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Extinction Rebellion and the Right to Protest – High Court rules S.14 unlawful

In the relatively brief time since it was established, Extinction Rebellion (‘XR’) has already had a significant impact, bringing the issue of the climate crisis to the forefront of public and political discourse. Utilising tactics of non-violent civil disobedience and direct action, their protests in the UK and elsewhere have caused mass disruption with the stated aim of compelling governments to urgently address the existential threat of climate change.

In London, the group’s most recent action, dubbed the ‘Autumn Uprising’, was met with a forceful and concerted police response – a response likely prompted in part by the effect of earlier protests in April

In the aftermath, it has become increasingly evident that the police response to the ‘Autumn Uprising’ was characterised by a disturbing level of disregard for protestors’ rights to freedom of assembly and in many instances an overreach of their legitimate and lawful authority.

The most significant of these overreaches was the imposition of a city-wide ban on all XR protests under S.14(1) of the Public Order Act 1986 (‘POA 1986’).

Legal Framework

Under S.14 of the POA 1986, police have the authority to impose conditions on any public assembly or protest if they reasonably believe that “it may result in serious public disorder, serious damage to property or serious disruption to the life of the community”. Knowingly breaching such a condition is an offence under S.14(4) of the Act.

The decision to impose such an order must be balanced carefully against the right to freedom of expression and freedom of assembly, protected by Articles 10 and 11 respectively of the European Convention on Human Rights (ECHR), which has been codified into UK law by the Human Rights Act 1991 (‘HRA 1991’). In Sunday Times v UK (No 2), it was noted that “any restrictions on a defendant’s Article 10 rights must be ‘narrowly construed’ and ‘convincingly established’”.

The common law right to protest as well is a long-established and fundamental right in the UK. In Tabernacle v SSD [2009] EWCA Civ 23, Lord Justice Laws articulated the importance of tolerating the disruption protests might cause stating, “rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them”.

It is in this context that police powers to manage and restrict protests should be understood and scrutinised.

The Order

On 14 October 2019, the police imposed a condition under S.14 stating that any assembly linked to the XR “Autumn Uprising” must cease their protest(s) within London. This condition lasted until 17:30 on 18 October 2019 when it was removed following a review.

The effect of this condition was immensely wide in scope, in essence criminalising any protest anywhere in London, no matter how small the assembly or how insignificant the disruption caused. It also prohibited any future or intended protests.

Far from being a lawful restriction, the order was tantamount to an outright ban on peaceful protest.

The condition was quickly subject to challenge by judicial review and on 6 November 2019, the High Court ruled that the decision to impose such a condition was indeed unlawful. In their ruling, the Court made clear that the power to impose a condition under S.14 must be confined to a particular and identifiable assembly and that in this case, the police had instead attempted to restrict the entirety of XR’s protests.

The ruling rendered all arrests made pursuant to the terms of the quashed S.14 order unlawful. The CPS has now confirmed that they will be discontinuing all prosecutions arising from those arrests and it is estimated that over 400 XR activists were arrested during the period that the order was in effect. Many of these individuals may now have a civil claim against the police.

Police Powers and Restricting the Right to Protest

Properly understood, the powers afforded under S.14 provide a means by which the police can manage and restrict protests, but only if there is a lawful basis to do so. The condition imposed in this instance was a clear overreach in this regard, and represents a cynical attempt by the police to curtail the rights of citizens to peacefully protest.

The police contended that the restriction was necessary as the ‘Autumn Uprising’ was likely to result in “serious disruption to the life of the community”. Yet, there is a palpable irony in the use of this statutory language to justify an outright ban on a protest seeking to address catastrophic climate change – perhaps the most grave and pressing threat to the life of the human community ever faced.

Our specialist civil liberties team has extensive experience in civil claims against the police and continues to act for many members of Extinction Rebellion in both criminal and civil matters. If you think you may be one of those affected by the ruling, do not hesitate to get in contact via 0330 822 3451 or our contact form.