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Offences during Protests, Demonstrations or Campaigns

Updated: 02 May 2023; 29 June 2023; 04 April 2024|Legal Guidance

Introduction

The right to peacefully protest is protected by law. However, this is not an absolute right, and the behaviour of protestors may give rise to a number of criminal offences.

Public protest cases can involve complex considerations relating to charge selection, evidential sufficiency, Convention rights and the public interest. When reviewing cases, prosecutors should apply the principles set out in this guidance, as well as the Code for Crown Prosecutors.

Although the police may charge some offences committed during protests, early engagement with the CPS prior to charging will often be appropriate, in light of likely issues involved in any prosecution.

The Evidential Stage

Public protests can vary hugely in organisation and size and present significant evidential challenges, particularly in identifying suspects and the role they have played. Evidence in such cases requires careful scrutiny to address issues, including:

  • Identification, particularly where those involved have partially covered their faces and/or where arrests take place sometime after the incident in question.
  • There may be CCTV coverage, police video footage, relevant videos uploaded onto the Internet or images in national and local media coverage that may provide evidence of a person's participation in an offence. Prosecutors should consider the law on identification; see further the legal guidance on Identification.
  • There may exist relevant and non-relevant material in these cases, including a variety of video/audio recorded material, accounts by police officers and material generated by the policing of a large-scale incident. A Disclosure Management Document should be used as this will assist with explaining the approach taken to this material, including its relevance and review.

The Public Interest Stage

In every case where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest.

When deciding the public interest, prosecutors should consider each of the questions set out in paragraphs 4.14 a) to g) of the Code for Crown Prosecutors (the Code). Further factors are provided in this guidance to consider are as follows.

A prosecution for offences committed during a public protest is more likely to be required where:

  • violent acts were committed that caused injury or it is reasonable to believe they could have caused injury
  • the suspect took a leading role in, and/or encouraged others to commit, violent acts
  • the suspect was in possession of a weapon at the time of the offence
  • the suspect took steps to conceal their identity
  • the level of disruption caused to the public or businesses merits a prosecution, even if in the course of peaceful protest
  • significant damage was caused to property
  • the suspect has a previous history of causing violence, damage, disruption, obstruction or making threats at public protests, or commits the offence in breach of a direction e.g. to leave by the police
  • threats were made against an individual or business that caused, were intended to cause, or it is reasonable to believe could have caused alarm, fear or distress.

A prosecution is less likely to be required where:

  • the public protest was essentially peaceful, save where the level of disruption caused to the public or businesses merits a prosecution
  • the suspect had no more than a minor role
  • the suspect has no previous relevant history of offending at public protests or in general
  • the act committed was minor
  • the act committed was instinctive and in the heat of the moment

Prosecutors should consider the:

  • incident as a whole to assess the context in which the offence was committed
  • separate guidance provided for by the Code and CPS legal guidance where appropriate, for instance if the offender is a youth or has a mental health condition or disorder

European Convention on Human Rights

The right to protest is protected by the law. These rights are articulated in the European Convention on Human Rights ("ECHR") as follows:

  • Article 10 ECHR: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
  • Article 11 ECHR: Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
  • Article 17 ECHR: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Schedule 1 of the Human Rights Act 1998 incorporates these Articles into UK law and section 6 provides that it is unlawful for a public authority to act in a way which is incompatible with them.

Where the rights are engaged, and Article 17 ECHR does not apply, then any interference with them, by prosecution, must be:

  • prescribed by law
  • necessary, in the terms provided for by Article 10.2 and 11.2 ECHR
  • proportionate

Any decision to charge must be considered in accordance with the Code for Crown Prosecutors.

Convention Rights and Proportionality

A key issue in many protest cases will be whether it is necessary to prove that a prosecution and conviction is a proportionate response to the criminal behaviour in question.

This has been addressed by the higher courts on a number of occasions. The leading case is the Supreme Court judgment in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, which confirmed the approach of the Court of Appeal in a number of cases, including Attorney General's Reference (No. 1 of 2022) [2022] EWCA Crim 1259, DPP v Cuciurean [2022] EWHC 736 (Admin) and R v Brown [2022] EWCA Crim 6, in which the judgments were all delivered by the Lord Chief Justice.

The main principles to emerge from this and other cases are:

