What is the Public Order Act 2023 and what are the related provisions of the Police, Crime, Sentencing and Courts Act 2022?

The Public Order Act 2023 is a new piece of legislation, passed by the UK Parliament in May 2023 – notably days before the coronation of King Charles III. The Act aims to give the police greater powers to ‘crack down’ on protest tactics such as those being used by climate and animal rights protesters. Benjamin Knight and Anthony Williams explore where the law now stands and the implications for us all.

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What are the key provisions of the Public Order Act 2023?

The Public Order Act 2023 introduces a number of new protest-related offences, including:

  • Locking on (Section 1): This offence is committed when a person attaches themselves, another person, an object, or land in a way that causes or is capable of causing serious disruption to individuals or an organisation. (Maximum penalty of six months’ imprisonment, an unlimited fine, or both.)
  • Being equipped for locking on (Section 2): This offence is committed when a person has an object with the intention that it may be used in the course of or in connection with the commission of an offence under the offence of locking on. (Maximum penalty for the offence of going equipped to lock-on will be an unlimited fine.)
  • Tunnelling (Section 3, 4, and 5): This offence is committed when a person tunnels under or into a place in a way that causes or is capable of causing serious disruption to individuals or an organisation. There are several offences under these provisions, including causing serious disruption by being present in a tunnel and being equipped for tunnelling. A person will not be charged with an offence if they had a reasonable excuse for creating, or participating in the creation of, the tunnel. A reasonable excuse may include, for example, legitimate roadworks. (Maximum penalties for these offences will be 3 years imprisonment, an unlimited fine or both.)
  • Obstructing major transport works (Section 6): This measure will cover certain protest behaviour which obstructs or interferes with the construction or maintenance of major transport projects such as HS2. (Maximum penalty of six months’ imprisonment, an unlimited fine, or both.)
  • Interference with key national infrastructure (Section 7): This offence covers any behaviour which prevents or “significantly delays” the operation of key infrastructure, including airports, railways, printing presses and downstream oil and gas infrastructure. (Maximum penalty of 12 months’ imprisonment, an unlimited fine, or both.)

Outside of the new protest offences, there are other crucial additions to the 2023 Act. In particular, section 11 provides that where police officers of the rank of inspector or above reasonably believe that one of a list of protest-related offences (set out in s11(1)) may be committed in the area, and that persons may be carrying objects intended for use to commit such offences (‘prohibited objects’) in that area, then they may grant authorisation to constables in the area for 24 hours to stop and search any persons or vehicles for those prohibited objects without reasonable suspicion or grounds for believing that they may in fact be involved in such offences or carrying prohibited objects.

In other words, if an inspector or higher thinks that a protest is going to take place in a particular locality which might involve an offence under, say, s1 or s7 of the 2023 Act or an offence under s137 of the Highways Act 1980, and that protesters may bring objects with them to engage in a lock-on, they can grant authority for 24 hours to all constables in that particular locality to stop and search anyone for the sake of finding those objects, with no requirement to justify the search of any particular person or vehicle.

What are the implications of the Public Order Act 2023 for protesters?

The 2023 Act has a number of serious and concerning implications for protesters. 

Section 7 came into force on the day the 2023 Act was enacted (2nd May 2023). Sections 1 and 2 came into force on 3rd May 2023 (by virtue of the Public Order Act 2023 (Commencement No. 1) Regulations 2023).

  • It is now an offence to lock on to anything in a public place. This means that protesters who chain themselves to fences, trees, or other objects could be arrested and charged with a criminal offence.
  • It is also an offence to be equipped for locking on. This means that protesters who carry objects with them that could be used to lock on, such as chains, ropes, blocks or other devices could also be arrested and charged with a criminal offence.
  • It is now a specific and separate offence to interfere with any “key national infrastructure”. A list of examples appears in s7(6) and includes road transport infrastructure, rail infrastructure, or newspaper printing infrastructure.

In general, it appears that the above provisions have been enacted to ‘get around’ arguments generally raised in cases where a protest takes place on or near boundaries.

For example, in cases where protesters are charged with obstructing the highway or aggravated trespass, it is often argued on behalf of protesters that the Court has insufficient evidence and cannot be sure as to the location of the boundary, therefore cannot be sure whether the protesters were on public land or on private land (as applicable) and a key element of the offence has not been proved. The offence under section 7 appears to be an attempt to circumvent such arguments by focusing on the nature of what is being interfered with, and the mechanism of interference, rather than the location.

