Can you be arrested for protesting the monarchy, and what's the punishment for breaching the peace?

Several protests have been arrested following the Queen's death, ITV News reports

The ascension of the King to the British throne on the death of his mother, Queen Elizabeth, has prompted a public debate, and protests in the streets against the monarchy.

Since the proclamation of King Charles III, some protesters, including a 72-year-old man, have been arrested, or moved on, in London, Scotland and Oxford.

A 22-year-old woman was charged in connection with a breach of the peace on Monday, after being arrested during the Accession Proclamation for the King outside St Giles’ Cathedral in Edinburgh on Sunday.

On Tuesday, a man was charged with heckling Prince Andrew as he walked behind his mother's coffin.

A barrister holding up a blank piece of paper in Parliament Square was asked for his details by an officer, prompting the Metropolitan Police to issue a statement when the video of the incident went viral, insisting people "absolutely have a right of protest".

Symon Hill, 45, was arrested on suspicion of a public order offence after shouting “who elected him?” when he came across a public formal reading of the proclamation of the accession for the King in Carfax, Oxford.

Mr Hill, who works part-time at the Peace Pledge Union, a secular pacifist organisation, was later de-arrested.

Civil liberty groups and free speech and human rights campaigners have raised alarm at these arrests and police use of breach of the peace powers, calling the arrests an “affront to democracy”.

What is a breach of the peace?

In England and Wales a breach of the peace is common law - which means it is not a statutory or criminal offence - that is used to prevent unlawful violence against people or property. 

Statutory offences are passed in Parliament, but breach of the peace law has developed over years of cases going through the courts as a body of law created by judges and tribunals.

A breach of the peace is defined as: "Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence."

You cannot be charged with a breach of the peace in England or Wales. But police can arrest someone who has - or is suspecting of being about to - breach the peace.

The arrest must be based on removing the threat of this breach.

You can be arrested and charged for breaching the peace in Scotland, where it is a far more serious offence.

What could be considered breach of the peace?

'A breach of the peace' is a very specific offence.

Solicitor Kevin Donoghue says breach of the peace has a "very narrow" definition, and exists within its own rule book - it is threatening or actually carrying out violence in some way that is causing - or would cause - harm to another person

A police officer can arrest someone who they think is intending to breach the peace by, for example, threatening to use violence against somebody.

Mr Donoghue gives this example: "If I we're standing on a high street, and a police officer hears me, saying, 'Go away, or I'm going to punch your lights out or something like that'. I haven't done it, but I'm threatened to do it.

"And if the police believe that, they can't arrest me for assault, because I haven't assaulted you, but if the police believe they if they left the area I would carry out violence against you, cause you harm, then they will arrest me to prevent a breach of the peace and that will be entirely lawful."

The police officer told the barrister holding the blank sign if he had written "something about the King", it could "offend" people.

But it is not an offence to offend people - in the case of the barrister and his sign, unless it had been threatening or abusive, no offence was committed.It is also a breach of the peace to threaten to damage property or to damage property, but protesting with signs is not."Once they (police officers) believe what you have doesn't amount to a breach of the peace or in order to prevent a breach of the peace, then their role is merely to put you before the next magistrate's court," Mr Donoghue tells ITV News.

This may mean you spending a night in the cells if you are taken in during non-working hours. A breach of the peace case will not be investigated and police cannot hold you (other than while you wait for a magistrate).

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What is the potential punishment for breach of the peace?

A breach of the peace is not a criminal offence, and can not be punishable by a fine or imprisonment in England and Wales.

Anyone charged will either be brought before the first available magistrate, or released.

Mr Donoghue explains: "Essentially you are not arrested and investigated as you would with statuary offences. Effectively when you are detained by police on breach of the peace, you are essentially, if you want to use the word 'charged', you are charged immediately because you have to be brought before a magistrate immediately."

Police typically tell an individual they are being detained to prevent a breach of the peace, rather than charge them.

A magistrate can bind someone over to keep the peace for a certain period of time. Any breach of what is known as a 'bind-over' can result in a fine or even a prison sentence.

If a person fails to agree to keep the peace, they could be committed to custody under the Magistrates Court Act 1980.

Mr Donoghue says being bound over is effectively a promise that you "won't breach the Queen's peace again", and you are likely to have to pay some money (not a large amount) as a bond for your word.

The moment a heckler started shouting at Prince Andrew on the Royal Mile in Edinburgh

Is the law different in Scotland than in England and Wales?

Yes.

Breach of the peace in Scotland carries far greater penalties than in England and Wales.

Breach of the peace charges are dealt with by either the Justice of the Peace Court, the Sheriff Court, or the High Court. The maximum penalty in the Justice of the Peace Court is 60 days’ imprisonment or a fine of £2,500.

The maximum penalty for a breach of the peace offence in Scotland's Sheriff Court is a 12-month prison sentence, or a fine of up to £5,000, or both.

While not common, it is possible to be prosecuted on an indictment for breach of the peace, which carries a maximum penalty of up to five-years in prison.

Is it a common law offence?

Yes, breach of the peace is a common law offence in England and Wales. A common law is one that is set from custom and judicial precedent rather than statutes. 

The crime of breach of the peace was originally a common law offence in Scotland but the 2010 Criminal Justice and Licensing (Scotland) Act outlined a statutory offence of threatening or abusive behaviour.