Are the mass arrests of Just Stop Oil Protesters lawful?
Over the past few weeks Just Stop Oil have renewed their slow march campaign in London. The Met’s response to this, at least publicly, has been to use s.7 of the Public Order Act 2023 to arrest everybody in the road within a matter of minutes. What is interesting is that s.7 came into force on 3rd May 2023, and would have been possible to use on the slow march campaign that was being conducted at the time (between April and July 2023 Just Stop Oil took part in around 512 slow marches). However, the police chose not to use this power. Instead, they relied upon imposing conditions on protesters after they had determined that serious disruption may be caused.
It was during this period that Suella Braverman claimed the ‘serious disruption’ threshold for imposing conditions was ‘unclear’, and that the police were being prevented from acting effectively because of it.[1] She therefore introduced a new definition of serious disruption via secondary legislation which came into effect on the 15th June.[2] This definition altered the meaning of serious disruption to ‘the prevention of, or a hinderance that is more than minor to, the carrying out of day-to-day activities’. It also permitted the police to consider the ‘relevant cumulative’ disruption of a protest. ‘Serious’ was therefore given a new meaning of ‘more than minor’, a threshold which could be breached through cumulative impact.
From this point onward, the police had the power to impose conditions on a protest where they may cause more than minor disruption to those undertaking journeys, and therefore at least had the power to clear the roads more quickly than they previously could.
But
And it’s a big but. They had the power to do this all along under s.7. As has been made clear over the past few weeks. In one incident The Met has proudly declared that arrests began within 30 seconds.[3] So why did they not use this power back in May, or June, or July? Why did they commit to using conditions? And why was a new definition of serious disruption even required?
I believe the problem lies in the lawfulness/proportionality of the current use of s.7. This offence is made out when a person, either intentionally or recklessly, commits an act that interferes with use of key national infrastructure.[4] It elaborates that interference means the prevention of infrastructure from being used to any extent for any of its intended purposes. This offence therefore has no disruption threshold at all. If you interfere with the use of the road, to any extent, and are at least reckless as to doing so, then the offence is committed. For more on this offence see here.
The thorn in the side of this offence for the police is that it is a defence to prove that the person charged had a reasonable excuse.[5] The Supreme Court has held, numerous times now, that a reliance on one’s rights under the European Convention of Human Rights may be capable of providing a ‘reasonable excuse’.[6] What this means in practice is that the police are required to consider whether any coercive or restrictive actions taken against protesters are proportionate. The rights of the protesters – the Right to Freedom of Expression and Right to Assembly, which together provide protection for peaceful protest – must be balanced against the need to maintain public order and to protect the rights of others.
Of key importance is that in Ziegler, the Supreme Court stated that just because a protest causes more than minimal disruption, it may still be reasonable and therefore lawful.[7] Is it reasonable for the police to believe that arresting protesters after being in the road for 30 seconds is proportionate? Even the charge rates are quite low. As of November 14th, 465 arrests had been made vs 211 charges.[8] That’s over half released without charge.
But what may prove more problematic for the police is proving necessity. For an arrest to be lawful, it must be necessary. Furthermore, a key part of the proportionality assessment is whether there are less restrictive, alternative means available to achieve the same aim.[9] Thanks to Braverman, the police have the power to impose conditions upon protesters, ordering them to leave the road, if they believe more than minimal disruption may occur. Therefore, where this option is available to them, how is arrest under s.7 necessary? Especially when considered within the human rights framework, compared to arrest the imposition of conditions is less restrictive and therefore a more proportionate response.
The sanctions for breaching conditions are also less onerous than those related to s.7. If you are merely a participant in a protest and breach a condition, you face a fine. If guilty of a s.7 offence you face up to a year in jail. The potential outcomes of these offences speak once again to the proportionality of their use in any given circumstance.
So what is going on?
Why has the police strategy shifted so drastically despite the legal framework remaining the same? One explanation is that the police are not necessarily seeking convictions, but are attempting to disrupt the Just Stop Oil movement itself to the point it can no longer effectively function. Following arrest, many of the protesters have been released with bail conditions. These include conditions stating that they cannot protest within the M25 area, or even that they are not allowed to enter the M25 area at all – a ban on entering London.[10] These conditions are in place until their case reaches trial, which is likely to be months away. A few have even been remanded in custody until trial, which could take months, which means they have been put in prison before they have been found guilty of any offence.[11]
I can’t help but wonder whether changing the definition of serious disruption to more than minimal vis-à-vis conditions has caused a shift in the policing strategy regarding what acceptable thresholds of disruption for protest activity are, and therefore the proportionality of response.
Take for instance what occurred on November 24th, when 4 protesters were arrested for walking into the road at a pedestrian crossing, with a green light to cross.[12] The protesters were subsequently released without charge, with the report stating that as the cars were held at a red light, and as the public had right of way to cross the road at that point, they were entitled to enter the road and no offence had been committed.[13] Arrest now appears to be little more than an automatic response to Just Stop Oil protesters entering the road. There was no consideration of whether an offence had even been committed, let alone the proportionality of arrest. Entry into the road now appears to be a blanket cause for arrest in of itself. Repeating this day in and day out, regardless of the number of protesters actually charged, results in the protesters never actually protesting or causing any disruption at all – which is the outcome the police appear to be seeking.
When these cases finally reach the courts, it will be very interesting to see how the Met defend the proportionality of their actions. Given that they could have used conditions in many instances as a less restrictive alternative, I fail to see how their current policy is proportionate, and therefore lawful.
[1] HC Deb 12 June 2023, vol 734, col 74.
[2] The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (SI 2023), SI 2023/655.
[3] Metropolitan Police (@metpoliceuk), ‘Once again Just Stop Oil activists…’ Twitter (24 November 2023) <https://twitter.com/metpoliceuk/status/1728031051279180000> [Accessed on 26 November 2023].
[4] Public Order Act 2023 (POA 23), s.7(1).
[5] POA 23 (n 3), s.7(2)(a).
[6] Director of Public Prosecutions v Ziegler (Ziegler) [2021] UKSC 23, [2022] AC 408; Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32.
[7] Ziegler (n 5), [67].
[8] Metropolitan Police (@metpoliceuk), ‘We have charged 34 Just stop Oil activists…’ Twitter (14 November 2023) <https://twitter.com/metpoliceuk/status/1718940827278364965> [Accessed on 26 November 2023].
[9] Ziegler (n 5), [58].
[10] Just Stop Oil (@justStop_Oil), ‘Phoebe Plummer given 6 months…’ Twitter (16 November 2023] <Ihttps://twitter.com/JustStop_Oil/status/1725207680325706233> [Accessed on 26 November 2023].
[11] Just Stop Oil (@justStop_Oil), ‘The MET Police like to say…’ Twitter (31 October 2023] <https://twitter.com/JustStop_Oil/status/1719371982880280659> [Accessed on 26 November 2023].
[12] Just Stop Oil (@justStop_Oil), ‘More Arrested at pedestrian crossing…’ Twitter (24 November 2023] <https://twitter.com/JustStop_Oil/status/1728045089329410138> [Accessed on 26 November 2023].
[13] Just Stop Oil (@justStop_Oil), ‘No charge after met police get it wrong…’ Twitter (25 November 2023] <https://twitter.com/JustStop_Oil/status/1728379450968953185> [Accessed on 26 November 2023].
