Met’s first use of new public order power against Just Stop Oil

The Met have made use of s.7 of the Public Order Act 2023 for the first time yesterday. From their Twitter feed they announced that they had ‘put in a section 7’.[1] Ignoring the fact that s.7 is not something that can be ‘put in’ for a moment, the use of this power is an important moment in the policing of Just Stop Oil protests.

What is the law?

S.7 makes it an offence to interfere with key national infrastructure, of which ‘road transport infrastructure’ is one.[2] This includes any special road within the meaning of the Highways Act 1980, or an A or B road.[3] There is no severity threshold for this offence. If infrastructure is prevented from being used or operated for any of its intended purposes, to any extent, the offence is made out.[4]

This is quite different from the powers contained in the 1986 Act to impose conditions. To impose conditions, a protest now has to – at least – be capable of causing more than minor disruption.[5] This lower threshold for disruption was introduced in June of this year under constitutionally dubious circumstances. Admittedly ‘more than minor’ is not much, but its more than ‘to any extent’ in the s.7 offence. So why did the Met not impose conditions today? Even though they have for every other slow march this year, even when they had this power previously.

What happened?

The protesters entered the road near Parliament Square at 10.0am.[6] According to a Just Stop Oil as reported in The Guardian, the police arrived at 10.10 and immediately began making arrests. The Met first tweeted at 10.13, to say that police ‘are responding’ to the incident, and then again at 10.17 to say that 6 arrests had already been made.[7] This suggests that the report in the Guardian is likely correct. According to the Met, by 10.40 65 protesters had been arrested and traffic was flowing freely once more.[8] The Guardian puts it slightly earlier at 10.37.[9] Regardless, it can be seen that arrests must have begun almost immediately if, by 10.17, 6 arrests were already made. After this, all were arrested swiftly.

So what?

Arguably, it has been used because it can immediately shut a protest down. The offence has been made out – or reasonable suspicion thereof has been acquired by the police – and that’s all that is required. However, the offence does have a defence of ‘reasonable excuse’ – which, following Ziegler and Northern Ireland Abortion Services, may permit protesters to rely on their right to peaceful protest (protected under the ECHR) as a defence.[10] The Met appeared to suggest they had factored this into their decision making, and are reported in The Independent as having said that s.7 only targets ‘disproportionate interference’.[11] But, aside from a potential read in through the reasonable excuse defence, there is no mention of proportionality in the legislation. Given how swiftly the police acted, making arrests within 4 minutes, was such a proportionality assessment really conducted at the scene?

Considering protesters have this potential defence, and may well therefore be found not guilty, why did the Met choose this route rather than imposing conditions to get rid of the protesters? Or why did they not arrest for wilful obstruction of the highway? That offence contains a reasonable excuse defence, as the s.7 one does. Given that any ‘interference’ with the roads would have been obstructive, it is difficult to see what the new offence adds, if anything. Similar issues arise when considering why protesters weren’t arrested for public nuisance, which was codified into legislation from common law only a year ago. With a belt full of existing powers and offences, why turn to the new one? Is it because the courts have not yet definitively commented upon it, and within this grey area there may be some fleeting wiggle room? Whether they are found guilty of the offence months down the line in court is beside the point – they are out of road. It doesn’t help the protesters where and when they need it most.[12]

Until such a time as the courts make comment on the availability of the ‘Ziegler defence’ to s.7, this power can effectively ban any protest on any road under the definition of ‘road transport infrastructure’. But will the police use it non-discriminatorily? Or will they target protest movements they consider as illegitimate, or those that don’t ‘play by the rules’? Given the growing number of protests that are occurring in relation to the Israel-Palestine conflict, this could quickly become an issue for more protest movements than that related to the environment.

[1] Metropolitan Police (@metpoliceuk), ‘Parliament Square #Westminster…’ Twitter (30 October 2023) <https://twitter.com/metpoliceuk/status/1718940827278364965> [Accessed on 20 October 2023].

[2] Public Order Act 2023 (POA 23), s.7(1).

[3] POA 23 (n 2), s.8(2).

[4] POA 23 (n 2), s.7(4).

[5] Public Order Act 1986, ss.12, 14 + 14ZA.

[6] 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 30 October 2023].

[7] Metropolitan Police (n 1); Metropolitan Police (@metpoliceuk), ‘The Police are Responding…’ Twitter (30 October 2023) <https://twitter.com/metpoliceuk/status/1718940827278364965> [Accessed on 20 October 2023].

[8] Metropolitan Police (@metpoliceuk), ‘The Road is Cleared…’ Twitter (30 October 2023) <https://twitter.com/metpoliceuk/status/1718940827278364965> [Accessed on 20 October 2023].

[9] Gayle (n 7).

[10] Director of Public Prosecutions v Ziegler [2021] UKSC 23, [2022] AC 408; [10] Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) arts 10 and 11.

[11] Sam hall, ‘Just Stop Oil Protesters Arrested at Westminster Demonstration’ The Independent (London, 30 October 2023) <https://www.independent.co.uk/news/uk/just-stop-oil-metropolitan-police-parliament-square-westminster-london-b2438409.html> [Accessed on 30 October 2023].

[12] David Mead, ‘Policing Protest in a Pandemic’ (2021) 32(1) King’s Law Journal 96, 100.