Is it illegal to protest for or against the Gaza conflict?

Issues have recently arisen over what defines ‘peaceful’ protest after there was a spark in demonstrations relating to the current Gaza conflict, and this has led to complications in establishing the boundaries between freedom of speech and alleged criminal behaviour.

The vast majority of protests are peaceful and crime-free. When could your involvement in protests potentially breach criminal law? What acts might the police arrest or investigate you for?

We can represent you at the Police Station if you face an interview or investigation relating to Gaza conflict protesting. 

In this article, we discuss the relationship between free speech and criminal law, what offences could be committed by an individual protesting the Gaza conflict, and what actions may result in arrest.

While we hope this information is useful, please note that it should not be taken as legal advice. If you need further support with concerns you have about your involvement in protests, then please get in touch and our team can advise you.

Freedom of Speech

In the UK, the right to protest is governed by Article 11 of the Human Rights Act 1998, which states:

“Everyone has the right to freedom of peaceful assembly”

Article 10 of the European Convention on Human Rights (ECHR) also allows freedom of expression, and this forms the basis for the UK’s protest laws:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”

However, the UK Government can limit the extent of the expression of this freedom when it involves hate speech and incitement:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime”

Subsequently, the UK has excluded hate speech from the freedom of speech remit, which is defined as follows:

“Hate crimes and incidents are taken to mean any crime or incident where the perpetrator’s hostility or prejudice against an identifiable group of people is a factor in determining who is victimised.”[1]

In light of this, the law has developed to protect five groups from hate speech, namely: religion, race, gender, disability, and transgender identity. In essence, if a crime is motivated by a particular characteristic of a person, or if, at the time the crime is committed, reference is made to a particular characteristic of a person, it will be a hate crime. This is why certain acts of protest could be illegal.

As a result, some individuals who became actively engaged in the Israel/Palestine debate have faced criminal charges on the basis that their actions constituted hate crimes.

Hate Crimes

In England and Wales, there are two ways in which the law recognises a ‘hate crime’:

1. Within the Offence

There are certain criminal offences which explicitly involve hate crime. As such, when a person is convicted of one of these offences, the fact that it was a hate crime will be reflected on that person’s criminal record.

2. At Sentencing

Where there is no specific ‘hate crime offence’ applicable on the facts, but a standard criminal offence has nonetheless been committed, section 66 of the Sentencing Act 2020 imposes a duty on the courts to consider any hate crime-based hostility exhibited in the commission of an offence as an aggravating factor. This will typically result in a harsher sentence, although there will be no indication that it was a hate crime on the offender’s criminal record.

Racially or Religiously Aggravated Offences

The Crime and Disorder Act 1998 deals with religiously and racially aggravated crimes.

This legislation created more serious forms of certain existing offences which applies where they are specifically racially and religiously aggravated.

There are two ways in which an offence can be considered to be racially or religiously aggravated:

1. the offence was motivated by hostility towards members of a racial or religious group; or
2. at the time of committing the offence, or immediately before or after doing so, the offender demonstrated hostility towards the victim based on the victim’s racial or religious group.

When protesting in England and Wales, people may therefore be at risk of committing the following offences:

• Racially or religiously aggravated common assault (section 29(1)(c))
• Racially or religiously aggravated criminal damage (section 30)
• Racially or religiously aggravated section 4 public order offence (section 31(1)(a))
• Racially or religiously aggravated section 4A public order offence (section 31(1)(b))
• Racially or religiously aggravated section 5 public order offence (section 31(1)(c))

‘Stirring Up’ Racial or Religious Hatred

Further, the Public Order Act 1986 codified specific crimes of ‘stirring up’ racial and religious hatred. The main offences which could potentially be committed at protests in England and Wales are as follows:

• Using threatening, abusive, or insulting words or behaviour or displaying written material with intent to, or where it is likely to, stir up racial hatred   (section 18)
• Publishing or distributing written material which is threatening, abusive, or insulting with intent to, or where it is likely to, stir up racial hatred (section 19)
• Use of words or behaviour, or display of written material, intended to stir up religious hatred (section 29B)
• Publishing or distributing written material intended to stir up religious hatred (section 29C)

Examples of such aforementioned materials, words or behaviours can include displaying certain symbols, badges or flags at marches or demonstrations which stirs up racial or religious hatred.

