By Alexander McColl, Pupil Barrister at Garden Court North Chambers
Protest is as fundamental to and as inextricable from the foundational principles of liberal democracy as the vote. The freedom of the people to raise their voices in dissent against the powerful, and for those voices to be heard, is how we justify otherwise limiting political participation to elections every five years. You will not find a politician who is prepared to publicly disagree with this principle.
Yet successive Home Secretaries, police chiefs and the wider media have homed in on the legitimacy of some of the louder – and arguably more effective – protests of recent years, prompting significant developments in the law.
A string of recent protest actions by groups such as Extinction Rebellion, Just Stop Oil and Insulate Britain have caused disruption to members of the public and to business as a means of raising awareness and garnering support. There has followed several high-profile acquittals and legal challenges in protest cases, most notably the “Colston four” in the wake of the Black Lives Matter movement.
The government has responded by introducing a range of public order offences which seek to place limits on protest, effectively using the tactics of these movements as a template for what to restrict. The original legislative vehicle for this exercise was the Police, Crime, Sentencing and Courts Act 2022, but following the rejection of a number of its key provisions in the House of Lords, a further Public Order Bill has been introduced which is (at time of writing) at third reading in the House of Lords. Some of the more controversial provisions of that Bill have again been removed by the Lords[1] but it will, in its current form, still amount to a serious expansion of the powers of the government and the police to restrict the freedom of protestors.
Below, I have summarised the new legislation and provided a short analysis of the legal landscape in which it will operate.
Police, Crime, Sentencing and Courts Act 2022
This Act:
- introduced further police powers to impose conditions on public processions and assemblies: the test for imposing conditions was widened and now includes an assessment of disruptive noise and where disruption may cause significant delay to the supply of a time-sensitive product to consumers;
- amended the offence of failing to comply with conditions imposed by the police: where previously it had to be shown that a defendant had knowingly failed to comply, now the test is “knows or ought to have known” that the condition was imposed;
- intentionally or recklessly causing public nuisance: this abolishes the previous common law offence of public nuisance and expands that offence on a statutory footing to intentional or recklessly causing a risk of serious harm or preventing the exercise of rights enjoyed by the public at large;
- streamlined the process for introducing Public Spaces Protection Orders: these already allow a Local Authority to restrict protest in a specific area, but this provision accelerates the process and removes the need for consultation where the restriction relates to schools, test and trace and covid-19 vaccination centres;
- amended the offence of wilful obstruction of the highway: introduces a prison sentence for this offence;
- introduced a number of other protest-related offences: including powers to restrict one-person protests and further specific offences relating to protest around Parliament.
Public Order Bill
The proposed Bill would:
- introduce new offences, including
- ‘locking on’ and ‘being equipped for locking on’: this is defined as a person attaching themselves, another person, or an object (without reasonable excuse) to a person, object, or to land such that it causes or is capable of causing serious disruption to two or more individuals or an organisation, or having an object with the intention that it may be used in the course of or in connection with this offence;
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- causing serious disruption by tunnelling, being equipped for tunnelling or being present in a tunnel: a relevant tunnel is one capable of causing serious disruption to two or more individuals or an organisation;
- obstruction of major transport works and interference with key national infrastructure: this includes, road, rail, air transport, oil, gas and electricity generating sites and newspaper printing infrastructure
- increase police powers to stop and search: this would empower the police to designate areas wherein stop and search powers can be used to seize articles which may be used for protest-related offences;
- introduce Serious Disruption Prevention Orders: this is a measure that would enable the courts to make a preventative order aimed at restricting serious disruption. Wide-ranging restrictions may be imposed on individuals, to include being in a specific place, associating with certain individuals and using the internet for certain activities. They will be open to take effect on those who are convicted of more than one protest-related offence or breach of injunction in a five-year period, even where given a conditional discharge.
Protest, Human Rights and Proportionality
The starting point for a discussion on protest rights is the European Convention on Human Rights (“ECHR”), which protects Freedom of Thought, Conscience and Religion (Article 9), Freedom of Expression (Article 10) and Freedom of Assembly (Article 11). These are qualified rights which can be restricted, subject to an assessment of the proportionality of the interference with the right.
There have been a number of recent developments in the application of proportionality to criminal prosecutions arising from protests. The Supreme Court in DPP v Ziegler [2021] UKSC 23 held, in a prosecution for wilful obstruction of a highway under s.137(1) of the Public Highways Act 1980 arising from a protest, that a court needs to be satisfied that a conviction would be a proportionate interference with ECHR rights. This opened the door to arguments in subsequent cases that proportionality must be considered in all protest-related prosecutions.
This view was quickly dispelled by the Divisional Court in DPP v Cuciurean [2022] EWHC 736 (Admin), at [67], which held that it was “impossible” to read Ziegler as deciding that there is a general principle that proportionality assessments apply to all offences engaging Articles 10 and 11. In that case, the Court also held that proportionality did not apply to the offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.
The Court of Appeal in AG Reference on a Point of Law No.1 [2022] EWCA Crim 1259 (“the Colston statue case”) noted the decision in Cuciurean but held that proportionality could apply to trivial criminal damage under s.1(1) of the Criminal Damage Act 1971. However, the significant damage notably caused by protestors in that case, was held to fall without the scope of the ECHR rights.
Most recently, the Supreme Court affirmed the reasoning in Cuciurean and the Colston statue case in AG for NI Reference – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, where it has essentially confirmed that proportionality assessments are relevant to some, but not all, criminal offences and has laid out the bones of a test that the courts can apply to criminal offences.
This is a fast-developing area of law. As things stand, it is still unclear exactly which offences require an assessment of proportionality. What is clear is that as courts begin to deal with protestors arrested and charged with the new offences under the above legislation, this issue is going to continue to arise.
Conclusion
In AG for NI Reference, the Supreme Court confirmed that the obligation of the courts to consider proportionality in relation to criminal prosecutions arising from protest stems from s.3(1) of the Human Rights Act 1998 (“HRA”), requiring the courts to read and give effect to primary and subordinate legislation in a way which is compatible with the rights contained in the ECHR and from s.6 HRA to act compatibly with the ECHR so far as possible under the law.
It should be noted that it has for a long time been the government’s stated intention to repeal the HRA and replace it with a “Bill of Rights” which would remove the obligation to read legislation compatibly with the ECHR (see s1(2)(b) of the Bill of Rights Bill). There has not yet been the legislative will to get this beyond a first reading in the Commons.
The new public order offences that have been introduced by the government are ostensibly aimed at preventing “serious disruption”. The imposition of criminal liability to acts which occur during a protest may have the effect of limiting disruption. But a commitment to the democratic principle of permitting dissent entails a recognition that protest is loud and it is disruptive. Viewed as a whole, the government’s new restrictions on the freedoms of protestors, its condemnation of most individual incidences of protest, and its commitment to abrogating the human rights protections which preserve at least a minimal safeguard against excessive prosecution, represent a consistent trend geared towards less protest and less audible dissent. What do you do if you disagree with this trend? How long will that remain legal?
Alexander McColl, Pupil Barrister at Garden Court North Chambers
