��������Protest and Human Rights�in the UK

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• Key Issues with Right to Protest in UK
• Then Police, Crime, Sentencing and Courts Act 2022
• The Public Order Bill

Introduction

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• Freedom of Expression and assembly Common Law rights
• Also protected by the ECHR/HRA
• Long history of critical speech and public protest in the UK.
• However, over the years this has been regulated/curtailed to a very significant extent by the criminal and civil law and by developments in policing tactics

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Right to Protest Background

No

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Key Issue: Criminal Law

• Lots of forms and methods of protest are constrained by the law
• Aggravated trespass
• Assaulting/resisting/obstructing a police officer in the execution of their duties
• Breach of the Peace
• Criminal Damage
• Failing to comply with orders
• Location specific offences and byelaws
• Obstruction of the Highway
• Public Nuisance
• Public Order Offences
• Watching and Besetting
• Harassment
• Standard Defences against prosecution
• Self Defence/Defence of another (including the prevention of a crime)
• Necessity
• Reasonable excuse

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Key Issue: Human Rights as a Defence

• Protest protected by articles 10 and 11 ECHR/HRA
• Interference with those rights must be in accordance with the law, proportionate and necessary in a democratic society.

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• Issue of human rights protections in protest cases that would otherwise be caught by the criminal law.

• Do prosecutors have to separately prove that on the facts of the case not only have the elements of an offence been made out but that separately, it would be proportionate and necessary to convict?

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• Ziegler/Colston/Cuciurean/NI Abortion Safe Access Zones

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‘Civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to arm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.’

Lord Hoffman, Jones & Ors 2007

Key Issue: Conscientious Protest as Mitigation

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Gro

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Key Issue: Location of Protests

• European Court: Protester’s choice of location at the core of assembly rights
• Courts have been very accommodating of law and policy decisions that limit or prevent protest near certain places or individuals
• Parliament Square (2011 Act and PSCS Act)
• Public Space Protection Orders (Anti-Social Behaviour, Crime and Policing Act 2014)
• Cornwall G7 ‘protest zones’
• NI Abortion Buffer zones issue

Gro

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Key Issue: Injunctions

• Increasing use by private companies of civil injunctions against both named protesters/groups and ‘person’s unknown’

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• If breached a contempt of court and serious fines and prison sentences. Also litigation costs

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• Circumventing the criminal process and statutory sentencing powers for relatively minor criminal or civil offences accompanied by the conscientious protest mitigation (discussed above)

• Intimidation/Chilling effect

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Much focus on prosecution, but police conduct just as/if not more important

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Key Issue: Policing Tactics

• Kettling
• Courts have found not a violation of articles 10 and 11 or Art 5 Right to Liberty
• Police Spies
• Special Demonstration Squad - sexual relationships with activists
• Public inquiry under Sir John Mitting.
• IPT, Wilson case – breaches of articles 3, 8 , 10, 11 and 14
• Arrest of Journalists – JSO and Conspiracy to Commit Public Nuisance

Gro

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And as if all that wasn’t enough…

The Police, Crime, Sentencing and Courts Act 2022

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• Largely in response to climate protesters, XR, JSO, Insulate Britain, but also Black Lives Matter

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• Greatly expands powers to curtail and criminalise peaceful protest

Gro

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PCSC Act 2022 Key Measures

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• Expands powers of police to ‘impose conditions’ on protests
• Targeting noise which causes ‘alarm or distress’; and
• ‘serious disruption to the life of the community’ including disruption to time-sensitive products and prolonged disruption to essential goods or services
• Minister gets to make regulations defining these things
• Criminal offence and 1 year in prison to fail to comply with a condition that you know or ought to have known was in place

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• Adds to prohibited activities in the vicinity of Parliament, including making the passage of vehicles into and out of Parliament ‘more difficult’
• Replaces common law ‘public nuisance’ offence with a new one. Criminalises doing an act, or omitting to do an act, which causes ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity.’ Without reasonable excuse and creates broad and vague ‘conspiracy’ grounds (see journalists arrests above)
• Extends these powers to one-person protests
• Increases punishment for obstruction of the highway
• Creates ‘expedited’ PSPOs, so they are easier for public authorities to obtain

Gro

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And even that wasn’t enough…

• Government attempts to amend the PCSC Bill led to

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• The Public Order Bill

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• Currently in the later stages of the Lords.
• Lords gearing up for a fight

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Gro

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Key Measures in the Public Order Bill

• Criminalises ‘locking on’ and going equipped to lock on
• Criminalises ‘serious disruption’ by tunnelling, being in a tunnel and going equipped
• Criminalises obstruction of major transport works (roads, HS2, Heathrow etc)
• Criminalises interference with key national infrastructure (oil, rail, road but also newspaper printing presses)
• Expansion of powers to stop and search both with and without suspicion
• Power for the Home Secretary to get injunctions
• Serious Disruption Prevention Orders

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Gro

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And even that wasn’t enough…

• Lords amendments defining ‘serious disruption’ - more than a minor degree

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• Government amendments to it’s own Bill
• To give police powers to use all of the above pre-emptively, ie. before any serious disruption has actually taken place, and the justify this based on past conduct

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