Blockade
Subsequently, following the threat of legal action against the Met for discrimination in cases such as this, the government doubled down by giving the police the power to impose the same draconian conditions on one-person protests – restrictions that could apply equally to street preaching or those using performance art as a form of protest.
And, as the act suggests that the offence might be committed only “partly in the open air”, there would be no hiding place at home.
Kenan Malik, a broadcaster and writer, warned that the act reduced the right to protest even to “whispering in the corner”.
Realising that it left legislation open to self-serving interpretation by the government, the original bill faced opposition from former senior police officers, MPs—including three former prime ministers—700 academics who urged its withdrawal, and over 350 charities who signed a letter opposing it.
Consequently, the most ruthless measures were rejected by the House of Lords, and it was brought into law in a moderated form in 2022.
Suella Braverman then reintroduced these contentious provisions using the provisions of the controversial Legislative and Regulatory Reform Act 2006 – dubbed the “Abolition of Parliament Act – by which the home secretary could introduce and alter laws without scrutiny by parliament. They therefore came into force the following year under the Public Order Act 2023.
Building on the PCSC Act, the Public Order Act is more pointedly focused on groups such as XR and Just Stop Oil.
It introduced measures like Serious Disruption Prevention Orders (SDPOs), anti-protest measures that can restrict individuals from associating with certain people (including contacting them online), entering specific areas, handing out leaflets, attending protests, or encouraging others to protest, even more severely limiting an individual’s ability to participate in protests, even if they haven’t previously been convicted of a crime.
The act grants the home secretary the power to unilaterally define what is meant by “serious disruption,” potentially setting the scene for Stalinesque state-approved protests – as was evident in the attendance at the recent farmers’ blockade by members of the shadow cabinet, including Priti Patel who had introduced the act in 2023.
No-one on that day suggested that ambulances were being blocked or that people were being prevented from “going about their daily lives”.
Procession
These orders are alarming because they criminalise political organisers based on potential future actions, relying on “predictive policing” where police get to decide whether there is a likely risk of someone breaking the law in the future: essentially enshrining ‘thought crime’ into the statute books.
Enforcing SDPOs also requires extensive state surveillance as the police must track individuals’ movements, contacts, and roles within protest groups, effectively placing everyone in the group under surveillance.
Covert surveillance – using electronic programmes like Prism and Tempora and tools such as Optic Nerve – is used to access web chats, while programmes like The Three Smurfs can activate a mobile phone’s microphone to eavesdrop and track locations. And, true to the Stasi playbook, meetings are infiltrated by journalists acting on behalf of the police.
Breaching an SDPO could lead to imprisonment for a maximum of six months or an unlimited fine or both.
The Public Order Act also provides new powers to tackle demonstrations targeting critical infrastructure which can be applied equally to marching in the road as to blockading a print plant.
Additionally, it expands suspicionless stop-and-search powers, allowing police to search individuals for protest-related items without requiring reasonable suspicion.
We have now shifted the standard to “guilty until proven innocent” under the PCSC Act 2022 – contrary to the principle of the European Convention on Human Rights that there should be a presumption of innocence.
The Public Order Act of 1986 required proof that a protester “knowingly failed to comply” to be charged. The 2022 act now deems it an offence if a person “ought to know that the condition has been imposed”, or if a protest: “may have a relevant impact on persons in the vicinity of the procession…”
Without measurable criteria, the use of vague terms such as “ought to…” or “may…” are impossible to verify or falsify and are essentially meaningless. And who is to specify how broad is a “vicinity?”
The act has shifted the burden of proof onto the defendant whose impossible defence is to prove a negative.
Punitive
Those that argue that it will not stifle legitimate dissent and infringe on the right to protest might look at how it might have affected previous legitimate protests. Caroline Lucas’s acquittal in a 2013 anti-fracking protest is a case in point where she argued she was unaware of police instructions due to her son’s arrest.
The legislation also criminalises “locking-on”, where protesters physically attach themselves to objects or infrastructure, or other people. The nebulous wording might even give the police an excuse to arrest people holding hands.
