Bernard Spiegal

We are living through an extended period of comprehensive assaults on our civil liberties.  We – the citizens of England and Wales – are being legislatively ‘kettled’. Hemmed-in by an architecture of interlocking laws and regulations the effect of which is to place in jeopardy the practical application of the Human Rights Act which enshrines articles guaranteeing free expression and free assembly.

The laws already on the statute book, along with Bills currently going through the legislative process, mark the steady proliferation of powers for the police, local authorities, but also corporations, which, overall, represent a challenge to the right to demonstrate.

The laws that comprise this architecture of public protest containment include[1]: The Public Order Act 1986 (POA 1986); Police and Criminal Evidence Act 1984 (PACE 1984); Criminal Justice and Public Order Act 1994; (CJPOA 1994): The Terrorism Act 2000 (TA 2000); Police, Crime, Sentencing and Courts Act 2022 (PCSCA).

Without detailing every instance of what the above laws allow and disallow, it is only too easy to see the direction of travel of the legislative measures.  For example, the PCSCA 2022 expands police powers to impose conditions on a demonstration where a senior officer reasonably believes serious harm may occur. ‘Serious harm’ includes damage to property, personal injury, disease, death, serious distress, serious annoyance, serious inconvenience, or serious loss of amenity.

Terms such as serious distress, serious annoyance, serious inconvenience, or serious loss of amenity are somewhat elastic, providing ample scope for subjective, essentially repressive interpretation. It’s difficult to see how a demonstration could not cause, for some people at least, any or all of the above. 

We will be heard

Creating noise can also be used to justify the imposition of restrictions. As has been pointed out by many and many times: noise is intrinsic to demonstration, part of its methodology, and not an unwanted by-product.

Stop and search

There has been a worrying reiteration and expansion of police stop and search powers in terms of, for example, (1) a police officer having reasonable grounds to suspect articles are being carried for purposes of offending public order legislation. That is, a suspicion-based provision. But there is also (2) other legislation that empowers the police to conduct suspicion-less stop and search. These powers are too often abused, most particularly as they impact Black and minority communities. The Justice report comments:

S60 authorisations have been applied to anti-racist protests, environmental actions, and, most persistently, the annual Notting Hill Carnival…. Evidence from StopWatch shows this power is routinely associated with the disproportionate targeting of Black and minoritised communities. The 2024 Home Office annual report shows that of 3,100 section 60 searches, 19.6% involved Black individuals, who constitute only 4.2% of the population. This means that Black people are six times more likely to be searched under these powers than their White counterparts.

Civil orders

Civil orders traverse the civil and criminal law divide. As can be seen from the title of some of the orders – Antisocial Behaviour Injunctions (ASBI), Serious Disruption Prevention Orders (SDPO), Public Spaces Protection Orders (PSPO) – they are designed to limit or curtail a person’s potential future behaviour most especially in the public realm. For example, they can forbid a person(s) entering a particular area which can be as wide as a town centre; or they can be subject to a SDPO if a court is satisfied that a person has previously committed a ‘protest related offence’ and it is necessary to prevent future conduct that is likely to result in disruption.  A local authority can seek an order if it considers it likely that activities will be carried out in a public place that will have a ‘detrimental effect on the quality of life of those in the locality.’ Almost any demonstration/public protest is likely to affect people’s quality of life.

The orders are issued under civil law, where the burden of proof is lower than under criminal law – ‘on the balance of probabilities’ as distinct from the criminal justice standard ‘of beyond reasonable doubt’ – thus making them easier to secure. The other key feature is that they are anticipatory –Civil Orders are based on a judgement-based prediction on what may happen in the future.  No criminal offence has been committed, yet a ‘penalty’ has been imposed via the restriction(s) of the order.

The other feature of civil orders is that breaking them is a criminal offence.   

One can see what a handy tool civil orders are for authorities and corporations that want a relatively cheap, quick and easy route to constraining behaviour which might otherwise be lawful. Justice makes the point: 

Regardless of their specific form, all civil orders present a challenge to justice, the rule of law and human rights protections, owing to the extensive limits that they can place on a person’s freedom and liberty without proper oversight and monitoring, and without the robust procedural protections and standard of proof afforded by the criminal justice system.

Two Bills

Two Bills currently progressing through parliament, with every likelihood they will be passed into law, are the Crime and Policing Bill (CPB) and the Courts and Tribunals Bill (CTB). 

Crime and Policing Bill (CPB)

The CPB will, among other measures, introduce a requirement for a police officer to consider whether to impose conditions on a planned demonstration as a result of ‘cumulative disruption’.

There can be little doubt that this Bill is, in part at least, motivated by the desire to curtail pro-Palestinian demonstrations that are held regularly, and which are supported by thousands of people. Disproportionate policing has been a feature of some of the demonstrations. Again, from the Justice report:

It is worth noting that 40 of the 47 instances of section 11 [power to conduct suspicion-less stop and search] being used concern pro-Palestine protests. Despite these searches being conducted, they have led to zero arrests, raising questions about the necessity of such powers.

Courts and Tribunals Bill (CTB)

The CTB seeks to remove the automatic right to a jury trial for many offences and to disallow jury trials for cases with a likely sentence of three years or less.

The proposal to limit the scope of jury trials is an example of the state’s willingness to curtail ‘ordinary people’ having agency in the highly significant matter of judging who is innocent and who is guilty in a range of criminal cases.

A jury’s field of authority and action is distinct, and in a sense wider than that of magistrates and judges. Magistrates and judges have no choice but to cling tightly to the law’s strictures. In contrast, juries form a nexus point connecting the application of law to ideas of equity and justice. This not infrequently leads to not guilty verdicts that considerably discomfort the authorities.

It is ironical that the key proponent of curtailing trial by Jury is David Lammy, Justice Secretary. In an earlier incarnation he published the Lammy Report (September 2017) which looked to the delivery of three principles when considering trial by jury. They were: guaranteeing fairness, building trust and sharing responsibility for reducing reoffending. His report found that: 

Juries are a success story of our justice system. Rigorous analysis shows that, on average, juries – including all- white juries – do not deliver different results for BAME and White defendants. The lesson is that juries are representative of local populations – and must deliberate as a group, leaving no hiding place for bias or discrimination.

Surely it is both tragic and scandalous, that in the light of the StopWatch report (quoted by Justice above) that identified within the justice system severe discrimination against Black people and minoritised communities, that the very author of the report that found juries to be islands of equity and fairness is now the author of their curtailment.

Summary from Justice

It’s appropriate to conclude this article with an extensive quote from the Justicereport Striking the balance: Protest Rights and Public Order’. It warns us of the parlous state of our democracy, marked by the the accumulating proliferation of constraints on the right to protest.

Measures implemented through legislation have fundamentally reshaped the right to protest and have shifted the law from a positive duty to facilitate peaceful protest toward a system that expands state powers and emphasises controls and restrictions. {my added emphasis] These changes have unfolded against a backdrop of entrenched racial disproportionality in public order policing and weak accountability mechanisms, as well as the misuse of stop and search.

The UK state has accrued for itself, and continues to accrue, too many, and too extensive, powers the consequence of which is to stifle free expression – and popular political action.

[1] In enumerating at least some of the legislative measures, I rely on the January 2026 ‘Justice’ report ‘Striking the balance: Protest Rights and Public Order’.