Can the police arrest me for protesting?
The Police, Crime, Sentencing and Courts Act 2022 (‘the Act) has introduced a range of new police powers to restrict protest since coming into force in April 2022. As a result of the new legislation, those organising and attending protests face arrest and criminal charge for a number of activities which were previously lawful. It is therefore more important now than ever to be informed about your rights and what you can do if police have exceeded their powers.
There are a number of different ways the new anti-protest laws will impact protests in the UK going forwards and in turn impact individuals organising or taking part in those protests. The Act provides new powers for the police to:
- Impose conditions on protests
- This includes powers for the police to place conditions on protests if they are likely to cause ‘serious disruption’, for example by being too noisy. The Act also gives the Home Secretary the power to determine what the term ‘serious disruption’ means.
- Arrest individuals for breaching conditions placed on a protest
- Arrest individuals for “intentionally or recklessly causing public nuisance”
The Act also increases the maximum penalty for the offence of obstructing the highway from a fine up to six months imprisonment.
What conditions can be imposed on a protest?
Prior to the coming into force of the Act, police were able to place conditions on a protest only if it was likely to cause "serious public disorder, serious damage to property or serious disruption to the life of the community" and the conditions they could impose were limited.
The Act expands the ability of the police to place conditions on a protest by lowering the threshold for conditions to be imposed, for example where there is a risk that the noise of a protest may cause “serious disruption to the activities of an organisation” or may cause an individual “serious unease, alarm or distress”. It also enables the police to impose any condition they think is necessary to prevent “disorder, damage, disruption, impact or intimidation”.
The result of this is that the police are much more likely to place conditions on protests and those conditions are likely to be much more wide-ranging than previously allowed.
Can the police arrest me if I breach those conditions?
The Act has also increased the power of the police to arrest protestors who breach conditions that have been placed on a protest.
Previously, it was an offence for an individual at a protest to knowingly breach a condition. This meant that if an individual could prove that they were not aware of the conditions in place, they would not be guilty of the offence of breaching them. This meant that there was a requirement for the police to effectively communicate the conditions to everyone taking part in a protest.
The Act has changed that so that it is an offence if an individual breaches a condition where they either knew or ought to have known about it. As a result, the police have increased powers to arrest protesters who are in breach of conditions at a protest since they will not need to show that the protestor knew about those conditions before arresting them.
Public nuisance and protests
The Act also introduces a new offence of “intentionally or recklessly causing public nuisance” and abolishes the common law offence of ‘public nuisance’.
An individual is guilty of this offence if they intentionally or recklessly do something that
- creates a risk of, or 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
The term ‘serious harm’ includes “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”.
While this offence could arguably apply outside of the context of a protest, it is anticipated that it will be used against protestors or those who organise protests given its inclusion in a piece of legislation that deals specifically with protests and public order.
This means that the police can also arrest protestors if they suspect that they have intentionally or recklessly caused a public nuisance.
The impact on the right to protest
The common law right to protest is a fundamental and long-standing right in the UK. In Tabernacle v SSD [2009] EWCA Civ 23, Lord Justice Laws articulated the importance of tolerating the disruption protests might cause stating, “rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them”.
It is in this context that these new police powers to manage and restrict protests should be understood and challenged. These new powers appear to take direct aim at the principle that a fundamental aspect of protests is that they should be disruptive. By seeking to make it illegal for a protest to be disruptive, the Act will undoubtedly have a chilling effect on the right to protest in the UK and there are likely to be more protestors that are arrested by police under these new powers.
However, as this legislation is new, it is important that it is challenged in the courts both to help define the limits of the new anti-protest laws and to ensure police are held to account if they go beyond them and arrest individuals unlawfully.
Our expert team of police action, civil liberties and human rights solicitors are experienced in bringing claims against the police. They are always happy to discuss your concerns about an incident involving the police. If you or someone you know has been arrested at a protest, call our office on 0207 632 4300.