'A Bill to make provision about the police and other emergency workers; to make provision about collaboration between authorities to prevent and reduce serious violence; to make provision about offensive weapons homicide reviews; to make provision for new offences and for the modification of existing offences; to make provision about the powers of the police and other authorities for the purposes of preventing, detecting, investigating or prosecuting crime or investigating other matters; to make provision about the maintenance of public order; to make provision about the removal, storage and disposal of vehicles; to make provision in connection with driving offences; to make provision about cautions; to make provision about bail and remand; to make provision about sentencing, detention, release, management and rehabilitation of offenders; to make provision about secure 16 to 19 Academies; to make provision for and in connection with procedures before courts and tribunals; and for connected purposes.’
The Police, Crime, Sentencing and Courts Bill is a Home Office Bill that was introduced to Parliament on 9th March 2021. It is a large Bill (over 300 pages long) that covers a great many different topics as listed in the long title above. I strongly support the Bill as I believe it introduces many excellent provisions for tackling crime and keeping us all safe, as well as closing some long-abused loopholes.
I understand that there are certain parts of the Bill that have worried some people, particularly regarding protests. To understand these sections better, I arranged a private briefing with officials at the Home Office so that I could share with you the rationale of the clauses relating to protests. These clauses have been misreported in the media, making some people believe that they are detrimental to our rights – this isn’t the case, but full information is sometimes difficult to come by, so I hope this explanation will be helpful.
Contents
- Background
- Conditions on Protests
- The Secretary of State can define ‘serious’
- Noise
- ‘Ought to have known’
- Public Nuisance
- Conclusion
The clauses relating to protests that I will discuss here can be found in Part 3, Public Order, of the Bill (clauses 54-60).
- Background
Public order legislation, which is the law that is generally most applicable to policing protests, is currently set out in the Public Order Act 1986. Since 1986, a lot has changed in the world, including about how protests are conducted – the 1986 Act has needed updating for some time to better reflect the modern world.
- Conditions on Protests
There have been some reports shared in the media that the Bill restricts the right to protest by applying harsh restriction on protestors. This isn’t actually true. The Bill mostly retains what is set out in sections 12 and 14 of the Public Order Act 1986 by maintaining the threshold of ‘serious’ public disorder, ‘serious’ damage to property, or ‘serious’ disruption to the life of the community, for police to apply restrictions to a protest, and as a result not a lot about laws on protests would change in this regard.
Some people argued that the threshold should be reduced to cover disorder, damage, or disruption that is ‘significant’ rather than ‘serious’. This would lower the threshold that would need to be met for police to impose restrictions. The Government decided that it was not right to lower the threshold from what it is currently, and therefore the threshold of ‘serious’ remains the same as it is now.
What the Bill changes is adding noise as a reason for restrictions on protests. I will go into more detail on that below.
The process for applying restrictions also remains the same: when police are at a protest, they have bronze, silver, and gold commanders who are in charge of their officers, and give appropriate orders. The gold commander is the one who is able to make decisions about restrictions on protests, which remains the same under this Bill. This means that decisions are left to experienced police officers, as they are now, who understand the operational realities and dangers of when protests can get out of control.
Under sections 12 and 14 of the Public Order Act 1986, the police must give written notice of restrictions to be placed on protests ahead of time in terms of the duration, route, and location of a protest, or how many people can attend. I understand that the gold commander can apply restrictions on the ground, if the protest becomes potentially dangerous and reaches the threshold of serious as discussed above.
3. The Secretary of State can define ‘serious’
In clauses 54 and 55 of the Bill, it states that:
(12) The Secretary of State may by regulations make provision about the meaning for the purposes of this section of—
(a) serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession, or
(b) serious disruption to the life of the community.
(13) Regulations under subsection (12) may, in particular—
(a) define any aspect of an expression mentioned in subsection (12)(a) or (b) for the purposes of this section;
(b) give examples of cases in which a public procession is or is not to be treated as resulting in—
(i) serious disruption to the activities of an organisation which are carried on in the vicinity of the procession, or
(ii) serious disruption to the life of the community.
(14) Regulations under subsection (12)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public processions in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision.
