Current legislation to manage protests provides predominantly for powers to counter behaviours at protests which are violent or distressing to the public. These powers include those under the Public Order Act 1986 (the “1986 Act”) which provides the police with powers to manage public processions and assemblies, including protests.
Sections 12 and 14 of the 1986 Act (as amended by the Police, Crime, Sentencing and Courts Act 2022) allow the police to impose any type of condition on a public procession or public assembly necessary to prevent: significant impact on persons or serious disruption to the activities of an organisation by noise; serious disorder; serious damage to property; serious disruption to the life of the community; or if the purpose of the persons organising the protest is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.
The Public Order Act 2023 builds on the public order measures in Part 3 of the Police, Crime, Sentencing and Courts Act 2022 which, amongst other things, update the powers in the 1986 Act enabling the police to impose conditions on a protest, provide for a statutory offence of intentionally or recklessly causing public nuisance and increases the maximum penalty for the offence of wilful obstruction of a highway.
The government states that these new laws are justified for the following reasons:
“Disruptive protests have become increasingly common in recent years. For example, the total cost of policing Just Stop Oil protests is now over £14.5 million.
Between 1 October 2022 and 14 December 2022, the Metropolitan Police made over 750 arrests relating to Just Stop Oil protests. This alone cost the taxpayer over £7.5 million. Some 13,600 Metropolitan Police officer shifts were required to respond to these protests, diverting police from our communities.
During Extinction Rebellion’s protests of April and October 2019, some of London’s busiest areas were brought to a standstill for several days. This had a disproportionate impact on commuters and small businesses, with the policing operation for the two extended protests costing £37 million.
Additionally, the October 2019 protest alone required over 418,000 police officer hours to manage. These officers were pulled away from regular duties such as pursuing serious crime and neighbourhood policing.
HS2 Ltd estimated in October 2022 that sustained protester activity at some sites had cost the project up to £146 million.”
The Public Order Act 2023 received Royal Assent on 2nd May 2023, and some offences came into force the following day:
Offence of locking on & Offence of being equipped for locking on
These measure criminalise the protest tactic of individuals attaching themselves to others, objects or buildings to cause serious disruption.
The locking-on offence carries a maximum penalty of six months’ imprisonment, an unlimited fine, or both.
The maximum penalty for the offence of going equipped to lock-on is an unlimited fine.
Interference with use or operation of key national infrastructure
This offence covers any behaviour which prevents or significantly delays the operation of key infrastructure, including airports, railways, printing presses and downstream oil and gas infrastructure.
This offence will attract a maximum penalty of 12 months’ imprisonment, an unlimited fine, or both.
An offence related to tunnelling is not yet in force:
Offences of causing serious disruption by tunnelling
These offences will cover the act of tunnelling – which includes creating a tunnel, participating in creating a tunnel and being present in a tunnel – where such an act is causing or capable of causing serious disruption.
The maximum penalties for these offences will be 3 years imprisonment, an unlimited fine or both.
A person will not be charged with an offence if they had a reasonable excuse for creating, or participating in the creation of, the tunnel. A reasonable excuse may include, for example, legitimate roadworks.
This measure will also make it an offence to be equipped for tunnelling with the intention that the equipment may be used in connection with the offences mentioned above. The maximum penalty for these offences will be 6 months’ imprisonment, an unlimited fine or both.
Human Rights Compatibility
Not surprisingly, the government argues that the new laws comply with human rights laws.
As a firm, we intend to thoroughly test that argument and ensure that lawful protest is not unnecessarily criminalised.