Public Order Act 2023

Commentary on provisions of the Act

Part 1: Public Order

Section 1: Offence of locking on

15. Subsection (1) creates a new offence of "locking on". An offence is committed where a person attaches themselves to another person, to an object or to land, or an object to another object or to land. It is a requirement of the offence that the act causes or is capable of causing serious disruption to two or more individuals or an organisation in a place other than a dwelling and that the accused intends that to occur or is reckless as to whether it will occur. 
16. Subsection (2) provides for a reasonable excuse defence. The burden of proof is placed on the defendant as the facts as to whether they have a reasonable excuse will be within their knowledge. The prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act causes or is capable of causing serious disruption, and the defendant intended or was reckless as to whether their act would have this consequence. Although not explicitly set out, the standard to which the defendant will be required to prove the defence is the balance of probabilities. 
17. Subsections (3) and (4) provide for the maximum penalty for the offence, namely six months imprisonment (rising to 51 weeks once section 281(5) of the Criminal Justice Act 2003 has been brought into force), an unlimited fine, or to both.  
18. Subsection (5) defines what is meant by a "dwelling". 

Section 2: Offence of being equipped for locking on

19. Subsection (1) creates an offence where a person has an object (such as glue or a padlock) with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the locking on offence provided for in section 1.  
20. Subsection (2) provides that the maximum penalty for the offence is an unlimited fine.  
21. Subsection (3) applies the definition of a "dwelling" in section 1.  

Section 3: Offence of causing serious disruption by tunnelling

22. Subsection (1) creates a new offence of "causing serious disruption by tunnelling". An offence is committed where a person creates, or participates in the creation of, a tunnel, the creation or existence of the tunnel causes or is capable of causing serious disruption to two or more individuals or an organisation in a place other than a dwelling and the person intends that to occur or is reckless as to whether it will occur. 
23. Subsection (2) provides for a reasonable excuse defence. The burden of proof is placed on the defendant as the facts as to whether they have a reasonable excuse will be within their knowledge. The prosecution will still need to prove all the elements of the offence to the criminal standard of proof. Although not explicitly set out, the standard to which the defendant will be required to prove the defence is the balance of probabilities. 
24. Subsection (3) provides that, if the construction of the tunnel was authorised by someone with an interest in the land who was entitled to do so (for example the landowner, legitimate occupier, or someone acting on their behalf), this will count as a reasonable excuse.
25. Subsection (4) provides for the maximum penalty for the offence, namely three years imprisonment on indictment or the maximum penalty a magistrates’ court may impose on summary conviction (currently 6-months), an unlimited fine, or both.  
26. Subsections (5) and (6) define what is meant by a tunnel and an excavation.
27. Subsection (7) provides that this offence does not apply to tunnels that are in or are under a dwelling.
28. Subsection (8) applies the same definition of a "dwelling" as in section 1.

Section 4: Offence of causing serious disruption by being present in a tunnel

29. Subsection (1) creates a new offence of "causing serious disruption by being present in a tunnel". An offence is committed where a person is present in a tunnel, their presence causes or is capable of causing serious disruption to two or more individuals or an organisation in a place other than a dwelling and the person intends that to occur or is reckless as to whether it will occur. 
30. Subsections (2) and (3) provide the same reasonable excuse defence as section 3.
31. Subsection (4) provide for the maximum penalty for the offence, namely three years imprisonment on indictment or the maximum penalty a magistrates’ court may impose on summary conviction (currently 6-months), an unlimited fine, or both.  
32. Subsection (5) defines what is meant by a tunnel.
33. Subsection (6) specifies that a "relevant tunnel" means a tunnel that was created for the purposes of, or in connection with, a protest. It also clarifies that it does not matter whether an offence has been committed under section 3 in relation to the creation of the tunnel.
34. Subsection (7) defines what is meant by an excavation.
35. Subsection (8) provides that this offence does not apply to tunnels that are in or are under a dwelling.
36. Subsection (9) applies the same definition of a "dwelling" as in section 1.

Section 5: Offence of being equipped for tunnelling etc

37. Subsection (1) creates a new offence of "being equipped for tunnelling". This will be committed where a person has an object with them in a place other than a dwelling with the intention that it will be used in the course of or in connection with the commission by any person of the tunnelling offences provided for in sections 3 and 4.
38. Subsections (2) and (3) provide that the maximum penalty for the offence is six months’ imprisonment on summary conviction (rising to 51 weeks once section 281(5) of the Criminal Justice Act 2003 is brought into force), an unlimited fine, or both.
39. Subsection (4) applies the same definition of a "dwelling" as in section 1.

