THERE have been at least four people arrested and charged in Scotland in the wake of Queen Elizabeth’s passing.
In Aberdeen on Sunday, a man was charged after allegedly holding eggs near the Queen's coffin, while in Edinburgh on the same day two other people faced charges.
A fourth – who shouted abuse at the disgraced Prince Andrew during the funeral procession along Edinburgh’s Royal Mile – was charged on Tuesday.
In England, a man was arrested and later “de-arrested” after shouting “who elected you?” during the proclamation of the new King Charles in Oxford.
And a woman also made headlines after she was led away by police for holding a sign which read “not my king” in London.
What laws are the police using to arrest these anti-monarchist protesters?
The rules in place are different in Scotland and in England. The two countries have had different legal systems for centuries, with provisions in the 1707 Acts of Union to keep the two separated.
The four arrests in Scotland – three in Edinburgh and one in Aberdeen – were all made under breach of the peace laws.
Breach of the peace is a common law offence, meaning it has been developed by the courts and does not have a specific basis in government statute.
In 2001 in the case Smith v Donnelly, the Scottish High Court found that an overly broad definition of “breach of the peace” violated the European Convention on Human Rights.
That case then set out the modern definition of the crime of breach of the peace in Scots law.
Today, the crime is defined by the Court as "conduct severe enough to cause alarm any reasonable person and threaten serious disturbance to the community." In the absence of any actual alarm, the court must be satisfied the conduct is "flagrant" to convict the accused person.
— PeatWorrier (@PeatWorrier) September 13, 2022
Legal expert and commentator Andrew Tickell explained: “Today, the crime is defined by the Court as ‘conduct severe enough to cause alarm [to] any reasonable person and threaten serious disturbance to the community’.
“In the absence of any actual alarm, the court must be satisfied the conduct is ‘flagrant’ to convict the accused person.”
As Tickell further highlights, the Hate Crime Bill passed by the Scottish Government in 2021 has not yet come into force, and is being wrongly blamed for the arrests by some.
What about the laws in England?
In England, there has not yet been anyone charged with a specific offence, although there have been reports of an arrest – and a barrister in London was threatened with arrest if he wrote “not my king” on a blank piece of paper.
Symon Hill, an activist with the Peace Pledge Union, made headlines after he was detained by police for shouting “who elected you?” during the proclamation of King Charles in Oxford.
Writing on bright-green.org, Hill said he had initially struggled to get an answer out of police officers as to why he was being arrested.
He went on: “At first I was told that the sergeant who had arrested me would know the reason. This was an appalling answer.
“Eventually, on the way home, I was told that I had been arrested under the Police, Crime, Sentencing and Courts Act 2022 (the outrageous act passed earlier this year) for actions likely to lead to ‘harassment or distress’.”
The Tory government’s act, which came into effect in April, gives police in England the right to impose conditions on protesters if noise generated by them may lead to alarm or distress for people in the area, according to libertyhumanrights.org.uk.
Hill said police had “de-arrested” him, but taken his details and told he may be interviewed and charged at a later date.
