Leafleting – A Guide to your Rights
Leafleting is a basic form of campaigning and one of the most powerful. There are many reasons for leafleting and you have a right to do it. However, not everyone will be happy with your freedom of expression, especially if they disagree with you, and they may attempt to stop you.
Firstly we will look at how the law applies to four different types of leafleting, namely leafleting on the public highway, door to door, leafleting in “public places” – private places to which the public has an implied right of access and sticking leaflets on lampposts etc. Secondly we will look at how the law applies to the actual content of leaflets.
1. Leafleting on the Public Highway
A law sometimes quoted to people handing out leaflets is section 137 of the Highways Act 1980, which covers obstruction of the highway. This makes it an offence to cause a wilful obstruction of the highway with out lawful authority or excuse. The key here is what amounts to a “reasonable excuse” for causing the obstruction. An assumption sometimes made by the police is that by being there handing out leaflets you are using the highway unreasonably and hence forming an obstruction. However, in “Hirst v Chief Constable of West Yorkshire” it was ruled that leafleting is an activity which counts as a reasonable use of the highway.
You don’t atually have to be obstructing the full highway to be committing an offence under s137 – just being on the highway without a legitimate reason is enough. However, as long as you are not physically preventing people from passing then you should be OK. Just make sure you are not causing an actual obstruction. If the authorities are being pedantic on this issue, take photographs of other similar obstructions from local businesses such as A-boards. Even take photos of where the police are standing while talking to you – often they spread themselves out and cause much more of an obstruction than you were!
If you are continually moving through a pedestrian area, then that is not an obstruction. If you are on a march the police do not have the right to stop you leafleting. The police, most notably Thames Valley, have sometimes been known to impose conditions on processions imposing limits on the numbers of people who can hand out leaflets. In our view such a condition could be challenged in the High Court as it is incompatible with the right to freedom of expression.
Even where the Public Order Act 1986 does not apply to the content of leaflets (see below) they may apply to the manner in which you are handing them out. For example, if you are being aggressive towards people in handing out leaflets, the police may be able to argue this is “threatening, insulting or abusive behaviour or disorderly conduct” contrary to either Sections 4, 4a or 5 of the Act. Or they could say that it amounts to a “breach of the peace”.
To avoid this problem it is best to be polite at all times and do not allow yourself to be riled by the comments of others. Chasing after people is not a particularly good idea, or shouting at them. If in doubt, phrase the offering of a leaflet as a question, that is “Would you like a leaflet to explain why we are protesting?” or something similar.
If you are banned from an area for other reasons e.g. by an Anti-Social Behaviour Order (ASBO) or a civil injunction, you cannot argue that being there to leaflet is a reasonable excuse for being in the area.
2. Door-to-Door Leafleting and Leafleting in “public” areas
Putting leaflets through doors does not amount to civil trespass. You have what is called in law an “implied license” to enter property to put materials through a letterbox. If this were not the case postmen, salesmen, etc. would be trespassing as soon as they entered your property. You only become a trespasser if you are asked to leave and refuse to do so.
The situation is similar if you are leafleting in a “public” area, where the public has an implied right to enter – a supermarket or a petrol station forecourt as examples. Again you are not trespassing in this situation until you are actually asked to leave and refuse to do so. But if you enter part of a building to which entry is clearly forbidden, if you jump over a security barrier or go through a door marked “staff only” then you are immediately trespassing.
If the police suspect you of trespassing with the intention of disrupting a lawful activity, they could arrest you for “aggravated trespass”. This is unlikely in the case of leafleting only.
3. Leafleting and Criminal Damage
Wherever you are handing out leaflets, you need to be aware of the possibility of committing criminal damage. Affixing leaflets to private property may amount to criminal damage, especially if the owner is required to go to an effort to remove the leaflet. It does not matter if you do not think you have done any actual damage. If the owner of the property has to incur cost in order to restore the property to its original condition, then you have probably committed criminal damage.
It is unlikely that very trivial instances of interfering with property – putting leaflets under car windscreen wipers, etc. could amount to criminal damage. A car owner may get annoyed, but unless you actually damage the windscreen wipers or car in some way, you are unlikely to have committed criminal damage, as the owner of the car will not incur financial loss in restoring the car to its original condition.
4. Content of Leaflets
The right to leaflet as “freedom of expression” is covered by Article 10 of the European Convention on Human Rights, and thus in the UK by the Human Rights Act 1998. However, some leaflets may contain graphic images or strong sentiments, as is sometimes the case with animal rights imagery, and the police often take issue with this. And, of course, if the leaflet contains wording that is “threatening, insulting or abusive” this could also amount to an offence.
The main law which is cited by the police in relation to the content of leaflets is Section 5 of the Public Order Act 1986. This also applies to the display of signs or placards. Section 5 makes it an offence to:
a) use threatening, insulting or abusive words or behaviour or disorderly conduct or
b) display any writing, sign or other visible representation which is threatening, abusive or insulting
within the sight or hearing of a person likely to be caused harassment, alarm or distress.
The police often say that pictures on display are offensive or distressing and are therefore an offence under Section 5. However as you can see, the police also have to fulfil the second lot of criteria in that you to have used words or behaviour or a display which is threatening, abusive or insulting.
Even if it can be established that the display is “threatening, insulting or abusive” you can say as part of your defence that you did not were not aware that the pictures were of this nature. This is a subjective test – ie it doesn’t matter if your belief is “reasonable” or not so long as it is honestly held. So if you convinced the court that you were displaying the leaflets for informational purposes then you should not be convicted on these grounds.
Another complaint often made by the police is that the image in display is offensive to members of the public and that it is therefore causing them harassment. But no matter how graphic the image is, the fact that someone finds it offensive does not in itself make it illegal.
The wording on the may amount to a breach of section 5 of the Public Order Act 1986 if it is threatening, insulting or abusive. For example, if it called all staff in a company murders or animal abusing scum then it would fall in this category. Of course most protest leaflets are bound to insult somebody, but this does not in itself make them unlawful. For example, leaflets in which animal testing labs are compared to concentration camps are clearly insulting to the lab workers. However these have never been the subject of a criminal prosecution or arrest.
Again, you can say in defence that you were not aware that the wording was threatening, insulting or abusive. This may be hard to argue in some cases. A defence available to any charge under Section 5 Public Order Act 1986 is that your conduct was reasonable. This is where you would argue that you were exercising the right to freedom of expression and that in all the circumstances it was reasonable to do so in this way.
5. Breach of the Peace
The police might occasionally threaten you with arrest for breach of the peace for handing out leaflets. However you could only be arrested in this situation where the contents of the leaflet were inciting violence or provoking the use of violence by others. As most leaflets do not incite or provoke violence but simply provide information, the law on breach of the peace generally cannot be applied. In “Redmond-Bate v DPP” it was ruled that you could only be arrested for breach of the peace if you provoke a reasonable person to violence – which the vast majority of leaflets do not.
If the leaflet is libelous, it will be a civil matter and not one for the police. It is up to the person being libeled to take action, not the police. The police cannot demand your details in order to enable civil action to be taken against you.
Leafleting is a basic right of expression and your right to leaflet is well guarded in law. This will, however, not stop various authorities from trying to take it from you.
If you know the law then you can out argue them easily enough. If they still insist on taking away your rights illegally, then make sure you take action to stop them and protect your freedom of expression.