The recent riots in Bristol and the police response to the Sarah Everard vigil have both served to spark a wider debate on the proper parameters that the legislature should impose on the right to free assembly and political protest. Amidst the 300 plus pages of the Police, Crime, Sentencing and Courts Bill are a series of provisions, contained within Part 3 of the Bill, as to ‘the maintenance of public order’. These provisions extend police powers in respect of demonstrations and both widens the ambit of existing offences and increases penalties. This article looks at the current powers held by the police to maintain public order, the main proposed changes, and their likely impact on the right to protest.
The current law
The Public Order Act 1986 provides powers by which the police are able ‘to control public processions and assemblies.’ The powers enable ‘the senior police officer’ to impose conditions on public marches (Section 12) and static protests (Section 14). The senior police officer can be the most senior in rank of those present at the scene or, more usually, a chief officer of police (where the police have had advance notice of an assembly / procession due to be held).
Under the current legislation, the power to impose conditions may be exercised where the senior police officer reasonably believes that the public procession or assembly may result in ‘serious public disorder, serious damage to property, or serious disruption to the life of the community’. Conditions may also be imposed where it is reasonably believed that the purpose of the organisers is to intimidate 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’. Such reasonable belief should have regard to the time or place of the public procession or assembly; the circumstances in which it was being held or intended to be held; and, in respect of a procession, its route or proposed route.
The conditions which may be imposed can include the route of the procession, the place at which the assembly may be held, its duration or the maximum number of persons within it. However, the legislation allows any conditions to be imposed as appear to the senior police officer ‘necessary’ to prevent the feared disorder, damage, disruption or intimidation.
Those who organise or take part in a public procession or public assembly and who knowingly fail to comply with a condition imposed are guilty of an offence unless they can prove that the failure arose from circumstances beyond their control.
It can therefore be seen that the powers created by the Public Order Act 1986 provided the police with a wide discretion by which to ensure that public order was maintained in respect of public processions and assemblies.
Notwithstanding these powers, the Extinction Rebellion protests in 2019 demonstrated the potential limitations of their application. In The Queen (on the application of Jones and others) v. the Commissioner of Police for the Metropolis  EWHC 2957 (Admin), the Divisional Court held that, notwithstanding that a single body may have been involved in their organisation, multiple assemblies located in different geographical areas could not be viewed as a single assembly which could be made subject to a ‘global’ condition imposed under section 14.
It was partly set against that background that the proposed legislative changes came to be advanced.
The proposed law
The Police, Crime, Sentencing and Courts Bill sets out proposals to amend sections 12 and 14 of the Public Order Act 1986 in order to widen the circumstances in which the powers available to the police can be used.
The proposed legislation expands the circumstances in which conditions may be imposed to those where there is a ‘reasonable belief’ that noise generated by people taking part ‘may result in serious disruption to the activities of an organisation which are carried on in the vicinity’ of the procession / assembly. Secondly, where noise generated by the participants ‘may have a relevant impact on persons in the vicinity’ and ‘that impact may be significant’. An impact is relevant if it ‘may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity’ or if it ‘may cause such persons to suffer serious unease, alarm or distress’. As part of those considerations, the senior police officer must have regard to the likely number of persons who may experience that impact, the likely duration of that impact on such persons, and the likely intensity of that impact on such persons. Under subsection (4) of Clause 54 of the Bill, the Secretary of State is empowered to clarify, by secondary legislation, the meaning of ‘serious disruption to the activities of an organisation which are carried on in the vicinity’ or ‘serious disruption to the life of the community’.
The ambit of the current offences is also expanded by the draft Bill, which removes the necessity for the prosecution to prove that the failure of an organiser or participant ‘knowingly’ failed to comply with any condition. The proposed offence arises where the person fails to comply with the condition that they know ‘or ought to know’ has been imposed. The maximum sentences for the offence will also be increased to a term of imprisonment not exceeding 51 weeks’ (from the original maximum of 3 months’ imprisonment) in respect of organisers. A participant who fails to comply with a condition they ‘ought to’ have known about may be fined up to a level 4 fine.
In addition to the proposed amendments to sections 12 and 14, the Bill also seek, in line with the recommendations of the Law Commission, to create a statutory offence of intentionally or recklessly causing public nuisance and abolish the common law offence of public nuisance.
