Last year, we published on our website an analysis of the then Police Crime Sentencing and Courts Bill and the impact it would have, amongst other things, on the right to protest, currently guaranteed by Articles 10 and 11 of the European Convention of Human Rights. Sadly, in April 2022, the bill has received royal assent and is now law, despite a year long Parliamentary battle and several hard fought campaigns by organisations such as NETPOL and LIBERTY, and the public opposition of 700 academics, 350 charities, three UN Special Rapporteurs and even former senior police officers.
Part 3 of the Act gives the police wide-ranging and very vaguely defined powers to impose conditions on protests and public processions that they deem ‘seriously disruptive’. Serious disruption includes “ noise generated by a procession that “may have a relevant impact on persons in the vicinity of the procession if… it may cause … persons to suffer serious unease, alarm or distress”. The relevant sections are sections 73 and 74 of the Act, that modify sections 12 and 14 of the Public Order Act 1986 respectively.
The Act also gives the Home Secretary powers to make regulations without reference to Parliament to “define any aspect” of the meaning of ‘serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession’, or ‘serious disruption to the life of the community.’
This means the Home Secretary shall be able to react in real-time to different acts of civil disobedience, and give examples of the type of protest deemed acceptable by the state, without any democratic oversight. This has profound implications for organisations deemed a nuisance or inconvenience by the government, which has made clear its distaste for organisations such as XR, BLM, and Insulate Britain.
Every effective protest in the last decade, whether in relation to fracking, expansions of airport runaways, deportation of immigrants, or picketing outside a company headquarters has succeeded in part their visibility has in a sense disrupted their targets activities. A company could easily complain to the police that a demonstration outside their offices is causing ‘disruption to the activities of the organisation’ and invite the police to impose conditions. Given the willingness of police officers to impose conditions on protests under their previously existing powers, it is likely that the police will not be hesitant to use these new powers.
S75 of the Act also modifies the criminal offence of ignoring a condition imposed by the police to make it a punishable offence to ignore a condition they knew or ‘ought to have known’. This was to close what the police have for years called a loophole which required that the demonstrators actually knew of the condition for the offence to be made out. As per NETPOL “Had ‘ought to know’ been in place in 2013, when the Green Party MP Caroline Lucas was found not guilty of breaching a condition imposed by the police at a Balcombe anti-fracking protest, she might instead have been convicted. Lucas was able to successfully argue that because she was “distracted by the arrest of her son and the obvious pain being caused to him during his arrest,” she could not possibly have been aware of instructions to her issued by the police.”
The Act also increases the penalties for obstruction of a Highway under s137 Highways Act 1980 to increase the maximum penalty to six months imprisonment, from a fine.
The Act also creates a new statutory offence of causing “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”, an either way offence punishable by upto 10 years imprisonment. The provision is vaguely defined to cover a number of situations but human organisations have raised concerns that this could be used against protesters.
Some of the more draconian aspects of the bill were voted down and are no longer law. These included
- An offence of locking on and being equipped to lock on.
- Criminalising interference with major transport works.
- Criminalising Interference of key national infrastructure.
- Suspicionless stop and search related to protest.-
- Serious Disruption Prevention Orders (i.e. protest banning orders)
However, the Public Order bill, currently working its way through Parliament, is reintroducing all of these voted down amendments. It creates an offence of locking and being equipped to lock on, punishable by up to six months imprisonment. The Bill would also introduce a new blanket stop and search power that does not require “reasonable grounds”. This is analogous to section 60 powers (Criminal Justice and Public Order Act 1994) where police can stop and search without reasonable grounds when there is an alleged threat of serious violence or the use of weapons. The bill provides that if a senior officer believes that protest offences are likely to take place in an area, they can approve far-reaching new stop and search powers for a 24-hour period.
The Bill will also provide for Serious Disruption Prevention Orders, which are effectively civil orders they can impose on activists preventing them from attending or participating in protests. The government may allow courts to decide, on the balance of probabilities (the civil standard of proof), that an individual is likely to cause disruption based solely on intelligence from the police. In March 2021, a review on the policing of protests by the inspectorate body HMICFRS gave a green light for increased surveillance on so-called “aggravated activists”. Under these proposals, modelled after the Knife Crime prevention orders, courts will be able to ban ‘aggravated activists’ from attending protests where they meet two of the following conditions:
- A person has committed a protest-related offence.
- A person has committed a breach of an injunction leading to a conviction for contempt of court.
- A person has “carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.
- A person has “caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”
- A person has “caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales “.
In addition to the above, the National Security Bill currently going through parliament, creates offences for protesting outside military establishments and weapons manufacturers, potentially criminalising anti-arms protest.
GT Stewart have a particular interest in protest law and are currently bringing claims against the police on behalf of BLM protesters, Palestine protesters, Kill the Bill protesters and Black Protest Legal Support.
Bhaskar Banerjee
Supervising Solicitor, Civil Liberties & Human Rights