Supporters of the act argue that it is a necessary response to disruptive tactics that interfere with daily life and essential services.
However, the Supreme Court ruled in DPP v Ziegler that there should be, “a certain degree of tolerance to disruption to ordinary life, including disruption to traffic, caused by the exercise of the right to freedom of expression or freedom of assembly”.
And Tyrone Steele, a criminal lawyer at Justice, warned that the new offences which he called “breathtakingly authoritarian” had the potential to “capture an enormous range of ordinary peaceful behaviour. […] Overnight, simple acts such as walking arm in arm down the street, taking a bike lock to work, or tying up your dog outside a cafe will place the public at risk of arrest, prosecution and imprisonment”.
The Director of Liberty and human rights activist Baroness Chakrabarti, summed up the outrage during the House of Lords debate: “It does not make sense to include attaching yourself to another person or to property, linking arms with your chum, attaching your bicycle to railings, et cetera.
“These are all examples of conduct which can be potentially impugned by this criminal offence, […] This is totally outrageous and unacceptable.”
Indeed, having used a d-lock myself to secure my bike outside parliament for a vigil during the Act’s second reading, under the coming law I might have received an unlimited fine or six months in prison for being equipped to lock on.
And by suggesting to my wife that she join me while being unaware of the breadth of the proscribed “vicinity”, under section 12 or 14 of the PCSC Act, I could have been in danger of 51 months in prison or a fine of £2500, or both.
Moreover, under the equally punitive Nationality and Borders Act, introduced by then home secretary Priti Patel, as a Canadian born British citizen and known dissenter, I could have had my British citizenship revoked and been summarily deported to my country of birth without notice or legal recourse.
Suffering
Maya Foa, the director of Reprieve, said this clause gives the government, “unprecedented power to remove your citizenship in secret, without even having to tell you, and effectively deny you an appeal.
“Under this regime, a person accused of speeding would be afforded more rights than someone at risk of being deprived of their British nationality. This once again shows how little regard this government has for the rule of law.”
The drive to centralise power is further evident in the Judicial Review and Courts Act of 2022, which now allows the government to override judicial review decisions that conflict with its agenda.
Meanwhile, many free-speech advocates worry that the Online Safety Act purportedly introduced to regulate Big Tech, could be weaponised in order to suppress critics on social media: fewer meddlesome judges and prying journalists disrupting government operations.
And the icing on the cake? The Elections Act 2022 gives the government new powers to override findings of the independent elections regulator, the Electoral Commission.
Key parts of the act were opposed by the human rights and constitutional committees in parliament, the Electoral Commission, democracy groups, devolved governments and academics.
They were also opposed by the Labour opposition and the House of Lords. Before being gagged, the commission itself said it was “concerned about its independence from political influence in the future.”
In 2023, nine people arrested for breaking windows at HSBC’s London headquarters, were acquitted having used the defence of Consent “which might prevent defendants from incurring liability for what was done if they can prove that the victim had given consent in the first place had they known the reasons for the action.”
The prosecution summed up: “Although the defendants accept they caused the damage, they deny that their actions amount to criminal conduct. Simply put, the damage was caused during a protest and the defendants say that they were lawfully justified in doing what they did.”
XR co-founder Clare Farrell, one of the nine concurred, said: “Ultimately my guess is that the people who work for HSBC aren’t so different from me and from you. And I don’t think any of us would do something if we knew it would cause so much death and human suffering.”
Defense
Subsequently a frustrated attorney general asked the Court of Appeal to ‘clarify’ what was previously considered a lawful excuse in this area. The question for the Court of Appeal was whether whether a jury should consider factors ” including the merits, urgency or importance of any matter about which the defendant may be protesting by causing the destruction or damage, or the perceived need to draw attention to a cause or situation?”
Despite the Criminal Damage Act of 1971 maintaining that it is a defence if you can prove you had a lawful excuse for the act, the Court of Appeal has now shut down this line of defence.
