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On 14 September the most live threat to our fundamental right to protest in recent decades, the Police, Crime, Sentencing and Courts Bill (PCSC), will have its second reading in the House of Lords. The threat is threefold: the introduction of noise as a trigger for unlimited police-imposed conditions on protest, a new statutory offence of public nuisance, and the beefing-up of penalties for those in breach of the rules. Further, the evidence points to the fact that the bill is the product of a government attempt to clamp down on the freedom to protest.

Introduction of a ‘noise trigger’

Currently, under the Public Order Act 1986, the police have the power to impose conditions on public assemblies which can be triggered by an officer’s reasonable belief there may be serious damage to property, serious public disorder, or serious disruption to community life. The PCSC proposes a fourth, broader trigger for this power: noise. The so-called ‘noise trigger’ allows police to impose conditions on public assemblies if an officer reasonably believes that the noise it produces may “result in serious disruption to the activities of an organisation which are carried on in the vicinity”, or “may have a significant and relevant impact on persons in the vicinity” where this impact includes causing “serious unease, alarm or distress”.

The threat here is the introduction of an alarmingly low threshold for triggering police control of protests: noise is an almost unavoidable, and often desirable, by-product of protest. Just as alarmingly, under the PCSC the meaning of this vaguely worded trigger (as well as the meaning of an existing trigger: “serious disruption to the life of the community”) is controlled, through Regulations, by the Home Secretary. The power to make such regulations (which are a form of secondary legislation) hands the government the power to clarify “serious disruption” and potentially target the effects of protests of specific groups and, more generally, facilitate greater control over acceptable public expression.

The PCSC also hands the police more control over protests when their powers are triggered, expanding their previous control over place, maximum number, or maximum duration of an assembly (S.14(1) POA 1986) to allow them to impose any conditions that the senior officer on the scene regards as “necessary to prevent such disorder, damage, disruption or intimidation”. Police would also be permitted to take action against “one-man protests”. Such changes, in the words of Professor David Mead, render protest “far more in the gift of the police”, something which, as he points out, events such as police actions at the Sarah Everard vigil should highlight the danger of.

As the Court of Appeal held in R (Singh) v CC West Midlands Police (2006), protest “becomes effectively worthless if the protestor’s choice of ‘when and where’ to protest is not respected as far as possible”. Under the PCSC, it is plainly not.

Statutory offence of causing public nuisance

The PCSC does away with the common law offence of public nuisance and replaces it with a broad statutory offence involving any “act that, intentionally or recklessly, causes serious harm to the public or puts them at risk of such harm”. Here, “serious harm” includes where a person suffers “serious annoyance, serious inconvenience or serious loss of amenity”, and the offence would also include “conduct which endangers the… comfort of a section of the public”. Further, statutory public nuisance would carry an extremely high maximum sentence of ten years, given that when the common law offence was used to target protestors, such as in Roberts, Blevins & Loizou v R (2018), the court quashed the use of custodial sentences as “manifestly excessive”.

Given that many protests “obstruct” the public, cause “annoyance” or “endanger the… comfort of a section of the public” (indeed, this seems to be the whole point of protest), the offence allows for the criminalisation of close to the full range of public demonstration as public nuisance. Not to mention, the notion of being “criminally annoying” demonstrates the intolerance the government has for those they regard as “uncooperative”. Further, as Protest Matters points out, the PCSC revives the “almost… redundant” offence of public nuisance. Given the clear contempt the current government holds for protest, it does not seem a stretch to suggest that the revival of this offence (and in such a broad form) is simply designed to equip police and prosecutors with greater ability to crack down on “dreadful” BLM protests and those “uncooperative crusties” and “importunate nose-ringed climate change protestors” at Extinction Rebellion.

In the words of Lord Justice Laws, quoted in evidence by Adam Wagner at the committee stage of the PCSC’s progress through parliament, “rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them”. Protest will inevitably be annoying to someone. To allow this to be a reason to clamp down on one of the most important engines of social progress shows profound arrogance and intolerance. It is these two characteristics that are the true hallmarks of this bill.

Increased penalties

The PCSC proposes heavy increases for a number of penalties for actions conducted by protestors. Most prominently, the consideration of monetary value when sentencing the “destroying or damaging [of] a memorial” has been removed, allowing the imposition of a maximum of ten years imprisonment (under the Criminal Damage Act 1971) in all cases. As has become the pattern, the PCSC defines “memorial” broadly so as to include anything “erected or installed on land” as well as “any moveable thing (such as a bunch of flowers)”, with a “commemorative purpose”, placed on it. This commemorative purpose can be for persons, animals (both living and dead) or events. As such, the perpetrator of almost any level of damage (e.g. graffiti) to just about any statute, and many placards, signs and even flowers, is liable to ten years imprisonment.