(15) A statutory instrument containing regulations under subsection (12) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
The words of the Bill can be quite difficult to understand, so I will go through each subsection. Subsection (12) says that the Home Secretary can define what constitutes ‘serious’ disruption. For example, if a group exercised a new tactic that had not been widely used in protests before (such as the use of ‘lock-ons’ or ‘going floppy’ used in protests over the summer in London), those groups might argue that there is no law that says they can’t use such tactics even though most people would say that, actually, the tactics are very disruptive and not acceptable. The Home Secretary could then decide that the new tactic falls under the definition of ‘serious’ disruption. At my briefing with the Home Office, they told me that this decision could only ever be retrospective, meaning that the tactic or behaviour would only be prosecutable in the future and it would not be the case that people could be prosecuted for acts before the Home Secretary’s provision.
Subsection (13) explains what the Home Secretary’s provision can contain. It says it can define what constitutes serious disruption, but can also give examples of what is and is not serious disruption. For example, the statement could say that blocking a road is serious disruption, but filling up a square isn’t. The Secretary of State’s provision must also fall under what a reasonable person would consider as ‘serious’ - they wouldn’t be able to decide just anything falls under the definition.
Subsection (14) sets out how the Secretary of State makes these new rules law, where that law would apply (England and Wales), and that small or temporary changes can be included.
It says in subsection (14) that the Secretary of State’s provision must be made by statutory instrument, and then the Bill explains in subsection (15) how that process would happen. The process describes here is known as laying a statutory instrument with affirmative procedure. This means that the Secretary of State would have to lay the statutory instrument (which is a piece of secondary legislation that is permitted by primary legislation which in this case is this Bill) and then both the House of Commons and the House of Lords would have to vote on it. It would have to pass in order to become law.
Here, we can see that subsection (15) provides an important safeguard. Some people have raised concerns that a Secretary of State could try to make unfair or politically-motivated rules, however that is mitigated by the vote in Parliament. Anything unreasonable could be stopped by Parliament, ensuring that any change to the definition of ‘serious disruption’ is scrutinised democratically.
4. Noise
This Bill introduces noise as a reason for the police to apply restrictions to protests. This is a new provision that does not currently exist in law, and some people have said that it is unfair because protests, by their nature, have to be disruptive and noisy in order to be effective. I think this misses the point, and actually by being very noisy many protests end up alienating people who might otherwise agree with their cause by intimidating people or stopping them from going about their business.
In clauses 54 and 55, the Bill states that conditions can be imposed on protests if:
(2A) For the purposes of subsection (1)(ab)(i), the noise generated by persons taking part in a public procession may have a relevant impact on persons in the vicinity of the procession if—
(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity, or
(b) it may cause such persons to suffer serious unease, alarm or distress.
Note: subsection (1)(ab)(i) simply states the idea that noise that has a relevant impact can be a reason to impose conditions, and it uses the same wording as in (2A) above.
What we can see here is that the police must be able to show that the noise is having a serious impact of intimidation or harassment, unease, alarm or distress. A condition imposed because of noise would be to protect the public surrounding the protest to make sure they feel safe going about their daily business - it isn’t intended to be used just because some individual might find the protest annoying.
The Bill also explains that, before imposing any kind of condition, the police must take into account the number of people affected being affected, how long they might be affected for, and the intensity. This means the threshold is quite high to impose a condition based on noise.
5. ‘Ought to know’
These three words have become quite contentious, although it seems that they have been misreported which has made a lot of people concerned when there is no need to be.
The words come from clause 56 of the Bill which says:
(5A) A person is guilty of an offence under subsection (4) or (5) only if—
(a) in the case of a public procession in England and Wales, at the time the person fails to comply with the condition the person knows or ought to know that the condition has been imposed;
(b) in the case of a public procession in Scotland, the person knowingly fails to comply with the condition.
People have argued that there is lots of room for abuse if the police were to just say that someone ought to have known about restrictions on protests, and could prosecute them on that basis. This isn’t true: for someone to be charged with the offence of breaching conditions on a protest, the burden of proof is on the police to show they have done everything reasonably possible to inform protestors of restrictions.
The rationale behind this clause is to close a loophole that has been long abused: some civil rights groups encourage protestors to put their fingers in their ears and sing to themselves when police tell them about restrictions, and to tear up information leaflets without reading them, so that they can claim they didn’t know anything about restrictions. Clearly, this is an example of wilful ignorance on behalf of the people who chose to do this, and this clause essentially means that if they have chosen to ignore the police when the police were informing them of restrictions, then they ought to have known about the restrictions because there was great effort made to tell them. The police also have to give due consideration to people who are blind or deaf, or have other disabilities, to ensure that these people are also properly informed.
