A ‘Zombie’ to be Watched?

This blog post has been contributed by Dr Carol Brennan, Module Convenor for Tort law.

African man standing outdoors holding save the planet signs

In 2022 the UK has seen a significant escalation in the activist response to the climate crisis.  Groups such as Just Stop Oil, Extinction Rebellion and Insulate Britain have resorted to direct ‘guerrilla action’: disrupting fuel distribution, blocking motorways, climbing bridges and notably throwing soup at Van Gogh’s Sunflowers in the National Gallery (luckily, protected by glass). Hundreds have been arrested and prosecuted for protests which have caused public inconvenience, some say danger, and certainly garnered a lot of publicity for their cause. Along with this comes a major headache for police forces as well as political opportunity for legislators.

When studying the trespass torts, a significant aspect is their involvement with the right of public protest. The tort of false imprisonment has, for instance, been alleged against the police who restricted the movements of protesters in central London, in Austin v Commissioner of Police of the Metropolis. Trespass to land was the issue when the defendant protesting trespassers’ defence of necessity was not accepted in Monsanto v Tilly. Additionally, public nuisance may be invoked when demonstrators impede the movement of the public or obstruct access to businesses in the community.

Tort students are taught that public nuisance can be both a tort and a crime. The latter aspect has, for some years, been almost completely covered by statutes such as the Highways Acts.  In the important case of R v Rimmington, where these issues were reviewed at length, the House of Lords declared the common law offence of public nuisance to have ‘ceased to have any practical application or legal existence’. In 2015  the Law Commission recommended wholesale codification of the law of  criminal public nuisance.

The Police, Crime, Sentencing and Courts Act, which became law in April 2022,  specifically abolished the common law offence of public nuisance in s 78. The PCSC Act also extended police  powers to restrict demonstrations and introduced the broad offence of ‘intentionally or recklessly causing public nuisance’. The common law tort of public nuisance remains. A new Public Order Bill is currently under consideration by Parliament; having been approved by the House of Commons and it is now before the House of Lords. It  reactivates some controversial provisions which had been recently rejected by the Lords when considering the PCSC Act, hence references to the ‘Zombie Bill’.

The Bill has been widely criticised on human rights grounds, and opposed by Amnesty International, Liberty and Greenpeace, among many other organisations including the National Union of Journalists. Probably the most controversial provision is the ‘serious disruption prevention order’, which would allow the police to apply for a court order preventing certain people from organising or attending a demonstration, even if they have never been convicted of a protest-related offence. This order could  be monitored by an electronic tag. Stop and search powers would be extended ‘without suspicion’, authorised for a blanket area over a specified period. A new offence of ‘locking on’ is proposed, directed at the tactics of protesters who have super-glued themselves to immovable structures.

Interestingly the police organisation Her Majesty’s Inspectorate of Constabulary has  itself expressed concerns about the threat to civil liberties which this Bill poses.

The police and courts already have a range of powers that they can use in the minority of cases that involve serious disruption or criminal activity. They include powers in respect of wilful obstruction of a highway; criminal damage; aggrieved trespass; public nuisance; breach of the peace; breach of conditions on processions and static protests; harassment; threatening, abusive and disorderly behaviour; trespassory assemblies; preventing others going about their lawful business; and injunctions. Currently, any failures to exercise some of the above powers have been ascribed to discretion of local police forces and even their lack of resources.

Doubts have been raised about the compatibility of the Bill with the ECHR article 10 (freedom of expression) and article 11 (freedom of association and assembly).

Opponents point out the  Bill’s wide-ranging potential, encompassing industrial action and even press freedom. In November 2022 the journalist Charlotte Lynch, the documentary-maker Rich Felgate and the photographer Tom Bowles were arrested while observing Just Stop Oil protests on the M25 motorway outside of London, and this causes concern.

Supporters of the Bill point to the considerable disruption recently caused by guerrilla tactics, adding that the new powers would be very sparingly used. However, as the world watches the suppression of protest in China and Russia, any legislation which might compromise these rights which are essential in a democracy must be stringently interrogated.

One comment

  1. The dark money being sent to these groups (they’re obviously well-funded) is a cause for concern. And I’m sorry, but Amnesty international has been inconsistent, and has sought to supress certain information that doesn’t fit a far left western narrative. Human rights, once predicated upon natural law, rooted in something innate and logical, is now being weaponized and propagated incoherently to serve an agenda: i.e, everyone must have access to abortion, health-care and education.

    Every educated person knows that public education and publicly funded health care does not produce better results than private education and private healthcare. You can ask any economist, anywhere, and the answer will be the same. And many cultures across the world reject abortion for one reason or another, so what gives centralized actors in Brussels the right to impose their will upon everyone else?

    And why do we suddenly have so many self rightous activists? Do they really believe that Exxon mobile and other companies are not trying to create alternative energy? Of course they are. But the scientists at Exxon Mobile don’t spend their days throwing food at paintings or prohibiting folks from going to work, because these folks actually have real skills that are being applied towards innovation.

    So I encourage these so-called do-gooders (really busybodies) to actually try to create something. My guess is the majority cannot even do basic calculus. They’re inept and incapable of doing anything productive, and they cannot find jobs because they have no real skills after graduating from some watered down institution providing social science degrees that don’t require a lick of mathematics (we have enough of them already). Sorry, but this is the unvarnished truth.

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