Puja Patel highlights how the Police, Crime, Sentencing and Courts Act 2022 threatens the right to protest in the UK, and critically examines the Act’s incompatibility with the European Convention on Human Rights.
Right back from when the Police, Crime, Sentencing and Courts Act 2022 (the ‘Act’) was merely a developing embryo in the Parliamentary womb, the shockwaves it sent through the country were tangible. ‘Kill the Bill’ protests took place around the country but despite this, on 28th April 2022, the Bill crystallised into a law which now wields the power to outlaw the very protests which were staged to prevent its enactment.
Protest is a powerful mechanism for accountability and has served as an essential instrument for change throughout human history; as articulated by Lord Denning, the right to protest is in the ‘public interest’ and is ‘often the only means by which grievances can be brought to the knowledge of those in authority…with such impact as to gain a remedy’[i]. The fundamental nature of the right to protest is reflected by the inclusion of the right to peaceful protest within Article 11 of the European Convention on Human Rights (ECHR).
In clear breach of Article 11 ECHR, the Act would have outlawed the protests of the suffragettes in 1903-1918to secure the vote for women, Gandhi’s peaceful protests to liberate India from the British Empire, and the civil rights desegregation movement in the US. The consequences of this legislation are therefore dire; depriving citizens of their right to protest against the State and constituting a clear human rights violation and a bold exercise of authoritarian power.
Is the Act compliant with Article 11 ECHR?
The Act is not compatible with Article 11 ECHR. Whilst the Government claim that the Act pursues the legitimate aim of protecting the rights and freedoms of others[ii], the Act does not comply with the legality and proportionality requirements set out in Article 11(2) ECHR.
The Act makes five key changes to existing legislation under the Public Order Act 1986 (‘POA’) which directly impact the ability of the police to interfere with protests/processions.
Change 1 – outlawing protests/processions with ‘impact’
Pre-Act, a senior police officer had the power to impose such conditions upon a procession/assembly as appear to them necessary to prevent disorder, damage, disruption or intimidation[iii]. The Act extends this power by empowering the senior police officer to impose such conditions upon a procession/assembly as appear necessary to prevent ‘impact’.
Protest is inherently impactful. Notably, the legislation did not restrict the scope of these powers to ‘damaging’ or ‘dangerous’ impact, meaning that all and any protest is caught within the scope of this provision. Peaceful protest, non-disruptive protest, even silent protest will all create impact, and therefore police officers could lawfully interfere with any protest. This breaches the legality requirement of Article 11(2) as the unqualified scope of ‘impact’ renders this provision insufficiently clear and lacking in legal safeguards against arbitrary interferences by public authorities[iv].
Likewise, the proportionality requirement of Article 11(2) was also breached because there were less restrictive means to achieve the government’s aim which would have struck a fairer balance between individuals and community interests[v] such as restricting the scope of this provision to ‘damaging’ or ‘dangerous’ impact.
Change 2 – Suppressing protests/processions which may result in ‘noise’[vi] which can cause ‘serious disruption’
The Act extends the power of a senior police officer to impose conditions to circumstances where the procession/assembly merely result in ‘noise which can seriously disrupt activities of nearby organisations’[vii] which is defined as ‘where persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them’[viii].
The legality requirement may arguably be met here; the Act provides a comprehensive, albeit non-exhaustive, definition of ‘serious disruption’[ix]. However, there is a clear breach of the proportionality requirement. It is noteworthy that the protest need not cause actual serious disruption; the police are entitled to assess whether the protest ‘may’ cause such noise, and may therefore pre-emptively interfere. It is difficult to envision a protest which the police cannot argue ‘may’ result in noise which could theoretically meet the Act’s definition of serious disruption to the activities of nearby organisations.
Illustrative example: A small group of protestors chanting in a park, could meet this definition. The noise need only be capable of preventing someone in a nearby organisation from completing any one activity e.g. someone may not be able to hold a meeting due to the noise. Whilst this may be annoying and inconvenient, protest is a fundamental right, whereas a meeting can be rescheduled or held elsewhere. Moreover, it is not necessary that the protest create any such noise or prevent any such meeting taking place; in order to interfere, the police need only deem the protest capable creating noise which is capable of preventing such a meeting.
This clearly demonstrates why the scope of ‘serious disruption’ which entitles the police to interfere is simply too broad.
Less restrictive means were available, such as defining disruption to mean significant and prolonged harm to fundamental rights and freedoms (such as those protected by the ECHR) like access to healthcare or religion.
Change 3 – Suppressing protests/processions which may result in noise which has a ‘relevant and significant impact’[x]
The Act also enables the same police power to be deployed if the procession/assembly may result in noisewhich has a ‘relevant’ and significant impact on the persons in the vicinity of the processions[xi].
The legality requirement may be met, since a definition of relevant impact was provided: where it may result in intimidation/harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity or it may cause such persons to suffer alarm or distress[xii].
The proportionality requirement is clearly breached; the definition of relevant impact brings all protests, including peaceful, non-disruptive protest, within its scope.
Illustrative example: Two people standing outside the office of an oil company chanting a slogan (‘Oil kills our planet’) can fall within the scope of ‘relevant impact’ and the police can therefore lawfully interfere. The two people chanting the slogan may cause the firm’s employees ‘reasonable firmness’ to feel ‘alarm or distress’. However, empowering the police to interfere with this protest is blatantly disproportionate; it is peaceful, it does not even obstruct the doorway and the protestors are on public pavements and not trespassing.
