The Public Order Act (POA) 2023, which received Royal Assent on the 2nd of May this year, expands police officers’ stop and search powers in two important ways in England and Wales.
Note: some parts of the POA 2023 are not yet in force. See the bottom of this section for more information on commencement dates.
Section 10 powers
Section 10 of the Act amends section 1(8) of the Police and Criminal Evidence Act (PACE) 1984 (see our factsheet on PACE powers here) to widen the scope of suspected offences for which a person can be stopped and searched under PACE s1 powers (this includes the new offences created by sections 1, 3, 4, 6, and 7 of the POA 2023 itself).
PACE s1 establishes the conventional ‘suspicion-based’ stop and search power, meaning that an officer can stop, detain, and search someone if the officer has reasonable grounds to suspect that they will find on that person ‘stolen or prohibited articles’ or something that could be used to commit an offence. ‘Reasonable grounds for suspicion’ means that:
- The officer must have formed a genuine suspicion in their own mind that they will find the object in question
- The suspicion that the object will be found must be reasonable
- The officer’s suspicion must have an objective basis in specific facts, information, or intelligence related to the likelihood of finding the object
The offences added to section 1(8) of PACE 1984 by section 10 of the POA 2023 are:
- Wilful obstruction involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation (s137 of the Highways Act 1980)
- Intentionally or recklessly causing public nuisance (s78 of the Police, Crime, Sentencing and Courts Act 2022)
- Locking on (s1 of the POA 2023)
- Causing serious disruption by tunnelling (s3 of the POA 2023)
- Causing serious disruption by being present in a tunnel (s4 of the POA 2023)
- Obstruction of or interference with major transport works (s6 of the POA 2023)
- Interference with the use or operation of key national infrastructure (s7 of the POA 2023)
Section 11 powers
Section 11 of the POA 2023 is essentially a protest-related version of section 60 of the Criminal Justice and Public Order Act (CJPOA) 1994. Section 11 allows a police officer (of or above the rank of inspector) to authorise ‘suspicionless’ stop and search powers to be used by officers within a particular area for a period of up to 24 hours, if the senior officer ‘reasonably believes’ that any of the offences in the above list ‘may be committed’ or that ‘persons are carrying prohibited object in any locality within the officer’s police area’.
A ‘prohibited object’ is an object that has been 'made or adapted for use in the course of or in connection with' any of the offences listed above, or one that is intended to be used in any of those offences by the person carrying the object, or by anyone else.
When a section 11 authorisation is in force, police officers can stop and search any person or vehicle in a specified area for a prohibited object - without the usual need for ‘reasonable suspicion’.
Section 11 can only be initiated if the senior police officer making the authorisation ‘reasonably believes’ that such an authorisation is ‘necessary to prevent the commission of [the offences mentioned in the list above] […] or the carrying of prohibited objects’. The specified locality to which the authorisation applies must be ‘no greater than is necessary to prevent such activity’, and the specified period must be ‘no longer than is necessary to prevent such activity’. Although a section 11 authorisation can only be in place for a maximum of 24 hours, it can then be renewed for a further 24 hours.
Other powers introduced by the POA 2023
As well as expanding stop and search powers and creating new protest-related offences, the POA 2023 also establishes:
- A new offence corresponding to section 11 (suspicionless) stop and search powers: section 14 states that someone 'commits an offence if the person intentionally obstructs a constable in the exercise of the constable’s powers under section 11'
- A provision intended to protect journalists when reporting on protests: section 17 states that a police officer 'may not exercise a police power for the sole purpose of preventing a person from observing or reporting on a protest' or protest-related offence
- Serious disruption prevention orders (SDPOs), a new type of civil-criminal hybrid order specifically relating to protests - these are covered by Part 2 (sections 20 to 33) of the Act
Some of the provisions of the POA 2023 were brought into force upon the Act receiving Royal Assent. A statutory instrument, 'The Public Order Act 2023 (Commencement No. 1) Regulations 2023', brought several more of the Act's provisions into force on the 3rd of May, the day before the coronation of Charles III.
A statutory instrument made on the 14th of June, 'The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023', amended parts of the Public Order Act 1986, lowering the threshold at which police officers can impose conditions on protest marches and assemblies.
As of 15/06/23, the following provisions of the POA 2023 are in force / not yet in force.
- Section 1 — creating the offence of locking on (brought into force by statutory instrument on the 3rd of May, one day after the Act received Royal Assent)
- Section 2 — creating the offence of going equipped for locking on (brought into force by statutory instrument on the 3rd of May)
- Section 7 — creating the offence of interference with the use or operation of key national infrastructure (partly brought into force upon Royal Assent on the 2nd of May, fully brought into force by statutory instrument on the 3rd of May)
- Section 8 — defining 'key national infrastructure' for the purposes of s7 (brought into force by statutory instrument on the 3rd of May)
- Section 13 — further provisions about searches under s11 (brought into force upon Royal Assent on the 2nd of May)
- Section 15 — processions, assemblies and one-person protests: delegation of functions (brought into force by statutory instrument on the 3rd of May)
- Section 34 — definition of 'serious disruption' (brought into force by statutory instrument on the 3rd of May)
- Section 35 — extent, commencement, and short title (brought into force on upon Royal Assent on the 2nd of May)
Not yet in force:
- Section 16 (assemblies and one-person protests: British Transport Police and MoD Police) will come into force on the 2nd of July 2023 (two months after the passage of the Act)
- All other provisions in the Act (sections 3-6, 9-12, 14, and 16-33): these sections will only come into force when the home secretary lays a statutory instrument (secondary / delegated legislation) for that purpose
This page will be updated as soon as any other provisions of the POA 2023 are brought into force.
Following the passage of the Police, Crime, Sentencing and Courts (PCSC) Act 2022, the Public Order Bill was announced in the May 2022 Queen’s Speech. Then-home secretary Priti Patel said in the House of Commons, ‘The Conservative party is the party of law and order. Unlike some, we understand that freedom includes the freedom of the law-abiding majority to go about their business free from harm’ (Hansard, May 2022). She blasted the Opposition for voting against the PCSC Bill (which still passed by a majority of almost 100). ‘If Labour Members really cared, they would have backed the [PCSC] Bill’.
After the defeat of parts of the PCSC legislation in the House of Lords, the Conservative government reintroduced some of these measures through the Public Order Bill. Like the PCSC Act, the Public Order Bill was heavily criticised on the basis of the restrictions it imposes on civil liberties - particularly the right to protest. A report on the Bill by the joint committee on human rights said:
While the stated intention behind the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures go beyond this, to the extent that we believe they pose an unacceptable threat to the fundamental right to engage in peaceful protest.
The report also stated that the proposed stop and search powers risked violating people’s Article 8, 10, 11, and 14 human rights. ‘This risk is substantially higher in relation to powers to stop and search without the need for reasonable suspicion, which have previously been considered necessary only to protect against serious violence and terrorism. Stop and search without reasonable suspicion should be removed from the Bill’.
Despite widespread criticism, the Bill was eventually passed, receiving Royal Assent on the 3rd of May 2023, thus becoming the Public Order Act 2023.
This section will be updated when official data on police powers under the Public Order Act 2023 are published.