As pointed out in the explanatory notes to this Bill, ‘it remains a defence for a person to prove that the breach of the condition arose from circumstances beyond their control, in relation to both processions and assemblies.’ This means that, if someone didn’t follow restrictions on a protest but it wasn’t their fault, this is a valid defence against prosecution.
6. Public Nuisance
Clause 59 of this Bill gets rid of the common law offence of public nuisance and replaces it with a statutory offence. What this means is that the offence of public nuisance has been put on the statute book, where it is properly defined, as opposed to being within common law, which is generally considered vague and overly open to interpretation. Having public nuisance as a statutory offence means that it would have an explicit definition, which this Bill sets out as an act or omission which ‘causes serious harm to the public or a section of the public, or obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large’.
In order to be prosecuted for the statutory offence of public nuisance, the act must have been intentional or reckless. The Bill also explains what is meant by ‘serious harm’, including things like death, injury and property damage among other things.
Most of the concern about clause 59 hasn’t been about the offence of public nuisance itself, but rather the fines and sentences that can be imposed. The Bill sets these out as follows:
(4) A person guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both.
It is subsection (b) that has worried some people: many feel that ten years in prison for a ‘nuisance’ is very harsh, but to better understand why ten years is the sentence in the Bill, it is important to consider both what the offence of public nuisance can actually entail, and the difference between a summary conviction and a conviction on indictment.
Summary convictions are given for crimes brought and sentenced before a magistrates’ court, and these tend to be less serious crimes. Convictions on indictment are for crimes that are brought and sentenced before judges and juries in the Crown Court, and therefore are usually the most serious crimes. The Bill shows that for public nuisance, it is possible for either summary convictions or convictions on indictment (known as ‘either-way’ offences), i.e. it is possible to be tried, convicted, and sentenced in either a magistrates’ court or the Crown Court, depending on factors in the case. A good comparison to understand the difference is a crime like assault. If someone assaults someone else by punching them and they cause little injury, the assault is likely to be tried in a magistrates’ court thus possibly resulting in a summary conviction. This is because magistrates have limits on the punishments they can hand out – fines and short prison sentences, and thus cannot deal with serious cases which require harsher sentencing. An assault causing serious injury or grievous bodily harm would be likely to go to the Crown Court, as a magistrates’ court would probably decide they could not sufficiently deal with the severity of the case, and a conviction in the Crown Court after having been tried by a jury would be a conviction on indictment.
Therefore, the difference with a public nuisance offence, i.e. where it would be tried and thus how it could be sentenced, is often tied to how serious the offence was. Given it is part of the definition of ‘serious harm’ in the Bill that death can be caused, public nuisance resulting in death and serious injury is likely to end with conviction on indictment, which can result in the 10 year prison sentence. This is where the 10-year sentence comes from, as causing death through one’s actions is a serious crime for which is widely agreed to be justified with a harsh sentence. The word ‘nuisance’ in ‘public nuisance’ is misleading, as it makes the crime seem exclusively frivolous - but the reality is that offences of public nuisance can be very serious and dangerous if taken to extremes.
Given this, the possibility of 10-year imprisonment is fair if someone’s intentional or reckless action has had serious negative consequences for someone else.
7. Conclusion
This Bill has received a lot of press, and many of the reports have been inaccurate. I hope this explanation has been helpful for understanding what the different clauses actually mean. The intentions behind this Bill are very good, and I feel certain they are the right provisions to put in place to ensure the public are kept safe from a very small minority who intend to push the boundaries too far.
It is a misrepresentation to say that this Bill is a threat to our right to protest: quite the contrary, I believe the Bill will revive our democratic right to protest by keeping everyone safe during demonstrations. It opens the door to people who would like to take part in protests, but who are put off by worries that the demonstration might turn riotous or violent. It allows the police to do their job in upholding the law and keeping us all safe.
There are very many more provisions in this Bill - far more than I have space to explain. In this explainer, I have chosen the clauses that people have contacted me about with concerns. However, if there is a part of the Bill that I haven’t explained here that you would like some more information about, please do not hesitate to get in touch at hello@chrisloder.co.uk and I will do my best to get an answer for you.