It ruled that: “Circumstances […] do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.”
Advocates for climate and reparatory justice, Plan B, responded: “Following a pattern of jury acquittals of environmental defenders and anti-genocide activists, which exposes the media fiction that the British government’s ‘crackdown on protest’ is in any way democratic, the Court of Appeal has today backed the attorney general’s call to remove what was for many their last remaining line of legal defence.
“It has ruled that mass loss of life from climate breakdown and the government’s failure to act on the science are irrelevant to the circumstances of an action, for the purposes of the defence of consent to damage to property.”
Dozens of activists have since been denied the opportunity to present their case in full, their motivations for protesting, their fears for the planet and for future generations, and holding the government accountable for its self-proclaimed primary duty: “to keep citizens safe and the country secure.”
Some have been charged with contempt of court for mentioning the climate crisis even tangentially during testimony.
Comparisons have been drawn to cases such as those of whistleblowers like Katharine Gun and Clive Ponting. Had they been gagged from stating their cases in court, government wrongdoing would not have been exposed.
The trial of Gail Bradbrook exemplified the direction of travel of cases all over the country. Bradbrook faced charges of criminal damage for breaking the windows of the Department of Transport in 2019.
Her case took four years to reach court, after being repeatedly delayed as the judiciary awaited decisions from rulings linked to the Colston statue case. These rulings then effectively removed her legal defense, which rested on consent.
Contempt
Presiding over the case, Judge Edmunds cited what he referred to as “a reinterpretation of the law”, effectively barring her from invoking Articles 10 and 11 of the Human Rights Act. This change, implemented without parliamentary approval, left her with “no defense in law,” rendering her entire 76-page argument inadmissible.
This delay of course allowed for harsher sentencing: nothing less than retrospective retribution.
Judge Edmunds said: “There is no nexus between a window being broken and climate change. The nexus in this case is between a window being broken and drawing attention of others, including police and the media.”
So, she too was denied the opportunity to explain her motivations. Crown evidence to the jury was highly redacted and her police interview edited to favour the court’s desired outcome. She was also silenced while the prosecution was allowed to traduce her character and suggest her motivations to the jury without a chance for her to rebut.
Restrictions on defendants citing the climate and ecological emergency as a motive for acts of “public nuisance” have since created an insurmountable paradox for those in the dock, who must swear to tell ‘the whole truth’ while being barred from doing so—a clear Catch-22. This is true for anyone employing the defence of Necessity – and therefore asserting that unlawful actions were taken for the greater good.
But juries continued to acquit. As far back as 2019, barrister Mike Schwarz, who defended the Shadwell three, said on their acquittal: “There is mounting evidence from the courts – and in particular from juries – that the public is taking the climate crisis and the increasingly urgent need to focus on it far more seriously than government and business. This verdict is part of this escalating pattern.”
In October 2021, four Insulate Britain activists were tried for causing a public nuisance when they blocked the M4. The jury took around four hours to deliberate before returning a unanimous not guilty verdict despite Judge Silas Reid barring the defendants from referring to the climate crisis, insulation or fuel poverty during their defence and directing the jury to find them guilty.
Christian Rowe, one of the defendants, said: “I’m amazed we were found not guilty. Not because we are guilty but because the judge didn’t let us explain ourselves. We could not mention our motivation.
“It must have required tremendous insight and trust for the jury to see through the obtuse impositions of the law, through our constrained defence to the truth of the imminent danger the climate crisis places us all in. I am extremely grateful to each of them for that.”
Consequently, we have seen juries themselves threatened with contempt and the threat of jail if they ignored the direction of the judge, attracting a possible sentence of up to two years in prison, a fine, or both.
Disruption
Another potential factor tipping the scales is the role of patronage. The influence of oil-funded Tufton Street think tanks on government policy has been widely exposed, but an overlooked area of scrutiny remains the sway of Big Oil on the judiciary.
