Understanding key laws related to protest

Criminal damage is defined as the “deliberate or reckless damage” of property without lawful excuse under this Act. Notably, criminal damage doesn’t need to be permanent to be an offence, and interfering with property in a manner that causes loss (including loss of profit) can be an offence. 

Commonly known as PACE, this Act's provisions give powers and duties to the police, and concern people in police detention, criminal evidence, police discipline and complaints.  

It includes powers for police and constables to stop and search persons and vehicles in a public place. They can only use this power when they have reasonable grounds to believe a person may be carrying stolen items, weapons, corrosive substantives, illegal fireworks and an item made or adapted for certain offences (burglary, theft, taking a vehicle without consent, fraud and criminal damage).  

The Public Order Act 2023 build on the stop and search powers laid out in PACE.  

The Public Order Act 1986 (POA 1986) created statutory offences relating to public order, such as riot, violent disorder, affray (ie, fighting in public) and causing fear or provocation of violence. Sections 12 and 14 of the POA 1986 give the police the power to impose conditions on marches, and more limited conditions on any static demonstration that comes within the definition of a “public assembly” – defined as the assembly of 2 or more people in a public place that is wholly or partly open to the air. Those conditions in relation to demonstrations were restricted to its size, duration and location. 

Section 13 of the POA 1986 does give a Chief Constable power to ban a protest march, however they can only do this if they have grounds to believe that imposing conditions will not be enough to prevent the march leading to serious public disorder. The local council must also approve the decision – unless the march is taking place in London. In all cases, the Home Secretary must also approve the Chief Constable’s decision to ban the march.  

The POA 1986 is still in force and was significantly amended by the Police Crime Sentencing and Courts Act 2022. The Public Order Act 2023 created an entirely new range of additional public order offences (for the key changes they both introduced, see below). 

The Criminal Justice and Public Order Act 1994 (CJPOA 1994) was introduced in the 1990s to clamp down on so-called “antisocial” behaviour and brought in new restrictions on many rights, particularly targeted towards raves and large gatherings, and travelling through land and property.  

Section 60 of the CJPOA 1994  allows an officer of the rank of inspector or above to give authorisation for suspicion-less searches at a particular location and for a period of 24 hours (after which it can be extended for a further 24 hours). The inspector must reasonably believe that serious violence may take place or has taken place, and giving an authorisation would be expedient (ie, beneficial) to prevent this or to recover weapons.  Concerningly, once granted it allows other officers powers to “stop and search” individuals, including their vehicles, without the need for those officers to have reasonable grounds for believing the individual or vehicle is carrying weapons. This cannot, however, be used in a discriminatory manner and should reflect the objective circumstances. Any individual searched is entitled to a written statement of having been so searched. The application for a written statement must be made within 12 months. 

Section 61 of the CJPOA 1994 covers trespass on land or property, and deals with both individuals, large scale trespass and vehicle trespass. It’s often used to target Roma and Traveller communities, squatters, unauthorised campers, and unlicensed raves and parties. 

Section 68 of the CJPOA 1994 covers aggravated trespass. Aggravated trespass is defined as any action involving trespass onto land where others are engaged in lawful activity, and intimidating them into stopping the activity, or disrupting or obstructing them from doing that activity.  Originally, this section was aimed at stopping outdoor raves, people protesting or stopping hunts, and mass occupations of sites to disrupt new road constructions, and only applied to “land in the open air”. It was amended in the Anti-social Behaviour Act 2003 to include aggravated trespass in buildings, such as shopping centres, offices, stores and more.  

This Act defines the current police areas in England and Wales, and outlines the relationship between the Home Secretary and police forces. It covers matters related to the police, from how police forces are structured, through to handling complaints and disciplinary proceedings.  

