On 2nd May 2023, the Public Order Act received Royal Assent and became an Act of Parliament. This was in spite of serious opposition from a range of actors, including MPs, campaigning groups, and even the UN High Commissioner for Human Rights, who argued that the bill should be reversed ‘as soon as feasible’. Seemingly intended as a follow-up to the controversial Police, Crime, Sentencing and Courts Act 2022, the Public Order Act contains provisions for the further criminalisation of protest and a corresponding expansion in stop and search powers. Adding to the increasingly oppressive atmosphere surrounding protest in England and Wales, it represents a serious threat to human rights and civil liberties.
This article explores the Act’s provisions relating to stop and search. Please note that the legislation discussed only applies to England and Wales and should not be taken as legal advice, but rather for the purposes of information and education.
Suspicion-based stop and search
Firstly, section 10 of the Act expands existing suspicion-based stop and search powers. If a police officer believes that a person is carrying items which would enable them to commit certain offences defined by the Public Order Act, they can stop and search that person. The offences are:
- Locking on
- Causing serious disruption by tunnelling
- Obstructing major transport works
- Interfering with the operation of key national infrastructure
- Committing wilful obstruction of a highway, and, in doing so, causing serious disruption to two or more individuals or to an organisation (see section 137 of the Highways Act 1980)
- Intentionally or recklessly causing public nuisance (see section 78 of the Police, Crime, Sentencing and Courts Act 2022)
It is not entirely clear what sort of items police officers might look for. The Act defines prohibited items as those ‘for use in the course of or in connection with an offence’ - so presumably things like tripods, padlocks, and super glue (for lock-ons and obstruction), or pickaxes and shovels (for digging). Since ‘causing public nuisance’ is one of the offences, objects like megaphones, speakers, or even placards could also be included.
It should be noted that creating noise or disruption is not automatically classed as ‘causing public nuisance’. The particulars of this offence are made out if a person, by act or omission, creates a risk of, or causes ‘serious harm to the public or a section of the public, or obstructs the exercise or enjoyment of their rights. The acts that constitute ‘serious harm’ are exhaustive and encompass: death, personal injury or disease; loss of, or damage to, property; and/or serious distress, annoyance, inconvenience or loss of amenity. To that end, carrying a a loudspeaker at a protest may not necessarily constitute grounds for stop and search due to the threshold of severity required to make out a ‘public nuisance’ offence. Even so, research has shown that police rely less on laws and policies to make decisions than on their own discretion. The broadly formulated provisions of the Act also make it difficult to predict the particular activities that might be criminalised under the offence of ‘causing public nuisance’. In essence, the Public Order Act could easily enable officers to conduct searches with the aim of finding any protest-related object, which they are then entitled to seize.
As in the Police and Criminal Evidence (PACE) Act 1984, which provides the legal foundation for suspicion-based stop and search powers, police must have ‘reasonable suspicion’ that you are carrying prohibited items in order to search you.
Suspicionless stop and search
The Public Order Act also establishes a broader array of circumstances in which ‘suspicionless’ stop and search powers may be used. ‘Suspicionless’ stop and search powers enable police to search someone regardless of whether they believe the person is carrying prohibited items.
The standard ‘suspicionless’ search powers are contained under section 60 of the Criminal Justice and Public Order Act 1994. Section 60 allows an officer of inspector rank (or above) to authorise ‘suspicionless’ stop and search powers within their area for a defined period of up to 24 hours (though additional 24-hour extensions are permitted). During this period, all uniformed constables can stop any pedestrian, or any vehicle driver and passengers and search them and/or their property for offensive weapons or dangerous instruments, without the need for ‘reasonable suspicion’. Officers can only put a Section 60 in place if they believe that an incident of serious violence could occur, or that offensive weapons used in an incident are being carried in the area.
Section 11* of the Public Order Act adds to this existing legislation. It allows senior police officers to put a Section 60-style order in place - again, for up to 24 hours - if they believe that any of the protest-related offences detailed above (locking on, causing serious disruption by tunnelling etc.) could occur in their locality, or if they believe people in the area are carrying objects which would allow them to commit these offences. In this sense, the Public Order Act creates a protest-specific version of a Section 60-style order.
Section 14 of the Public Order Act also creates a new criminal offence of intentional obstruction during a Section 11 stop and search. If convicted, you could face up to one month’s imprisonment, a fine of up to £1000, or both.
Is the Act in force now?
At present, the Act is not in force in its entirety.** The provisions not currently in force include sections 10, 11, 12, and 14, which in combination contain the new stop and search powers detailed above.
The actions of the Met during the coronation weekend (5-7th May) are slightly confusing in this regard. On the day of the coronation, six protestors were arrested on suspicion of being equipped for locking on. According to the Met, they were spotted unloading items from a van on St Martin’s Lane in Westminster, close to the coronation procession route. The van was accordingly searched, and police allegedly ‘found items which at the time they had reasonable grounds to believe could be used as lock-on devices’.
Some news outlets (Sky News, for instance) reported that the Act enabled an expansion in stop and search powers in time for the coronation, thereby suggesting that the protestors’ van was searched in accordance with the new legislation. However, since section 10 is not currently in force, officers likely used ordinary stop and search powers. These allow officers to perform a search if they have reasonable suspicion to believe that a person is carrying something which could be used to commit a crime. In this instance, the crime was ‘being equipped to lock on’ (an offence defined in section 2 of the Public Order Act, which is already in force).
As this incident demonstrates, the police already have the powers to stop and search people who they believe may commit offences outlined in the Public Order Act. Consequently, even though section 10 of the Act is not in force, it seems that the police can search people if they reasonably believe they will find objects used for protest-related offences. These new powers only add to the legislative complexity in the area of stop and search - which has the potential to exacerbate existing issues in relation to the abuse or misuse of police powers.
The case of the suspicionless stop and search powers is much more clear-cut, since the existing legislation does not give the police powers to mimic the stop and search provisions of the Public Order Act.
So - where does this leave us?
Although the sections of the Public Order Act relating to stop and search are not currently in force, this could change at any time. The Home Office - most likely represented by Chris Philp, as the Minister for State for Crime, Policing, and Fire - would simply need to sign off on another commencement regulation.
Plus, as this article has shown, police officers can already use the Act in combination with existing legislation to perform searches if they believe they will find protest-related objects - the definition of which is worryingly open to interpretation. Just last month, officers arrested a woman at the Royal Ascot on suspicion of being equipped to lock-on, shortly before realising that the problematic item - glue - was for her false nails.
Ultimately, we have to view any expansion of stop and search powers with serious caution. This is especially the case when, as with the Public Order Act, these powers are overly broad and poorly defined. At a time when we should be increasing scrutiny of the police, and looking if anything to limit their power, this is a dangerous step in much the wrong direction.
*Sections 12 and 13 contain further provisions about suspicionless stop and search under Section 11
**The provisions of the Act currently in force are those which were included with Royal Assent or mentioned in Chris Philp’s Commencement Regulation on 2nd May 2023.
Special thanks goes to Udit Mahalingam for his feedback on the legal details in this article.