Sections 1 and 2 in particular are also clearly an effort to discourage the specific tactic of locking on. This is likely because, in addition to the disruption caused by those who lock on, it is often argued by prosecutors that significant police resources are required to safely remove protesters from a lock-on to enable an arrest. Removing and arresting a locked-on protester can involve several trained officers with specialist equipment and can take several hours.

Aside from the new offences, the implications of the “power to stop and search without suspicion” under section 11 (not our words – the title of that section in the Act itself) should be concerning to all in a democratic society, whether you are involved in activism or not. If anyone is in the locality of a possible protest site – whether or not they are in any way linked to the protest – they are liable to be searched without explanation or justification, ostensibly under the guise that police officers in the area are trying to find objects that might be used to further the protest. Without the safeguard of reasonable suspicion, it is easy to see how that power might be abused.

At the time of writing, Sections 3-6 and 11 are – thankfully – not yet in force, but it is presumably a matter of time before those sections are commenced by a further Statutory Instrument.

What powers does the Secretary of State gain to create secondary legislation, regulation, or to bring proceedings as a result of the 2023 Act?

For example, section 13 provides that the Secretary of State may make regulations regulating the retention and safekeeping, and the disposal or destruction in circumstances prescribed in the regulations, of any object seized by a constable under Section 11. 

Additionally, in section 18, the Secretary of State may bring civil proceedings relating to protest-related activities in the name of the Secretary of State if the condition in subsection (2) or (3) is met, and the Secretary of State considers it expedient in the public interest to do so. 

Those are not the only two examples of powers put in the hands of the Executive or the police. The Public Order Act 2023 provides several other examples of places where the Chief Constable of the Ministry of Defence Police may prohibit the holding of all trespassory assemblies for a specified period, including places within section 2(2)(a) to (c) of the Ministry of Defence Police Act 1987, places within section 4(1) of the Atomic Weapons Establishment Act 1991, and places within subsection (1) of section 5 of the Defence Reform Act 2014

The Act also prohibits protests that cause serious disruption to the life of the community or significant damage to historical, architectural, archaeological, or scientific sites. 

The Act provides for police powers to stop and search individuals and vehicles suspected of carrying prohibited objects, which include objects made or adapted for use in connection with certain protest-related offences. 

The Act also includes provisions related to the exercise of police powers in relation to journalists and the power of the Secretary of State to bring civil proceedings related to protests causing serious disruption to national infrastructure or public safety.

Many of these provisions have yet to come into force at the time of writing. Section 13 is currently in force for the purposes of enabling the Secretary of State to make regulations in relation to Section 11 (which is not currently in force). As above, it can only be a matter of time before a further Statutory Instrument brings them into play.

The Police, Crime, Sentencing and Courts Act 2022

The Police, Crime, Sentencing and Courts Act 2022 (‘the PCSC Act’) is another major piece of legislation that makes changes to a wide range of criminal justice-related areas in England and Wales, including policing powers, sentencing, and court procedures. The Act was introduced by the UK government and passed into law in 2021, with some provisions coming into effect immediately and others being phased in over time. 

The PCSC Act has been the subject of much debate and controversy, particularly around its provisions relating to protests and public order, which have been criticised by some as overly restrictive and potentially infringing on civil liberties. Indeed, most criminal lawyers in the public eye (including on social media) warned that the powers introduced by the 2022 Act would result in arrests that were intended solely to prevent peaceful protest. This was a view echoed by domestic and international human rights organisations. Parliament ultimately dismissed these concerns (despite the House of Lords rejecting the legislation twice). 

It is included in this article because at least some of the controversial arrests that took place on the day of the coronation of King Charles III were purportedly pursuant to the 2022 Act (not the 2023 Act). Specifically, an offence cited was “incitement to commit public nuisance”. It is also of note that those arrests resulted in no charges – with bail cancelled within 60 hours of the arrests. Commentators are of the opinion that the arrests were questionable and not on the basis of ‘intelligence’ but were a misuse of the statutory powers in order to remove the right to protest for those who wished to oppose the continuation of the British monarchy. 