Despite the Guide to Judicial Conduct mandating that “a judge be, and be seen to be, independent of all sources of power or influence in society, including the media and commercial interests,” there are troubling signs of fossil fuel interests distorting judicial outcomes.
A striking example is Judge Robert Altham, who handed down “manifestly excessive” jail sentences to fracking protesters while having family ties to the fracking industry. This case may just be the tip of an iceberg.
Knowing that juries were being denied the truth, activist Trudi Warner took it upon herself to remind juries that they were not obliged to follow a judge’s direction. She stood outside a courthouse with a banner merely quoting an inscription embedded in the wall of the Old Bailey: “Jurors: you have an absolute right to acquit a defendant according to your conscience”.
For this quiet undisruptive act she was arrested for contempt of court on the orders of Judge Reid. Her case was thrown out at the first hearing as presumably it was recognised that if she were to be prosecuted for quoting the inscription then so should the inhabitants of the Old Bailey where the inscription is literally set in stone.
But a government intent on making an example ‘pour encourager les autres’ insisted that the case was taken up by the solicitor general.
‘Perverse verdicts’ may frustrate the government, but they are not illegal. In this instance, judicial dispassion ultimately prevailed.
After a year-and-a-half legal ordeal following the election, Lucy Rigby, Labour’s new solicitor general, chose not to continue the campaign initiated by her Conservative predecessor.
The High Court dismissed the former solicitor general’s attempt to prosecute, ruling there was no basis for the case. Furthermore, the court criticised government lawyers for “mischaracterising” the evidence, rejecting claims that Warner had acted in an “intimidating and abusive manner in a deliberate attempt to interfere with the administration of justice”.
Over the past four years, around 25 per cent of people in court for serious disruption have been found not guilty following a trial, even if they had no defense in law.
Disingenuously
On two occasions juries found climate protestors guilty, but expressed “regret” at having to come to that conclusion. That chimes with a recent poll that found most of the public did not think imprisonment was an appropriate response to disruptive, non-violent protest.
So, as juries increasingly failed to be subservient, the government, essentially privatising the law, turned to companies or local councils targeted by activists to fall back on Prohibitory Injunctions: court orders which can prevent unidentified persons from doing…anything!
Held before a jury-less trial reminiscent of the discredited Diplock Courts in Northern Ireland, breach of an injunction generally leads to a prison sentence for contempt of court.
All of the legal wrangling has been set against a backdrop of insinuation and downright libel intended to sow fear of climate activists.
Richard Walton is an associate with Policy Exchange, the think tank is funded by oil companies. He is also a disgraced anti terrorism police officer. He suggested on BBC’s Today programme in 2019 that XR were proto-terrorists.
His subsequent report led to the addition of XR to a 12-page list of extremist ideologies alongside neo-Nazi and Islamist terrorist groups that by law should be reported to the Prevent programme, whose remit is to identify those at risk of committing atrocities.
It was only following an outcry that the police relented, calling the inclusion, “an error of judgement.”
More recently Lord Walney was commissioned to write a report which he titled, Protecting our Democracy from Coercion: an independent view of political violence and disruption.
In the report he suggests that XR has been involved in “political violence” while disingenuously juxtaposing references to Muslims for XR with a Daily Telegraph heading: “Cage: In some cases suicide bombings are ‘a price worth paying.’’
He also urged that groups like Palestine Action and JSO be treated like organised crime groups.
Steamroller
Tim Crosland, director of the climate justice charity Plan B, said: “Lord Walney’s report is being presented as ‘independent’. But that’s not true. That’s dishonest. Lord Walney failed to disclose he is in fact the chair of Defence Purpose Coalition, a group which represents the interests of arms companies, such as Leonardo, which Palestine Action are exposing for facilitating mass loss of life in Gaza.
“He is also a paid adviser to the Purpose Business Coalition, which includes BP, whose vast profits are threatened by Just Stop Oil. So his recommendations are not surprising, since they serve the vested corporate interests he represents. But it would be a shocking deception on the public for anyone to present those recommendations as ‘independent’.”
