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Annex B Police enforcement powers
This annex provides advice on the range of enforcement powers that the police can use against any offence committed by a person at a public procession. Police powers in Scotland come from two sources - common law and statute law.
Local authority bye-laws
Local authority by-laws exist to prevent drinking alcohol in public areas. Local authorities have the power to put by-laws into practice which prevent alcohol being drunk in certain or all public places in their area. These by-laws can apply throughout the year or at specific times or about specific events.
Common-law offences
Common-law offences include the following.
Breach of the peace - this offence takes place when one or more person behaves in a riotous or disorderly way, anywhere, and this alarms, annoys or disturbs other people.
Assault - when someone attacks another person whether or not they actually injure them.
Both offences mean the police can arrest without a warrant.
Public Order Act 1986
Public assemblies
A public assembly means a meeting or procession of 20 or more people gathering in a public place which is totally or partly in the open air, and a section of the public have access to it (by payment or otherwise). The most senior police officer present may place conditions on those meetings which are likely to cause serious disorder or intimidation.
Section 14 makes it an offence for the organiser of the meeting, or any person present, to knowingly fail to keep to any conditions placed on them by the police. It is also an offence to encourage any person taking part to fail to keep to those conditions.
Public Meetings Act 1908
Section 1 creates an offence for any person at a public meeting who acts in a disorderly way and prevents the meeting from taking place, or to encourage others to commit the same offence.
The police may only take action to deal with offenders if the chairman asks.
Civic Government (Scotland) Act 1982
Section 50 covers the offence of being drunk and incapable. Anyone who is drunk to the point of not being able to take care of themselves, and is not in the care of another person who can take care of them, is committing the offence of being drunk and incapable.
It is an offence under Section 65 of the Act for someone organising a procession to hold a public procession if there is an order preventing it, or which breaks conditions placed on it by an order. It is also an offence for any person to take part in an illegal procession, but only if they refuse to stop when a police officer tells them to.
Section 13 of the Terrorism Act 2000
Section 13 of the Terrorism Act 2000 says:
a person in a public place is committing an offence if they:
a wear an item of clothing; or
b carry or display an item:
- that arouses reasonable suspicion that they are a member or supporter of a proscribed organisation.
The proscribed organisations include:
- the Irish Republican Army ( IRA);
- Cumann na mBan;
- Fianna na hEireann;
- Saor Eire;
- the Irish National Liberation Army;
- the Irish People's Liberation Organisation;
- the Continuity Army Council;
- the Red Hand Commando;
- the Ulster Freedom Fighters;
- the Ulster Volunteer Force;
- the Ulster Defence Association;
- the Loyalist Volunteer Force;
- the Orange Volunteers; and
- the Red Hand Defenders.
Discussions have taken place between Strathclyde Police and senior representatives of the Orange Order, the Bands Association and the Apprentice Boys of Derry. As a result, the following have been agreed between them as being legal within the terms of the act.
- Flying regional or national flags, such as the Ulster flag.
- Taking any emblem or feature from a legal flag and displaying it on its own, for example, the 'red hand' of the Ulster flag.
It was also agreed that the following actions should be considered as breaking the act.
- Displaying the name or initials of any proscribed organisation whether on a legal flag or not, or on a musical instrument.
- Including a band name in a flag, banner or musical instrument if that band name includes the name or initials of a proscribed organisation.
- Changing a legal emblem or feature such as the 'red hand' in a way that shows support for a proscribed organisation, for example, adding wings would show support for the Red Hand Commando. This would also include those times when the band name is included in the emblem.
The Orange Lodge, as the employers of bands during Orange Lodge parades, have placed contractual obligations on bands, including:
- flags or banners are not to be carried wrapped up (furled); and
- bands should not call out or sing anything which would suggest they are members of, or support, a proscribed organisation.
To avoid any confrontation at a procession, organisers should discuss the above decisions and other related issues with the police at the precursory meeting.
Criminal Justice (Scotland) Act 2003 - Offences Aggravated By Religious Prejudice
Section 74 of the 2003 Act says that if an offence has been proved to be made worse by religious prejudice, the court must take that into account in deciding the appropriate sentence. Evidence from one source is enough to prove the offence was made worse by religious prejudice.
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