Aintree Protest – Is it public nuisance?

118 protesters, led by the group ‘Animal Rising’, have so far been arrested at Aintree for actions that disrupted the races in support of animal welfare concerns.[1] It is reported that they were arrested for criminal damage and public nuisance. This post will not seek to question the morality of their acts, but rather the shaky legal grounds for arrest.

What is Public Nuisance?

The problem with the new statutory offence of public nuisance, included in the Police, Crime, Sentencing and Courts Act 2022, is that the triggers for it appear to set different thresholds.[2] The offence is made out where a person does an act, or omits to do an act required of them in law, that:

1. Creates a risk of, or causes, serious harm to the public or a section of the public, or
2. 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

where they intended to cause that consequence, or were reckless as to whether it would be caused.

The first trigger requires that ‘serious harm’ is at risk of being caused – defined as

1. death, personal injury or disease
2. loss of, or damage to, property, or
3. serious distress, serious annoyance, serious inconvenience or serious loss of amenity.

However the second trigger merely requires that a section of the public is obstructed from doing what they otherwise have the right to do. To what this offence may be capable of applying is very broad and ill-defined.

The protestors at Aintree scaled a fence and ran out onto the racetrack, obstructing the jockeys from racing, and preventing the public from enjoying the race. The race itself was delayed by 14 minutes. Would this be sufficient to meet the criteria for the second trigger? There is no requirement that their obstructive actions lead to any of the serious harms required by the first trigger, so the actus reas of the offence is met simply by the obstruction itself. Had they obstructed the race for only 2 minutes, would the offence still be made out?

A reasonable excuse

The lack of a need for serious harm, or indeed any harm at all, is further complicated by the addition of the defence of reasonable excuse in the offence. Whilst not directly mentioned, a reasonable excuse ingredient has been interpreted by the courts to mean that a person may be able to rely upon their article 10 and 11 rights (freedom of expression and of assembly) as a defence.[3] When assessing whether a person can rely upon those rights as a defence, the court must consider whether the conviction (and therefore infringement upon their art 10 and 11 rights) would be proportionate to what was done. However, as previously stated, there is no requirement that harm is caused, let alone serous harm. It must be assumed that Parliament thought that obstructing the rights of a section of the public to be harmful in of itself, regardless of the circumstances or its severity.

This lack of clarity may result in police officers arresting protesters who have a legitimate excuse through the exercise of their convention rights, and may therefore target lawful activity. However, being absolved in court months down the line is of little help to protesters who have already had their rights infringed through removal from the site of protest.

Even were one to rely upon the first trigger, of criminalising behaviour that is at risk of causing serious annoyance etc, then it becomes apparent that virtually any protest activity can come within its scope. Protests are intended to interfere with ordinary public life – they are acts of defiance. Almost any protest can be at risk of causing serious annoyance to a section of the public.

So what?

Returning to the issue at Aintree – officers have now released more than 40 of those arrested without charge.[4] One has to wonder, are these ill-defined powers being used to simply remove the inconvenience of protesters at a stage where officers can legitimately claim they had reasonable suspicion that a section of the public were at risk of being seriously annoyed? Such tactics may result in a chilling effect on the right to protest, through the activity itself being stamped out on the ground, regardless of whether the protesters themselves end up facing a charge.

There are many who likely agree that the police did the right thing in arresting those who blocked the race. However, the right to protest is a fundamental feature of a democratic society. If we wish to protect it, not only for others but also ourselves, then we must accept that we will face annoyances and inconveniences. Having to wait 14 minutes longer to watch a horse race is hardly excessive or entirely unreasonable – and therefore convictions for public nuisance may well not be a proportionate response in relation to the exercise of their right to protest.

Whilst the protestors could not of course simply be left on the racetrack, was it necessary to arrest and detain them? Could they not have simply been removed? Even were they to run back out onto the track, the only point that the police should have a right to arrest them is when their behaviour has transgressed into criminality – which as referenced above is incredibly vague in relation to public nuisance.

Environmental and animal rights protesters are becoming the go to justification for permitting ever greater restrictions on our right to protest. However we have to remember, what silences them silences us all. If we support practices that subvert their right to protest, we have to hope that we will never wish to rely upon it ourselves.   

[1] Jack Skelton, ‘Grand National: 118 People Arrested Over Protests That Delayed Start of Aintree Race’ BBC (15 April 2013) Available at: <https://www.bbc.co.uk/sport/horse-racing/65285510> [Accessed on 16 April 2023].

[2] Police, Crime, Sentencing and Courts Act 2022, art 78.

[3] Director of Public Prosecutions v Ziegler [2021] UKSC 23, [2022] AC 408.

[4] Josh Halliday, ‘Over 40 Activists De-Arrested After Grand National Protest, Campaign Group Says’ The Guardian (16 April 2023) Available at: <https://www.theguardian.com/uk-news/2023/apr/16/grand-national-aintree-horse-deaths-protest-rspca> [Accessed on 16 April 2023].