During XR’s The Big One protest it became clear that the Daily Mail’s smear that the movement was going to disrupt the marathon had no traction.
And so a different story, alleging a “rape alarm plot”, appeared in the Mail on Sunday. Citing “senior security sources”, the article went to great lengths to suggest that “extremists” including “eco-activists” were involved in “a vile plot to spook King’s horses with rape alarms.”
Subsequently, many activist groups were sent an intimidating letter from the police before the Coronation warning that their “tolerance [for disruption] will be low”. But it has never, since Peel, been within the police’s remit to decide whether or not it will ‘tolerate’ freedom of expression, a right enshrined in Article 10 of Human Rights Act.
The Mail on Sunday article is littered with emotive words such as ‘terrorism’ and ‘injury’, intended to ramp up the fear of a non-existent threat, and conditional clauses which preclude any chance of rebuttal – especially as no specific groups are named. It is after all impossible to refute a ‘fear’ or rebut a ‘concern’.
The conclusion of the article asked readers to imagine the potential consequences of a rape alarm plot by conscientious protectors, is classic example of incontestable surmising: “You have families with young children who could potentially lose their lives […]. As far as I am concerned, that is terrorism.”
This fear-mongering and whiff of treason has inevitably led to a ramping up of incitement of violence towards climate activists by the attack dogs of the billionaire press .
Allister Heath of the Spectator has written that climate activists threaten “the total destruction of Western society”. Rod Liddle wrote in The Sun that “if it were up to me I would advance towards [climate activists] in a steamroller.”
GB News celebrated when charges against Louis Grieves, who assaulted a JSO protestor, were dropped while TalkTV presenter Andre Walker suggested that rubber bullets were not an adequate response.
Complicit
He bemoaned the unlikelihood of ‘fixed bayonets’ – an open invitation to the kind of retribution threatened in this all too typical a response on an XR activist’s Twitter feed: “People like you should be shot in the face. Your kids should witness it and then also be shot in the face. You are absolute scum.”
Despite cries of the sanctity of ‘freedom of the press’, such incitement is beyond the pale according to Michel Forst, the UN Special Rapporteur for Environmental Defenders.
In a statement laying out his concerns, he wrote: “I am distressed to see how environmental defenders are derided by some of the mainstream UK media and in the political sphere.
“By deriding environmental defenders, the media and political figures put them at risk of threats, abuse and even physical attacks from unscrupulous persons who rely on the toxic.”
It is ironic that the PCSC Act criminalises “a person who incites another to commit an offence”, but then disapplies this to newspaper proprietors – except of course when the scrutiny of some journalists gets too close for comfort.
A measure in the Public Order Act purports to protect journalists from arrest when covering protests with the assurance, stating that, “the police cannot use their powers solely to prevent a person from reporting on or observing protests”.
However, this didn’t stop the arrests of witnesses to police action such as LBC’s Charlotte Lynch and journalist Rich Felgate.
The crackdown has become granular in the quest to find ways of dissuading protest.
Soon after XR’s blockade of the Murdoch printworks in Broxbourne to protest the capture of the right wing press by four tax-avoiding, climate denying billionaires, police raided the group’s art factory and arrested four women simply for painting posters for a ‘Free the Press’ march.
During XR’s ‘Insure Our Survival’ campaign – targeting insurers complicit in the climate crisis – a live streamer covering the event was arrested under the PCSC act for possessing cable ties, which they had with them so they could … tie cables!
Fanatics
Also during this campaign Paul Raithby was arrested for possessing canisters of water – intended for cleaning up after a protest.
Raithby had been unloading a van near Lloyd’s of London when police suspected his water canisters might be intended for criminal damage. There was no evidence of tampering with the water or plans to use it for spraying on to buildings.
Raj Chada, defending counsel, explained: “The decision to continue to prosecute borders on the irrational. Mr Raithby made clear that the water was going to be used to clean up – to make sure that there was no criminal damage.”
However, prosecutors pursued the case through two pre-trial hearings and to trial, where finally the judge questioned the weak evidence.