  • There is no need to establish on the basis of an assessment of the particular facts that prosecutions are proportionate in every protest related case.
  • Where a defendant relies on articles 9, 10 or 11 as a defence to a protest-related offence, the first question is whether those articles are engaged.
  • The conduct in question will fall outside the scope of those articles altogether if it involves violent intentions, or incites violence, or otherwise rejects the foundations of a democratic society, or if article 17 of the Convention applies (destruction or limitation of other Convention rights).
  • Examples of such offences are physical assaults and significant criminal damage to property - see Attorney General's Reference (No. 1 of 2022).
  • If articles 9, 10 or 11 are engaged, the second question is whether the offence is one where the ingredients of the offence themselves strike the proportionality balance, so that if the ingredients of the offence are proved, and the defendant is convicted, there can have been no breach of his or her Convention rights. If the offence falls within this category, the court does not have to conduct a proportionality assessment.
  • Examples of offences that fall within this category are aggravated trespass; common law public nuisance; and failing to comply with a condition imposed on a public assembly.
  • The third question arises where Convention rights are engaged but proportionality is not inherent in the ingredients of the offence: whether there is a means by which the proportionality of a conviction can be ensured? This will usually be where the offence contains a defence of lawful excuse or reasonable excuse, which provides a route by which an assessment of proportionality can be carried out(another mechanism is through the court resorting to its interpretative obligation under section 3 of the HRA).
  • Examples of offences that fall within this category are: obstruction of the highway; causing public nuisance (section 78 PCSCA 2022); minor or temporary criminal damage; and offences of section 5 (causing harassment, alarm or distress) and section 4A(1) (intentionally causing harassment, alarm or distress ) under the Public Order Act 1986. In addition, several of the offences under the Public Order Act 2023 contain a statutory defence of reasonable excuse and will come within this category: offences relating to locking-on and tunnelling; obstruction of major transport works; and interference with use or operation of key national infrastructure.
  • Where an assessment of proportionality is required, prosecutors must be able to show that such an interference is proportionate and, therefore, necessary in a democratic society, in order to demonstrate that the interference with the Convention right was justified. This will involve the application, in a factual context, of a series of legal tests (see paragraph 24 of Reference by the Attorney General for Northern Ireland).
  • An assessment of proportionality does not necessarily need to be carried out by the jury. The issue may not be appropriate for a jury, having regard to the complexity of the analysis of proportionality and the other complex questions which may arise: see Attorney General’s Reference (No 1 of 2022)[118], and Reference by the Attorney General for Northern Ireland [67].

The tables provided at Annex A – Potential offences during protests, demonstrations, or campaigns, indicate in relation to each offence whether a proportionality assessment is required, or whether proof of the ingredients of the offence is sufficient to strike the proportionality balance.

Convention Rights and Abuse of Process

There is no free-standing ground for staying a criminal case on the basis that prosecution for a protest related offence is disproportionate under the Convention: R v Brown. The concept of abuse of process in a criminal case is the creature of domestic law and does not turn on any issue under the Convention or the Human Rights Act 1998 [38-39].

Selecting the charge

In accordance with section 6 of the Code, prosecutors should select charges which:

  • reflect the seriousness and extent of the offending
  • give the court adequate powers to sentence and impose appropriate post-conviction orders
  • allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct
  • enable the case to be presented in a clear and simple way

This means that prosecutors may not always choose or continue with the most serious charge where there is a choice, and the interests of justice are met by selecting the lesser charge.

Since the coming into force of the bespoke protest offences in the Public Order Act 2023, prosecutors must consider a wider selection of offences, some of which may be applied to the same protest scenario. In such cases, when deciding which charge to select, prosecutors should apply the following principles:

  • The overriding principle is that prosecutors should apply the Code, as stated above.
  • Regard should be had to the role played by the suspect. For instance, it may be appropriate to charge suspects who organise coordinated protests with conspiracy to cause public nuisance.
  • Where the facts of the case lend themselves to a particular offence that is intended to address a specific type of mischief, such as tunnelling or locking-on, consideration should be given to charging that offence. However, this will depend on other factors, such as the seriousness of the offending, the elements of the offence (including causing serious disruption), the available evidence, and any statutory defences.
  • Alternative charges should be considered where appropriate: see CPS guidance on Drafting the Indictment.

Examples of charge selection

These examples are subject to the relevant offences being in force – see the Tables of potential offences during protests, demonstrations, or campaigns at Annex A.

The following examples provide a guide to charge selection in particular scenarios. The selection of charges in actual cases will depend on all the facts and circumstances of each case, and therefore in practice may differ from the charges suggested below.

  • Where a road is obstructed by locking-on activities, a locking-on offence may be more appropriate than an offence of highway obstruction, unless the criminality merits a more serious charge, such as interference with the use or operation of key national infrastructure or, if more serious, causing public nuisance or conspiracy to cause public nuisance. In determining the seriousness and extent of offending, prosecutors should consider: the duration, scale and nature of the obstruction; and the impact of the offending on the public, businesses or property, including the level of any disruption caused.
  • Where protestors create or occupy a tunnel on a construction site, a tunnelling offence is likely to be appropriate. However, in some circumstances the summary only offences of aggravated trespass or obstruction of major transport works may sometimes be more appropriate.
  • Where harassment, alarm or distress is caused to a person accessing abortion services outside a clinic, the bespoke offence of interference with access to or provision of abortion services is likely to be appropriate. However, where the facts of the case merit a more serious charge, consideration should be given to the public order offences under ss4, 4A and 5 of the Public Order Act (intentionally/recklessly causing harassment or distress / fear of provocation of violence).
  • Where a protester runs onto a football pitch and disrupts the match, an offence of going onto the playing area may be appropriate or, if the level of disruption merits a more serious charge, aggravated trespass can be considered. Where the protestor attaches themselves to the goalposts, an offence of locking-on is likely to be appropriate.

Potential offences

The tables provided at Annex A – Potential offences during protests, demonstrations, or campaigns, set out some of the offences which may be committed during protests or campaigns. These are focused on:

  • the most common offences, together with the bespoke protest offences in the Public Order Act 2023.
  • other offences that may be committed during protests

The tables do not include all possible offences during public protests: other offences, such as arson or offences against the person may be committed. These should be considered where appropriate

Annex A provides a quick reference guide to assist prosecutors with charge selection (see above), given that there are a sometimes several offences that may apply to the same criminal behaviour. The offences are broadly listed in order of seriousness, according to their maximum sentence.

