Public Order Act 2023 – Safer Protesting or Stripping Your Rights?

It has been ingrained into us as a democratic society that we have a freedom of expression and a freedom of assembly (under Article 10 and 11 of the Human Rights Act 1998). These rights are of course restrictable though – where public authorities can show it is lawful, necessary and proportionate to do so. This can be for a number of reasons; one which is often used is to protect national security, territorial integrity or public safety.

We’ve established that these rights can be restricted in some scenarios, but how has this played out in practice?

The ability to restrict a person’s freedom and assembly has historically faced criticism and has led to much case law being produced on the matter. You may recall the case of Observer and The Guardian v United Kingdom [1991] where the newspapers were prevented from printing sections of a book which revealed information about MI5 following the government application for an injunction. Such a restriction was upheld as the Courts deemed it necessary to restrict the newspapers expression as it related to the interests of national security. This is of course a rather far removed example from what you or I might encounter when facing a restriction on our expression or liberty.

Concerningly, that threat of a restriction of our liberty has become more apparent through the introduction of the Public Order Act 2023. You will likely be aware that a Public Order Act already exists and was enacted in 1986 which already limited our expression and liberty.

So, Why the New Act and What Does it Propose to Do?

The new Public Order Act enables police officers to arrest protesters in a number of new scenarios that would to date have not resulted in a lawful arrest taking place. In doing so, the act allows officers to ‘respond more effectively to disruptive and dangerous protests’ and suggests that this will be better and safer for much of society. In summary the new act introduces:-

• New criminal offences of locking-on and going equipped to lock-on. This means that protesters who express resistance by attaching themselves to something will be committing an offence and therefore arrestable by police officers. Partaking in such an act can result in a maximum of six months imprisonment, an unlimited fine or both.
• A new criminal offence of obstructing major transport works. This covers an individual who interferes with or obstructs construction or maintenance of major road transport projects. Partaking in such an act can result in a maximum of six months imprisonment, an unlimited fine or both.
• A new offence of interference with key national infrastructure. This makes it an offence to obstruct the operation of key infrastructure such as airports and railways. Partaking in such an act can result in a maximum of 12 months imprisonment, an unlimited fine or both.
• A new offence of causing serious disruption by tunnelling. This criminalises the action of creating a tunnel and/or being present in a tunnel where it causes or is capable of causing serious disruption unless it is for a ‘legitimate reason’. Partaking in such an act can result in a maximum of six months imprisonment, an unlimited fine or both.
• The extension of police powers to stop and search for seize objects. This is an add on to the powers available to the police under the Police and Criminal Evidence Act 1984. The new act allows for such searches to be undertaken lawfully without the need for any suspicion if an officer of or above the rank of inspector gives the authority to do so.
• Use of serious disruption prevention order. This prevents protesters who have protested previously from repeatedly protesting where they are deemed to be inflicting disruption on the public. Conditions of an order of this kind can entail prohibiting a person from attending a particular place or engaging with certain people i.e., other protesters. Breach of an order can further result in a maximum penalty of six months’ imprisonment, an unlimited fine, or both.
• Allowing officers, the minimum rank of an officer who can attach conditions to upcoming protest to be lowered. Such a rank requirement has now been lowered to Commander/assistant chief constable.
• New powers to the British Transport Police and Ministry of Defence Police. This is in addition to the territorial forces of England and Wales.
• The power to The Secretary of State to bring civil proceedings as a result of protest activity where it is likely to cause a serious disruption or adverse effect on public safety. Such proceedings can amount to an injunction being imposed and powers of arrest granted for a breach of the injunction.
• Introduction of abortion clinic safe access zones, which make it a criminal offence to interfere with a person’s decision to pursue an abortion in one of these zones.
• Protection for journalists. This provides safeguarding measures for journalists, preventing the police from interfering with the reporting of a protest unless it is to maintain public order and public safety, for other legitimate purposes.

Unsurprisingly, since the act’s enactment in May 2023, officers have relied on the powers provided under it. Such powers were relied on heavily during King Charles’s Coronation, which saw many protesters expressing their unhappiness with the event – such as through signs with the wording ‘NOT MY KING’. In anticipation that protesters may be out in force, the new order was rushed through and only given royal assent (the Monarch’s approval) four days prior to the Coronation. Having been passed so soon before the Coronation, officers had to quickly learn and understand the new powers that would be granted to them in such a short space of time; a massive task for anyone.

As the day of the Coronation arrived, officers used the new abundance of power and took to arresting numerous protesters.

A total of 64 arrests were conducted during the Coronation and 52 of these were due to the belief that individuals were going to cause disruption – NOT because they had actually caused disruption. These included the arresting of female safety workers, who were handing out rape alarms. Such arrests in the police’s eyes were proportionate as they believed the purpose of the alarms were to scare their horses. A review is now under way (by the Metropolitan Police) to identify if any of the arrests were disproportionate and therefore unlawful.

It will be more than just those 65 people arrested duration the Coronation that find the outcome of this ‘review’ interesting. In light of the additional powers now available to the police, it is clear that there is a potential for the new powers to be interpreted incorrectly by officers and for it therefore to be misused. Unfortunately, this will undoubtedly lead to members of the public (who are relying on their rights under Article 10 and 11 of the Human Rights Act 1998) being unlawfully arrested and thereafter coming to the realisation that the Human Rights act does not afford the same strength of rights that it once did.

Within Irvings Law, we have experience in representing protestors who have been treated disproportionately by police. If you too feel as though you have been treated wrongly during a protest please do not hesitate to get in touch with us on 0151 475 1999 or alternatively via email at info@IrvingsLaw.com.