Section 6: Obstruction etc of major transport works

40. Subsection (1) provides that a person commits an offence if the person (a) obstructs a relevant undertaker or person acting under the undertaker’s authority in setting out the lines of any major transport work, in constructing or maintaining any major transport works, or taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works, or (b) interferes with, moves or removes any apparatus which relates to the construction or maintenance of any major transport works and belongs to a person within subsection (5).
41. Subsection (2) provides for a reasonable excuse defence, and a defence if the act was done wholly or mainly in contemplation or furtherance of a trade dispute. The burden of proof is placed on the defendant as the facts as to whether they have a reasonable excuse will be within their knowledge. The prosecution will still need to have proved all the elements of the offence to the criminal standard of proof. Although not explicitly set out, the standard to which the defendant will be required to prove the defence is the balance of probabilities.
42. Subsections (3) and (4) provide for the maximum penalty for the offence, namely six months imprisonment (rising to 51 weeks once section 281(5) of the Criminal Justice Act 2003 has been brought into force), an unlimited fine, or to both.  
43. Subsection (5) sets out the persons to whom apparatus may belong for the purposes of subsection (1)(b): the undertaker, statutory undertaker, or a person acting under their authority.
44. Subsection (6) defines "major transport works". The definition is in two parts. First, under (6)(a), it covers transport infrastructure authorised by an Act of Parliament, for example, the High Speed Rail (London – West Midlands) Act 2017 and the High Speed Rail (West Midlands - Crewe) Act 2021 which provide the legislative authority for the construction of the first and second phases of HS2 from London to the West Midlands and Crewe. The second part of the definition, at (6)(b), relates to transport works granted development consent by an order made under section 114 of Planning Act 2008. Development consent orders cover nationally significant infrastructure projects, including new airports, airport extensions and major road projects.
45. Subsection (7) explains what type of development is within subsection (6)(b). The types of development are threefold:
    • developments that are, or form part of a nationally significant infrastructure project within any of paragraphs (h) to (l) of section 14(1) of the Planning Act 2008, namely a highway-related development; an airport-related development; the construction or alteration of harbour facilities; the construction or alteration of a railway; or the construction or alteration of a rail freight interchange.
    • developments that are, or form part of, a project (or proposed project) in the field of transport to which the Secretary of State has given a direction under section 35(1) of the Planning Act 2008, for example the new railway works between Bedford and Cambridge ( East West Rail Company - Planning Act 2008 direction (publishing.service.gov.uk) ).
    • associated developments in relation to developments within paragraphs (a) and (b) above.

46. Subsections (8) and (9) defines terms used in this section, including "statutory undertaker".
47. Subsection (10) amends section 14 of the Planning Act 2008. Section 14(1) of the Planning Act 2008 lists the categories of project which are "nationally significant infrastructure projects" for the purposes of the Act and section 14(3) enables the Secretary of State to make an order which amends the categories of nationally significant infrastructure project. Subsection (10) inserts a new subsection (3A) in section 14 of the Planning Act 2008 which enables an order made under section 14(3) to make consequential amendments to subsection (6)(a) of this section.

Section 7: Interference with use or operation of key national infrastructure 

48. Subsection (1) makes it an offence for a person to do an act which interferes with the use or operation of key national infrastructure in England and Wales where the person intends the act to have that effect or is reckless as to whether it will do so.  
49. Subsection (2) provides for a reasonable excuse defence and a defence if the act was done wholly or mainly in contemplation or furtherance of a trade dispute.
50. Subsection (3) provides for the maximum penalty for the offence, namely, on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, an unlimited fine, or both and, on conviction on indictment, 12 months’ imprisonment, an unlimited fine, or both.    
51. Subsections (4) and (5) define interference as an act that prevents or significantly delays the infrastructure from being used or operated to any extent for its intended purposes.  
52. Subsection (6) lists key national infrastructure in scope of the offence, namely: road transport infrastructure; rail infrastructure; air transport infrastructure; harbour infrastructure; downstream oil infrastructure; downstream gas infrastructure; onshore oil and gas exploration and production infrastructure; onshore electricity generation infrastructure; and newspaper printing infrastructure. These terms are defined in section 8.  
53. Subsections (7) to (9) confer a power on the Secretary of State to amend the list of key national infrastructure in subsection (7) by regulations (subject to the affirmative procedure).  
54. Subsection (10) defines further terms used in this section. 