Section 89 of this Act sets out the offences of resisting or wilfully obstructing a constable in the execution of their duty. That could be stopping the constable from doing something, giving them false information such as a false name or address, and so on. Notably, being limp is not an obstruction, as a police officer can still move you on (with more difficulty). Being limp is a legal and peaceful way of minimising police actions and is widely used across the globe as means of lawfully protesting police action.  

Assaulting a police constable is also covered under Section 89 of this act. Assault here is not limited to physical assault, rather doing something that makes a constable or emergency worker fear immediate violence. A common defence to assault of a police constable is to show they were acting unlawfully/not in accordance with their powers. 

Serious disruption 

Before the Policing Act came into force, the police were able to put conditions on a protest march or demonstration if they thought it could cause serious public disorder, damage to property, disruption to the life of the community, or if they believed the purpose of the protest was to intimidate others and stop them doing something they have the right to do. The Policing Act made extensive changes to the The Policing Act 1986 (POA 1986), and gives the Home Secretary very broad powers to decide what amounts to “serious disruption”. The POA 1986 was then further amended by The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023. These powers have been used to introduce a new and much lower threshold for “serious disruption” (see the section further down on the detail of “serious disruption”).  

Noise trigger

A new noise trigger has been introduced under the Policing Act. Police can now put conditions on a protest march or static demonstrations if: 

1. They reasonably believe the noise generated by protesters may result in “serious disruption” to the activities of an organisation in the area; or 
2. they reasonably believe the noise generated by protesters may have a relevant, significant impact on persons in the vicinity. 

Any conditions imposed have to be necessary to prevent the alleged disorder, disruption, impact or intimidation.  

More powers for government ministers 

Government ministers now have the power to make rules (referred to as “regulations” in the Policing Act) and changes in certain areas, without going through the democratic process of parliamentary debate. The Policing Act enables ministers to make regulations that amend or expand the definitions of: 

• “serious disruption to the life of the community”; and 
• “serious disruption to the activities of an organisation”.  

These powers were controversially used in 2023 to change the definition of "serious disruption", making it similar to the definition in the Policing Act 2023 (see the section on “serious disruption” below for details).  

Ministers can also specify other areas as “controlled areas” around Parliament Square, meaning there is more potential to limit the space where demonstrations are allowed to take place in the future without a democratic debate in parliament.  

Restricting static demonstrations

The Policing Act has caused static demonstrations (where people protest in one place) to be treated in the same way as protest marches. Previously, rules related to static demos were more relaxed and recognised that they are less disruptive and easier for police to manage. Police could only impose conditions on static demos in relation to their duration, size and location. Now, police can impose any conditions as they think are “necessary” on static demos, in the same way that they can for marches, in order to “prevent the disorder, damage, disruption, impact or intimidation”. 

Restricting one-person protests

Previously, one-person protests could not be subjected to conditions by the police. The Policing Act now gives the police the power to impose the conditions on one-person protests too, if they think the one-person protest will be noisy enough to cause significant impacts to people in the area or disrupt the activities of an organisation. The police can for example, restrict the movements of the protester and prohibit them from entering specific public spaces.

Obstructing access to parliament

The Policing Act expands the “controlled area” around Parliament Square to now include surrounding roads. The "controlled area” limits the kind of activities that can take place, such as the use of amplified noise equipment (such as loudspeakers or megaphones), which is not allowed. Now, you’re also not allowed to obstruct vehicles from entering or exiting the parliamentary buildings and grounds. You’ll be committing an offence if you do.

Breaching protest conditions 

The Policing Act changes the level of knowledge needed for an offence to be committed. Previously, it was a criminal offence to knowingly fail to comply with the conditions imposed on a protest. Now you can be guilty of an offence if you fail to comply with any conditions imposed on a protest, and you “know or ought to know” that the condition(s) had been imposed. For example, even if you didn’t receive a direct order from a police officer during a protest, whilst others did, it could be alleged that you are committing the offence. However, it is also a defence for the individual to show that any failure to comply with conditions arose from circumstances beyond their control. 

