A Rare Case of Unreasonably Restricting Protest
Earlier version first posted on UEA Law School Research blog here.
The Case
A case brought against Greta Thunberg and four other protesters was dismissed by Judge Laws on Friday 2nd February.[1] Whilst the case has garnered media attention due to the involvement of Greta, the outcome of the case is important from a legal perspective.
The five protesters were arrested in October of last year at a protest outside the InterContinental hotel in Mayfair which was hosting the Energy Intelligence Forum (EIF) – an event attended by executives from fossil fuel companies and government ministers. They were arrested for breaching a condition imposed under s.14 of the Public Order Act 1986 (POA 86). As far as arrests at climate protests go, this is the bread and butter of public order policing; therefore, one might assume that the police were well versed in the use of these powers. For example, during Just Stop Oil’s slow march campaign in London last summer, the Metropolitan police made 271 arrests, mostly for breaches of conditions.[2]
The Law
However on June 15th, during that slow march campaign, the disruption threshold at which police could impose conditions was changed. Introduced via secondary legislation, these regulations altered the meaning of ‘serious disruption’ in sections 12 and 14 of the POA 86 to, among other things, ‘the prevention of, or a delay that is more than minor to, the carrying out of day-to-day activities’.[3] It further permitted police to consider any ‘relevant cumulative’ disruption. Officers were therefore given the power to impose conditions upon a protest when they reasonably believed that it may cause more than minor disruption through a cumulative impact. The inclusion of the word ‘may’ is important, as there simply needs to be a reasonable belief in a risk that more than minor disruption could eventuate.
By changing this definition Suella Braverman significantly widened the discretionary powers of the police in relation to protest. But this does not only pose difficulties for protesters. Despite Braverman claiming that this would clarify when police could impose conditions,[4] all it has done is shift the goal posts. What exactly is more than minor? And why is this conceptually any clearer than serious? Serious disruption has been a threshold for triggering the use of conditions to restrict protest for almost 100 years – since the Public Order Act 1936. Though society has changed, and what is disrupted changes with it, one might assume that with 87 years practice the police had a good handle on what serious disruption meant.
Returning to the case brought against Greta and others, the case was dismissed by Judge Laws as the conditions imposed were, ironically, too unclear – unreasonably interfering with their rights under Articles 10 and 11 of the European Convention of Human Rights.[5] They had further not been properly communicated to the defendants, and the prosecution had failed to provide evidence that any disruption had been caused.[6] The conditions were found to have been unlawfully imposed, and therefore there was no case to answer for the defendants.[7] For conditions themselves to be found unlawful is rare – there has been no publicly announced finding of this kind since Jenny Jones v The Commissioner of the Police for the Met [2019] where it was held that an essentially blanket ban on protests in London through the use of conditions had been unlawful.[8] Courts generally appear reluctant to interfere with operational decisions of the police and will more frequently defer to their judgment.
Policing Problems
So what happened? Why have conditions been held as unlawfully imposed after years of seemingly lawful use? It could be that it was a one off, and this is an exception to the general trend. Alternatively, it could be that by lowering the threshold for their use, officers are unsure when they can actually use them, or rather, that they believe they can use them where mere inconvenience is risked rather than more than minor delay or disruption. In the past, officers had to be capable of evidencing at least the risk of serious disruption, given its natural meaning. This would have given them pause for thought regarding when they should impose conditions, for doing so too early might mean that they do not have sufficient evidence to prove that the higher triggering threshold had been met. By significantly lowering the triggering threshold, this may have emboldened the police into believing they could act sooner than they actually had the power to do. Evidencing the risk of more than minor disruption might appear to be an easier task than doing the same for serious disruption, and therefore the police may be less cautious about the use of conditions – leading to situations such as this where they were pre-emptively imposed, despite no evidenced disruption being caused.
But what about the risk of more than minor disruption? That there was no evidence that disruption had actually been caused is not to say that more than minor disruption could not later have been caused. The law operates ex-ante, it does not require the disruption to have eventuated. Therefore, it is arguably understandable that the police reasonably believed they had the power impose conditions in this case – albeit there were issues re communicating them which would have rendered them unlawful regardless. It is difficult to imagine any protest where more than minor disruption may not be caused, or rather, any protest is likely capable of causing more than minor disruption. That is their modus operandi. It is intended to disrupt the flow of everyday life to generate attention for a particular issue. To delay people as they pass in order to get their attention for long enough, so that they hear what the protesters have to say. In this case, the guests of the EIF had required escorts to get into the building, and therefore their entry into the building at least had been affected.[9] This outcome appears to suggest that this should be considered minor or less than minor disruption, though until these issues are litigated in court, the police are somewhat fumbling in the dark. If a protest blocked someone from entering a building for ten minutes, would that then be more than minor? Or at least pose the risk thereof? What about two people for five minutes?