The opinion of the commentators appears to have been significantly vindicated by the muddled and inconsistent social media statements issued by the Metropolitan Police in the almost immediate aftermath of the coronation. The maxim that applies appears to have been that, “it is easier to ask for forgiveness than to seek permission”. 

Reportedly, Graham Smith of Republic received an apology from the Metropolitan Police (which he has declined to accept). It is anticipated that he and others will issue proceedings against the Met Police and possibly against the Home Secretary. 

It is important to note that at least one journalist (wearing his press ID) was arrested for filming a protest on coronation day. He was later released without charge. There is contemporary video footage that shows police officers assaulting (battery) him in an attempt to stop him from (lawfully) filming the protest. 

The principal sections of the PCSC Act 2022 in relation to protest and public order appear in Part 3, listed by section number
  • Section 50: Has the effect of making criminal damage cases where damage was caused to a “memorial” automatically triable either way, with a maximum sentence of 10 years’ custody (where previously they may have been treated as low-value summary cases with a maximum sentence of three months’ custody).
  • Sections 73 and 74: These sections amend s12 of the Public Order Act 1986 (the police’s power to impose conditions on public processions) and s14 of the Public Order Act 1986 (the police’s power to impose conditions on public assemblies) to broaden the definition of “serious disruption” caused by protests. 
  • Section 75: This section amends the existing offences for failing to comply with conditions imposed on protests under Section 12 and 14 POA 1986 and the penalties. Notably, it removed the requirement that any person failing to comply with conditions “knowingly”, but it added a requirement that a person “knows or ought to know that the condition has been imposed”.
  • Section 78: creates a statutory offence of intentionally or recklessly causing public nuisance, abolishing the previous common law offence of public nuisance (s78(6)). In particular, it makes it an offence to intentionally or recklessly cause “serious distress, serious annoyance, serious inconvenience or serious loss of amenity” to members of the public. (Republic protesters including Graham Smith were arrested on the morning of 6th May 2023 on suspicion of conspiring to commit this offence)
  • Section 79: amends the POA 1986 to add section 14ZA, which empowers the police to impose conditions upon one-person protests and creates an offence of failing to comply with those conditions.
  • Section 80: This section increased the penalty for wilful obstruction of the highway (s137 Highways Act 1980) from a limited financial penalty to a term of imprisonment not exceeding 51 weeks’ custody and an unlimited fine. This, notably, rendered wilful obstruction of the highway an imprisonable offence.
The wider legislative context

At present, and despite the best wishes of those in power at the moment, the United Kingdom is still a member of the Council of Europe and is still a party to the European Convention on Human Rights (‘ECHR’). The ECHR was given effect in the UK by virtue of the Human Rights Act 1998 (‘the HRA’).

Article 10(1) ECHR provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. This is a qualified right pursuant to Article 10(2) and is subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (emphasis added).

Likewise, Article 11(1) ECHR provides that “Everyone has the right to freedom of peaceful assembly and to freedom of association with others…”. Again, this is a qualified right pursuant to Article 11(2) and no restrictions shall be placed on the exercise of this right other than those which “… are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” (emphasis added). Article 11(2) also provides that it will not prevent “the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State” (emphasis added).

Under section 3 of the  HRA 1998, “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Section 6 HRA 1998 provides that it is unlawful for a public authority (including a court or tribunal) to act in a way which is incompatible with a Convention right.

As such, the Courts are obliged to read this new legislation in a way which is compatible with the rights of those exercising their rights under Articles 10 and 11 – which most protesters are.

A brief analysis of the applicable case law

There is a long history of domestic and Strasbourg jurisprudence in the field of protest law and human rights, but it is useful to examine the most recent cases in this area to understand how the courts might be asked to approach the new legislation. This is not intended as a comprehensive analysis, but as a snapshot for the purposes of this exercise.