Section 8: Key national infrastructure 

55. This section defines the different types of key national infrastructure for the purposes of section 7. 

Section 9: Interference with access to or provision of abortion services

56. Subsection (1) makes it an offence for a person within a safe access zone to intentionally or recklessly influence, obstruct, or cause harassment, alarm or distress to any person in connection with their decision to access, provide, or facilitate the provision of abortion services at an abortion clinic. The affected person must be within the safe access zone for the abortion clinic.
57. Subsection (2) defines the term safe access zone as an area that is within 150 metres from any part of an abortion clinic or any access point to a building or site that contains an abortion clinic, and is on or adjacent to a public highway or right of way, in an open space to which the public has access, within the area of land attached to an abortion clinic, or in a location that is visible from any of those areas.
58. Subsection (3) establishes that an offence is not committed under subsection (1) by a person inside a dwelling where the person affected is also in that or another dwelling, or a person inside a building or site used as a place of worship where the person affected is also in that building or site.
59. Subsection (4) provides for the maximum penalty for the offence, namely an unlimited fine.
60. Subsection (5) sets out actions that may take place within safe access zones but are not an offence under subsection (1). This includes: anything done while providing or facilitating abortion services in an abortion clinic, anything done while providing medical care in a healthcare facility, any action by a person accompanying with consent, persons accessing, providing, or facilitating abortion services, or the operation of a camera if its coverage of persons accessing a clinic is incidental.
61. Subsection (6) defines abortion clinic.

Section 10: Powers to stop and search on suspicion

62. This section amends section 1 of the Police and Criminal Evidence Act 1984 ("PACE") to allow a constable to stop and search a person or vehicle if they have reasonable grounds for suspecting that they will find an article made, or adapted or intended, for use in the course of or in connection with the following offences:  
    • an offence under section 137 of the Highways Act 1980 (wilful obstruction of a highway) involving activity which is capable of causing serious disruption;  
    • an offence under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (intentionally or recklessly causing public nuisance);  
    • an offence under section 1 of this Act (offence of locking on);
    • an offence under section 3 of this Act (offence of causing serious disruption by tunnelling);
    • an offence under section 4 of this Act (offence of causing serious disruption by being present in a tunnel);
    • an offence under section 6 of this Act (obstruction etc. of major transport works) and
    • an offence under section 7 of this Act (interference with use or operation of key national infrastructure).

63. The exercise of stop and search powers under section 1 of PACE is subject to PACE code of practice A ( PACE Code A (publishing.service.gov.uk) ) which will be updated to reflect the extension of the section 1 powers.

Section 11: Powers to stop and search without suspicion

64. This section makes provision for a senior police officer to give an authorisation applying to a specific locality for a specified period that allows a constable in uniform to stop and search a person or vehicle for an object made, adapted or intended for use in the course of or in connection with a specified protest-related offence. While the authorisation is in force a constable may exercise the search power whether or not they have any grounds for suspecting the person or vehicle is carrying such an object.
65. Subsection (1) provides for the circumstances in which a senior officer of or above the rank of inspector can give such an authorisation. Those circumstances are that the senior officer reasonably believes that any of the offences specified in paragraph 65 above may be committed in a locality within the officer’s police area or that persons are carrying prohibited objects (as defined in subsection (2)) in that area. 
66. Subsection (3) stipulates that if the further condition in subsection (4) is met the senior police officer may give an authorisation that the suspicion-less stop and search powers conferred by this section are to be exercisable anywhere within a specified locality, within the officer’s police area, for a period not exceeding 24 hours. 
67. Subsection (4) specifies the condition under which a senior police officer may give an authorisation. The senior officer must reasonably believe that: the authorisation is necessary to prevent the commission of offences within subsection (1)(a) or the carrying of prohibited objects, the specified locality is no greater than is necessary to prevent such activity, and the specified period is no longer than is necessary to prevent such activity. 
68. Subsection (5) allows for an officer of the rank of superintendent or above to provide for an authorisation to continue for up to a further 24 hours. 
69. Where such an authorisation is in place, subsection (6) confers on any constable in uniform power to stop any person and search them or anything carried by them for a prohibited object; or to stop any vehicle and search the vehicle, its driver and any passenger for a prohibited object. 
70. Subsection (7) allows a constable to stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object. 
71. Subsection (8) enables a constable to seize an object found during the course of a search if they have reasonable grounds for suspecting it to be a prohibited object. 
72. Subsection (9) provides that the powers in this section and sections 12 to 14 apply to ships, aircraft and hovercraft as they apply to vehicles. 
73. Subsection (10) defines terms used in sections 11 to 14.  
74. Subsection (11) provides that the powers conferred by sections 11 to 14 do not affect any power conferred otherwise than by those sections. 
75. The exercise of stop and search powers under this section is subject to PACE code of practice A (PACE Code A (publishing.service.gov.uk) ) which will be updated to reflect these new powers. PACE Code A covers analogous suspicion less stop and search powers conferred by section 60 of the Criminal Justice and Public Order Act 1994.