The tables indicate:

  • whether the offence is summary-only or either way;
  • the main elements to prove / evidence required, including whether proof of “serious disruption” is required;
  • whether there is a “reasonable excuse” or other statutory defence;
  • whether an ECHR proportionality assessment is required, or proof of the ingredients of the offence is sufficient to strike the proportionality balance, this is based on whether there is a “reasonable excuse” or “lawful excuse” defence – see section on Convention Rights & Proportionality above
  • the maximum sentence.

Public Order Act 2023

The Public Order Act 2023 (POA 2023) introduced a number of new offences relating to protests: locking-on offences; tunnelling offences; obstruction of major transport works; interference with use or operation of key national infrastructure; interference with access to or provision of abortion services; and intentionally obstructing a constable in the exercise of powers. See ‘Common protest offences and Public Order Act 2023 offences’ at Annex A for more detail.

The offences in the Act are not all being brought into force at the same time: prosecutors should check in relation to particular offences whether they are in force at the date of the offending behaviour. See ‘Common protest offences and Public Order Act 2023 offences’ at Annex A for more detail.

The POA 2023 also contains measures to assist the police to manage protests, and other provisions such as a new Serious Disruption Prevention Order.

Serious disruption

The offence of locking-on and two of the tunnelling offences require proof that the activity in question causes, or is capable of causing, “serious disruption” to two or more individuals or an organisation, and intention or recklessness in relation to this consequence. Prevention of serious disruption is also one of the purposes for imposing a Serious Disruption Prevention Order.

“Serious disruption” is defined in section 34 of the POA 2023 and is based on the definition in ss12 and 14 of the Public Order Act 1986 (POA 1986), with amendments to tailor the definition to the specific statutory offences.

The definition comprises at subsections (a)-(c) a non-exhaustive list of examples of ways in which serious disruption may occur, whether by prevention from carrying out specified activities, or a “more than minor” hindrance, delay or disruption in relation to those activities.

Assessing more than minor hindrance, delay or disruption

Whether the level of hindrance, delay or disruption reaches the statutory threshold will depend on all the facts and circumstances of the case, including the context of the particular protest and the individuals or organisation impacted.

It may be useful to bear in mind that the statutory threshold will not be met where the hindrance, delay or disruption caused is only minor or insignificant.

Prosecutors may be assisted by the following non-exhaustive considerations:

  • The protestor’s act must cause (or be capable of causing) the serious disruption. Therefore, prosecutors should take into account any other cause of the hindrance, delay or disruption. For example, if a particular road commonly experiences traffic congestion, particularly during rush hour, the protestor’s act of locking-on will need to cause (or be capable of causing) a more than minor hindrance to a commuter’s journey over and above the usual level of disruption.
  • The duration, scale and nature of the hindrance, delay or disruption caused by the actions of the protestors. The longer or bigger the hindrance, delay, or disruption, the more likely it is to be more than minor.
  • The impact of the hindrance, delay or disruption should be assessed in its particular context. For instance, locking-on activity on a road, which causes a short delay to an ambulance responding to an emergency, is likely to have a greater impact than tunnelling that causes a short delay to a long-term construction project.
  • The place where the hindrance, delay or disruption occurs, which can have different impacts depending on the location. For example, an obstruction on a motorway is likely to have far greater impact than an obstruction on a B road.
  • Whether those persons / organisations affected had alternative means by which to carry out their activities. For example, by taking an alternative route where a road is obstructed by locking-on activities, or working on a different part of a construction project that is impacted by protestors occupying a tunnel on construction land.

Serious Disruption Prevention Orders

Part 2 of the POA 2023 introduced a new civil order, Serious Disruption Prevention Orders (SDPOs), which may be imposed for up to 2 years. These allow courts to place prohibitions or requirements on a person aged 18 or over, in relation to protest-related activities. The Part 2 provisions came into force on 4 April 2024.

For detailed guidance, prosecutors should refer to the Home Office statutory guidance for the police. The HO guidance explains why SDPOs have been introduced:
"SDPOs have been introduced to prevent individuals from repeatedly causing serious disruption through protest activity. They will provide the police with additional powers to respond effectively to disruptive protests and take a proactive approach to prevent such disruption. This, in turn, will ensure that police can better balance the rights of protesters and the rights of others to go about their daily business and focus their resources on keeping the public safe. "

The main points to note are:

  • SDPOs can be applied for: by the prosecutor upon conviction for a protest-related offence; or by a chief officer of police on application by complaint to the magistrates’ court. Under section 32 “protest-related offence” means an offence which is directly related to a protest.
  • If the police consider a SDPO should be applied for by the CPS following conviction, they should notify the prosecutor in the initial file submission and ensure a draft order (or a document, setting out the conditions sought) and the evidence in support are provided to the CPS before the first hearing, or as soon as possible thereafter. Defendants dealt with in the magistrates’ court may plead guilty and be sentenced at the first hearing. Therefore, if the documents and evidence in support of an SDPO are not supplied to the prosecutor before the first hearing, the opportunity to make such an application may be lost.
  • The following standard application form for should be used for SDPOs on conviction: Application - SDPO on Conviction.
  • An order on conviction can be sought on the basis that within the 5 years preceding the date of conviction, the defendant committed another protest-related offence for which they were convicted, or committed a protest-related breach of an injunction for which they were found in contempt of court. The current offence and the previous conduct must relate to different protests, or have taken place on different days.
  • The court must consider it necessary to make the order for one of the purposes stated in s.20(5). These include: to prevent the defendant from committing a protest-related offence or a protest-related breach of an injunction; and to prevent the defendant from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation.
  • When deciding whether to make a serious disruption prevention order the court may consider evidence led by the prosecution or the defendant.
  • The prohibitions or requirements imposed on the person must be considered necessary by the court for one of the statutory purposes. Pursuant to section 22(4), these may include, for instance, prohibiting an individual from being in a particular place, being with particular people, having particular articles in their possession and using the internet to facilitate or encourage persons to commit a protest-related offence. 
  • Section 28 makes provision for variation, renewal and discharge of SDPOs. Persons who may make such applications are restricted to the police and the defendant. The CPS is not authorised to make these applications except (as noted at paragraph 19 of the HO guidance) for dealing with variations of the making of the order involving “particular and unanticipated difficulties arising from the form and/or wording of the order” that are dealt with promptly: R v Hoath (Terence) [2011] EWCA Crim 274. Where the police require representation, this should be through the Force Solicitor or equivalent.
  • Section 29 deals with appeals. Where a SDPO is made on conviction, it is to be treated as part of the sentence. Therefore, an appeal against a SDPO made on conviction would be an appeal against sentence and the CPS would be involved as the respondent in the same way as we would in any appeal against sentence. However, appeals in relation to orders made on application, or in relation to applications / orders to vary, renew or discharge a SDPO will not involve the CPS: section 29 (3) & (4).
  • Under s.27 of the Act, breach of a SDPO is a criminal offence carrying a maximum sentence of six months’ imprisonment, an unlimited fine, or both. An individual commits an offence if, they: without reasonable excuse fail to do anything they are required to do by the order; or do anything they are prohibited from doing by the order; or they knowingly notify the police with false information in purported compliance with the order.

Other provisions in the PO Act 2023

The Act made a number of other provisions, which include:

  • Limitations on police powers in relation to journalists
    Section 17, which came into force on 2 July 2023, precludes the exercise of a police power for the sole purpose of preventing a person from observing or reporting on: a protest; or the exercise of a police power in relation to protest-related activities, including a protest-related offence and a protest-related breach of an injunction.
  • Powers to stop and search
    From 20 December 2023, existing stop and search powers were extended to allow the police to search and seize objects made, adapted, or intended for use in the course of specified protest-related offences. There is both a suspicion-led power (section 10), amending section 1 of the Police and Criminal Evidence Act 1984, and a suspicion-less power (section 11). Under section 14 it is an offence to intentionally obstruct a constable in the exercise of the constable's powers under section 11, punishable by a level 3 fine or 1 month’s custody.

Case law

Section 5 Public Order Act 1986

In Munim Abdul v DPP [2011] EWHC 247 (Admin), the court held that when considering the interaction between the section 5 offence and Article 10 ECHR, the following principles apply:

  • The starting point is the importance of the right to freedom of expression.
  • In this regard, it must be recognised that legitimate protest can be offensive at least to some – and on occasions must be, if it is to have impact.
  • The justification for interference with the right to freedom of expression must be convincingly established. Accordingly, while Art. 10 ECHR does not confer an unqualified right to freedom of expression, the restrictions contained in Art. 10.2 ECHR are to be narrowly construed.
  • There is not and cannot be any universal test for resolving when speech goes beyond legitimate protest, so attracting the sanction of the criminal law. The justification for invoking the criminal law is the threat to public order. Inevitably, the context of the particular occasion will be of the first importance.
  • The relevance of the threat to public order should not be taken as meaning that the risk of violence by those reacting to the protest is, without more, determinative; sometimes it may be that protesters are to be protected.
  • Plainly, if there is no prima facie case that speech was "threatening, or abusive" or that the other elements of the s.5 POA 1986 offence can be made good, then no question of prosecution will arise. However, even if there is otherwise a prima facie case for contending that an offence has been committed under s.5 POA 1986, the statutory defence of reasonable conduct allows for consideration within the trial process of the exercise of Convention rights. The prosecution must therefore be prepared to meet any argument that the defendant’s conduct amounted to a reasonable exercise of Convention rights: see Norwood v Director of Public Prosecutions[2003] EWHC 1564 (Admin).
  • If the line between legitimate freedom of expression and a threat to public order has indeed been crossed, freedom of speech will not have been impaired by "ruling … out" threatening or abusive speech: per Lord Reid, in Brutus v Cozens [1973] AC 854, at p. 862.

Section 14 Public Order Act 1986 – breach of directions imposed on public assemblies

In DPP v James [2015] EWHC 3296 (Admin) the court held:

  • In respect of section 14(1), the senior officer must hold a belief that the public assembly may result in serious public disorder and have reasonable grounds for that belief. If they do not, the direction is not lawful, and acquittal will follow.
  • If the officer holds that belief on reasonable grounds, the conditions imposed by the direction must be such "as appear to him necessary to prevent such disorder". Again, that "necessity" must genuinely appear to the officer. If no such necessity had appeared, the condition would not be lawful; non-compliance with it will not be an offence. If that necessity had appeared, the qualifications to Article 10 and 11 would likely also be satisfied. Proof of the ingredients of the offence itself would demonstrate the proportionality of the condition, non-compliance with which underlies the offence.
  • However, the direction made must also be reasonable. As to the terms or communication of the direction and conditions, there is no formalistic requirement attached, “the question is whether sufficient has been communicated for the accused to know what to do and what not to do”.