What Acts May Constitute Antisemitic Hate Crimes?

There have been arrests and charges for alleged antisemitic hate crimes committed at marches, protests, and demonstrations in the wake of the Gaza conflict, as well as on social media. Common examples of behaviour which may result in such arrests include:

• Displaying a Nazi flag or symbol (Swastika)

This act threatens Jewish people’s right to existence, and could therefore constitute a racially or religiously aggravated public order offence contrary to section 31(1) of the Crime and Disorder Act 1998. Although owning Nazi memorabilia is not in itself a crime[2], the display of it in public at a protest may amount to criminal activity.

• Saying or displaying any behaviour suggesting that Israel should be destroyed

This act could be considered incitement to racial or religious hatred under section 18 of the Public Order Act 1986. The Government has also warned that use of slogans which could be taken to imply that Israel should be destroyed could result in police involvement[3].

• Stating, writing, or chanting ‘Israel is a Terrorist State’

At face value, this comment is a matter of political opinion, and is therefore not in itself a crime. However, comments of this nature should be made with caution[4], as if done so in the context of implying that Israel should not be allowed to continue to exist for this reason[5], such comments could amount to incitement to racial or religious hatred under the Public Order Act 1986.

• Stating or writing comments such as ‘you are a Jewish combined with insults or derogatory’

Such comments make reference to the target’s race or religion, and could therefore constitute a racially or religiously aggravated public order offence under section 31(1) of the Crime and Disorder Act 1998. There have also been investigations for use of insults relating to persons being ‘Zionists’[6], as this could be taken as reference to the race or religion of such persons.

• Making or writing derogatory comments directed at Jewish people relating to Israel

This may amount to a religiously aggravated public order offence contrary to section 31(1) of the Crime and Disorder Act 1998, as an individual is being harassed on the basis of their religious beliefs[7] which are being conflated with global political affairs.

• Writing offensive messages or throwing paint on buildings associated with Israel

Throwing red paint on Israeli embassies or offices of companies associated with Israel has been considered to constitute racially or religiously aggravated criminal damage contrary to section 30 of the Crime and Disorder Act 1998[8]. This is because the criminal damage is being inflicted on specific property on the basis of its association with Israel, even though there may also be political motives behind the act.

• Burning or interfering with the Israeli flag

The act of burning the Israeli flag has resulted in arrests for inciting to racial hatred as prohibited by the Public Order Act 1986[9]. Further, the removal of the Israeli flag from the roof of a Town Hall has also been considered to constitute a hate crime[10].

What Acts Constitute Islamophobic Hate Crimes?

There have equally been many arrests and charges for Islamophobic hate crimes which have been committed at marches, protests, and demonstrations following the Gaza conflict, as well as on social media. Common examples of behaviour resulting in such arrests include:

• Assaulting people in Islamic clothing

Targeting people because of the religious clothing they are wearing[11] and assaulting them on the basis of beliefs regarding Islam/Palestine would likely constitute religiously aggravated common assault contrary to section 29(1)(c) of the Crime and Disorder Act 1998.

• Attacking or abusing people with Palestinian flags

This could constitute a criminal offence under section 31(1) of the Crime and Disorder Act 1998 where a person is insulted or harassed on the basis of their association with Palestine[12]. It will also be an offence to assault a person for having or displaying a Palestinian flag[13].

• Calling Muslim people ‘terrorists’ or ‘Hamas sympathisers’

This would likely be considered a hate crime as a person is being targeted for their religious beliefs and is being labelled a terrorist for these reasons[14]. Therefore, this conduct could be prosecuted as incitement to racial or religious hatred under section 29B of the Public Order Act 1986, or as a racially or religiously aggravated public order offence contrary to section 31(1) of the Crime and Disorder Act 1998.