Less restrictive means clearly exist to regulate protest and to achieve the government’s aim, such as qualifying the scope of this provision to ‘significantly harmful or dangerous impact’.
Change 4 – lowering the threshold for sanctions; dispensing with the requirement for ‘knowledge’ in order to incur liability [xiii]
The Act lowers the previous threshold for protestors to commit a public order offence by stating that a person is guilty at the time the person fails to comply with a condition the person knew or ought to have known was imposed[xiv]. This dispenses with the requirement for a person to knowingly fail to comply (subjective mens rea). Instead, the Act renders mere failure to comply with a condition (objective standard) an offence. Whilst this meets the legality criteria, it is disproportionate.
As articulated by Dr Richard Martin, Assistant Professor of Law at LSE, the Act has allowed ‘more intrusive restrictions to be placed on the right to peaceful protest’ through creating ‘lower thresholds and lesser safeguards’[xv] against interference. Change 4 is the prime example of this.
Illustrative example: In a larger-scale protest, if a few individuals breach a condition of the protest, everyone involved is now committing an offence by participating in a protest which breaches the imposed conditions. Without the requirement for subjective intention to fail to comply, all protestors are now liable. Those merely peacefully exercising their Article 11 rights will now also be punished. This is disproportionate, particularly when one considers the increasing ease with which police can impose conditions upon protests/processions (see Changes 1-3). Whilst it is a defence for protestors to prove that failure to comply arose from circumstances beyond their control, this would only retrospectively exonerate them from liability and would not prevent the interference with their protest. Moreover, the existence of sanctions inherently constitutes an interference and restriction on the right to protest; this is explored below.
The ‘chilling effect’
Punitive measures mean restrictions on the right to protest[xvi] since sanctions which deter and discourage people (the ‘chilling effect’) from partaking in demonstrations constitute an interference.[xvii] The option for retrospective judicial redress is largely nullified by the legal cost barriers to judicial review, with dramatic cuts to legal aid funding resulting in a falling number of judicial review claims (Lomri, 2019). In any case, as commentator Mead correctly observes, ‘we should not have to rely on going to court to have our rights upheld’[xviii]. Therefore, sanctions should be imposed only when strictly necessary. The lack of requirement for subjective knowledge under the Act therefore constitutes a disproportionate interference.
Change 5 – interfering with one-person protests[xix]
For the same reasons as Changes 1 and 2, the Act’s conferral of power upon police officers to interfere with one-person protests breaches Article 11 ECHR.
Additionally, the argument that it is proportionate to deploy the same legal powers upon one-person protests as protests conducted by a thousand people is, at best, difficult to sustain.
Conclusion:
The Act is incompatible with the ECHR, breaching the legality and proportionality requirements set out in Article 11(2) ECHR. Urgent reform is needed; however, it remains to be seen how such change can be effected now that the democratic mouthpiece of protest has been effectively removed from the public voice….
[i] Hubbard v Pitt [1976] QB 142
[ii] Government Policy Paper, Public Order Bill: Factsheet [online] Available at: https://www.gov.uk/government/publications/public-order-bill-overarching-documents/public-order-bill-factsheet#:~:text=Sections%2012%20and%2014%20of,an%20organisation%20by%20noise%3B%20serious
[iii] Public Order Act 1986, s12 and s14
[iv] Lashmankin and Others v. Russia, nos. 57818/09 ECHR 2017 [410]
[v] DPP v Ziegler [2021] UKSC 23 [16]
[vi] Police, Crime, Sentencing and Courts Act 2022, s73 and s74
[vii] Public Order Act 1986, s12(1)(aa) and s14(1)(aa)
[viii] Public Order Act 1986, s12(2C) and s14(2C)
[ix] Defined in s12(2A) Public Order Act 1986 as where the procession/assembly may result in prolonged disruption of access to any essential goods or any essential service (in particular (non-exhaustive list): money, water, energy, fuel, system of communication, place of worship, transport facility, educational institution, service relating to health, or where the procession/assembly may result in significant delay to a time-sensitive product being delivered to consumers (s12(2A) and s14(2A) Public Order Act 1986); ‘time-sensitive’ is defined as a product whose value/use to consumers may be significantly reduced by a delay in supplying that product (s12(2B) s14(2B) Public Order Act 1986).
[x] Police, Crime, Sentencing and Courts Act 2022, s73 and s74
[xi] Public Order Act 1986, s12(1)(ab) and s14(1)(ab)
[xii] Public Order Act 1986, s12(2D) and s14(2D)
[xiii] Police, Crime, Sentencing and Courts Act 2022, s75
[xiv] Public Order Act 1986, s12(5A) and s14(5A)
[xv] Martin, R. (2021). ‘The Protest Provisions of the Police, Crime, Sentencing and Court Bill: A Modest Reset of the Scales?’ Criminal Law Review 1008
[xvi] Ezelin v. France, no.11800/85, ECHR 1991 [39]
[xvii] Bączkowski and Others v. Poland, no. 1543/06, ECHR 2007 [66]-[68]
[xviii] Joint Committee of Human Rights. (2021b). The Government response to covid-19: freedom of assembly and the right to protest, Thirteenth Report of Session 2019-21 Report, together with formal minutes relating to the report by authority of the House of Commons and the House of Lords. [online] Available at: https://committees.parliament.uk/publications/5153/documents/50935/default/
[xix] Public Order Act 1986, s14ZA
Photo credit: Michael Mandiberg from Creative Commons
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