The Policing Act has also increased the sentencing for breach of condition offences. The possible offences and sentences are: 

• Being a protest organiser and breaching a condition that has been imposed by the police, that you know or ought to have known about. The sentence is up to 6 months imprisonment or a fine of up to £2,500, or both. 
• Attending a protest and breaching a condition that has been imposed by the police, that you know or ought to have known about. The sentence for this offence is a fine of up to £2,500. 
• Inciting another person to attend a protest and breach a condition that has been imposed by the police, that you know or ought to have known about. The sentence is up to 6 months imprisonment or a fine of up to £2,500, or both. 

These sentences may in the future be increased due to further amendments which are pending. 

Causing public nuisance

The Policing Act has abolished the previous common law offence of public nuisance and created a new statutory offence of “intentionally or recklessly causing public nuisance”, which makes it a crime if you do something or fail to do something which: 

• Creates a risk of or causes serious harm to the public or a section of the public, or 
• obstructs the public or a section of the public from exercising their rights.  

“Serious harm” means death, injury or disease, loss of or damage to property, serious distress, serious annoyance, serious inconvenience, or serious loss of amenity.  

You’re only guilty off the offence if: 

• You intend your behaviour to have this consequence, or 
• you are reckless as to whether it has this consequence.  

It is a defence for a person to prove that they had a reasonable excuse for the act or omission.  

Some examples of what might be considered public nuisance are intentionally: blocking the entrance to a building, occupying a public space, or climbing a building as part of a protest.  

The statutory offence of public nuisance has codified the previous law but remains very broad and could cover many different types of actions. It also gives the police a high degree of discretion about what kind of behaviour to consider a criminal offence at a protest. If you’re found guilty of this offence in the Magistrates Court, you face up to 12 months in prison, an unlimited fine or both. In the Crown Court the maximum sentence is 10 years imprisonment. 

Wilful obstruction of the highway 

This is a criminal offence where someone without lawful authority or excuse intentionally obstructs the free passage along a highway (this includes roads and pavements, it does not include private property). It is a defence to raise lawful excuse such as your right to protest, this will then depend on what is reasonable in the circumstances. 

The current maximum sentence is 6 months in prison. The Policing Act created pending amendments, which could increase this to 51 weeks in prison or an unlimited fine, or both, if found guilty of this offence. 

It also applies if the road in question has already been closed by the police or another relevant authority.

Stop and search powers

The Public Order Act (POA 2023) builds on and expands policing powers already covered under legislation such as The Police and Criminal Evidence Act 1984 (PACE), the Criminal Justice and Public Order Act 1994 and the Terrorism Act 2000. It gives the police extra powers for stopping and searching both suspicion-based, and suspicion-less, within protest (and other) situations.  

These powers are not yet in force and are pending. 

As above, while PACE outlines that police must have reasonable grounds to suspect someone is carrying stolen goods or illegal articles (such as drugs, weapons, stolen property, illegal fireworks, articles that could be used to commit crimes such as burglary or fraud), the POA 2023 aims to give the police additional power to stop and search a person if they have reasonable grounds to suspect they are carrying something “made or adapted (or intended) for use in the course of or in connection with” the following protest-related offences: 

• Wilful obstruction of the highway. 
• Intentionally or recklessly causing public nuisance. 
• Locking-on. 
• Obstructing major transport works. 
• Interfering with the use or operation of key national infrastructure. 
• Causing serious disruption by tunnelling or being present in a tunnel. 

As the language in the POA 2023 is so broad, it could be applied to a lot of objects from superglue to bike locks, tape, rope, spades, shovels, and other tools. It could also apply to any object associated with protest actions deemed to amount to the above offences, such as banners, leaflets, clothing, flags, and other materials typically used at demonstrations. 

