BLOG: To the barricades

In the first of a series of posts on the Police, Crime, Sentencing and Courts Bill, Gerard Pitt predicts civil disobedience will become a staple of criminal defence practice if the Bill passes into law.

In November 2018 the Extinction Rebellion environmental campaign group commenced the first in a series of major UK protests by blockading five bridges in London, and in April 2019 followed this by occupying five prominent sites in the centre of the capital. By 16 April the Metropolitan Police had arrested so many demonstrators that they had run out of holding cells. After 11 days 1,130 people had been arrested in the largest act of civil disobedience since the mass arrests of members of the ‘Committee of 100’ in 1961. It was also the first time that activists had intentionally used Magistrates’ Court time as political currency since the widespread refusal to pay the poll tax at the end of the 1980’s.

The Government has now responded to the perceived threat to public order presented by Extinction Rebellion with the Police, Crime, Sentencing and Courts Bill (the PCSCB). Its purpose in relation to protest is clear: to deal with non-violent protests which have, in the words of Metropolitan Police Commissioner Cressida Dick, an “avowed intent to bring policing to its knees and the city to a halt”. The new regime will, however, apply to protests of all sizes. Defence practitioners must be ready for the inevitable increase in criminal prosecutions.

The PCSCB, under the proposed part 3 (clauses 54 to 60) amends the Public Order Act 1986 to: (a) expand significantly the powers of the police to impose conditions on static and moving protests; (b) close a loophole used by protestors who refuse to be told conditions so that they avoid knowingly failing to comply with those conditions; and (c) expand the controlled areas around Parliament to create a buffer zone where protest rights will be severely curtailed. One unintended collateral effect of these provisions may be the increased criminalisation of spontaneous and less well-resourced protests where organisers are less able to make sense of the conditions, ensure compliance, or communicate them to participants. 

The PCSCB also, under clause 59, introduces a controversial new statutory offence of causing a public nuisance. As presently drafted, this proposes to prohibit any conduct which obstructs the public in the exercise or enjoyment of a right ‘that may be exercised or enjoyed by the public at large’. This broad definition seems to capture almost all protest and carries an eye watering maximum sentence on indictment of 10 years imprisonment. It is not yet clear if protest will constitute a ‘reasonable excuse’ but at present the offence is intended to be either way and so the bold will be able to elect trial by jury. 

The new regime will place more reliance on police discretion to balance public order against the right to protest. It is in this context that the appalling scenes on Clapham Common at the unauthorised vigil to Sarah Everard have captured public and political attention. As the police continue to explore the limits of their powers under the unprecedented coronavirus regulations, attempting to balance public health against the right to protest, the backlash against Scotland Yard and Parliament are an indicator of the public’s potential response if the police get it wrong. 

The PCSCB will redraw the battle-lines of policing protest in the UK and runs the risk of politicising the police in a way not seen since the 1980’s. Consider what might have happened to the Black Lives Matter and anti-lockdown protestors had these protests occurred under the regime proposed in the PCSCB. With technology enabling protest groups to mobilise people faster, in greater numbers, and more spontaneously than ever before these new powers will inevitably lead to more confrontation, arrests and charges. The Courts will become a more regular venue for settling these disputes as police clampdowns are demanded by those opposed to those demonstrating on any particular issue.

What the vigil under the Reclaim These Streets banner has demonstrated once again is that while policing in the UK is by consent, protest never will be. These new powers are unlikely to diminish the British public’s appetite for dissent and if they are enacted, defence practitioners will need to be prepared for the consequences. 

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Gerard Pitt accepts instructions in all criminal and civil matters relating to protest.  His enthusiasm flows from his personal experience of protest and direct action.