Section 14B Public Order Act 1986 – offences relating to trespassory assemblies

In Director of Public Prosecutions v Jones & Anor [1999] UKHL 5 a peaceful protest on part of the highway near Stonehenge contravened an order under section 14A(2) of the Public Order Act 1986. The House of Lords held that a public highway was a public place where any activity which was reasonable, did not involve a public or private nuisance and did not obstruct the highway should not be regarded as a trespass. A right of peaceful assembly on the public highway could therefore exist subject to those restrictions. Limiting the lawful use of the highway to use which was “incidental or ancillary” to the right of passage would impose an unrealistic and unjustified restriction on everyday activities. It was a matter of fact and degree for the magistrates in each case whether a particular use was reasonable and did not conflict with the right to pass and repass.

Section 137 Highways Act 1980 – obstruction of the highway

In the context of protests, the two most commonly contested issues on a trial of this offence are: 1) whether the road is a “highway”; and 2) whether a prosecution amounts to a proportionate interference with the accused’s convention rights.

Highways

Prosecutors should pay particular attention to this issue when the protest occurs on a private road or on a public road close to the entrance with a private road. At all events, prosecutors must be in a position to prove that the area upon which the protest has occurred is a highway.

The term “highway” is not defined in any of the Highways Acts. For the definition of “highway”, recourse must be had to the common law. In this regard, prosecutors should familiarise themselves with the summary of the law on highways within the judgment of Kotegaonakar v Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 1976 (Admin) (at [14] to [22]).

As a minimum, prosecutors should seek to prove this ingredient by asking the police to obtain a statement from the relevant highway authority confirming the status of the road and that it is responsible for its maintenance and repair.

Without lawful excuse - an assessment of proportionality

In DPP v Ziegler [2021] UKSC 23 the Court addressed the question: Is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of s137, where the impact of the deliberate obstruction on other highway users is more than de minimis, and prevents them, or is capable of preventing them, from passing along the highway?

It held that:

  • Prosecutors will need to prove to the criminal standard all the facts upon which it relies to establish to the same standard that the interference with articles 10 and 11 rights of protesters was proportionate. If the facts are established then a judge, as in this case, or a jury, should evaluate those facts to determine whether or not they are sure that the interference was proportionate. [60]
  • There should be a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly [68]. Intentional action by protestors to disrupt by obstructing others enjoys the guarantees of articles 10 and 11, but both disruption and whether it is intentional are relevant factors in relation to an evaluation of proportionality. [70]
  • Art 11 does not cover protests where the organisers intentions are violent. However, an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour. Moreover, a protest is peaceful even though it may annoy or cause offence to the persons opposed to the ideas or claims that the protest is seeking to promote. [69]

The court identified the non-exhaustive factors in evaluating proportionality [71-78], although not all of them will be relevant to every conceivable situation and there is no particular weight to be given to one factor over another. All depends on the factual circumstances. The factors are:

  • Extent to which continuation of a protest breached domestic law – whilst there is autonomy to choose the manner and form of a protest an evaluation of proportionality will include the nature and extent of actual and potential breaches of domestic law.
  • The place where the obstruction occurs – an obstruction can have different impacts depending on the commercial or residential nature of the location of the highway.
  • The importance of the precise location to the protesters – this includes the right to choose the time, place, and modalities of the assembly, within the limits established in paragraph 2 of Article 11.
  • Duration of the protest. This is a fact-sensitive determination which depends on context such as, for instance, the number of people who were inconvenienced, the type of highway, and the availability of alternative routes.
  • Degree to which the protesters occupy the land.
  • Extent of actual interference with the rights of others (including landowners and members of the public) – this may depend on whether alternative routes were used or could have been used.
  • Whether the views giving rise to the protest relate to very important issues of considerable breadth, depth and relevance.
  • The belief in the cause or views held by the protesters. It is appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect. Political views, unlike “vapid tittle-tattle” are particularly worthy of protection.
  • Whether the obstruction was targeted at the object of the protest.
  • Prior notification to and co-operation with the police may also be relevant factors in relation to an evaluation of proportionality, especially if the protest is likely to be contentious or to provoke disorder.

When relying on any factors relevant to the evaluation of proportionality, for example that there was significant disruption caused to the public or businesses by the protest, prosecutors should ensure that there is a robust evidential basis for consideration of such factors, and a written record should be made of all decisions on these issues.

The Supreme Court’s ruling in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 (see above) confirms that Ziegler does not establish that every conviction of protesters must be proved to be justified and proportionate on the basis of an assessment of the particular facts [42]. Ziegler should therefore be considered as applying only to the section 137 offence of obstruction of the highway, and not to other offences committed during protests.

Common law offence of Public nuisance

The common law offence of public nuisance was abolished by the Police, Crime, Sentencing and Courts Act 2022, which replaced it with a statutory offence, which, applies to any relevant act or omission that occurs on or after 28 June 2022. Where an act or omission began before this date and continues after this date, the new offence will not apply, but the common law offence will continue to apply (section 78(7) PCSC Act 2022).