The POA 2023 also aims to give the police the power to stop and search people without reasonable suspicion in relation to protest activity. Uniformed police can carry out such suspicion-less stop and searches when authorised by more senior officers where the senior officer reasonably believes: 

The following offences may be committed in the area: 

• Wilful obstruction of the highway. 
• Intentionally or recklessly causing public nuisance. 
• Locking-on. 
• Obstructing major transport works. 
• Interfering with the use or operation of key national infrastructure. 
• Causing serious disruption by tunnelling or being present in a tunnel.  
• Or: people in the area are carrying “prohibited” items – an item “made or adapted [or intended] for use in the course of or in connection with” the above offences; 
• and: the authorisation is necessary to prevent people committing the above offences or carrying prohibited items.  

The authorisation from the more senior officer must apply to a specific location (no greater than necessary) and specific period of time (no longer than necessary). That senior officer must inform a superintendent or more senior officer that they have given an authorisation. The authorisation can be in force for up to 24 hours and may be extended for a further 24 hours, if authorised by the superintendent or a more senior officer.  

Any person searched pursuant to this power will be entitled to request a written statement of having so been searched. The application would have to be made within 12 months. 

When in force a new offence (not yet in force) has been created for intentional obstruction during a suspicion-less, protest-related stop and search. The sentence is up to 1 month imprisonment, a fine of up to £1,000, or both.  

Locking-on and being equipped for locking-on.  

Locking-on is a form of non-violent direct action where protesters attach themselves to other people, objects or buildings using equipment that is hard to remove, such as bike locks. It’s a tactic that has been used throughout history, both in this country and abroad, from the Suffragettes of the early 20th century, the Campaign for Nuclear Disarmament in the 1980s, anti-war protests, labour disputes and union strikes, civil rights, racial justice and refugee justice protests, through to the climate strikes we see today. Under the POA 2023, it is now a criminal offence if you: 

• Attach yourself to another person, an object or land; 
• attach a person to another person, an object, or land; 
• attach an object to another object or to land; 

And your activities cause or can cause “serious disruption” (defined below) to two or more people or to an organisation in a public place.  

It is important to note that attaching does not need to take place using an object such as a lock, glue or rope. It could be done by physically holding it. To commit this offence, you must have intended your actions to cause serious disruption, or you were reckless about whether your actions would cause serious disruption. “Reckless” is defined as taking unjustified risks. The sentence for this offence is up to 6 months in prison, a fine, or both. The maximum sentence may increase to 51 weeks pending further amendments. 

It is a defence for an individual to show they had a reasonable excuse.  

The Public Order Act 2023 also criminalises those who are “equipped for locking on”, meaning a person is committing the offence if they are: 

• Carrying an object in public (such as a bike lock, a chain, zip ties, for example); and 
• they are intending to use the object “in the course of or in connection with” themselves or any other person committing the offence of locking on.  

The sentence for this offence is an unlimited fine.  

We believe that we’re likely to see a reduced range of people who are willing to participate in protest (understandably), and significant limits to the type of protest people engage in. The offences related to locking-on and being equipped to do so are broad and far reaching, meaning they are readily open to misuse. This has already occurred. For example, at the King’s coronation, protesters from the organisation Republic were arrested for being equipped to lock-on, as was someone who was not even involved in a protest, and who was in fact a monarchist.  

Obstructing major transport works

Behaviour that obstructs or interferes with the construction or maintenance of major transport works is now a criminal offence. You may be committing this offence if you: 

• Obstruct individuals (such as construction workers or surveyors) from constructing or maintaining any major transport works. 
• Interfere with, move or remove apparatus relating to constructing or maintaining major transport works. 

This sentence on conviction is up to 6 months’ imprisonment (and will eventually be up to 51 weeks), a fine, or both. There is a defence of “reasonable excuse”. It also does not include acts done wholly or mainly in furtherance of a trade dispute. 