Section 12: Further provisions about authorisations and directions under section 11

76. Subsection (1) requires an inspector giving an authorisation under section 11 to inform an officer of superintendent rank or above as soon as practicable. 
77. Subsection (2) stipulates that the authorisation under section 11 must be given in writing and signed, specify the grounds on which it was given and specify the locality covered by the authorisation and for how long the powers are available. 
78. Subsection (3) provides that a direction given by an officer of the rank of superintendent or above under section 11(5) allowing for the continuation of the powers for a further period of up to 24 hours must also be given in writing. Where, due to operational circumstances, it is necessary to give the direction verbally, it must be recorded in writing as soon as practicable. 
79. Subsection (4) ensures the powers in sections 11 and 12 may be exercised by senior officers of the British Transport Police ("BTP") Force. 
80. Subsection (5) provides that where an authorisation is made by a senior BTP officer, the "locality" to be covered by an authorisation is to be defined by reference to the jurisdiction of BTP as specified in section 31(1)(a) to (f) of the Railways and Transport Safety Act 2003, this includes railway tracks, stations and other land used for purposes of or in relation to a railway. 

Section 13: Further provisions about searches under section 11

81. Subsections (1) and (3) state that a person who is searched or a person who has their vehicle searched by a constable under section 11 is entitled to obtain a written statement from the officer that the person was searched and/or the vehicle was stopped. 
82. Subsections (2) and (4) place a time limit of 12 months, from the day of the search, for the person or driver to request a statement as in subsections (1) and (3). 
83. Subsection (5) provides that any object seized by a constable under section 11 may be retained in accordance with regulations made by the Secretary of State.  Subsections (6) to (9) make further provision in respect of the regulation-making power, including that such regulations are subject to the negative procedure. It is envisaged that such regulations will be made and will contain broadly analogous provisions to those contained in the Police (Retention and Disposal of Items Seized) Regulations 2002 (SI 2002/1372) made under section 60A of the Criminal Justice and Public Order Act 1994.

Section 14: Offence relating to section 11

84. Subsection (1) makes it an offence for a to person intentionally obstruct an officer in exercising powers under section 11.  
85. Subsections (2) and (3) provide for the maximum penalty for the offence, namely one month’s imprisonment (rising to 51 weeks once section 281(5) of the Criminal Justice Act 2003 has been brought into force), a level 3 fine (currently £1,000), or both. 

Section 15: Processions, assemblies and one-person protests: delegation of functions

86. Sections 12, 14 and 14ZA of the 1986 Act enable a chief officer of police to impose conditions on upcoming public processions, assemblies and one-person protests where certain conditions are met. Where a chief officer of police believes that their powers in section 12 will be insufficient to prevent a public procession from causing serious public disorder, they can apply to the local council (or the Secretary of State for the Metropolitan and City of London Police forces) to prohibit processions in part of or all their district for a maximum of three months under section 13 of the 1986 Act. Section 14A provides a similar power to section 13 in relation to trespassory assemblies. Section 15 enables a chief constable for a force outside London to delegate their functions under sections 12 to 14A to an Assistant Chief Constable. In contrast, in London the Metropolitan Police Commissioner or City of London Police Commissioner can only delegate these functions to an officer of the rank of Assistant Commissioner (equivalent to a chief constable in other forces). This section substitutes a new subsection (2) of section 15 of the 1986 Act so that in London the functions can be delegated to an officer of the rank of Commander (or above), which is equivalent to Assistant Chief Constables outside of London. This is necessary to relieve Assistant Commissioners of the heavy burden of attending court to provide firsthand evidence whenever the lawfulness of a condition attached to a protest is contested.

