Recently, British MPs voted in favor of the contentious policing bill which will significantly broaden the scope of police powers to clamp down on non-violent protests. The rationale provided by the government is that the new Bill will empower policemen to protect both themselves and the public, facilitating the increased efficiency of the policing system. The Bill is backed by Home Secretary Priti Patel, who has previously heavily criticized protests by the Extinction Rebellion and Black Lives Matter. In my discussion, I shall focus on certain provisions mentioned in Part 3 of the Bill, which is the most controversial segment.

Creation of the Statutory Offence of Public Nuisance: Unpacking the Associated Problems

Now, the Bill creates a new statutory offence of “intentionally or recklessly causing public nuisance” in its clause 59. The new offence is accompanied by a ‘reasonableness’ defense. There are three issues associated with such creation.

Firstly, the definition of the new offence itself requires urgent attention. It is much broader than the already existing common law offence. In its current form, it could be used to criminalize non-violent protests that are otherwise protected by the rights to freedom of speech and expression and freedom of assembly and association under Articles 10 and 11 of the European Convention on Human Rights [ECHR]. This is because the offence would penalize not only those who cause “serious annoyance” or “serious inconvenience” to the public but also those who pose a risk of causing the same. This can be used as a catch-all offence because of its broad framing. Virtually every protest runs the risk of causing inconvenience to the public, and in part that is the very point of a protest. Peaceful protests by their very nature carry the potential to cause serious annoyance and inconvenience and criminalizing such acts will only dissuade individuals from participating.

Even the Supreme Court recently ruled that protests can be seen as a lawful excuse to cause obstruction such as blocking roads, even when they are deliberately aimed at causing physically obstructive conduct. The Court recognized the need for a certain degree of tolerance to the disruption of daily life in order to balance the protesters’ basic Article 10 and Article 11 rights. In contrast to this, the Bill runs the risk of criminalizing a vast number of peaceful protesters, or at least acting as a justification for the use of force against protesters.

Secondly, the burden of proving that there existed a reasonable excuse for committing the offence of public nuisance will lie on the accused. Such reversal of burden of proof is contrary to the principle of presumption of innocence of the accused until proven guilty, as enshrined in Article 48 of the EU Charter of Fundamental Rights. Lastly, the objective reasonableness of any situation is unlikely to be assessed until much after the event, when the restriction of the right to peaceful protest will already have been imposed.

A New Trigger For Clamping Down on Protests: ‘Noise’

Clauses 54 and 55 of the Bill seek to amend Sections 12 and 14 of the Public Order Act, 1986 respectively, creating a new basis for imposing conditions on processions and assemblies in England and Wales. The new ‘trigger’ would allow police officers to impose such conditions if they reasonably believe the ‘noise generated by those taking part’ may cause serious disruption to the activities of an organisation or a significant impact on the people in the vicinity of the site of protest. Such a restriction on the basis of noise is particularly troublesome as it attacks the very reason behind a protest – raising voices about an issue that protesters wish to draw attention to. Creating noise at a protest is quite literally a part of people making their voices heard. As held by the European Court of Human Rights in Airey v. Ireland, the ECHR is intended to provide rights that are “practical and effective” not “theoretical and illusory”. In light of this statement, the right to peaceful protest would carry no meaning if it could not be seen and, more importantly, heard.

Usually, the larger a protest, the ‘nosier’ it would be and such restriction could adversely impact those protests with the most public backing. This is all the more true as in determining whether the noise generated has the required ‘significant impact on persons in the vicinity’, the police officer is required to consider the likely number of persons who may experience the impact and also the likely intensity of such impact. Words used in these clauses such as ‘reasonably believe’, ‘likely’ and ‘intensity’ are undisputedly quite broad. Laws dealing with the regulation of noise usually define clear criteria regarding the decibel levels, time, and other relevant factors. However, any mention of such objective standards is missing from the Bill, leaving the question open to wide interpretation. The use of such terminology will leave an excessive degree of  judgment in the hands of the concerned police officer. It will become almost impossible for those persons organizing and participating in these protests to preempt what the police officer will consider to be violative of such broad standards. Hence, the protesters will, more often than not, fail to provide adequate safeguards against arbitrary or discriminatory use of such powers.

Conclusion

The Bill is an attempt at curbing the right to peacefully protest furthered under the garb of improving the efficiency of the overall policing system and preventing any inconvenience to the public. Very significant issues in the Bill need to be addressed and if allowed to become law in its present form, it will be antithetical to the core values of the British democratic society and lead to disastrous consequences for all future protesters.

Ishika Garg is a student at the National Academy of Legal Studies and Research, Hyderabad, India. Ishika’s research interests include human rights law, international law and constitutional law.

Suggested citation: Ishika Garg, UK’s ‘Police, Crime, Sentencing and Courts Bill’: Analyzing the Future of Protests, JURIST – Student Commentary, August 5, 2021, https://www.jurist.org/commentary/2021/08/ishika-garg-uk-police-crime-sentencing-bill/.

This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org