This statutory offence would arise where a person’s act or omission ‘causes serious harm to the public or a section of the public’ or ‘obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large’ and that the person either intends their act or omission will have the consequence of serious harm or obstruction or is reckless as to whether it will have such a consequence. The proposed offence thus strengthens the fault element from that required by the common law offence, which could be satisfied by proof that the defendant ‘ought to have known’ the effect of his act or omission.
‘Serious harm’ is defined as including death, personal injury or disease; loss of, of damage to, property; serious distress, serious annoyance, serious inconvenience or serious loss of amenity. However, an act or omission is also said to cause serious harm to a person if that person ‘is put at risk of suffering’ any of those occurrences within the definition of serious harm.
The defence to the statutory offence would arise if a defendant proved that they had a ‘reasonable excuse’ for the act or omission in question.
The proposed amendments of sections 12 and 14 of the Public Order Act 1986 will undoubtedly widen the available circumstances in which the police may impose conditions upon public processions and assemblies. It is argued that the passage of time has meant that the provisions of the 1986 Act have become out-dated and no longer fit for their intended purpose.
However, it is difficult to see what the addition of a nebulous concept of ‘impact’ adds to the existing provisions. Whilst the noise generated by a procession or assembly can be significant, it is submitted that the proposed new sections do not add anything of real substance to the existing provisions. If noise is such to cause intimidation or harassment or unease to those likely to be in the vicinity, it is arguable that this already would fall within the scenario envisaged by ‘serious disruption to the life of the community’. The ‘community’ would surely include not just those who live in a particular area but those who work there. The proposal to afford the Secretary of State the power to issue secondary legislation to define and give examples of ‘serious disruption’ suggests a future elasticity in the statutory definitions, to the arguable advantage of the government.
Equally, the legislation already provides for conditions being imposed where the purpose of a procession or assembly is to intimidate others either to act or not to act in a particular way.
It is unclear as to why, set against the existing provisions, noise needed to be singled out as being of particular concern. Self-evidently, noise is capable both of causing disruption or intimidation in certain circumstances and the proposed amendments therefore would seem to add little of consequence to the current law.
The proposed changes to the offences arising under sections 12 and 14 where those protesting ‘ought to know’ that a condition has been imposed are intended to cover the scenario where protesters deliberately seek to avoid gaining knowledge of the condition in question. Examples given of this scenario are of protesters placing their hands over their ears and tearing up written instructions provided to them by the police.
Whilst it is recognised that deliberate avoidance of conditions imposed under the 1986 Act may well be a feature of the difficulties in policing large-scale processions and assemblies, it is open to question whether the proposed changes achieve their intended aim in a fair and proportionate manner. Those who are part of any large-scale protest will come from a wide cross-section of society and may attend for a variety of reasons. It seems unrealistic to infer that anyone attending a protest would be aware of any conditions being in place, let alone the specific one giving rise to the offence. The failure to distinguish between those who take part in a protest, who may be unaware of any conditions being imposed, and those who organise such a protest, who are far more likely to be aware of them, gives rise to a real risk of unfairness.
So far as the proposed public nuisance offence is concerned, the government’s ‘protest powers factsheet’ on the Bill suggests that this will cover the same conduct as the existing common law offence and would include ‘offensive or dangerous behaviour in public, such as hanging from bridges’. If that is the case, then it rather begs the question as to why the existing offence has not been utilised before now. The reality, one suspects, is either that the authorities will seek to expand the conduct presently covered by the common law offence or that the introduction of the statutory offence is borne from a desire to be seen to be taking action, even where the effect is to maintain the status quo.
Whilst the Bill and its proposals have generated a significant degree of controversy thus far, it is submitted that the more worrying trend on display comes from the legislature’s desire to create yet more law to solve a perceived problem, rather than considering properly whether the existing powers are sufficient.
Furthermore, the introduction of more legislation to increase police powers will inevitably lead to legal challenges as to the scope and extent of them. The use of the ‘kettling’ tactic by police in protests in 2001 took over a decade to resolve in the courts. Far from clarifying the legal position so far as protests are concerned, it is submitted that the new Bill is more likely to lead to uncertainty when the police powers inevitably come under judicial scrutiny.