• Attacking or vandalising Mosques or a building associated with Palestine

Behaviour targeted at mosques would likely be considered a hate crime as it is done on the basis of the building’s association with a particular religion. Thus, vandalism could amount to racially or religiously aggravated criminal damage contrary to section 30 of the Crime and Disorder Act 1998[15], but a hate crime may equally occur even where there is no damage[16].

• Stating or writing comments such as ‘get out of our country and go back to Palestine’ or ‘you are killing people in Israel’

Comments such as this, or to this effect, will likely amount to hate speech where they are directed towards Muslim people[17] as people are being harassed due to the religion that they follow or the country they are assumed to be associated with. This would therefore fall under behaviour prohibited as a racially or religiously aggravated public order offence by section 31(1) of the Crime and Disorder Act 1998.

What is the Sentence for Hate Crimes?

Hate crimes typically carry harsher sentences than similar offences which do not have a ‘hate’ element, however the exact sentence you could receive will vary depending on the offence and the facts of the case.

Racially or religiously aggravated offences under the Crime and Disorder Act 1998 are all triable in either the Magistrates’ Court or the Crown Court. The maximum sentences for the offences mentioned above are:

• Racially or religiously aggravated common assault – 2 years’ imprisonment
• Racially or religiously aggravated criminal damage – 14 years’ imprisonment
• Racially or religiously aggravated public order offences – 2 years’ imprisonment

Offences of stirring up racial or religious hatred are also triable in both the Magistrates’ Court or the Crown Court and are punishable by up to 7 years’ imprisonment.

Where there is no specific ‘hate crime’ offence committed, the ‘hate’ element will be taken into account as an aggravating factor, resulting in a harsher sentence.

Terrorism Offences

Beyond the above-mentioned offences, in some instances conduct relating to Israel and Palestine could be considered to go a step further culminating in potential terrorist activity.

Terrorism offences are governed by the Terrorism Act 2000 and Terrorism Act 2006.

What is ‘Terrorism’?

Terrorism is defined by section 1 of the Terrorism Act 2000 as the use or threat of use of an action where:

1. The action involves:
   1. serious violence against the person;
   2. serious damage to property;
   3. endangerment of a person’s life;
   4. creation of a serious risk to the health or safety of the public or a section of the public; or
   5. serious interference with or disruption of an electronic system.

AND

2. The use or threat is designed to:
   1. influence the government;
   2. influence an international governmental organisation;
   3. intimidate the public; or
   4. intimidate a section of the public.

AND

3. The use or threat is made for the purpose of advancing:
   1. a political cause;
   2. a religious cause;
   3. a racial cause; or
   4. an ideological cause.

Proscribed Organisations

The first way in which those protesting the happenings in Israel and Palestine could be engaging in criminal conduct is through association with a proscribed organisation.

What is a Proscribed Organisation?

A proscribed organisation “is an organisation or that is illegal to join or show support for, because it has been identified in being concerned in terrorism.”[18]

Many criminal offences relate to terrorist groups. Schedule 2 to the Terrorism Act 2000 contains a list of ‘proscribed organisations’ which the Home Secretary has determined should be prohibited. There are currently 81 terrorist organisations proscribed under this legislation, the list of which can be found here.

Included in the list of proscribed terrorist organisations are several groups whose aims relate to the Israel-Palestine conflict. These include:

• Hamas
• Abu Nidal Organisation
• Palestinian Islamic Jihad
• Popular Front for the Liberation of Palestine – General Command

What are the Offences?

There are a wide range of offences which exist in relation to proscribed organisations. These are contained in the Terrorism Act 2000, and include:

• Belonging, or professing to belong, to a proscribed organisation in the UK or overseas (section 11)
• Inviting support for a proscribed organisation (section 12(1)))
• Expressing an opinion or belief that is supportive of a proscribed organisation (section 12(1A))
• Arranging, managing, or assisting in arranging or managing a meeting in the knowledge that the meeting is to support or further the activities of a proscribed organisation (section 12(2))
• Wearing clothing, or carrying or displaying articles in public in such a way or in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of a proscribed organisation (section 13)
• Publishing an image of an item of clothing or other article, such as a flag or logo, in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of a proscribed organisation (section 13(1A))

What is the Potential Sentence?

