On Sunday at the Conservative Party conference in Manchester, Home Secretary Priti Patel announced the latest punitive proposals for new police powers in her ongoing vendetta against political and social movements the government refuses to engage with.
Update: In January 2022 the House of Lords voted to reject many of these proposals and the Parliamentary process continues. For a refresher on the Bill’s original contents, see our explainer from April 2021.
Obstructing the highway
The new measure that has attracted the most media coverage is tougher punishments for obstructing the highway, in response to motorway protests by the group Insulate Britain. If enacted, Patel’s plans would mean a conviction for obstructing a highway will change from a maximum of a £1000 fine to an unlimited fine, six months imprisonment, or both.
This is unlikely to deter campaigners who are committed to using direct action tactics to highlight the lack of government action on the climate crisis: civil injunctions taken out by the National Highways agency have so far failed to stop protests, despite protesters being threatened with contempt of court charges.
However, the poorly-conceived intention here is apparently to make it easier to hold particular detainees on remand until they are brought for trial, which the police cannot do right now because blocking a road is not considered a serious enough offence.
In practice, the law says an offence is committed only if an individual blocks a road “without lawful authority or excuse”. Protests often block roads and can represent a “lawful excuse” for temporarily holding up traffic, so the police and the courts (if someone is charged with an offence) are supposed to consider Article 10 rights to freedom of expression and Article 11 rights to freedom of assembly.
Our worry is that by suddenly treating any inconvenience to traffic as a serious crime, the government is encouraging the police to make more arrests, more quickly, in circumstances that are unfair and arbitrary – the same outcome the new provisions in the Police, Crime, Sentencing and Courts Bill on shutting down “noisy protests” seem intended to achieve.
Stop and search for “lock-on” equipment
However, of equal concern is the less publicised intention to expand stop and search powers currently intended for tackling alleged serious violence (under section 60 of the Criminal Justice and Public Order Act 1994) in order to grant police officers the ability to search protesters suspected of carrying so-called “lock-on” equipment.
Section 60 provides blanket search powers that allow the police to search anyone in a designated area for a set length of time. These powers are supposed to be used to search for weapons and are already hugely controversial, as they excuse the police from needing to show “reasonable grounds for suspicion” when stopping someone and have largely been used for racist harassment. Black people are 40 times more likely to be stopped under Section 60 powers than their white counterparts, and less than 2% of searches result in any further police action. In May 2021, the Criminal Justice Alliance made a super-complaint calling for the repeal of Section 60.
What expanding the scope of Section 60 will mean in practice is that anyone linked to a protest group that has used civil disobedience tactics will be liable to be stopped and searched on their way to or during a demonstration, facing targeting and harassment by the police simply for wearing a badge or carrying a protest banner that identifies them as a campaigner – regardless of whether they are engaged in direct action or not.
It is not as though the police need an excuse to treat entire movements as “illegitimate”. Our report on the policing of the Extinction Rebellion protests in October 2019 in London highlighted how:
“The zero-tolerance of any disruptive protest adopted by the police led to the perception of all XR supporters as “criminals”, who were judged not by their individual actions, but by their association with an “illegal” movement. This delegitimisation included the abuse of stop and search powers and confiscation and destruction of protesters’ property”.
An ill-thought-through expansion of stop and search powers such as this is likely to face legal challenges – as Kent Police found after their operation based on harassment, intimidation and violence at the Kingsnorth Climate Camp in 2008. However, some of the damage will already have been done. Both new proposals from the government are focused on removing legitimacy from protest groups the Home Secretary and her media allies have condemned as “extremists”. Prime Minister Boris Johnson has explicitly referred to “illegitimate protestors”.
This kind of criminalisation rarely succeeds in shutting down protest movements – but if new legal powers are granted, then the police will prove eager to use them.
There is a real risk that more people facing searches will increase racist police targeting of Black and Brown campaigners, as well as having a ‘chilling effect’ in discouraging some from participation in protests, in breach of their human rights.
UPDATE – 5 October 2021
Criminal Disruption Prevention Orders
This morning’s announcement that the Home Secretary wants to introduce new Criminal Disruption Prevention Orders aimed at preventing some campaigners from attending demonstrations – because they have a “history of disruption” or are likely to commit crime – is another dangerous escalation in the government’s efforts to suppress dissenting voices.
The details are as yet unclear but if such orders are made by judges in court following an application by the police, they may prevent an individual from participating in future protests following convictions for relatively minor, non-violent offences on conscientious grounds. This would involve an important departure from international human rights guidance endorsed by the British government. For example, last year’s United Nations Human Rights Committee “General comment No. 37” on the right to peaceful assembly says:
“33. The obligations of States parties… extend to actions such as participants’ or organizers’ mobilization of resources; planning; dissemination of information about an upcoming event; preparation for and travelling to the event; communication between participants leading up to and during the assembly; broadcasting of or from the assembly; and leaving the assembly afterwards”
It also counteracts the landmark House of Lords ruling from 2006 that Gloucestershire police acted unlawfully by preventing campaigners from travelling to a demonstration at RAF Fairford to protest against the Iraq war.
If, however, Criminal Disruption Prevention Orders are like the highly controversial and similarly “preventative” Knife Crime Prevention Orders, a conviction is not necessarily a prerequisite. Because they are civil orders, 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 on intelligence from the police.
