HOW DOES THE NEW POLICING ACT AFFECT MY PROTEST RIGHTS?

HOW DOES THE NEW POLICING ACT AFFECT MY PROTEST RIGHTS?

As the Government’s Police, Crime, Sentencing and Courts Act comes into effect, we explain the main protest law changes and what they mean for protesters.

Disclaimer: this article is for general information. It’s not intended to be used as legal advice. For information on how to get legal advice, please see our page here.

The Government’s Police, Crime, Sentencing & Courts (“Policing”) Act came into effect in April 2022.

The Policing Act makes wide-ranging changes across the criminal justice system in areas including police powers, judicial procedures and offender rehabilitation.

It will also have a serious impact on human rights, particularly the right to protest.

Most of the public order provisions in the Act, which affect the right to protest, came into force on 28 June 2022.

On this page, we explain the main protest law changes and what they mean for protesters and organisers.

Our other Hub pages relating to protest have been updated, where relevant, to reflect these changes.

RESTRICTING PROTEST MARCHES
WHAT’S CHANGED?

As explained on our page on how to organise a protest (now updated to reflect the changes below), the police were previously able to put conditions on a protest march if they thought it could cause serious:

public disorder
damage to property
disruption to the life of the community
They could also put conditions on a protest march if they thought its purpose was to intimidate other people and stop them doing something they have the right to do.

These conditions could be anything the police thought necessary to prevent the above. They could also be applied to any aspect of the protest, for example the timing, location or route.

NEW DEFINITION OF DISRUPTION

For the first time, the new Policing Act gives examples of what might amount to “serious disruption to the life of the community”. These include:

significant delay to the delivery of a time-sensitive product to consumers of that product
prolonged disruption of access to any essential goods or services, such as money, food, water, energy, or fuel, among others.
New definition of disruption: What does this mean for protesters?
By definition, the aim of many protests is to draw attention to a social issue. Causing disruption is often an effective tactic to achieve this. The new wording gives the police very broad powers to decide what amounts to “serious disruption”. As a result, people are now at greater risk of being caught by the new definition and being subject to police conditions, which limits the freedom to protest.

NOISE TRIGGER

The Act also brings in a new noise trigger. There are two new situations where the police can put conditions on a protest march if it’s too noisy:

if they think the noise generated by protesters may result in “serious disruption” to the activities of an organisation in the area, or
if they think the noise generated by protesters may have a significant impact by causing harassment, intimidation, alarm or distress to people in the area.
When deciding whether to impose conditions under 2), the police must consider

whether a typical person of “reasonable firmness” would be affected in this way
how many people will likely be affected
how long the impact is likely to last
how intense the impact is likely to be
Noise trigger: What does this mean for protesters?
Not allowing protests to be noisy removes a key part of what makes a protest effective. Additionally, the noise level will be affected by the number of people who attend. This means protests that have more support are more likely to have restrictions placed on them.

MINISTERS CAN CHANGE THE DEFINITIONS

Government ministers have the power to make rules without having to go through a democratic parliamentary debate. These are called regulations. The Act enables ministers to make regulations that amend or expand the definitions of:

“serious disruption to the life of the community” and
“serious disruption to the activities of an organisation”
Ministers can change the definitions: What does this mean for protesters?
The ability of the Government to unilaterally change these definitions means that any person protesting could find themselves caught out by new wording that makes their activity a “serious disruption”, depending on what the Government chooses.

It is important to note that all of the rules described above also now apply to static demos – see below.

RESTRICTING STATIC DEMOS

Before the Policing Act, the law distinguished between protest marches (where people move from one place to another while protesting) and static demos (where people protest in one place).

The rules around organising a static demo were more relaxed, recognising that these types of protests are generally less disruptive and easier for the police to manage.

Unlike a protest march, where the police could impose conditions, including a ban, at a static demo the police could only limit the location, duration, and number of people.

