Appeal Denied for Protesters re Convictions Under New s 7 Power of the Public Order Act 2023

                Following a slow march protest on Earl’s Court Road in London in November 2023, three Just Stop Oil (JSO) protesters were convicted of an offence under s 7 Public Order Act 2023 (POA 23).[1] This is the offence of interfering with key national infrastructure – for more information about this offence see here. For the purposes of this protest, it was an offence to interfere with the use of road transport infrastructure – which includes all A and B roads.[2] The protesters appealed this conviction under two grounds:

• That the judge erred in concluding that proof of the ingredients of an offence under s 7 was sufficient to ensure ECHR compatibility.
• That the judge erred in concluding he could decide the issue of proportionality himself, and that the convictions were proportionate interferences with the protesters ECHR rights.[3]

The appeal failed on the first ground; therefore, the second was not considered.[4]

                This case is important for a number of reasons. Firstly, it expands the number of offences which do not require individual proportionality assessments to be conducted at trial. Secondly, it has mischaracterised the geographic impact of s 7. Lastly, it has further pushed the protest regulatory scheme in England and Wales toward a position where we require the permission of the police to protest.

                The judgment sets out the background to their interpretation by giving a brief overview of the current public order regulatory regime. It notes that there is a duty to inform the police in advance of the date, time, and proposed route of a public procession, and that the police have the power to impose conditions upon processions that may cause serious disruption to the life of the community.[5] However, it fails to mention that the threshold of ‘serious disruption’ was substantially lowered to the ‘more than minor’ hinderance of a single journey through the consideration the cumulative impact of protests on other days by the regulations introduced by Suella Braverman.[6] Those regulations were deemed unlawful by the High Court but are still in force pending a judgment from the Court of Appeal on the matter –  who may well disagree with the High Court.[7]

                This is important as the judgment interprets s 7 as only permitting a conviction where a ‘significant delay’ has been caused to road users, setting this within a wider context of regulations using significant or serious as the benchmark. It refers to the statutory framework as providing for regulation only where the adverse effects of protest have been significant.[8] However, the POA 23 defines serious disruption as more than minor.[9] For the offences of locking on and tunnelling, serious disruption can be considered to be caused where the impact has been more than minor.[10] Alongside the regulations altering the disruption thresholds in the Public Order Act 1986,[11] the wider context no longer so strongly supports an interpretation of s 7 as requiring a significant delay – giving significant its ordinary meaning. The question that should have been asked is, given the wider context of the meaning given to ‘serious disruption’ in the POA 23, and the amended POA 86, did Parliament intend ‘significant delay’ to be given its natural meaning, or did they mean it to be interpreted in a similar way as ‘serious disruption’.

                S 34 of POA 23 provides that:

• The cases in which individuals or an organisation may suffer serious disruption include, in particular, where the individuals or the organisation are by way of physical obstruction prevented, or hindered to a more than minor degree, from carrying out their day-to-day activities (including in particular the making of a journey).

                Given that this section clearly puts emphasis on setting the disruption to the making of journeys in particular to be more than minor, by way of physical obstruction, it is a bit odd for s 7 to then require that a significant delay is required – where said offence is targeting obstructive activities on particular roads. Granted, it could be argued that if Parliament wished the threshold to be more than minor, they would have used the term ‘serious disruption’ instead of ‘significant delay’. Nonetheless, this interpretation does not sit easily within the statute it finds itself enacted in, or the current, wider regulatory framework.

                This setting the bar at significant was important to the judgment in ensuring that the ingredients of the offence could be considered proportionate in of themselves; therefore, even though a reasonable excuse was provided, it did not allow protesters to rely on their Convention rights as an excuse. I would raise a counter argument and suggest that Parliament intended significant delay to be read in the context of the thresholds of disruption set in the POA 23, and further intended that the reasonable excuse requirement would ensure Convention compatibility due to the disruption threshold actually being more than minor rather than serious.

                It may be that this is considered semantics – either the threshold is significant given its natural meaning, and an individual proportionality exercise is not required. Or significant should mean more than minor and therefore a proportionality exercise is required to ensure that the conviction is proportionate to the disruption caused – and where it is significant, conviction is likely to be proportionate anyway. Different routes to essentially the same outcome. However, I prefer the second because it forces the courts to engage with the proportionality assessment on a case by case basis, rather than sweeping it wholesale under the rug. On the other hand, having the threshold as more than minor might cause police officers to use it far more widely than if it is set at significant. Ideally, the threshold would be significant and an individual proportionality assessment would be required, but that is unlikely to be achieved following the current developments of this line of doctrine.

