Public Order Act 2023: What Protests Are Criminalised

Protests and the Public Order Act 2023: What Is Actually Criminalised

The Public Order Act 2023 received Royal Assent on 3 May 2023 and introduced a set of new protest related offences in England and Wales, together with a civil preventative order known as a Serious Disruption Prevention Order. It sits alongside the older Public Order Act 1986 and the Police, Crime, Sentencing and Courts Act 2022, which had already amended parts of the 1986 Act. This article sets out what the 2023 Act criminalises, the statutory defences, and how the framework operates in practice.

If you believe your protest rights have been violated or you're facing charges under the new legislation, you can use our free Rights Situation Checker.

Locking on and being equipped to lock on: sections 1 and 2

Section 1 creates an offence of "locking on". A person commits the offence if they attach themselves to another person, to an object, or to land, or attach a person or object to another person, object or land, and that act causes, or is capable of causing, serious disruption to two or more individuals or to an organisation in a place other than a dwelling. The person must intend the act to have that consequence or be reckless as to whether it will. There is a statutory defence of reasonable excuse. The evidential burden of raising the defence rests on the defendant, with the prosecution then required to disprove it to the criminal standard. The offence is triable summarily.

Section 2 creates a separate offence of having an object with you in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of a section 1 offence. This captures possession of items such as tubes, glue, chains or similar equipment where the requisite intention can be proved. Section 2 does not require an actual locking on to have occurred; the intention that the item may be so used is sufficient. A reasonable excuse defence also applies.

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Tunnelling, transport works and national infrastructure: sections 3 to 7

Sections 3 to 5 criminalise tunnelling related conduct. Section 3 makes it an offence to create a tunnel where doing so causes, or is capable of causing, serious disruption. Section 4 deals with being present in a tunnel in those circumstances. Section 5 criminalises being equipped for tunnelling, mirroring the structure of section 2. Each offence has a reasonable excuse defence. The offences in sections 3 and 5 are triable either way; section 4 is summary only.

Section 6 makes it an offence to obstruct the undertaking of a "major transport work" or to interfere with, move or remove any apparatus relating to the construction or maintenance of such works. "Major transport works" is defined in section 6 and includes works the construction of which is authorised directly by an Act of Parliament, works authorised by orders made under the Transport and Works Act 1992, and development comprising or forming part of a nationally significant infrastructure project authorised by development consent under the Planning Act 2008 where the project is of a transport related description specified in the 2023 Act. There is a reasonable excuse defence and a further defence where the act was done wholly in contemplation or furtherance of a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992.

Section 7 creates an offence of doing an act which interferes with the use or operation of key national infrastructure where the person intends, or is reckless as to whether, the act will prevent or significantly delay the infrastructure from being used or operated to any extent for its intended purposes. "Key national infrastructure" is defined in section 8 and covers road transport infrastructure, rail infrastructure, air transport infrastructure, harbour infrastructure, downstream oil infrastructure, downstream gas infrastructure, onshore oil and gas exploration and production infrastructure, onshore electricity generation infrastructure and newspaper printing infrastructure, each as further defined in section 8. A reasonable excuse defence and a trade dispute defence both apply.

Reasonable excuse and Convention rights

The reasonable excuse defence is the main route through which Convention rights under Articles 10 and 11 of the European Convention on Human Rights are given effect within these offences. In DPP v Ziegler [2021] UKSC 23, the Supreme Court held, in the context of wilful obstruction of the highway under section 137 of the Highways Act 1980, that a proportionality assessment of the interference with Articles 10 and 11 was capable of providing a lawful excuse, and that deliberate obstructive protest was not automatically outside the protection of those Articles.

The reach of Ziegler was refined in Reference by the Attorney General for Northern Ireland (Abortion Services Safe Access Zones) Bill [2022] UKSC 32 and considered further in DPP v Cuciurean [2022] EWHC 736 (Admin). The current position is that proportionality must be assessed on the facts, that the weight given to protest rights depends on matters such as the extent of disruption, the location, duration and whether the conduct was directly connected to the issue protested, and that Convention rights do not provide a blanket defence. Courts have consistently applied a fact sensitive approach of this kind, and the same approach is being applied where reasonable excuse is raised under the 2023 Act.

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Serious Disruption Prevention Orders and police powers

Sections 20 to 33 introduce Serious Disruption Prevention Orders, known as SDPOs. These are civil preventative orders that can be made by a court in two ways: on conviction for a protest related offence (section 20), or, on application by a chief officer of police, against a person aged 18 or over who has on at least two occasions engaged in protest related conduct or offending as defined in section 21. An SDPO may impose requirements and prohibitions, for example restrictions on where the subject may go, who they may associate with, and what items they may possess, for the purpose of preventing them from carrying out activities that cause or contribute to serious disruption. Breach of an SDPO without reasonable excuse is a criminal offence.

Section 11 extended stop and search without suspicion to certain protest related offences, modelled on section 60 of the Criminal Justice and Public Order Act 1994, subject to an authorisation regime. Section 10 provides a power of stop and search with suspicion in relation to listed offences including locking on, being equipped for locking on, obstruction of major transport works and interference with key national infrastructure. Officers continue to rely on their existing powers of arrest under section 24 of the Police and Criminal Evidence Act 1984.

The 2023 Act does not replace the Public Order Act 1986. Offences such as violent disorder (section 2), affray (section 3), fear or provocation of violence (section 4), intentional harassment, alarm or distress (section 4A) and harassment, alarm or distress (section 5) and the public procession and assembly regime (sections 11 to 14A) remain in force. Sections 12 and 14 of the 1986 Act, as amended, allow senior officers to impose conditions on processions and assemblies, including where noise may cause serious disruption. The meaning of serious disruption for those purposes was further clarified by regulations made in 2023.

Practical points if you are stopped or charged

• Ask under what power you are being stopped or searched, and for the officer's name, station and the grounds. Under PACE Code A, officers must provide these details and, in most cases, make a record of the search on the spot unless it is not reasonably practicable to do so. You are entitled to request a copy of that record within three months of the date of the search.
• If you are arrested, you are entitled to free and independent legal advice under the PACE Code C regime, whether through your own solicitor or the duty solicitor scheme.
• You are not generally required to answer questions beyond confirming identity in limited circumstances, but adverse inferences may be drawn at trial under section 34 of the Criminal Justice and Public Order Act 1994 if you later rely on something you did not mention when questioned under caution.
• Keep a contemporaneous note, or ask someone else to note, the time, location, officers involved and any reasons given. This can be relevant to later arguments about the lawfulness of a stop, search or arrest.
• If charged, a solicitor can advise on whether a reasonable excuse defence is available on the facts, which typically involves identifying the protest issue, the connection between the conduct and that issue, the extent and duration of any disruption, and the proportionality of the interference with Articles 10 and 11. Criminal legal aid may be available subject to means and merits.

The statutes themselves, the Public Order Act 2023, the Public Order Act 1986 and the Police, Crime, Sentencing and Courts Act 2022, are available on legislation.gov.uk. Guidance on stop and search and on rights in custody is published on GOV.UK. The College of Policing Authorised Professional Practice covers public order policing. For current sentencing levels, readers should consult the Sentencing Council guidelines rather than relying on secondary sources.

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