Monday, 15 March 2021

Protest and the Police, Crime, Sentencing and Courts Bill (2) ~ Public Order

This is the second of my posts looking at how the Police, Crime, Sentencing and Courts Bill will alter the law relating to protests.

The bill contains considerable extensions to police powers and marks an increasingly authoritarian stance by government toward protest.

The following is an overview of the key provisions affecting public order. A previous post looked at how the Bill will alter the law on Public Nuisance - here.

Criminal Damage to Memorials:

The offence of criminal damage is defined by the Criminal Damage Act 1971

The Magistrates' Courts Act 1980 Schedule 2 deals

with "mode of trial" by which the "either-way" offence of criminal damage is to be tried - i.e. whether by summary trial in the Magistrates' Court or on indictment in the Crown Court. Schedule 2 has to be read together with section 22.  The result is that, currently, cases of criminal damage where the damage involved is £5,000 or less are to be tried summarily (unless the damage was caused by fire).

The Bill will change this and make criminal damage to a "memorial" (even if the value involved is £5,000 or less) triable either-way.

The word "memorial" will be defined as - (a) a building or other structure, or any other thing, erected or installed on land (or in or on any building or other structure on land), or (b) a garden or any other thing planted or grown on land,which has a commemorative purpose.

Even a moveable thing such as a bunch of flowers left in, on or at a memorial  may also be regarded as a memorial. 

The maximum sentence for criminal damage when tried by the Crown Court is 10 years imprisonment. If the damage is committed by fire (arson) then the maximum is life imprisonment.

The Bill therefore opens the way for any criminal damage to a memorial to attract a considerable term of imprisonment. 

The change has been brought about following the protests in the summer of 2020 - see previous post 16 June 2020

See also the government's factsheet - Criminal Damage to Memorials - which claims that there has been "widespread upset about the damage and desecration of memorials ... It has long been considered that the law is not sufficiently robust in this area. Incidences of damage and desecration of memorials are typically of low monetary value, but very often carry a high sentimental and emotional impact."

Part 3 of the Bill:


The Public Order Act 1986 section 12 enables the Police to impose conditions on processions where the "senior police officer", having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that - 

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or 

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,

The Bill (Clause 54) will amend this section so that, for processions in England and Wales, the officer may impose restrictions where EITHER the noise generated by persons taking part in the procession may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the processions OR the noise generated by person taking part in the procession may have a relevant impact on persons in the vicinity of the processions and that impact may be significant.

The Bill goes on to define what may be a relevant impact. For example, where the noise generated may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity or where the noise may cause such persons to suffer serious unease, alarm or distress.

The Bill also sets out some factors for the Police to consider - e.g. the likely number of persons who may experience an impact from the noise and the likely intensity of that impact on such persons.

The Secretary of State (here the Home Secretary) will be able to make regulations about the meaning of phrases such as "serious disruption to the activities of an organisation or serious disruption to the life of the community. The Regulations will have to be approved by resolution of each House of Parliamen

It seems particularly problematic for Ministers to be allowed to define the meaning of terms. The use of secondary legislation in this way will, in practice, reduce parliamentary scrutiny of the material produced by the Home Secretary. Votes for the approval of delegated legislation usually takes place at the end of a poorly attended and quite short debate.

The government seeks to justify giving the Home Secretary this power by a statement in the Delegated Powers Memorandum -

At this point it is also worth remembering that under section 13 the Police have power to prohibit processions.

Public Assemblies:

The Public Order Act 1986 section 14 enables the Police to impose conditions on assemblies. The amendments in the Bill (Clause 55) follow a similar pattern to those relating to processions and there will be a similar Regulation-making power

The government's rationale for these changes is set out in the factsheet - Protest Powers.  Part of the background to the changes is the Extinction Rebellion - see previous post 15 October 2019.

Other amendments to the Public Order Act 1986:

At present, a person guilty of an offence under the Public Order Act 1986 section 4 is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both. Clause 56 will alter this so that longer terms of imprisonment may be imposed.  There is similar provision for offences under sections 5 and 6 of the 1986 Act.

Clauses 57 and 58 - Obstruction of access to parliamentary estate:

Part 3 of the Police Reform and Social Responsibility Act 2011 will be amended. This is concerned with Parliament Square garden and surrounding area. 

The government's factsheet notes - "This measure will enable the police to direct an individual to cease obstructing vehicular entrances to Parliament and make it an offence not to comply with such a direction. This will protect the right of access to the Parliamentary Estate for MPs, Peers and others with business there as recommended in the Joint Committee on Human Rights in their 2020 report on Democracy, freedom of expression and freedom of association: Threats to MPs."

Clause 59 - Public Nuisance:

Clause 59 is the subject of a previous post - HERE.

Clause 60 - Conditions on one-person protests:

At present, the police cannot issue conditions on one-person protests because they do not meet the definition of “static protest” provided for in the 1986 Act. Under the 1986 Act “static protests” must involve at least two people.

 The bill will insert a new section into the Public Order Act 1986 to impose conditions on any one-person protest in England and Wales.  Clause 60 would insert a new a new section 14ZA into the 1986 Act. This would allow the police to impose conditions on a one-person protest which they “reasonably believe” may be noisy enough to cause “intimidation or harassment” or “serious unease, alarm or distress” to bystanders. The police would have to follow similar rules when issuing conditions on a one-person protest under section 14ZA as they will have to under the amended section 12 and 14.  

Delegated powers:

The Bill confers a considerable number of legal powers on Ministers (mainly the Home Secretary) to make delegated legislation - see the Delegated Powers Memorandum - pdf 85 pages.

Other materials:

Parliament - the Police, Crime, Sentencing and Courts Bill


House of Commons Library - Research Briefing - Parts 3 and 4 of the Bill

House of Commons Library - Briefings on the Bill Comment - Silencing Black Lives Matter: Priti Patel's anti-protest law 

The Guardian 14 March - New anti-protest bill raises profound concern and alarm, human rights groups say

The Guardian 14 March - If you thought the right to protest was inalienable, then think again

The Guardian 5 April - article by Kirsty Brimelow QC - If the government cares about freedom of expression, why is it pasing the police and crime bill?


Hansard 15 March - Second Reading Debate - Day 1

Hansard 16 March - Second Reading Debate - Day 2 - the Bill passed second reading 359 votes to 263.

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