After six months of legal wrangling, the prosecution finally dropped the case, and Raithby was acquitted, but nonetheless the direction of the government’s travel was clearly signposted.
This starkly highlighted how outrageous and swingeing decisions in protest cases have become.
The nadir (so far) has been the conviction of JSO’s ‘Whole Truth Five’ who received sentences of four and five years respectively, the longest ever imposed for nonviolent action.
Their crime? Attending a Zoom call to discuss future protests. The judge described the defendants as “fanatics” and as guilty of “parading” their “views”; of having a personal “outlook.” The sentences handed down far exceeded those imposed on the violent far-right rioters who tried to burn down a hostel in August.
Profits
Cressida Gethin, as so many climate defendants have had to do, risked a contempt of court charge by explaining to the judge that the extent of climate danger was not debatable.
“I want to remind the court once more that my reasons for taking action were not beliefs or opinions. Earth’s life-support systems are breaking down due to human activities, whether we believe it or not.”
The judge ruled that JSO were the group most in need of detering. He said: “It can be said that the principle of deterrence is both of particular relevance and importance in the context of a pressing social need to protect the public and prevent social unrest arising from illegal activity”.
The comparative harshness meted out to climate protesters might have something to do with magistrates being required to have special training specifically to deal with climate protesters.
As JSO remarked: “There is nothing in case law that makes protest cases inherently more legally complex than other cases. The only complexity is that the law is seeking to criminalise those taking action in ways that might impact the profits of oil companies.”
Quashing
And as the argument rages as to whether some prisoners should be released to ease the overcrowding – even those guilty of violent or sexual crimes – as our jails fill to bursting point, 26 climate protesters currently languish in prison. They are the very definition of political prisoners.
We have fallen into a nightmarish authoritarian abyss, and a tsunami of new repressive legislation. And the tragedy is that there has been no sign of the current government repealing of any of it.
Yvette Cooper argued during the second reading of the PCSC Bill: “It would, I think, be wrong if we ended up with higher sentences for peaceful protest and public nuisance than for stalking. That would be to get the balance wrong.”
Winning her argument, in May 2024, the High Court subsequently ruled that the previous government had acted unlawfully in bringing in the Public Order Act, under the provisions of the aforesaid ‘Abolition of Parliament Act’, which Liberty described as “undemocratic, unlawful, and unacceptable.”
It is profoundly disheartening that, after securing office as home secretary, Yvette Cooper has backtracked and has now chosen to appeal against the quashing of the very legislation she had previously denounced. This case has been heard in the court of appeal: judgment is still awaited.
Peaceful
Meanwhile, Lord Walney has been retained; the party has accepted a £4m donation from Quadrature Capital which has holdings in fossil fuel companies worth more than $170m; Rachel Reeves has been found to have accepted funding from Net Zero Watch sponsor Lord Donoughue (just prior to the government dropping its £28 billion commitment to renewable transition); the Labour party Conference was host to Policy Exchange seminars; 17 labour MPs have registered family members linked to lobby firms.
And Peter Mandelson has opened the door to lobbying from Shell, Anglo American Oil, JP Morgan, and Peter Thiel of Palantir who believes that capitalism has to be saved from democracy.
Research shows that British police are arresting environmental protesters at nearly three times the global average, highlighting the UK’s role as a leader in the legal crackdown on climate activism.
Forst, the UN Special Rapporteur, warned earlier this year: “In many countries, the state response to peaceful environmental protest is increasingly one of repression rather than support and protection for those advocating for the environment.”
Things are that bad.
This Author
Tom Hardy FRSA has over 40 years of experience in education, serving as literary editor for the International Journal of Art and Design Education, a columnist for the Times Educational Supplement, and author/editor of several academic works on educational practice. He has worked as an education consultant for the Prince’s Teaching Institute and subject lead for the Qualifications and Curriculum Development Agency reporting to the Department for Education. Since 2018, he has been part of Extinction Rebellion’s media and messaging team.