Section 16: Assemblies and One-Person Protests: British Transport Police and MoD Police

87. Section 16 makes amendments to the Public Order Act 1986 (the 1986 Act) to extend certain police powers to the British Transport Police and MoD police.
88. Subsection (2) extends the powers under section 14 of the 1986 Act to set conditions on public assemblies to the British Transport Police and Ministry of Defence Police, where the assembly in question is being held or intended to be held within their jurisdictions 1 .
89. Subsection (3) extends the powers under section 14ZA of the 1986 Act to set conditions on one-person protests to the British Transport Police and Ministry of Defence Police, where the one-person protest in question is being held or intended to be held within their jurisdictions 2 .
90. Subsection (4) applies the powers under section 14A of the 1986 Act to prohibit trespassory assemblies to the British Transport Police and Ministry of Defence Police. The chief constable of the British Transport Police must reasonably believe that the assembly is to be held on an area within the jurisdiction of the British Transport Police to which the public do not have a general right of access, that the assembly is likely to be held without the consent of the occupier of the land, and may result in serious disruption to railway services, or to the life of the community, or in significant damage to land, or a building or monument on it that is of historical, architectural, archaeological or scientific importance 3 .
91. The chief constable of the Ministry of Defence Police must be satisfied that the assembly will be held on an area within the jurisdiction of the Ministry of Defence Police to which the public do not have a general right of access, and that the assembly is likely to be held without the consent of the occupier of the land, and may result in serious disruption to the use of a specified place for defence purposes, or to the life of the community, or in significant damage to land, or a building or monument on it that is of historical, architectural, archaeological or scientific important.
92. Each chief constable must gain the consent of the Secretary of State in relation to an area in England and Wales or Scottish Ministers in relation to an area in Scotland before making an order prohibiting assemblies under this subsection.
93. Subsection (5) allows the chief constables of the Ministry of Defence and British Transport Police forces to delegate any of their functions in the above subsections to deputy or assistant chief constables.

Section 17: Exercise of police powers in relation to journalists

94. Section 17 explicitly provides that constables cannot use police powers for the sole purpose of preventing individuals from observing or reporting on protest or protest related activities, or observing or reporting on the exercise of a police power in relation to protest activities.
95. Subsection (3) clarifies that this section does not affect the use of police powers for other purposes for example the purpose of maintaining public order and public safety.
96. Subsection (4) provides definitions for terms used in this section.

Section 18: Power of Secretary of State to bring proceedings

97. Section 18 makes provision for a Secretary of State to bring civil proceedings (including applying for injunctions) in relation to protest activity.
98. Subsection (1) sets out a power for a Secretary of State to bring civil proceedings where they reasonably believe that one or more persons are carrying out or likely to carry out activities related to a protest and certain conditions are met.
99. Subsections (2) and (3) specify that the Secretary of State must also reasonably believe the activities are:
    • causing or likely to cause serious disruption to the use or operation of any key national infrastructure (as defined in section 8), or
    • to access to any essential goods or services in England and Wales, or
    • having or likely to have a serious adverse effect on public safety in England and Wales.

100. Subsection (4) provides that proceedings may be brought in the name of the Secretary of State where these conditions are met and the Secretary of State considers that it is expedient in the public interest to do so.
101. Subsection (5) requires the Secretary of State to consult such persons (if any) as the Secretary of State considers appropriate before bringing proceedings, in particular having regard to any persons who may also bring civil proceedings in relation to the protest-related activities (for example, the landowner).
102. Subsection (7), in line with other offences in the Act, excludes from scope activities done wholly or mainly in contemplation or furtherance of a trade dispute.

Section 19 and Schedule 1: Injunctions in Secretary of State proceedings: Power of arrest and remand

103. Section 19 applies in proceedings brought by the Secretary of State under section 18. Subsection (2) provides that, if the Court has granted an injunction prohibiting conduct which is capable of causing nuisance or annoyance to a person, or of having a serious adverse effect on public safety, the Court may attach a power of arrest to any provision of the injunction.
104. Subsection (3) provides that the Court may do this if the Secretary of State has applied for it, and if the Court thinks that the prohibited conduct involves the use or threat of violence, or that there is significant risk of harm to a person, or to the public or section of the public.
105. Subsection (4) allows a constable to arrest, without a warrant, anyone they reasonably suspect may be in breach of a provision of an injunction that has a power of arrest attached. Subsection (5) requires constables to inform the Secretary of State of the arrest as soon as reasonably practicable.
106. Subsection (6) provides that a person who is arrested must appear before court within 24 hours of the arrest, and that the court may remand the person if required.
107. Subsection (8) introduces Schedule 1, which contains further detail on remand.
108. Subsections (9) to (11) make further provision about the power to remand in particular cases.
109. Subsection (12) defines certain terms for the purposes of the section.