                The second aspect relied upon in the judgment was that s 7 does not impact all roads – merely special roads under the Highways Act 1980 and A and B roads.[12] It states that unclassified roads make up 60% of all roads in the UK, and therefore the offence applies to a minority of roads.[13] However, A and B roads are not uniformly distributed. The judgment acknowledges this to a degree by accepting that in some rural areas there may only be one major A road and therefore fewer options for protesters to go somewhere busy that may attract attention, but then also recognised that the people living there would also have fewer routes to take to avoid any disruption caused.[14] The judgment did not consider any geographic disparity of s 7 beyond this.

                To make my point, it is worth showing a map of central London. Coloured roads (red, green, and orange) are A or B roads, those which are grey are not:

                As is clear above, almost every main road in London is either an A or B road. If one wishes to protest in London and avoid the possibility of being convicted of a s 7 offence, one is forced onto a small side road around the back of buildings or between the larger roads. That is quite literally forcing protest out of sight. Yet London is the capital of England. The political centre of power. If there is anywhere that protest should be allowed to occur it is in London. Yet s 7 poses a threat to any protester who uses the road across almost any road worth using. The judgment suggests that protesters can get around this by protesting in public land that is not a highway or at the side of the road.[15] If the judgment means on the pavement, then that is still part of the highway/road and subject to s 7 offence.[16] Just because pedestrians are being obstructed rather than vehicles doesn’t mean the offence won’t or can’t apply.

                Where else should protest occur? A park? Protesters are not even permitted to carry placards or signs in Royal Parks in London, and who would see such protests anyway aside from those who happen to be wandering nearby? If not parks, then where? The commons? But again, why would protesters go there? To shout at the wildlife? The reality is that public highways are now one of the very few places left where protest is purposeful and permitted. S 7 encroaches on this in the very location where protest arguably has the most right to be – in London – by affecting almost every road a protester is likely to want to be on.

                Lastly, the judgment makes clear that if a procession has been notified to the police, and protesters obey any conditions imposed by them, then they would have a reasonable excuse for any possible charge under s 7.[17] The impact of this in reality is that to avoid a potential conviction under s 7, one is required to notify and get conditional permission from the police to protest. Whilst there is a requirement in law to notify police of any procession, and it is an offence not to,[18] that does not make the protest unlawful. There is no such thing as an unlawful protest in England and Wales. There is also no requirement to gain the permission of the police to protest. And yet, if conditional permission is not granted by the police, they may use s 7 against the protesters. This effectively now means that we require police permission to protest on roads where s 7 applies. If we don’t, the protest will be considered to have no protection in law from conviction under s 7.

                 This judgment therefore ousts an individualised reliance on Convention rights under s 7 on somewhat flawed reasoning. Firstly, the wider statutory regime does not currently support a reading of ‘significant delay’ to mean that which is genuinely significant rather than more than minor. Secondly, it has failed to consider that whilst, by the number of roads or by landmass, roads to which s 7 applies are in the minority, the majority of highways in London that are worth protesting on are A and B roads. Lastly, it is effectively forcing protesters to seek permission from the police to protest, a requirement that does not exist.

[1] R v Sarti and Others [2025] EWCA Crim 61, [1].

[2] Public Order Act 2023 (POA 23), ss 7 and 8.

[3] R v Sarti (n 1), [3].

[4] R v Sarti (n 1), [78].

[5] R v Sarti (n 1), [55].

[6] The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (SI 2023), SI 2023/655.

[7] R (on the Application of National Council for Civil Liberties) v Secretary of State for the Home Department v Public Law Project (Liberty) [2024] EWHC 1181 (Admin), [2024] 5 WLUK 285, [100].

[8] R v Sarti (n 1), [56].

[9] POA 23 (n 2), s 34.

[10] POA 23 (n 2), ss 1 and 3.

[11] SI 2023, (n 6).

[12] R v Sarti (n 1), [59].

[13] R v Sarti (n 1), [41] and [59].

[14] R v Sarti (n 1), [59].

[15] R v Sarti (n 1), [73].

[16] Hirst and Agu v Chief Constable of West Yorkshire (1987) 151 JP 304; For a definition of ‘road’ in legislation see Road Traffic Act 1988, s 192(1).

[17] R v Sarti (n 1), [63].

[18] Public Order Act 1986, s 11.