The Public Order Act 2023: Clamping down on protests

The Public Order Act 2023 introduced several new offences relating to protests. These came into force on 3 May 2023 and 2 July 2023. The aim of the Act is to increase the police’s ability to restrict and criminalise protest activity when it causes serious disruption.

The Public Order Act 2023 introduces the following new criminal offences:-

• Locking on and being equipped for locking on;
• Causing serious disruption by tunnelling or being present in a tunnel and being equipped for tunnelling;
• Obstructing major transport works; and
• Interfering with key national infrastructure.

Locking on is when a person:-

• Attaches themselves, another person or an object to another person, another object or land;
• that act causes or is capable of causing serious disruption to two or more individuals or an organisation; and
• intends or is reckless as to whether their acts would cause serious disruption.

If found guilty of this offence, the offender could be sent to prison for up to six months or receive an unlimited fine or both.

Being equipped for locking on is committed when a person is carrying an object in public and intends to use the object in the course of or in connection with either themselves or another person committing the offence of locking on. If found guilty of this offence, the offender could receive an unlimited fine.

Tunnelling is when a person:-

• creates, participates in creating, or is present in a tunnel;
• which causes or is capable of causing serious disruption to two or more individuals or an organisation; and
• intends or is reckless as to whether their acts would cause serious disruption.

If found guilty of this offence, the offender could be sent to prison for up to six months or receive an unlimited fine or both.

Being equipped for tunnelling is committed when a person is carrying an object in public and intends to use the object in the course of a tunnelling offence. If found guilty of this offence, the offender could receive an unlimited fine.

Obstructing major transport works criminalises behaviour that obstructs or interferes with the construction or maintenance of transport works. A person is guilty of this offence if they:-

• obstruct individuals (such as construction workers) from constructing or maintaining major transport works; or
• interfere with, move or remove apparatus relating to constructing or maintaining major transport works.

If found guilty of this offence, the offender could be sent to prison for up to six months or receive an unlimited fine or both.

Interfering with key national infrastructure criminalises behaviour which prevents or significantly delays the operation of key infrastructure. There is a list of key national infrastructure specified in the Act, which can be added to by the Secretary of State. It includes roads, railways, airports, harbours, services (such as gas and oil) infrastructures and newspaper printing. A person is guilty of this offence if they:-

• take action that interferes with the use or operation of key national infrastructure; and
• intend or are reckless as to whether their actions will interfere with the use or operation of key national infrastructure.

If found guilty of this offence, the offender could be sent to prison for up to 12 months or receive an unlimited fine or both.

“Serious disruption” is defined in the Act as a situation where an individual or organisation is:-

• by physical obstruction, hindered or prevented (to more than a minor degree) from doing day to day activities or construction or maintenance works;
• prevented or delayed (to more than a minor degree) from making or receiving a delivery of a time-sensitive product; or
• prevented or disrupted (to more than a minor degree) from accessing essential goods or services.

The Secretary of State also has the power to bring civil proceedings against people who are carrying out or likely to carry out activities relating to a protest if they reasonably believe that the activities are:-

• causing or likely to cause serious disruption to the use or operation of any key national infrastructure in England and Wales;
• causing or likely to cause serious disruption to access to any essential goods or any essential service in England and Wales; or
• having or likely to have a serious adverse effect on public safety in England and Wales.

Further, the Act creates a Serious Disruption Prevention Order, a behaviour order which can be made upon conviction or on application by the police. The purpose of this is to prevent those convicted or suspected of committing protest related offences from committing further protest-related offences or from carrying out any activity that will result in or likely result in serious disruption to two or more individuals or an organisation.

Comment

The purpose of the Act was said to be “to strengthen police powers to tackle dangerous and highly disruptive tactics employed by a minority of protestors”. It however arguably goes much further than that, and all protestors are at a much higher risk of being arrested and criminalised for participating in a protest than ever before.
The introduction of the new offences will affect how protestors can protest and is more likely to criminalise those who partake in direct action. The offences are broadly worded, giving the police more scope to arrest those who are participating in protests. It also gives the police powers to arrest those who have not taken part in a protest, if they believe they are carrying an object for use in one of the new offences.

Further, a much lower level of disruption is required to be caused compared to previous legislation. This means that protestors are more likely to be committing an offence when participating in protests than previously.

Lastly, the introduction of the power of the Secretary of State to bring civil proceedings means that protestors not only face a greater risk of being guilty of a criminal offence, but they are also liable to civil proceedings if the above conditions are satisfied.  It remains to be seen how this power will be utilised in practice.

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