Knife Crime Prevention Orders are used to criminalise predominantly Black youth, placing extreme restrictions on where they can go, who they can associate with, and placing them under invasive police surveillance. A breach of a knife crime order can lead to a prison sentence of up to two years. The same may apply to disruption prevention orders.
If this is the model, today’s announcement is another reminder of the need to avoid seeing new restrictions on protests in isolation from wider and existing repressive policing in local communities.
Just as it has with knife crime and “gangs”, identifying targets who might break the law is an invitation to rapidly expand police intelligence gathering, in this case on a range of social and political movements. In March, a review on the policing of protests by the inspectorate body HMICFRS gave a green light for increased surveillance on so-called “aggravated activists”.
The review called for greater coordination to target alleged campaigners labelled in this way who are “travelling significant distances” to attend and speak at demonstrations “through disruption of travel, arrest, and co-ordination of bail conditions.”
The new Criminal Disruption Prevention Orders seem like the mechanism for imposing such disruption.
UPDATE – 29 November 2021
As the Bill has passed through the Lords, various amendments and revisions have been proposed to alter the provisions. Four important new clauses have also been introduced to Section 3 of the Bill.
Introducing a new criminal offence of “locking on”
This amendment would make it a criminal offence for someone to attach themselves or another person “to another person, to an object or to land” if they cause, or may cause, “serious disruption” to two or more individuals or an organisation. It also introduces an offence of being equipped to lock on. The penalty for this would be a fine or a maximum of 51 weeks imprisonment. The 51 week penalty is misleading however – due to some complexities already existing in law, the 51 week sentence for all of these new offences would in effect be lessened to a 6 month sentence.
It also suggests increasing the existing penalties for obstructing the highway to bring them in line with this new offence. The current penalty is a fine of up to £1,000, but this would introduce a heavier maximum sentence of either a fine or 51 weeks in prison.
Introducing a new offence of impeding major transport works
In response to the HS2 and environmental protest movements, a new offence of obstructing major transport works has been proposed. This would specifically criminalise people who impede the construction and/or maintenance of major transport works, including any actions which interfere with machinery and work. The maximum penalty for this new offence would be a fine or 51 weeks imprisonment.
Introducing new stop and search powers for protests
A proposed amendment would allow the police to search people if they believe they are planning to commit the new offence of ‘locking on’, obstructing transport works, or if they are carrying lock on equipment.
Currently, the police are only allowed to search you if they suspect you are carrying weapons, stolen goods, or items with which to commit a crime. In conjunction with the new criminal offences, this means that the government and police will treat locking on and direct action as an entirely unjustified and criminal tactic.
In addition, a new “suspicionless” set of stop and search powers has been proposed specifically to deal with protests. These new powers are modelled on the existing and highly controversial Section 60 search powers that are used to target people of colour and allow officers to search for weapons without needing to demonstrate reasonable grounds for suspicion.
These new powers would allow officers to conduct searches in allocated areas (such as large protests or protest sites) for up to 24 hours if they suspect anyone in the area is planning a ‘lock on’. Under the new powers, a senior officer at, for example, an oil or gas drilling site could authorise police to search anyone in that locale for lock-on equipment, and allow them to seize any items they deem “prohibited objects” without needing to justify their actions.
Serious Disruption Prevention Orders
The government has now given specific details about these new orders: if you are convicted of two “protest-related offences” in five years, the courts can apply for a Serious Disruption Prevention Order.
They are designed to stop someone from committing any further “protest-related offences” or breaching an injunction as part of a protest, helping anyone else to do so, and to prevent you from “carrying out activities related to a protest that results in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.
However, under these alarmingly draconian new Orders, you do not have to have been found guilty of any “protest-related offences” – the courts can place you under an Order if they reasonably believe that on two or more occasions in a five year period, you have “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” or helped someone else to do so.
Anyone who has organised with a direct action group or participated in a large-scale protest could be at risk.
Modelled on the draconian Knife Crime Prevention Orders that systematically criminalise Black youth, Serious Disruption Prevention Orders can:
- require people to report to police stations,
- ban them from attending protests,
- ban them from going to particular places (such as the site of a demonstration or march) at particular times,
- stop them from associating with particular people (such as a ban on being with friends involved in the same protest movement),
- ban them from having particular items (such as superglue or D-locks), and
- ban them from “using the internet to facilitate or encourage persons to commit protest-related offences” – a provision so broad that it could criminalise sharing a protest announcement on Facebook or Twitter.
Anyone given an Order would face regular reporting to the police to make it easier for them to keep track of your address and movements.
Serious Disruption Prevention Orders could vary in length from a week to up to two years, although the police and courts can renew them indefinitely. If you’re found to be in breach of any part of the order you could face a prison sentence of up to 51 weeks.
If you are placed under an Order, it is also a criminal offence if you fail to notify the police of any changes to your address or personal information, or if you give incorrect information to the police.
The effect of these Orders, if introduced, could be to ban political organisers from attending, organising, or promoting protests seen as “disruptive to two or more individuals or to an organisation” for two years or more, even if they have never been convicted of a crime.
However, the state may decide you are guilty of a crime if you break the rules of the Order in any way – or even fail to notify the police that you’re staying somewhere else.