Human Rights Act, ECHR and Government accountability / Protest rights
5 ways the Government’s Policing Bill just went from bad to worse
Posted by Jun Pang - Policy and Campaigns Officer on 02 Dec 2021
New offences added to draconian Policing Bill will either deter people from protesting, or drag them into the criminal justice system for doing so
By now you’re probably well aware of the Police, Crime, Sentencing and Courts Bill – the Government’s orchestrated attack on the fundamental right to protest that has sparked months of ‘Kill the Bill’ demonstrations all across the country.
If you’re not, you can catch up here.
Not content with the already draconian powers in the Bill to shut down protests and criminalise people trying to make their voices heard, the Government has recently added amendments to it.
Unfortunately they make for grim reading. Let’s take a look.
1. Locking on
The amendments introduce two new offences of ‘locking on’ and ‘being equipped to lock on’.
The Government wants to make it a crime for a person to attach themselves, another person or an object to any other person or object or to the land, where doing so is capable of causing serious disruption.
Locking on will be punishable by up to 51 weeks in prison and/or a fine. There is a defence of reasonable excuse.
Let’s unpack this.
Firstly, “attach” isn’t defined, so it’s unclear exactly what it means. Could linking arms with other protesters count? Either way, it looks set to criminalise a wide range of acts, from disabled activists linking their wheelchairs to traffic lights – as they did in 2012 – to chaining yourself to a tree.
And attaching objects to other objects or the land could make it illegal to use certain props at protests – like balloons that need to be tethered to the ground.
Locking on only needs to be “capable” of causing serious disruption to “two or more people”. On top of that, no one knows what “serious disruption” means because it’s not defined in the Bill. Instead, the Home Secretary will get to define and re-define it at will.
And what is a reasonable excuse? Will exercising your fundamental right to protest count? We’re not sure – which is a big problem.
You won’t actually have to ‘lock on’ to commit a crime either, as being equipped to lock on is another new offence where a person has an object with them in a public place with the intention that it will be used “in the course of or in connection with” any person ‘locking on’. The punishment here is a fine.
This offence could capture a lot of people, especially as the item doesn’t have to be related to the protest at all, and it doesn’t need to be used by the person carrying it, but by “any person”. Examples of such items could include bike locks, zipties – and much more.
And what does “in the course of or in connection with” mean? Talk about vague.
2. Wilful obstruction of the highway
The current punishment for someone who wilfully obstructs the highway is a fine. Amendments to the Policing Bill will change it to up to 51 weeks in prison, a fine, or both.
Such heavy punishments will stop people taking to the streets to stand up to power – and will add to existing pressures on courts, prisons, and the probation service.
3. Obstruction of major transport works
This is another new offence that a person commits if they obstruct someone from taking any steps connected to the construction or maintenance of any major transport works, or they in any way interfere with “any apparatus” relating to that construction or maintenance.
Again, the punishment is up to 51 weeks in prison and/or a fine, and there is a defence of reasonable excuse – but what that means is anyone’s guess.
This offence potentially criminalises a lot of actions. How will it work in practice? Well, inconsistently at best probably. At worst it’s so vaguely worded that it could essentially be a catch-all offence and could even cover picketing.
We have a right to choose when, where, and how we protest – including at sites of power.
4. Stop and search
The Government’s amendments will also expand stop and search. Police will be able to stop and search a person or vehicle for items intended for use in connection with the offences in the Bill: obstructing the highway, public nuisance, locking on, and obstructing major transport works.
Police will also be able to put orders in place allowing for ‘suspicion-less’ stop and search for these items in a specific location for up to 24 hours (and up to 48 hours, if authorised).
This is huge. All protests risk causing public nuisance, so in reality this allows police to whack suspicion-less stop and search measures onto any demonstration.
And the list of objects that could be “made, adapted, or intended for use in the course of or in connection with” the listed offences is potentially endless and could even include placards, flyers and banners.
The police can seize any prohibited item and therefore derail a protest before it even gets going.
This is a huge expansion of stop and search powers which are already used disproportionately against people of colour, and which can have long-lasting, traumatising effects. The latest stats show Black people are 7 times more likely to be stopped and searched than white people – and this increases to 14 times for suspicion-less stop and search. These new powers will only make discriminatory policing worse.
Linked to this is another new offence of obstructing a suspicion-less stop and search.
The existing offence of wilfully obstructing a police officer carries the possibility of one month in prison. But this new protest-specific offence is punishable by up to 51 weeks in prison and/or a fine.
A major concern here is what effect this offence might have on independent Legal Observers who act as witnesses to police behaviour at protests and offer legal advice and support. Under these new powers, an LO might be stopped and searched, and the police might seize legal advice materials. If they don’t cooperate, they could commit an obstruction offence.
This treatment of LOs isn’t hard to envisage considering earlier this year Liberty’s lawyers represented Legal Observers whom the police had actually arrested at protests.
The possible targeting of Legal Observers will have a disempowering effect on protests and on people’s ability to hold the police and the State to account.
5. Serious Disruption Prevention Orders – protest banning orders
The amendments also create new ASBO-style Serious Disruption Prevention Orders (SDPOs), or protest banning orders, which can be imposed on people who have taken part in two or more protests in a five-year period either when they are convicted of a second protest-related offence or found in contempt of court for a protest-related breach of an injunction, or when the police apply to the Magistrates Court on the basis of an individual’s past actions, including if they have previously carried out activities related to a protest that could have resulted in serious disruption (even if they didn’t actually).
The court must be satisfied that the protest banning order is necessary to stop the person committing a protest-related offence (remember the list of offences has become much broader with these amendments) or a protest-related breach of an injunction, stop acts that could (but don’t necessarily) cause serious disruption, or stop them contributing to someone else doing the same.
The terms for imposing protest banning orders are so broad they can catch all protest activities. And don’t forget the Home Secretary defines ‘serious disruption’ and can move the goalposts as and when.
People given a protest banning order will be subject to a set of conditions, including not associating with certain people, going to certain places, carrying certain items, or using the internet in a certain way.
They can last for up to two years, but there is no limit to the number of times a protest banning order can be renewed by the court.
Again, breaching a protest banning order can be punished by up to 51 weeks in prison and/or a fine.
Protest is a fundamental right, but protest banning orders effectively ban people from organising and making their voices heard, striking at the heart of what makes protest meaningful and effective: political community.
These new offences will either deter people from protesting, or drag them into the criminal justice system for doing so. They will further entrench discrimination, with devastating consequences for marginalised communities.
But they are’t law yet, and this Government buckles under public pressure and u-turns time and again.
We’ve also created this quick and easy tool to email your MP and tell them to stop this dangerous and discriminatory Bill from becoming law.
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