Flyering.The law. just in case anyone wants to know......... from the guardian website Liberty Clinic: JohnnieLa asked our advice after he was stopped from handing out flyers in Liverpool city centre James Welch Yesterday, 11:00 AM Q: Liverpool city council a few years ago stopped people giving/handing out flyers to people in the city centre – their reason was to stop littering from people throwing them on the floor. Is this legal? Does it depend on what the flyer is? I can understand flyers that incite racial hatred etc, but can they ban flyers promoting clubs/bars/discos etc? Also I was recently on an anti-BNP demo in Liverpool, and security from the new Liverpool One shopping centre stopped us handing out flyers. Is that legal? And I was told that you cannot be stopped from handing out political flyers. Is that true? (JohnnieLa) Littering is an offence under section 87 of the Environmental Protection Act 1990. The offence can be committed anywhere that is in the open and that the public has access to, even if you have to pay to get in. However, to commit the offence you have, in the words of the statute, to throw down, drop or otherwise deposit litter. It is hard to see how someone who hands out flyers to other people would commit the offence, even though the people that take them may immediately commit the offence by throwing them away. That doesn't make the person that gave them the flyer responsible. However, the same act gives local councils power to control the distribution of flyers. The relevant part of the act is Schedule 3A. Councils can designate areas that consist of either land that they own or highways (roads and pavements) that they are responsible for if they consider that the area is being defaced by the discarding of flyers and leaflets that have been distributed there. Once an area has been designated, subject to the exceptions I will come to shortly, anyone wanting to hand out what the act calls "free printed matter" needs to get permission from the council. The council can charge for that permission, can impose conditions on it and can even refuse it, particularly if the person applying has been convicted in the previous five years of distributing flyers without permission. Anyone who hands out flyers or leaflets in a designated area commits an offence. Councils can hand out a fixed penalty notice (usually for £75) to anyone that they consider has committed the offence. As with all fixed penalty notices you have the choice of being prosecuted rather than paying the fixed penalty but if you are found guilty by a magistrates court you could be fined a lot more – up to £2,500. The exceptions – the circumstances in which someone would not commit an offence – are when they are distributing flyers or leaflets on behalf of a charity or for a political purpose or for the purpose of a religion or belief. There seems to be confusion as to how far these exceptions go. Liberty has been contacted by people who were given fixed penalty notices for handing out leaflets objecting to local developments plans. Given that the plans were approved by the council, this must surely have been "political". We were also contacted last year by a group of anti-Scientology campaigners who were given fixed penalty notices by Birmingham city council for handing out leaflets in the city centre urging people to find out more about Scientology before accepting one of the free tests that they offer. They declined to pay the fixed penalty and the council has never summonsed them for the offence, and is now out of time to do so. Liberty's view is that Article 10 of the European convention on human rights, which protects freedom of expression and is now part of our law as a result of the Human Rights Act, requires that the exceptions be given as wide a meaning as possible. Any leaflets that address an issue of contemporary concern should come within the exception. Liberty would be interested to hear from anyone who has been given a fixed penalty notice or is being prosecuted for such a leaflet. The exceptions are not broad enough to cover the flyers for clubs, bars and discos that JohnnieLa mentions, and I doubt whether human rights arguments could be used to challenge this. So if someone is planning to hand these out in an area that has been properly designated by the local council under Schedule 3A of the Environmental Protection Act then they need to get, and if necessary pay for, permission from the council. JohnnieLa mentions Liverpool city council stopping people giving out flyers in the city centre. Schedule 3A has only been in force since April 2006, so the events he describes may well have occurred before then. I haven't checked what the law was before Schedule 3A came into force. JohnnieLa also asks about security guards in the Liverpool One shopping centre stopping him and others handing out anti-BNP leaflets. I don't know Liverpool and don't know who owns the shopping centre. If it isn't the council, then it can't be designated under Schedule 3A. (In any event the leaflets would come within the political exception and JohnnieLa wouldn't commit an offence by handing them out.) But whoever does own it is entitled to regulate what goes on there and ultimately to enforce this regulation, not by the criminal law, but by refusing access. If it is the council that owns the shopping centre, the refusal to allow people to hand out flyers, particularly political ones, could be challenged using the Human Rights Act. This is because councils are public authorities under the act and are therefore required to respect people's rights under the European convention, including the right under Article 10 to freedom of expression. The situation is different if the shopping centre is privately owned. A few years ago Liberty took a case to the European court of human rights on behalf of a group campaigning against a local development who were prevented from collecting signatures on a petition in the shopping mall that was effectively the centre of the new town where they lived (Appleby and others v UK). Although the mall was originally publicly owned, it had been privatised some years earlier. It was the owners who refused our clients permission. We argued that, even though the mall had been privatised, this was still a public space and the owners should therefore be required to respect people's right to freedom of expression. Sadly, the Strasbourg judges rejected our argument. This would suggest that, if the Liverpool One centre is privately owned, there is little JohnnieLa can do to challenge the security guards preventing him/her and others handing out their leaflets. But it may be time that the courts looked again at this issue – as the dissenting judge in our Strasbourg case pointed out, the current trend for privatising public space shouldn't lead to a blanket ban on people exercising their rights to freedom of expression and assembly. Again, I and my colleagues at Liberty would be interested to hear from anyone who has been prevented from handing out political material, or campaigning in any other way, in a public space.