Interfering with the use or operation of national infrastructure

Interference with the use or operation of national infrastructure (which includes roads, railways, airports, harbours, oil, gas and electricity generation infrastructure or newspaper printing) is an offence. You may be committing this offence if you: 

• Take action that interferes with the use or operation of key national infrastructure; and 
• intend or are reckless as to whether your actions will interfere with the use or operation of key national infrastructure.  

This includes where its use or operation is significantly delayed. 

The sentence on conviction is up to 12 months’ imprisonment, a fine or both. There is a defence of “reasonable excuse” for this offence too. Trade disputes are not caught by this offence. 

We believe that these new offences are likely to be used against climate and environment activists (especially outside power stations) and so it’s vital that you are aware of the definitions, even if you’re planning a lawful protest that does not include any such activities.

Public Order Act 1986

The definition of “serious disruption” is set out in the Public Order Act 1986 (POA 1986) for the purposes of Sections 12 and 14 of that Act (imposing conditions on protest). The POA 1986 definition of "serious disruption" was first amended by the Policing Act. It was then further amended through a Statutory Instrument in 2023, which is a form of legislation that can be brought into force or altered without parliament needing to pass a new act. In this case, the government got this new definition brought in through this mechanism, after attempting and failing to do so via parliament (their proposals to amend the definition via the Policing Bill (now Policing Act 2022) were rejected by parliament).   

Sections 12 and 14 of the Public Order Act 1986 grant the police powers to impose conditions if the procession or assembly causes “serious public disorder, serious damage to property or serious disruption to the life of the community”. "Serious disruption" in the Public Order Act 1986 now has a lower threshold than previously, and includes situations where individuals, groups or organisations are: 

• Prevented or hindered (to more than a minor degree) by physical obstruction from doing day-to-day activities (including travel).
• Prevented or delayed (to a more than a minor degree) in the delivery of a time-senstivie product to consumers of that product.
• Prevented or disrupted (to more than a minor degree), in access to any essential goods or any essential service. 

Serious disruption is not confined to these situations. 

The new regulations (brought in by the 2023 Statutory Instrument) have expanded the definition of “serious disruption to the life of the community”. As well as lowering the threshold for serious disruption” (see above), the term “community” is also now defined broadly as “any group of persons that may be affected” by the protest, “whether or not all or any of those persons live or work in the vicinity”.  

Police are required to take into account “all relevant disruption” when considering whether a protest may cause “serious disruption to the life of the community”. “All relevant disruption” is defined as including all disruption: 

• That may result from the protest; or 
• That may occur regardless of whether the protest happens (including normal traffic congestion). 

The police may also take into account “relevant cumulative disruption” – which is defined as cumulative disruption caused by: 

• Your protest; and 
• any other protest that was held/ is being held/ is to be held in the same area. 

Public Order Act 2023 

The Public Order Act 2023 (POA 2023) introduces a separate but similar definition of "serious disruption". This is defined in s.34 of this Act and applies to several of the new offences and orders created by this legislation. 

Under the POA 2023, “Serious disruption” now refers to situations where individuals, groups or organisations are: 

• Prevented or hindered (to more than a minor degree) by physical obstruction from doing: Day-to-day activities (including travel); or construction or maintenance works or related activities. 
• Prevented or delayed (to more than a minor degree) from making or receiving a delivery of a time-sensitive product (defined below); or 
• prevented or disrupted (to more than a minor degree) from accessing essential goods or services (defined below).  

“Time sensitive product” is defined as a product whose value or use is reduced significantly because of a delay in supply to consumers. 

“Essential goods or services” is defined as access to: money, food, water, energy or fuel supplies; communication systems; places of worship; transport facilities; educational institutions; or health services. 

