subsequently conceded, following legal action by one of the journalists, that they had unlawfully arrested and detained him.
The Public Order Act 2023 now prohibits police from exercising their powers for the ‘sole purpose‘ of preventing someone from observing or reporting on a protest or in relation to:
- a protest-related offence;
- a breach of a protest injunction; or
- protest-related activities.
This means police must have an another reason to lawfully exercise their powers against a journalist (or legal observer, or bystander) who is monitoring or reporting on a protest – for example because they are obstructing a police officer.
College of Policing supplementary guidance on the Public Order Act 2023 indicates that “journalists, or those observing or reporting, cannot be limited to ‘traditionally’ registered journalists”.
This protective provision in the Public Order Act 2023 came into force on 2 July 2023.
Obstruction of a police officer
It is a criminal offence to ‘wilfully obstruct‘ a police officer.
“Any person who resists or wilfully obstructs a constable in the execution of [their] duty…”
This creates a risk for journalists, legal observers and bystanders when monitoring, intervening in, or reporting on policing at protests.
However, to commit this offence, you must be deliberately making it more difficult for the police to carry out their lawful duties.
Obstruction could therefore include:
- preventing a police officer from making a lawful arrest/carrying out a lawful stop & search.
However, obstruction would not include:
- preventing/disrupting a police officer carrying out an unlawful stop & search/making an unlawful arrest.
- advising someone not to answer police questions, where they have no legal obligation to.
A police officer is not acting “in the execution of [their] duty”, for the purposes of this offence, if they are acting unlawfully.
More information on your protest rights is available on our Advice and Information Hub, including the following pages:
CONTACT US FOR ADVICE AND INFORMATION
If you are a journalist or legal observer and you would like advice and information on your rights at a protest, you can contacts us:
CALL OUR HUMAN RIGHTS INFORMATION LINE
You can reach the Human Rights Information Line by calling 0800 988 8177 and selecting option 3 from the main menu (Monday evenings from 6pm to 8pm,
Tuesday lunchtimes from 12pm to 2pm and Thursday evenings from 6pm to 8pm)
More information about our Human Rights Information Line is available here.
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