‘Serious disruption to the life of the community’. If there’s one legal phrase which catches the difference between climate campaigners on the one hand and the police on the other, it’s that one.
It comes from section 14 of the Public Order Act 1986. Where a senior police officer ‘reasonably believes that [a public assembly] may result in ….. serious disruption to the life of the community’ they may make ‘directions’ imposing conditions on those protests, public assemblies. If the conditions are breached, a criminal offence is committed and the police have the power to arrest and prosecute. This is the provision used against hundreds of Extinction Rebellion (‘XR’) activists in April and October this year.
The senior police officers, who have the power to make these directions, have applied a myopic, narrow and conservative interpretation to this term. The police don’t intervene when, say, conglomerates block major roads for months on end, to knock down small buildings to build a big new one. We all live – sadly increasingly – with the impacts on travel of unfavourable weather conditions. But where transport is delayed by protesters even for a relatively short period of time, a direction is readily imposed and the conditions are broad and open-ended. For the police it’s about protecting business, business as usual, commercial and apolitical activity. It may also be about maintaining control or seeking to do so, and about saving face, or seeking to do so.
For campaigners – who can speak for themselves better than I can – the phrase imports other broader ideas. It’s about all ‘life’ – humans, animals, ecosystems. It’s not just about life in London or other cities in the country – it’s about the world. It’s long term thinking – life now, our children’s lives and taking the moral responsibility which comes with being the beneficiaries of the industrial revolution and all the pollution and extraction it led to. The risk of ‘disruption’ activists are concerned with is both imminent and long-term. It is certainly serious.
The difference of approach of course informs other aspects of policing and prosecuting. Why did the police arrest over a thousand XR protesters in April for obstruction of the highway or breach of s14 (offences which are not even punishable with custody), and hold them in disparate police stations for the rest of the day, under the auspices of planning to interview them? Why would the prosecution conclude, applying their Codes, that it was ‘in the public interest’ to prosecute just about all of them? A similar pattern appears to be emerging in October.
There is so much concern about stretch in the criminal justice system - the under-reporting, investigation and prosecution of rape being just one current example – that it is difficult to avoid the conclusion that wider political factors are being brought into play. The police and their lawyers in the Crown Prosecution Service do not work in isolation. They have budgets to justify, targets to meet, reputations to manage. Following the April rebellion they were overtly cajoled into using “the full force of the law” against the rebels by the then Home Secretary Sajid Javid. Presumably the Ministry of Justice and Treasury, even the Cabinet Office, were – and continue to be – involved in other discussions and decisions.
And now we see them turning to more serious, fuzzy and obscure police powers and offences. Last month there were pre-emptive arrests before climate demonstrations, on allegations of conspiracy to commit a public nuisance – maximum prison sentence, ‘life’. My first experience of this offence was during the 1990s, when the police, seemingly short of other legal tools, resorted to this offence to prosecute ravers and those running sound systems at the Castlemorton festival, in the beautiful Malvern Hills. From memory, all those prosecutions failed. So the politicians changed the law – and introduced the Criminal Justice and Public Order Act 1994 – an attempt to clamp down not only on ravers and new age travellers, but the progressive movements and diverse communities of the 1990s who had been in their sights for some time.
This is a familiar pattern. Trade unionists, peace campaigners, anti-roads protesters, animal rights activists, many others – all who felt strongly about an issue, campaigned hard, together and successfully – attracted the ultimate accolade and recognition of their effectiveness. Changes in the law, made by Parliament, extended by judges - such as civil laws against secondary picketing, the criminalisation of simple trespass at military and nuclear sites, the new offence of aggravated trespass, the extension of stalking laws to protesters and tailor made legislation protecting animal research facilities. Already, in response to XR’s successes police and politicians are media-testing increases in police powers, the creation of new criminal laws, toughening sentences.
And finally, there is the background against which this is unfolding. In the struggle between campaigns and the State, the idealism, creativity and energy of activists are invariably pitched against the criminal justice system’s resources and zest for control. Police powers and criminal offences are just levers in the hands of the State in its struggle to maintain order and win. But who will prevail depends – as much, if not more so – on who has the most to lose and whether they’re prepared to lose it. A rudimentary measure of XR’s success will be to gauge how much of the State’s energies are deployed from policing, towards greening.