Public Order Bill

Lord Judge Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord because I am coming on to deal with exactly that. Indeed, it leads me into the next paragraph in my notes. I am just making the point that one has to consider the practical consequences for prosecutors and the police of leaving this expression as wide as it is and without qualification of some kind. Of course, I am pointing to a particular qualification that needs to be made.

The Supreme Court, in a well-known case called Ziegler in 2021, held that protesters had been rightly acquitted of obstructing a highway when protesting about an armament fair. That is not an easy judgment to read or understand, not helped by the fact that there were two dissents in a court of five, but it has been thought to support the view that invoking the public interest defence in that context is acceptable. However, a series of decisions in the Court of Appeal have narrowed the window that Ziegler left open. The point is that we are dealing now, in the offences that we are considering in the Bill, with offences that require proof of serious disruption. The Court of Appeal’s point is that that changes the balance between what is proportionate and what is not, which is at the heart of this issue. The proof of serious disruption was not a necessary element of the offence of obstructing the highway considered in Ziegler, but it is important to notice that in our offences it is a vital and essential element.

The Colston case was the subject of the most recent Court of Appeal decision, which is Attorney-General’s reference no. 1 of 2022. The court was asked to rule on what principles judges should apply when determining whether the convention rights are engaged by a potential conviction for acts of damage during a protest, and when the issue of proportionality should be withdrawn from the jury. The court held that the convention did not provide protection to those who cause criminal damage during a protest that is violent, not peaceful. That was the Colston case.

However, it went on to say that a conviction for causing significant damage to property, even if inflicted in a way that could be called peaceful, could not be held to be disproportionate either. The prosecution in the Colston case was correct, both because the toppling of the statue in that case was violent and, as a separate issue, because the damage to the statue was significant. The words “serious disruption”, which appear in these offences, seem to fall into the same category. In other words, a person who engages in criminal conduct that causes serious disruption cannot take advantage of this defence.

It has been pointed out that a case raising this issue is expected to be heard by the Supreme Court before Christmas. I think there are problems with that. The judgment is not likely to be given until well into next year because the court takes a considerable time to consider all the issues. I think one would be fortunate if the judgment were out before the early summer. This is a problem that needs to be solved now, and I will come back to the question of the magistrates’ court and the problems that could arise there.

I stress again that the offences we are dealing with here all require proof of serious disruption. That is why the reasonable grounds defence should be removed altogether or qualified in the way I am suggesting, to confine it to circumstances that affect the position of the individual on the ground at the time he or she is causing the disruption. That qualification would be welcome, and undoubtedly useful, in many cases. Without it, I suggest that the whole defence be removed.

[Lord Judge (CB)]

My Lords, I am very sorry that I was not able to speak at Second Reading. I shall be very brief. I share the various arguments presented to the Committee about the vagueness of this legislation and the ineptitude of the drafting that leaves so many criminal offences so vaguely described. I support the basic premise of the noble and learned Lord, Lord Hope. We are about to legislate in a situation where there is a decision of the Supreme Court, with two dissenting judgments out of five; further decisions of the Court of Appeal are rowing back from the majority decision in Ziegler; we have the Colston decision, which will have to be reconciled with Ziegler; and we know that the Supreme Court is looking at the issue again.

What on earth are we supposed to do when we have the opportunity to make it clear what the answer is to these problems, revealed by the number of cases to which I have referred? We have the opportunity, and we should take it. We really should not just say, “You carry on sorting it out”. How many more times does the issue have to be examined in higher courts? If the issues are being examined in magistrates’ courts, there will inevitably be references to cases stated and so on. If we do not accept the amendment of the noble and learned Lord, Lord Hope, or at least the thrust behind it, we are sending a slightly chaotic situation back to the courts when we could clear it up.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Can I confirm with my officials and write to the noble Baroness in respect of that point? My understanding is that that is so, but I want to check that before I confirm.

[Lord Judge (CB)]

While the Minister is conferring with his officials, can he suggest to them that they look at Clause1(1) and put in some new words? After

“A person commits an offence if”,


he should add “without reasonable excuse”, if (a) they do this, (b) they do that and (c) they do the other. Then he should get rid of subsection (2).

[Lord Murray of Blidworth (Con)]

I hear what the noble and learned Lord says, and I will certainly ask them.

I think that I had reached Amendment 61. It similarly seeks to strengthen the defences available. As I have said already, whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, and we see it as entirely appropriate that the defendant, who committed the offence in the first place and has personal knowledge of those facts, is required to prove them.

I turn lastly to Amendments 56 and 62, which seek to make it an explicit requirement for the police and courts to pay regard to Articles 10 and 11 of the ECHR when determining whether someone has a reasonable excuse for the offences of obstructing major transport works and interference with key national infrastructure. Although I understand the sentiment behind the amendment from the noble Lord, Lord Paddick, I do not see it as being necessary. It is of course right that the courts and other public bodies are already obliged to act compatibly with the ECHR by reason of the provisions of Sections 6 and 7 of the Human Rights Act 1998. Therefore, there is already legislative protection for the consideration of such rights, and it is not necessary to repeat that in this Bill.