A person is guilty of a public nuisance (also known as common nuisance), where they (a) do an act not warranted by law, or (b) omit to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects: see the approved formulation in Rimmington [2005] UKHL 63.

Rimmington also addressed the following:

  • It has an overlap with a number of statutory provisions. Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited. It must rather be assumed that Parliament imposed the restrictions which it did, having considered and weighed up what the protection of the public reasonably demanded.
  • This does not mean that the common law offence can never lawfully be prosecuted, but good practice and respect for the primacy of statute require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.

Criminal Damage

Without lawful excuse – ECHR proportionality

Section 1 of the Criminal Damage Act 1971 provides for a defence of lawful excuse. The Court in Attorney General’s Reference No. 1 of 2022 [2022] EWCA Crim 1259 considered whether, in light of this defence, Convention rights are engaged in cases involving criminal damage during protests.

After reviewing the Strasbourg authorities, the Court drew a distinction between offences of significant damage and offences of minor or trivial damage, concluding that:

  • The offence of criminal damage does not automatically fall within the category of offences identified in James and in Cuciurean, whereby proof of the relevant ingredients of the offence is sufficient to justify any conviction as a proportionate interference with any rights engaged under articles 9, 10 and 11, without the need for a fact-specific proportionality assessment in individual cases. That said, the circumstances in which such an assessment would be needed are very limited. [116]
  • Prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate. [115]
  • Given the nature of cases that are heard in the Crown Court, the issue of proportionality should not be left to the jury. That will be because the conduct in question was on any view not peaceful, alternatively the damage was significant, or both. [120]
  • Insofar as cases in the Magistrates’ Court are concerned, the threshold of “significant damage” would be crossed a long way below the (£5,000) statutory divide. Even in Magistrates’ Court cases, the circumstances in which a fact-specific assessment of proportionality will be needed at trial will be limited to cases of minor or temporary damage to public property. In those circumstances, a conviction may not be a proportionate response. [116] and [121]
  • The court gave an example of such minor or trivial damage: scrawling a message on a pavement using water soluble paint might technically be sufficient to sustain a charge of criminal damage, but to prosecute or convict for doing so as part of a political protest might well be a disproportionate response.
  • The Court said that it was difficult to imagine that the Convention could ever be used to avoid a conviction for damage to private property to any degree than is other than trivial. [121]

In protest cases involving minor or trivial damage, prosecutors will need to carefully consider the facts and circumstances of the case, in order to determine whether a prosecution and conviction would be a proportionate response to the offending.

Amongst the factors that will be relevant to such consideration are the value of the damage; the cost, time and resources involved in rectifying the damage; and the impact of the damage, such as whether it caused disruption and the degree and nature of that disruption. For instance, a conviction for damage that is insignificant in terms of value, but significant in terms of impact (such as a high level of disruption), would arguably amount to a proportionate restriction on a defendant’s convention rights.

Without lawful excuse – consent to destruction or damage and its circumstances

Under section 5(2)(a) of the CDA 1971, a person will have a lawful excuse if, at the time of the act they believed that the person whom they believed to be entitled to consent to the damage to the property had consented, or would have so consented, if they had known of “the destruction or damage and its circumstances”.

In Attorney General's Reference No. 1 of 2023 [2024] EWCA Crim 243, the court addressed the question whether, in cases where the damage is an act of protest, the “circumstances” are capable as a matter of law of including the merits, urgency or importance of any matter about which the defendant may be protesting, or the perceived need to draw attention to a cause or situation. The court held that:

  • The belief on which a defendant relies to establish the defence cannot be founded on the actual or potential effect of efforts that might be deployed after the event to persuade the owner to consent.  In other words, the damage cannot be an instrument of persuasion [40].
  • The inclusion of the phrase “would have” involves a certainty in the belief in the owner’s consent, not merely that the owner might (or should) have consented. There is therefore a requirement that the defendant’s honest belief must be that she was sure that that the owner would have consented [42].
  • The “circumstances” of the damage have to be linked directly to the damage. They might include, for example, the time, place and extent of the damage. In a protest case, they would include the fact that the damage was caused as part of a protest [44], [46], [65]. But the “circumstances” would not include the political or philosophical beliefs of the person causing the damage. They would not include the reasoning or wider motivation of the defendant. Those matters are too remote from the damage [44], [48]. To this extent there is an objective element to the defence [46].
  • Evidence from the defendant about the facts of or effects of climate change would be inadmissible [48].

Prevention of crime – section 3 Criminal Law Act 1967

It is a defence under section 3 Criminal Law Act 1967 ("CLA 1967") to use reasonable force in the prevention of crime. The defence will usually apply in the context of, for example, use of force against those engaged in the act of committing crime, to prevent an imminent crime, or the apprehension of offenders (see CPS guidance on Self-Defence and the Prevention of Crime for further details).

In R v Jones (Margaret) the House of Lords considered the general ambit of the s.3 defence of prevention of crime in the context of protests. The decision makes plain that the reasonableness of any actions should be judged against the backdrop of a properly functioning, democratic society where individuals do not take the law into their own hands.

R v Jones also clarified that “evidence to support the opinions of the protesters as to the legality of the acts in question is irrelevant and inadmissible, disclosure going to this issue should not be ordered and the services of international lawyers are not required”. Prosecutors should therefore resist any attempts to introduce evidence as to the reasons for the protest, the extent of harm caused by the action against which the defendant is protesting, and evidence as to how the defendant came by their view, as such evidence is irrelevant to the objective assessment of whether the defendant’s actions were reasonable.