Despite these issues protesters are nonetheless expected to obey the police due to it being an offence to not comply. If those arrested had known of the conditions and moved away from the entrance to the hotel, they would not have known that their rights had been unlawfully interfered with. This arguably incentivises protesters to disobey conditions they question the legality of, and put themselves at risk of conviction.
Liberty’s Judicial Review
But what if the powers themselves are ultra vires? A judicial review brought by Liberty against the decision of the Home Secretary to pass the regulations in question is making exactly that claim.[10] Heard at the end of February and currently awaiting an outcome, the second ground of their JR is that Parliament expressly rejected these amendments to the POA 86 as part of primary legislation only a few months before these regulations were introduced.[11] Therefore, the regulations subvert the will of Parliament as enacted through its legislative scheme under the Public Order Act 2023 (POA 23). What then of their use by officers? My master’s research project is focussed on the Just Stop Oil slow march campaign during which these regulations were introduced. Hundreds of protesters were arrested under this new definition. However, in November when the Just Stop Oil campaign resumed, the Met did not use conditions against protesters once – instead using the relatively new power under s.7 of the POA 23.[12] One wonders whether the looming spectre of Liberty’s JR, and potential claims in damages resulting from the use of an unlawfully passed power, influenced operational decisions.
Finally, it is also not only protesters or police who may struggle with this new definition – the factors that Judge Laws considered regarding disruption in this case were telling. He referred to the fact that no vehicles had been impeded, no emergency services were affected, and that there was no risk to life.[13] I would consider these issues more related to serious disruption, rather than more than minor. It will therefore be interesting to see how judges respond when peaceful protesters continue to appear in court for breaching conditions imposed under the current framework. As the courts have a history of acknowledging a right to peaceful assembly that predates the Human Rights Act, it may be that judges find themselves uncomfortable with the new status quo, where even peaceful and civilised protest – as Judge Laws described the present one – can be subject to conditions that if not obeyed, result in arrest and prosecution. Yet that is the situation we find ourselves in.
[1] Damien Gayle, ‘Judge throws out case against Greta Thunberg and other London Protesters’ The Guardian (London, 2 February 2024) <https://www.theguardian.com/environment/2024/feb/02/judge-throws-out-case-against-greta-thunberg-and-other-london-protesters> [Accessed on 10 February 2024].
[2] The Metropolitan Police (@metpoliceuk), ‘Since April Just Stop Oil carried out 515 slow walk marches…’ Twitter (25 July 2023) <https://twitter.com/metpoliceuk/status/1683796763130339328> [Accessed on 02 February 2024].
[3] The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, SI 2023/655.
[4] HC Deb 12 June 2023, vol 734, col 74.
[5] Hodge Jones & Allen, ‘Greta Thunberg Found Not Guilty Today at Magistrates Court After Protest at Energy Intelligence Forum in October 2023’ (Hodge Jones & Allen, 02 February 2024) <https://www.hja.net/news-and-insights/press-releases/falsely-accused-of-crime/greta-thunberg-found-not-guilty-today-at-westminster-magistrates-court-after-protest-at-energy-intelligence-forum-in-october-2023/> [Accessed on 09 February 2024].
[6] Gayle (n 1).
[7] Gayle (n 1).
[8] R (on the application of Jones) v Commissioner of Police of the Metropolis [2019] EWHC 2957 (Admin).
[9] Damien Gayle, ‘Greta Thunberg arrested at London oil summit protest’ The Guardian (London, 17 October 2023) <https://www.theguardian.com/business/2023/oct/17/greta-thunberg-arrested-at-london-oil-summit-protest> [Accessed on 10 February 2024].
[10] Liberty, ‘Letter in accordance with the Pre-Protocol for Judicial Review – The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023’ (2023) <https://www.libertyhumanrights.org.uk/wp-content/uploads/2023/06/230606-Liberty-LBC.pdf> [Accessed on 15 February 2024].
[11] Liberty (n 10), [40].
[12] Damian Gayle, ‘Met Uses New Anti-Protest Powers to Arrest Climate Protesters for First Time’ The Guardian (London, 30 October 2023) <https://www.theguardian.com/environment/2023/oct/30/met-arrest-more-than-60-climate-activists-just-stop-oil-protest-first-use-powers-public-order-act> [Accessed on 15 February 2024].
[13] Gayle (n 1).
