The Public Order Act 2023 received Royal Assent on 2 May 2023 and introduced new offences aimed at trying to limit the disruption caused by protests.
Whenever new legislation is introduced, Parliament should always consider if it is compatible with UK laws and Human Rights. Some have argued that this legislation disproportionately limits the right to protest and restricts freedom of expression and assembly (Articles 10 & 11). What is clear is that the direction of this Government (and in all likelihood any Government that follows) is to try and limit the ‘nuisance’ that a protest causes rather than facilitate such protests.
The key new elements within the 2023 Act are as follows:
The introduction of new criminal offences
- Sections 1 and 2, Locking-on and going equipped to lock-on: covers those who attach themselves to others, objects, or buildings in order to cause serious disruption. It now 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 will be an unlimited fine
- Section 6, Obstructing major transport works: covers acts that obstruct or interfere with the construction or maintenance of major transport projects. The maximum penalty for this offence is six months imprisonment, an unlimited fine, or both
- Section 7, Interference with Key National Infrastructure (as defined in s8): covers acts which prevent or significantly delay the operation of key infrastructure, including airports, railways, printing presses and oil and gas infrastructure. This offence carries a maximum penalty of 12 months imprisonment, an unlimited fine, or both
Extending of Stop and Search Powers
Sections 10 and 11 extend stop and search powers for the police to search for and seize objects (such as locking-on devices) that may be used in the commission of a protest-related offence. It permits a police officer of or above the rank of inspector to authorise stop and search without the need for suspicion, amending Section 1 of the Police and Criminal Evidence Act 1984. This power is exercisable anywhere within a specific locality within the officer’s police area, and for no longer than 24 hours.
Serious Disruption Prevention Orders (SDPO)
Sections 20–29 allow the courts to place requirements that they consider to be necessary in order to prevent someone from causing serious disruption. It must be necessary to impose for a specified purpose – this includes preventing the individual from committing another protest-related offence.
An SDPO on conviction may only be imposed when an individual, aged 18 or over, convicted of a protest-related offence, has on a previous occasion within the relevant time period:
- Committed another protest-related offence for which the individual was convicted, or
- Committed a protest-related breach of an injunction for which the individual was found in contempt of court
The protest-related offence for which the individual was convicted, and the previous offence or breach must relate to different protests or have taken place on different days.
Additionally, a court may only impose an SDPO on application by police where the court is satisfied, on the balance of probabilities, that an individual over the age of 18 on at least two occasions in the relevant period has:
- Been convicted of a protest-related offence, or
- Committed a protest-related breach of an injunction for which the individual was found in contempt of court
The two occasions must relate to different protests or have taken place on different days.
The relevant period for consideration of convictions or behaviour will be five years prior to the day an SDPO is imposed. However, a court will only be able to look back to when the individual was aged 16 or over.
Prohibitions or requirements imposed on a person given an SDPO may include prohibiting an individual from being in a particular place, being with particular people, having particular articles in their possession, and using the internet to facilitate or encourage people to commit a protest-related offence.
Breach of an SDPO without reasonable excuse is a criminal offence carrying a maximum penalty of six months imprisonment, an unlimited fine, or both.
Extending the powers to manage public assemblies to the British Transport Police and the Ministry of Defence Police
Section 16 extends the powers to manage public assemblies in part II of the Public Order Act 1986 to the British Transport Police and Ministry of Defence Police. This includes the power to place conditions on public assemblies and single person protests in certain circumstances.
Enabling the Secretary of State to bring civil proceedings in relation to protest activity
Section 18 enables a Secretary of State to bring civil proceedings where protest action is causing, or is likely to cause, serious disruption to key national infrastructure or access to essential goods or services in England and Wales, or where protest activities have, or are likely to have a serious adverse effect on public safety. Where the court grants an injunction in the context of those proceedings, the measure enables the court to attach a power of arrest.
Director of Public Prosecutions v Eastburn [2023] EWHC 1063 (Admin)
In the same week that the Public Order Act received Royal assent, those wishing to exercise or support public protest received another blow when judgment was given in the appeal by the DPP by way of case stated in a protest case from events in 2020: Director of Public Prosecutions v Eastburn [2023] EWHC 1063 (Admin).
The facts are that Ms Eastburn sat down in Parliament Street which is adjacent to Parliament Square, where many protests by Extinction Rebellion were taking place. The police concluded this was unlawful as a direction had been given under s14 Public Order Act 1986 that the protest had to be confined to Parliament Square. She was acquitted in the Magistrates Court and the DPP appealed against that decision by way of case stated.
The appeal was allowed (Lord Justice Bean and Mrs Justice Furbey) as the High Court concluded that when an offence-creating statute, where the ingredients of the offences in themselves ensure the compatibility of a conviction with a defendant’s rights under Article 10 & 11, there is no requirement for the prosecution to prove that any interference with those rights has to be proportionate. Effectively the High Court concluded that District Judge was wrong to allow a proportionality exercise when exercising their judgment with regard to the verdict, this exercise should have taken place at sentencing. The case was remitted back to the magistrates’ court with a direction to convict and sentence to be given.
Our Criminal Defence Lawyers offer expert advice in relation to the issues covered in this piece.
Shivani Soni, Paralegal in our Crime, Extradition, Fraud and Regulatory team, contributed towards this blog.
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