The principles emerging from R v Jones, distilled in the judgment in R (on the application of DPP) v Stratford Magistrates' Court [2017] EWHC 1794 (Admin) (at [18]), are:

  • Ordinary citizens who apprehend a breach of the law are normally expected to call the police and not take the law into their own hands. In general, the use of force by individuals in the prevention of crime must be confined to avoid anarchy.
  • The use of force to prevent crime may be legitimate and give rise to the defence “in a moment of emergency, when individual action is necessary to prevent some imminent crime”;
  • The right of a citizen to use force is even more circumscribed when not in defence of his own person or property, but deployed to enforce the law in the interest of the community at large.
  • While the law recognises conscientious protests and civil disobedience, the honestly held beliefs of protesters as to the legality of certain activities will seldom, if ever, give rise to a defence under s. 3 CLA 1967.

Since a section 3 CLA 1967 defence will rarely be applicable in the context of criminal damage committed during a protest, prosecutors should resist any attempts to rely on the defence, or to introduce irrelevant and inadmissible evidence, where there are no grounds to leave the defence to the jury.

Defence of Necessity

The common law defence of necessity or duress of circumstance is only available where:

There are generally considered to be two limbs to the defence, as per Simon Brown J in Martin, R v [1988] EWCA Crim 2 [13]:

  • The accused was or may have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result.
  • If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?

The defence of necessity only arises in extreme cases. The defence can only be left to the jury if there is at least some evidence upon which a jury could conclude that the defence had not been negatived: R v Leonardo Bianco [2001] EWCA Crim 2516 [15].

In the context of protests, the defence of necessity may be raised in relation to the issue that is the subject of a protest. For instance, it may be argued that the defendant believed individuals were at risk of death or serious injury as a result of the climate crisis, and that the defendant acted to protect himself and others from this risk.

In most protest cases, the evidence the defendant would wish to give would, as a matter of law, be incapable of founding a defence of necessity or duress of circumstance because of its obvious failure to meet the objective requirements of those defences. No reasonable tribunal, properly directing itself on the law, could characterise the defendant’s act as one that was done in order to avoid a threat of death or serious injury, when it was done to attract publicity for the espoused cause.

Prosecutors should be aware of the following relevant cases:

  • R v Thacker & Ors [2021] EWCA Crim 97 [90 - 103], which confirms that the observations in R v Jones (Margaret) [2006] UKHL 16 [at 73 - 74, 76 - 81, 83 - 84 and 86 - 94] (see above in the section in Criminal Damage) are of general application and apply to the defence of necessity: necessity does not extend to acts of self-help, civil disobedience or protest; citizens are normally expected to call the police or submit legal disputes to the court and not to take the law into their own hands; and the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts.
  • DPP v Ditchfield [2021] EWHC 1090 (Admin) [in particular 18-19, 23-25]. Although Ditchfield was concerned with the defence under s.5(2) of the Criminal Damage Act 1971 (protection of property), the principle which emerges is that the act was too remote from the aim at which it was targeted, namely the concerns and beliefs as to climate change.

Section 68 Criminal Justice and Public Order Act 1994 - Aggravated trespass

In the context of protests, the two commonly contested issues on a trial for the offence under section 68 Criminal Justice and Public Order Act 1994(CJPOA) (Aggravated trespass) are: 1) whether the area upon which the defendant was protesting is “land” as opposed to a ”highway”; and 2) whether a prosecution amounts to a proportionate interference with the accused’s convention rights.

Land

In a prosecution under section 68 CJPOA, one ingredient of the offence that the prosecution must prove is that the accused trespassed on "land". The statute excludes a “highway” from falling within the definition of land. Accordingly, the prosecution cannot discharge its legal burden if a tribunal of fact could not be satisfied that the area on which the accused trespassed was land because it was realistically possible that it was a highway.

Many of the prosecutions for aggravated trespass concern protests that occur at the junction between a private access road serving the targeted premises and a vehicular highway, often bounded by a public pavement. The status of the road upon which the defendant is protesting is frequently a contentious issue at trial. Prosecutors should be alive to obtaining sufficient evidence to disprove any assertion that the road upon which the defendant protested was a highway and, therefore, not land for the purposes of the offence-creating provision. This evidence should usually comprise:

  • HM Land Registry documents showing the ownership and boundaries of the land upon which the accused was protesting. Where a protest has occurred close to the boundary line with a highway, this type of evidence is accompanied by the usual caveat that due to the possibility of distortions in scale it can only be relied upon to show the general position and not the exact line of the boundary
  • A witness statement from the relevant landowner providing any additional information as regards the road upon which the protest occurred, such as that it is responsible for its maintenance and repair
  • A map from the relevant Highways Authority (the identity of the Highway Authority depends on the nature of the road) showing the extent of the area adopted by the relevant authority as a highway (which will often correspond closely with the boundary line depicted by the HM Land Registry documents), and confirming that it is responsible for its maintenance and repair
  • Visual evidence (such as photographs and BWV footage) showing the precise location of the area upon which the defendant protested

There may be occasions where the defence accept that the defendant was trespassing on a private road, and therefore “land”, but contend that it can be inferred or presumed from the manner and length of public usage of the road that the landowner has dedicated it to the public as a highway. A highway may only be created by dedication if either the statutory provisions within the Highways Act 1980 or the common law principles are satisfied. Where the defence raise the issue of dedication, prosecutors should familiarise themselves with the summary of the law on dedication within the judgment of Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs & Anor [2012] EWHC 1976 (Admin) (at [14] to [22]), and in Director of Public Prosecutions v Instone & Anor [2022] EWHC 1840 (Admin) (at [38] to [41]), and consider whether further evidence is required to disprove the assertion that the road in question has become a highway through dedication.