WHAT’S CHANGED?

The Policing Act now treats static demos the same as protest marches, so the police can impose the same conditions on a static demo as they can impose on a protest march. This includes the new rules described above.

Restricting Static Demos: What does this mean for protesters?
Protesters who have tried to be less disruptive by choosing a static demo could still be subject to police restrictions.

Some strict conditions could have the same impact as an outright ban, such as:

location restrictions: like banning a protest from a particular area
number restrictions: like allowing no more than 10 people to protest
time restrictions: like only allowing the protest for 1 hour
These could also disproportionately impact people who prefer static demos, for example because they have mobility difficulties. This could make it harder for some people to choose to protest with a static demo.

RESTRICTING ONE-PERSON PROTESTS

Previously, a static demo was defined as two or more people protesting in a public place which is wholly or partly open to the air. It didn’t cover one-person protests.

WHAT’S CHANGED?

The Policing Act now gives the police the power to impose conditions on one-person protests, too. They can do this where they think the protest will be so noisy as to seriously disrupt the activities of an organisation or cause significant impact to people in the area. The thresholds are the same as those described above for protest marches.

Where a one-person protest is moving from place to place, the police can impose conditions on the route of the protest or prohibit the protester from entering a specific public place.

Restricting One-Person Protests: What does this mean for protesters?
Everyone has the right to protest and to express themselves. One-person protests are not likely to be as disruptive as other forms of protest, but the legislation allows the police to impose conditions anyway. The Act gives the police extra powers, but does not give any new rights to individuals. As a result, people could find their right to protest by themselves limited.

Many activities could be caught out by the new wording, such as street preaching or those using performance art as a form of protest. Disabled people who are demonstrating alone, but with a carer or assistant nearby to help, might also be caught by the changes.

OBSTRUCTING ACCESS TO PARLIAMENT

Previously, the law limited the activities that could be undertaken in Parliament Square and the adjoining pavements (known as the “controlled area”). For example, you were not allowed to operate amplified noise equipment (such as loudspeakers or megaphones), to put up tents or use any sleeping equipment.

WHAT’S CHANGED?

The Policing Act extends the controlled area to include some of the surrounding roads, meaning the restrictions now apply to a broader area.

It also adds a new restriction within the controlled area, which says you’re not allowed to obstruct vehicles from entering or exiting the Parliamentary buildings and grounds. If you do, you’ll be committing an offence under the Act.

The Act also allows ministers to specify other areas as “controlled areas” where these restrictions will apply in future.

Obstructing Access to Parliament: What does this mean for protesters?
By extending the area around Parliament where certain protest activities are not allowed, the Act makes it harder for people to get their message to one of their main audiences – members of Parliament.

More powers for ministers
As with the new noise trigger powers above, Government minsters can use regulations to specify other “controlled areas”. This means demonstrations in or around Parliament can be banned without any democratic debate. It represents another area where the Act gives the Government greater powers to restrict the right to protest, without giving protesters any additional rights.

PROTEST OFFENCES
BREACHING PROTEST CONDITIONS

Before the Policing Act, it was a criminal offence if you knowingly failed to comply with the conditions imposed on a protest, either as a protest organiser or someone who’s attending. This means that you had to have known about the imposed conditions in the first place, and then you breached them

WHAT’S CHANGED?

The Policing Act changes the level of knowledge needed for an offence to be committed. You’re now guilty of an offence if you fail to comply with any conditions imposed on the protest, and you “know or ought to know” that the condition has been imposed. This means the fact you didn’t receive a direct order from a police officer may no longer be enough to excuse you.