The “Serious disruption” s.34  definition is particularly concerning as it acts as a key threshold for specific powers and offences for: 

• Locking-on. Your activities cause or can cause “serious disruption” to 2 or more people.  The lower threshold for ‘serious disruption’ makes it considerably harder to use locking on tactics in protest. To commit this offence, you must have intended your acts to cause serious disruption, or you were reckless as to this when carrying out the acts. 
• Tunnelling. This is now a criminal offence if you:  create a tunnel, participate in creating a tunnel or are present in a tunnel; and cause or are capable of causing “serious disruption” to 2 or more people or to an organisation in a place other than a dwelling; and intend or are reckless as to whether creating or being in a tunnel will cause or be capable of causing “serious disruption”.  
• Stop and search powers. With the new expanded police powers to stop and search people, even if in a suspicion-less scenario, we’re likely to see an increase in police using these powers. These powers may be used to target racialised and other minoritized groups.  
• Serious Disruption Prevention Orders (SDPOs; see below).  

Both Public Order Acts

The wider definition in bothy Public Order Acts now means that protesters are more likely to be alleged to be comminting an offence when participating in a protest - as serious disruption now has such a low threshold (“more than a minor degree”) compared to previous legislation that defined “serious” disruption as “significant” and “prolonged”. 

However, there do remain defences available. 

Serious Disruption Prevention Orders and restrictions

This section is not yet in force. 

Covered in Part 2 of the Public Order Act (POA 2023), Serious Disruption Prevention Orders (SDPOs) are powers given to the courts to impose requirements or prohibitions on individuals in relation to protests. When in force an SPDO can require you to do anything, or prohibit you from doing anything, described in the order. After the police apply for one, SPDOs can be imposed on a person if: 

• They are over 18; 
• they have been convicted of a protest-related offence or found in contempt of court on at least 2 occasions in the last 5 years; and 

The court thinks an SPDO is necessary to: 

• Prevent the person from committing a protest-related offence, breaching a protest injunction, or carrying out protest-related activities that cause, or are likely to cause, “serious disruption” to 2 or more individuals or an organisation; 
• prevent the person from helping someone else commit a protest-related offence, breach a protest injunction, carry out protest-related activities that cause, or are likely to cause, “serious disruption” to 2 or more individuals or an organisation;  
• or protect 2 or more people or an organisation from the risk of “serious disruption”. 

SDPOs must specify why they are being imposed and the penalties for breaching them.  

SDPOs can impose requirements or prohibitions on individuals that the court thinks are necessary for the reasons listed above. Through an SPDO, you may be required to: 

• Present yourself to a particular person at a particular place at a particular time;  
• or remain at a particular place for a particular period of time.

Injunctions are court orders which prohibit someone from doing a certain kind of action or activity.

Since 2015, there has been an increasing trend for public authorities and private companies to take out injunctions against persons unknown (meaning defendants who are unknown and unidentifiable, instead of named defendants), in order to target environmental protestors. Fossil fuel companies used them, for example, against people resisting fracking projects. They have also been used by local authorities to ban Gypsy and Traveller communities from stopping on large sections of public land. 

These injunctions have often been drafted in wide-ranging and unclear terms. In Friends of the Earth’s experience, they can have a chilling effect on peaceful, lawful protest. The penalties for breaching an injunction can be very severe: up to 2 years imprisonment, and/or an unlimited fine. Friends of the Earth opposes the use of these injunctions on principle; they are a means for public authorities and private companies to create their own bespoke public order laws, without the safeguards in the criminal justice system. And they are very difficult to challenge owing to the cost risk of doing so. 

A judgment from the Supreme Court in November 2023 sets out the law on the use of these controversial orders. It imposes considerable restrictions on when they can be obtained in the context of Gypsy and Traveller communities, including that they may not be open to local authorities who fail to allocate sufficient stopping sites for these communities to use. It does not, however, expressly extend these restrictions to the protest context. So it seems likely that injunctions targeting protestors will continue to be sought on a frequent basis. Friends of the Earth intervened to support this appeal, alongside Liberty. Read our legal briefing on the judgment. And find out further information on our work in fighting back against these injunctions.