Imposing conditions on noisy protests
In England and Wales, the Police, Crime, Sentencing and Courts Act strengthens the police’s ability to impose conditions where there is a risk that noise will cause ‘serious disruption’.
This 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 Act gives the Home Secretary powers to make regulations without reference to Parliament and give examples of the type of protest deemed acceptable by the state, in order 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.
Previously, there were different powers to deal with a march and a static assembly. The new law allows senior police officers to give directions imposing conditions on those organising or taking part in either a procession or assembly that the police decide are necessary to prevent “disorder, damage, disruption, impact or intimidation”.
Who will these proposals affect?
This creates is a situation where far more protests, far more often, are likely to face the prospect of having conditions imposed on them.
We know from experience that the police are already quick to impose restrictions and conditions on protests, which is why any organisation that is likely to make its voice heard noisily should feel alarmed by these changes.
Furthermore, any trade union picket line or protest calling for an ethical boycott of a business that successfully persuades people from entering a company’s premises may find its owners starting to ask the police to shut down pickets or protests.
The same is true of repressive governments insisting that the police act to prevent “disruption” by embassy protests.
Every effective environmental protest over the last two decades, from local opposition to fracking sites, open cast coal mining or airport expansion, has caused disruption to corporate interests. The Act gives the police far greater powers to impose restrictions on this kind of political movement in the future.
Breaching conditions imposed on a protest
Previously the Public Order Act 1986 said a protester may face arrest if they “knowingly fail to comply with a condition”. The Police, Crime, Sentencing and Courts Act amends this so it is an offence if “a person who knows or ought to know that the condition has been imposed”.
The government claimed in a factsheet in March 2021 that this was intended to “close a loophole which some protesters exploit” because “some will cover their ears and tear up written conditions handed to them by the police so that they are likely to evade conviction for breaching conditions on a protest”.
The prosecution in a trial previously had to prove that the defendant knowingly failed to comply with a condition imposed by the police. Now the obligation is on the defendant to show why they could not have known about such conditions.
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.
Intentionally or recklessly causing a public nuisance
The Police, Crime, Sentencing and Courts Act abolishes the current common law offence of public nuisance and creates a new statutory offence of causing “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”.
Public nuisance has been ripe for reform for many years and covers not only demonstrations but a range of situations, such as factory pollution and sewage leaks into rivers. However, the government sent a clear signal in the new Police, Crime, Sentencing and Courts Act about whom it expects to face charges for public nuisance, by choosing to include this in the section of the legislation concerned with public order and protests.
It is not yet clear what any of the terms covered by the new public nuisance offence will mean for protesters.
However, serious loss of amenity does seem to indicate that protests outside a company that result in it losing business are more likely to tempt the police into greater use of public nuisance charges.
A new statutory offence would result in a maximum sentence if tried in a Magistrates Court of six months in prison and a fine (or both) and for more serious cases tried in a Crown Court, of up to 10 years in prison.
Tough new sentences for obstructing the highway
The Police, Crime, Sentencing and Courts Act has amended section 137 of the Highways Act 1980 to increase the maximum penalty for obstruction of the highway, from a fine to up to six months imprisonment.
New offences around Parliament
The Act also extends the “controlled area” around Parliament where particular laws apply and adds a new offence of “obstructing, by the use of any item or otherwise, the passage of a vehicle of any description into or out of an entrance into or exit from the Palace of Westminster controlled area”. This seems in particular aimed at locking the road around Parliament Square and up as far as the Cenotaph.