Additionally, the new Act has increased the punishments for these offences:

OffencePrevious penaltyNew penaltyBeing a protest organiser and breaching a condition that has been imposed by the police that you know or ought to have known aboutUp to 3 months in prison or a fine up to level 4 on the standard scale (up to £2,500) or bothUp to 51 weeks in prison or a fine of up to level 4 on the standard scale (up to £2,500) or bothAttending a protest and breaching a condition that has been imposed by the police that you knew or ought to have known aboutA fine of up to level 3 on the standard scale (up to £1,000)A fine of up to a level 4 on the standard scale (up to £2,500)Inciting another person to attend a protest and breach a condition that has been imposed by the police, that you knew or ought to have known aboutUp to 3 months in prison or a fine up to level 4 on the standard scale (up to £2,500) or bothUp to 51 weeks in prison or a fine of up to a level 4 on the standard scale (up to £2,500) or both
Protest Offences: What does this mean for protesters?
The Act gives the police more power to arrest protesters and punish them more harshly in two important ways:

it makes the punishment for these offences more serious, and
it lowers the bar as to what’s classed as an offence.
This is combined with the fact that conditions can now be imposed in a broader range of circumstances.

People will have to factor in these new considerations when choosing to protest. People who may have wanted to protest might now be put off, because they’re afraid of breaking the law, even if they don’t mean to.

CAUSING PUBLIC NUISANCE

Previously, causing a public nuisance was a criminal offence under common law. This meant the offence was not set out in legislation, but had developed over time in the courts.

It typically consisted of either of causing an environmental nuisance or danger, such as doing something that was very noisy or smelly, or behaving offensively or dangerously in public, such as having a noisy party or hanging from a bridge.

WHAT’S CHANGED?

The Policing Act gets rid of the common law offence of public nuisance. It creates a new and very broad offence of “intentionally or recklessly causing public nuisance”. This makes it a crime when you do something, or fail to do something the law requires you to do, which:

creates a risk of or causes serious harm to the public or a section of the public, or
prevents the public or a section of the public from exercising their rights.
You’re only guilty of the offence if:

you intend your behaviour to have this consequence, or
you are reckless as to whether it has this consequence. By “reckless”, it usually means you were taking unjustified risks.
What does “serious harm” mean?
In the context of causing public nuisance, “serious harm” means death, personal injury or disease, loss of, or damage to, property, serious distress, serious annoyance, serious inconvenience, or serious loss of amenity.

Examples of things that may be considered a public nuisance are someone blocking the entrance to building, occupying a public space or hanging off a bridge as part of a protest. These could be considered to cause serious harm as they could cause serious annoyance and inconvenience.

WHAT IS THE PUNISHMENT NOW?

If you’re found guilty of this offence in the Magistrates Court, you face up to 12 months in prison, an unlimited fine or both. If you’re found guilty in the Crown Court, you face up to 10 years in prison, an unlimited fine or both.

It is a defence if you can prove you had a reasonable excuse for the act or omission, but it’s not yet clear how this will work in the courts.

Causing Public Nuisance: What does this mean for protesters?
The new definition of a public nuisance is so broad it could cover many different actions. This gives the police a high degree of discretion as to what behaviour would be allowed at a protest and what they would consider a criminal offence. It makes it harder for protesters to choose a course of action in advance, which might make people not want to use their legal right to protest at all.

WILFUL OBSTRUCTION OF THE HIGHWAY

‘Wilful obstruction of the highway’ is a criminal offence where someone without lawful authority or excuse intentionally obstructs the free passage of vehicles along a road.

WHAT’S CHANGED?

The Policing Act creates a new punishment for this offence.

If you’re found guilty of wilful obstruction of the highway, you now face up to 51 weeks in prison or an unlimited fine, or both. The previous sentence was a fine not exceeding level 3 on the standard scale (up to £1,000).

This offence applies even if the road in question has already been closed by the police or another relevant authority.

Wilful Obstruction of the Highway: What does this mean for protesters?
Blocking motorways has been an effective protest tactic in the past. Protesters must carefully consider whether they want to risk possible prison time by using such methods. By making the penalty for obstructing a highway so much more severe, the Act could have the effect of restricting methods of protest.