Photo credit Tim Dennell

In 2021, as the Conservative government planned legislation that would restrict protest rights, 'Kill the BIll' protests swept the country. Three years later, protest rights are in the news again, as five activists from Just Stop OIl have been sentenced to four, and in one case five years, in prison for involvement in a Zoom call planning a protest that would temporarily close the M25 motorway. The conviction for 'conspiracy to cause a public nuisance' depended on the new statutory offence of 'causing a public nuisance' created in 2022 - firmly focused on protesters rather than, for example, releasing sewage into rivers.

As well as new legislation encouraging more serious charges to be brought against environmental protesters, key defences have been removed (see below) meaning that juries are now being told that they cannot use protesters' motivations - to avert greater danger or harm - as a reason acquit them. Thus a quote from Judge Hehir in the Just Stop Oil case, "Facing the end of the world is neither here nor there"

While this case has attracted massive media attention, there is less awareness about the scale of the loss of protest rights in the UK, and the different ways these have been taken away.

TAKE ACTION

Call on the Labour government to scrap anti-protest laws

Call on the Attorney General to intervene in the use of custodial sentences for peaceful protest

Find out more about new police powers under the Public Order Act 2023 and the Police, Crime, Sentencing and Courts Act 2022, and how they could affect you when organising or attending a protest in NetPol's resources.

New government yet to decide whether to defend legal case on protest restrictions

Additional to these two Acts of Parliament, in June 2023, Suella Braverman introduced Regulations - which require less Parliamentary scrutiny and debate - to lower the threshold of when the police can impose conditions on protests. The test had been set at ‘serious disruption’, but this was redefined as causing ‘more than minor’ disruption. In May 2024, her actions in doing this were found to be unlawful in court. The term ‘serious disruption’ comes from another Public Order Act from 1986. The Home Secretary has the power to clarify what is meant by ‘serious’ - but not to completely change its meaning. The (then) government appealed the judgement, and the hearing was set for 23 July 2024.

Breaking - 22/07/24: The appeal hearing has been delayed, while the Home Secretary, Yvette Cooper decides whether to defend the case or withdraw the legislation.

Civil Injunctions - a private justice system?

It was recently revealed that civil injunctions have been awarded against protests at over 1200 locations, against specific individuals and against 'persons unknown'. These lack some of the safeguards found in the criminal legal system: a civil injunction application can be made without the knowledge of the defendant or any representation in court. Once a company has obtained a costs order from the court, it can force the people it names on the injunction to pay the fees charged by its lawyers. 

The penalty for breaching one can be harsher than for an equivalent criminal offence - up to 2 years imprisonment or an unlimited fine. Protesters can also find themselves penalised twice over by injunctions - for breaching the injunction and facing prosecution in parallel for an alleged criminal offence.

Friends of the Earth is challenging the use of injunctions in the UK at the European Court of Human Rights, but the case is predicted to take 'a few years'.

Removal of legal defences for protesters

In 2021, the Court of Appeal, although it overturned the convictions for the 'Stansted 15', upheld the original judge's ruling that the defence of 'necessity' did not apply to protesters.

In 2022, the Court of Appeal decided, after intervention from the then Attorney General, Suella Braverman, that protesters accused of 'significant' criminal damage cannot use as a defence their right to protest under the European Convention of Human Rights.

In 2024, after intervention from another Attorney General, Victoria Prentis, the Court of Appeal said the “beliefs and motivation” of a defendant do not constitute lawful excuse for causing damage to a property.

The principle of 'Hoffmann's bargain' following a case in 2006, held that motives of conscience and intention to avert a greater harm would be taken into account and lead to more lenient sentencing. From the case of the Stansted 15 onwards, this principle has been lost.

Anti-protest legislation

The Police, Crime, Sentencing and Courts Act 2022 was brought in with the intention of deterring protest and giving sweeping and arbitrary powers to the Home Secretary and police to determine what is acceptable. 

• It gives new powers to police to restrict static protests, which were previously only available to restrict protest marches.
• It gives the police the power to impose conditions on one-person protests,
• Previously, the Public Order Act 1986 said a protester may face arrest if they knowingly fail to comply with conditions imposed on a protest. The Police, Crime, Sentencing and Courts Act amends this so it is an offence if they fail to comply and know or 'ought to know' that the condition has been imposed.
• The maximum penalty for obstruction of the highway has increased from a fine to up to six months imprisonment.
• It replaces the current common law offence of public nuisance with a new statutory offence of causing “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”. This would result in a maximum sentence if tried in a Magistrates Court of six months in prison and a fine and for more serious cases tried in a Crown Court, of up to 10 years in prison.
• The Act extends the “controlled area” around Parliament where particular protest restrictions already apply and adds a new offence of obstructing vehicles from entering or exiting this area. The right to protest outside the seat of government is particularly important.

The Act also threatens to criminalise the way of life of Gypsy, Romany and Travellers, who increasingly lack legal stopping places. 

As Home Secretary, Priti Patel attempted to insert even more draconian measures into the Police, Crime, Sentencing and Courts Bill as it moved from the House of Commons to the House of Lords, but the Lords successfully rejected these. However these measures were reintroduced in the Public Order Act 2023.