In DPP v Ziegler [2021] UKSC 23 (‘Ziegler’), the Supreme Court considered the impact of Articles 10 and 11 upon the offence of wilfully obstructing a highway under s137 Highways Act 1980, by reference to years of European jurisprudence. In short, it was held that Articles 10 and 11 could be engaged when considering whether a protester had “lawful authority or excuse”. As such, in addition to proving the other elements of the offence, the prosecution must prove that the interference with the defendant’s Article 10 and 11 rights was “necessary in a democratic society” pursuant to a legitimate aim under Article 10(2) or 11(2) by reference to the following test:

  1. Whether what the defendant had done was in exercise of one of the rights in Article 10 or 11; 
  2. If so, whether there was an interference by a public authority with that right;
  3. If there was an interference whether it was prescribed by law;
  4. If so, whether the interference was in pursuit of a legitimate aim, as set out in Articles 10(2) or 11(2), for example protection of the rights of others; and
  5. If so, whether the interference was necessary in a democratic society to achieve that legitimate aim:
    1. Whether the aim was sufficiently important to justify interference with a fundamental right;
    2. Whether there was a rational connection between the means chosen and the aim in view;
    3. Whether there were less restrictive alternative means available to achieve that aim; and
    4. Whether there was a fair balance between the rights of the individual and the general interest of the community, including the rights of others. 

Practitioners argued that Ziegler was of wider application – that the proportionality test applied to all criminal offences where Articles 10 and 11 were engaged – and submissions on the basis of Ziegler became a matter of routine in protest cases.

However, in subsequent cases, including DPP v Cuciurean [2022] EWHC 736 (Admin) and Attorney General’s Reference No 1 of 2022 [2022] EWCA Crim 1259 (the ‘Colston Statue’ case), the High Court considered what was said in Ziegler further and narrowed the scope for proportionality arguments:

  • In Cuciurean, a case involving a charge of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994, the High Court considered Ziegler alongside other authorities in this field, including James v DPP [2015] EWHC 3296 (Admin). The Court’s view was that the Ziegler test did not and could not apply to the offence of aggravated trespass and that proving the elements of the offence alone was sufficient to meet the proportionality requirement under ECHR. Within the Court’s reasoning was that there was no built-in “reasonable excuse” or “lawful authority” defence.
  • In the Colston Statue case, which involved a charge of criminal damage, the Court’s view was that although there was a built-in “lawful excuse” defence, there was some conduct which could not be protected by Articles 10 and 11 and would therefore not fall within the bracket of lawful excuse, in particular where damage was caused in a violent manner (thereby falling outside of ECHR in any event) or where the damage was significant, in which case prosecution would clearly be a proportionate response. They did, however, opine that prosecution could be disproportionate in cases where damage caused in the course of a protest was minor or temporary. They also emphasised that whether Articles 10 and 11 were engaged by a particular offence would be subject to a proper interpretation of the offence and would involve a fact-sensitive exercise in a given case.

It was argued by many Cuciurean and the Colston Statue case were decided by inferior courts to the Supreme Court which considered Ziegler and that they only impacted the narrow circumstances described in those cases. It was also argued that nothing in Cuciurean or the Colston Statue case obviated the courts’ continuing obligation under s3 HRA to interpret primary legislation in line with ECHR.

Eventually, in the case of Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 (‘AGNI’), the extent of the application of Ziegler was resolved. In short, the Supreme Court clarified that any argument that Ziegler set out a definitive universal rule was “mistaken” and affirmed the views held by the High Court in Cuciurean and the Colston case. 

The Supreme Court in AGNI agreed with the High Court in Cuciurean that there were some offences in which the proportionality of conviction would be satisfied by simply proving the elements of the offence. They also acknowledged that in some cases and in relation to some offences, “lawful excuse” or “reasonable excuse” could still be interpreted so as to allow for a proportionality assessment – but stated that it should not be assumed this would apply to every offence where those words appear. Further, whilst the Supreme Court recognised the courts’ duty under sections 3 and 6 of HRA 1998, it emphasised that where careful interpretation could not render legislation compatible with ECHR, primary legislation would still have to take precedence.

Most recently, in DPP v Eastburn [2023] EWHC 1063 (Admin), the High Court considered the above line of authorities further in the context of section 14 of the Public Order Act 1986 (failing to comply with a condition imposed upon public assembly). It was argued inter alia that the disruption caused by the Defendant was minor and that the principles in Ziegler applied to a charge under s14. The High Court rejected those arguments, citing the Supreme Court’s judgment in AGNI and taking the view that section 14 was one of the offences where the proportionality of conviction was satisfied once all elements of the offence had been proved.