The sentence you could receive for offences relating to proscribed terrorist groups depends on the precise offence.

Offences under sections 11 and 12 are triable in either the Magistrates’ Court or the Crown Court and carry a maximum sentence of 14 years’ imprisonment.

However, offences under section 13 are triable only in the Magistrates’ Court and are punishable by up to 6 months’ imprisonment.

Social Media Terrorism Related Offences

However, it is not necessary for persons to be physically present at protests in order to risk committing terrorism offences.

What are the Offences?

There exist several offences under both the Terrorism Act 2000 and Terrorism Act 2006 which can readily be committed online, including:

• Disseminating terrorist publications (section 2 of the Terrorism Act 2006)
• Collecting or possessing information likely to be useful to the committing or preparation of a terrorist act (section 58 of the Terrorism Act 2000)
• Preparing a terrorist act (section 5 of the Terrorist Act 2006)

What is the Potential Sentence?

Again, the sentence you could receive for committing a terrorism offence through social media will ultimately depend on the offence.

Offences under section 58 of the Terrorism Act 2000 and section 2 of the Terrorism Act 2006 are triable in either the Magistrates’ Court or the Crown Court and carry a penalty of up to 15 years’ imprisonment.

However, an offence under section 5 of the Terrorist Act 2006 is triable only in the Crown Court and is punishable by life imprisonment.

What should you do if you are accused of an offence related to the Gaza conflict?

It is important to be conscious of what is said, written or chanted at demonstrations, and what is written, downloaded, or shared on social media. Behaviours resulting from the current Gaza conflict have highlighted new aspects of existing offences which may not have commonly been understood before now.

As discussed, the potential sentences for breaching laws at protests in England and Wales can be extremely serious. It is therefore essential that you instruct solicitors with specialist expertise in providing robust criminal defence against these types of allegations.

At J D Spicer Zeb, our criminal defence solicitors have a wealth of expertise and experience in handling the full spectrum of offences that are linked to illegal actions at protests. We are in the strongest possible position to help you achieve a positive outcome for your case, which could include having charges dropped, or minimised if conviction is unavoidable.

We know what is required with regard to collecting and presenting the various types of evidence that will be relied on during criminal defence cases, including digital evidence and witness testimony. We will be able to clearly identify any flaws in the case being presented against you and make sure that any evidence which supports your case is clearly presented.

We have over 45 years of experience in dealing with criminal law matters and have been accredited by the Law Society for Criminal Litigation. We have also been able to establish strong relationships with many of the country’s leading criminal defence barristers.

If you are facing a charge at the Police Station or Court related to the above, we are here to provide the support you need.

Related matters:

We also provide support and guidance on various related matters, including:

• Cyber and social media offences
• Malicious communications
• Racially or religiously aggravated offences
• Terrorism
• Serious and violent crime

Our related cases

• Not Guilty Private Client Charged With Racially Aggravated Assault Road Rage 2024
• Cleared Racially Aggravated Common Assault - Crown Court
• Not Guilty Terrorism Charges - Old Bailey 2022

Fees and funding

We will always be transparent about the fees related to your case.

If you need to attend court in relation to an offence linked to the Israel/Palestine protests, legal aid may become available. Whether or not this is the case will depend on a means test and whether the grant of public funding is justified.

Where you do not qualify for legal aid, the alternative will be to fund the case on a private basis.

To find out more about the way we handle fees (both legal aid and private fees), please use the links provided below:

• Our Fees – Crime Cases
• Do I Qualify for Criminal Legal Aid?
• Bespoke Crime Private Fee Service
• Will Your Private Legal Costs Increase?

Contact our criminal defence lawyers today

You can contact our dedicated criminal defence lawyers in London, Birmingham, and Manchester by telephone on:

• Brent & Camden London Office: 0207 624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333
• City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you quickly.

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