Following the controversial arrest and release without charge of six anti-monarchy protesters before the coronation, Joelle Grogan examines the new criminal offences created by the Public Order Act 2023 – which came into force only four days before the coronation – and considers whether the design of the law has put both protesters and police in an impossible position of having to find the right ‘balance’ between rights and disruption.
Hours before the coronation, six anti-monarchy protesters were arrested on suspicion of ‘going equipped for locking on’. This new offence came into force only four days before under the new Public Order Act (POA) 2023.
The six were released after 16 hours without charge as the force was ‘unable to prove intent to use [items including plastic ties] to lock on and disrupt the event’. One of those arrested was Graham Smith, chief executive of the anti-monarchy pressure group Republic, who said there was ‘never any discussion, thought, email, message, anything that suggested any intent to do anything disruptive’.
The Metropolitan Police expressed ‘regret’ for the arrests, though the Metropolitan Police Chief, Sir Mark Rowley, defended police action underlining the exceptional nature of the once-in-a-generation event. The POA 2023 is now the law, however, for more than coronation day.
Government has been quick to distance itself from the arrests: Prime Minister Rishi Sunak emphasised that the police were ‘operationally independent’. Questioned on whether they would repeal the POA, Labour opted for a ‘wait and see’ approach as to whether the police would get the balance right.
Both of these positions are problematic, placing the burden on the police to ‘come up with standards of behaviour’ (as described by David Davis, the only Conservative MP to vote against the law). By placing sole responsibility on the police to get the balance right, both the Conservatives and Labour abrogate the responsibility of government and Parliament to ensure the law is clear and certain and to provide the balance between the right to protest and maintaining public order.
The POA introduces a number of new offences including ‘locking on’ – when protestors attach themselves to others, to objects or to buildings where it would cause (or be capable of causing) serious disruption to two or more individuals or an organisation. It also criminalises ‘being equipped for locking on’ or having an object with the intention that it be used for locking on. Obstructing major transport works, interfering with the use of key national infrastructure, tunnelling, and going equipped for the creation of a tunnel, are also introduced as new protest offences.
The first issue is the potential breadth of the offences, and the consequent discretion for police services to interpret what they mean in practice. For example, what constitutes an ‘object’ that could be used to lock on or to tunnel? What does ‘serious disruption’ mean in practice? And what evidence can be relied on to infer intent to cause it?
Concerns have been raised about the broad, and open-ended wording of the law, and that this could criminalise carrying relatively standard items including bike locks and chains, cable-ties, glue or tape, cables, cords, belts and shoelaces, or even linking arms with another person. Suffering ‘serious disruption’ under the POA has been broadly sketched to include almost anything more than minor delay or disruption.
Second, much of the POA prioritises the prevention of disruption, rather than only providing police with powers to step in if disruption goes beyond the bounds of what should be permissible under the law. It does so by introducing the offences of intent to lock on or to tunnel by going equipped to do so. The law also expands the powers of the police to stop and search individuals, including without suspicion if they are in a location and at a time when a protest offence could take place.
The POA introduces Serious Disruption Prevention Orders that allow UK courts to ban individuals from being in certain places at certain times; being with particular people; or using the internet in certain ways. It also enables courts to order individuals to be electronically monitored to ensure compliance.
The cumulative effect of the POA is to create an expectation that the police should stop disruption before it happens. However, this can in turn create a lose/lose situation. If police are ‘too’ cautious and arrest without due cause they can be accused of wrongful arrest. If they are not cautious enough, they will be criticised for not having used their powers to prevent serious disruption.
Third, the penalties for these offences may be disproportionate. The penalty for going equipped for locking on or tunnelling can be an unlimited fine; while the penalty for ‘locking on’ or tunnelling is currently six months’ imprisonment, but will increase to 51 weeks when a change to sentencing comes into force, and/or an unlimited fine.
Concerns had been raised by lawyers, charities and NGOs about the POA as it proceeded through Parliament. The Joint Committee on Human Rights said that the law poses ‘an unacceptable threat to the fundamental right to engage in peaceful protest’, while the Equality and Human Rights Commission said that the law would have a ‘chilling effect on democratic freedom’. Concerns were raised abroad too. The UN High Commissioner for Human Rights urged the UK to reverse its position, describing how the law imposes ‘serious and undue restrictions on these rights that are neither necessary nor proportionate’.
Protest, by its very nature and design, is meant to be disruptive. Histories of democracy in the UK and worldwide highlight the importance of protest to bring about change – from suffrage to civil rights. For this reason, protest is considered to be a keystone of a democratic society.
The government has said that the new law complies with the right to freedom of expression (Article 10 ECHR), and freedom of assembly and association (Article 11 ECHR). However, the European Court on Human Rights has indicated that restrictions on the right to protest should be interpreted narrowly, though violent protest is never protected, balancing the rights with what is necessary and proportionate in a democratic society.
As it stands, the Public Order Act almost certainly brings into question whether the government has achieved this balance. Its proponents argued the law is necessary to strike the balance between recognising the right to peaceful protest and avoiding ‘serious disruption’.
However, for many, it has not achieved the right equilibrium. By placing the burden on police forces to avoid any serious disruption before it happens but without clear guidelines, it has added disorder into the balance.
By Dr Joelle Grogan, Senior Researcher, UK in a Changing Europe.