Convention Rights

In DPP v Cuciurean [2022] EWHC 736 (Admin), a Divisional Court decision delivered by the Lord Chief Justice, the Court concluded that there is no basis in the Strasbourg jurisprudence to support the proposition that the freedom of expression linked to the freedom of assembly and association includes a right to protest on privately owned land or upon publicly owned land from which the public are generally excluded. The Strasbourg Court has not made any statement to that effect. Instead, it has consistently said that articles 10 and 11 ECHR do not “bestow any freedom of forum” in the specific context of interference with property rights (see Appleby v United Kingdom, at [47] and [52]). There is no right of entry to private property or to any publicly owned property. The furthest that the Strasbourg Court has been prepared to go is that where a bar on access to property has the effect of preventing any effective exercise of rights under articles 10 and 11 ECHR, or of destroying the essence of those rights, then it would not exclude the possibility of a State being obliged to protect them by regulating property rights [45].

Although the court did not determine Ground 1 of the Appeal, that the prosecution of the offence of aggravated trespass did not engage articles 10 and 11 ECHR rights, it analysed in detail the Strasbourg jurisprudence and gave a strong steer that it is ‘highly arguable’ that on the facts of this case articles 10 and 11 ECHR are not engaged at all [50].

In the context of DPP v Ziegler and ECHR proportionality (see above section on Obstruction of the highway), the court held that section 68 of the CJPOA (Aggravated trespass) is not incompatible with articles 10 or 11 of the Convention [81]. Rejecting the proposition that it is necessary to read a proportionality test into section 68 to render it compatible with articles 10 and 11 ECHR, the court concluded that proof of the offence ingredients set out in section 68 ensures that a conviction is proportionate to any article 10 and 11 ECHR rights that may be engaged [73]. Neither Ziegler nor section 3 of the Human Rights Act 1998 requires the prosecution to prove as a separate ingredient of the offence that a conviction is proportionate to a defendant’s article 10 and 11 ECHR rights [81].

Aggravated trespass – other issues

  • Mens Rea: In Director of Public Prosecutions v Bailey & Ors [2022] EWHC 3302 (Admin)the High Court confirmed that Parliament had plainly intended liability to be strict in respect of the trespass element of the offence. The prosecution therefore did not need to prove that the accused knew, or was reckless, as to the circumstance of the trespass.
  • “Lawful activity”: In DPP v Highbury Corner Magistrates' Court[2022] EWHC 3207 (Admin) the High Court ruled that HS2 Construction was “lawful activity” that was being disrupted or obstructed by protesters who were occupying tunnels on the land in question, even though no construction work had yet begun. The term “HS2 construction” was meant to be understood as encompassing the HS2 project more broadly, which extended to activities that are a necessary precursor to construction, such as the clearance of land, including the eviction of the protestors.

The Court’s comments at paragraphs 39 to 42 call into question the principle that emerged from another Divisional Court’s decision in Tilly v DPP [2001] EWHC Admin 821; namely, that there is requirement within the offence of aggravated trespass that those about to undertake the lawful activity are physically present on the land. The Court observed that in its view there is no requirement for physical presence (as opposed to being “on” the land in the sense of having a right to possess, occupy or use the land) in the words of the offence. The offence criminalises a trespass on land with an intent to intimidate or disrupt or obstruct a lawful activity which persons are about to engage in on that, or adjoining land. Someone who is about to carry out a lawful activity on land may be intimidated, or disrupted, or obstructed, even if they are not yet physically present on the land. Indeed, the fact that they are not physically present on the land may be due to intimidation, disruption or obstruction. Accordingly, on the basis of this obiter dicta it is now arguable that Tilly should be confined to its facts.

Hate Crime

Where a racially or religious aggravated offence may have been committed during a protest, or where a sentencing uplift may be appropriate due to hostility or hostile motivation towards race or religion, disability, sexual orientation or transgender, prosecutors should refer to the CPS guidance on Racist and Religious Hate Crime, the CPS guidance on Homophobic, Biphobic and Transphobic Hate Crime, or the CPS guidance on Disability Hate Crime and other crimes against disabled people.

Alternatives to prosecution

Consideration of the public interest may indicate that an out of court disposal is appropriate having regard to the results of the offending behaviour, the antecedents of the offender and the likely outcome at court, particularly where it may be a nominal penalty. Prosecutors must have regard to the following guidance:

Casework Referral

Allegations of riot should be referred for CCP approval of the charging decision and consultation on subsequent decisions which terminate proceedings or substantially alter the charge. Area Complex Casework Units should deal with allegations of major large scale public disorder of a political, racial or religious nature, or which cause particular local concern, notifying as appropriate the relevant DCCP or CCP. See the Referral of Cases legal guidance.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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