A full analysis of this line of jurisprudence could fill a textbook, but for this article’s purposes, we can take the following from the above authorities:

  1. The courts remain obliged to interpret the new legislation and the wording of the offences in such a way as to be compatible with ECHR – and to give effect to Article 10 and 11 rights where they are engaged (which is generally the case when the conduct arises in the course of a protest);
  2. Where a protester is charged with one of the newer offences which carries a defence of “reasonable excuse” (such as sections 1, 2 and 7 of the 2023 Act or section 78 of PCSC), the courts can still (for now) be invited to accept that, on an interpretation of the particular statute in line with Articles 10 and 11, a proportionality exercise is required á la Ziegler before it can convict.
The polarised public reaction to the recent legislative changes

The public at large barely reacted at all to the 2022 Act, save that media such as the Daily Mail, the Telegraph, and opinion-based shows on the BBC and LBC broadly lent support to the changes but that was in the context of the various climate change and animal rights activists who had been obstructing roads for over a year. 

The response to lawyers’ calls – and those of the House of Lords – to resist the 2022 Act and the 2023 Act (at bill stage) fell on mostly deaf ears, such was the strength with which the Executive briefed that these were powers targeted at ‘the likes of Extinction Rebellion’. 

Notably, the coronation day arrests even caused concern amongst those who had previously approved of powers to ‘deal with’ XR and similar groups. This may have been because of the frankly amateurish comms from the Met Police – two different and conflicting attempts to justify the arrests, followed by an admission that they were wrong – or it may simply have been that the powers were used against a group who were handing out rape alarms on the night before the coronation. That group had been working with the police and with Westminster Council and with the Met in order to do exactly what they were arrested doing. 

The Met would later admit that the arresting officers were from the protests team and didn’t know anything about the wider and long-running partnership with those who were arrested. 

By Monday 8th May 2023, the media was covering the police behaviour extensively. This was largely due to the careful and persistent attention given to the arrests by freelance journalist and critic of media/journalism, Mic Wright (@brokenbottleboy) who followed the entire process from arrest to the eventual release of the final protester, some 18 hours later. His reports were utilised by most major media outlets by Tuesday – though not all gave credit to the source. 

The politics of the public order

It appears that public opinion at this overreach has largely come down against the police/government. Whilst that is odd – given the reaction to the 2022 and 2023 Acts at earlier stages – it is a sign that the public still has its limits. What worries many lawyers and political analysts is the fact that governments very rarely (if ever?) relinquish such grabbed powers, once they are secured by the State.

As of 9th May 2023, Labour Party front benchers (including the leader) have indicated that they have no intention of repealing these two offending pieces of legislation. The Liberal Democrats’ message has been a little mixed but does suggest that they would review the legislation if elected to government – but that seems unlikely to happen without a coalition. Both left-of-centre parties opposed the Public Order Act 2023 when it was at Bill stage. 

There are those who are reacting to the power-grab of the current government with cheer. To those people, one might ask, ‘When there is a change of government to one of a different hue, and when you wish to protest in the streets, have you considered the impact that these powers will have on you?’ 

One might not even look that far ahead. There were many protests and pickets about restrictions on liberty due to the pandemic. Every year, there are anti-trans and anti-gay protesters at the side of Pride marches. Both of those counter-protests could easily fall within these new/amended powers. A cursory glance at the twitter profiles of those supporting the arrests over the coronation shows that many of them will be affected by the use of the same powers in relation to protests regarding homo-/transphobia, for example. 

In the meantime, the UK’s human rights ‘scoring’ internationally will take yet another kick, having already been downgraded in recent years

And finally… There seems to be a perception that those who are arrested for public order offences fall into a stereotype. Broadly speaking, the good ol’ internet assumes that those who have their collars felt “because they might have been about to protest in some undesirable manner” are variously ‘crusties’, ‘hippies’, ‘woke North London champagne socialists’, and ‘ne’er do wells’.

At the Coronation, you certainly wouldn’t find a royal ‘superfan’ handcuffed and locked-up for being near some people with Just Stop Oil t-shirts on (but who were not involved in any active protesting)! Perish the th…. oh! You might want to tell that to Alice Chambers who was arrested for precisely that – by a Lincolnshire police officer in a guest-starring role with the Met – when she had not even heard of Just Stop Oil until she found herself detained for 13 hours. Interestingly, the internet is having a hard time with her, really. She is Schrodinger’s protester. She simultaneously “doesn’t look the type” and looked “like the rest of the protesters”. Maybe all XR and JSO protesters from now on should invest in hats or fascinators instead of superglue. 

Benjamin Knight

and Anthony Williams