It is hard to regard this change as anything other than a direct response to recent movements against statutes commemorating those involved in the slave trade and, in particular, the toppling of an Edward Colston statue during a BLM protest in Bristol. Yet again, we see the bill for what it is: a politically motivated clamp down on movements with which this government takes issue.

While many Tory MPs have pointed out that ten years is a maximum, the removal of the notion of punishment proportional to damage (which seems the only sensible way to punish) leaves the government open to pursue punishment according to enmity. Garden Court Chambers highlights how governments have been traditionally willing to vigorously pursue the maximum charges and penalties available when prosecuting hostile activists, such as the Stansted 15 who were charged under an act designed to suppress terrorism at airports with a maximum sentence of life-imprisonment. Such changes to penalties allow the government greater scope for punishing political dissenters how they see fit.

A clamp down on protest?

The motives of the government become clearer when one considers the surrounding context. The current government, particularly Boris Johnson and Priti Patel, have never been coy about their dislike for protestors and their frustration with certain movements has become increasingly obvious. This, combined with the explicit concession by current cabinet member, Sajid Javid (while he was Home Secretary), that “where a crime is committed [during a protest] the police [already] have the powers to act”, and that there is significant legislation that “already exists to restrict protest activities that cause harm to others”, must lead one to the conclusion that the PCSC is designed to attack protest that would otherwise not be regarded as criminal. That is, there is no need for this bill for any reason other than a politically motivated clamp down on dissenters. Indeed, as Garden Court Chambers suggests, “the suggested ‘gaps in the law’ simply do not exist… These additional powers are designed to make it prohibitively difficult for the public to exercise its right to protest at all”.

Protest is a fundamental democratic freedom and a vital source of social progress. As such, for a government to take what seem to be intentional steps to curb it is highly disturbing. For all the government assurances that the right to protest will be protected, examination of the content of the bill makes it hard for one to join them in reaching this conclusion. The effect of the bill, as Kenan Malik has warned, would be to reduce the right to protest to a right to “whisper[ing] in the corner”. This is something we should all, regardless of political stripe, be concerned about.

James Cox is an aspiring barrister. He is a graduate in Philosophy, Politics and Economics from the University of Oxford and a Lord Bowen scholar of Lincoln’s Inn. He will commence the GDL at City, University of London in September 2021.

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Oldfield attended one of Australia’s most highly-regarded fee-paying schools, before obtaining a masters degree at the London School of Economics and becoming a fellow of the Royal Society of Arts.

It seems that this taste for establishment excellence may have influenced Oldfield’s choice of lawyers…

Rather than enlist the services of a hot shot legal executive, who’d soared to the top despite never going to university, or hire a plucky lawyer who’d made it into the profession via an ex-poly, Oldfield went the traditional route and instructed two Oxford men.

His solicitor was Oxford University-educated Mike Schwarz, of top civil liberties firm Bindmans, while his barrister was Doughty Street’s Benjamin Newton, also an Oxford graduate.

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Below is the spruced-up main courtroom in the disused Old Street magistrates’ court – squatted by protesters since last month – where Occupy is currently holding three mock trials. Yesterday was war crimes, today the effect of the legal aid bill on squatters, and Saturday a prosecution of RBS for fraud and the misspending of public funds. My review of the war crimes inquiry, featuring another pic from Noah, is in today’s Guardian.

Veterans for Peace’s Ben Griffin recalls his time in Iraq (below)

Prosecutor Chris Coverdale, a “war lawyer” (who’s neither a solicitor, barrister nor legal executive), addresses the court (below)

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The decision to allow the protesters to stay was made yesterday in the warmer climes of Clerkenwell County Court, where Occupy came to an agreement with the Old Street building’s property developer owner Mastcraft Limited (represented by Stratford solicitors’ firm Bowling & Co.).

Gytis Turbinas, one of the members of Occupy’s legal team, told Legal Cheek that the group was “very happy” with the outcome. “It’s in our interests to not have these court cases,” he said. “Three weeks gives us enough time. And it saves Mastcraft money enforcing a possession order and incurring further court expenses. We have reached an agreement that is good for all sides.”

Attention now turns to arranging the mock trials. Occupy says the number it conducts will depend on how much support from lawyers it receives. Currently the group believes it can count on the help of at least two solicitors and a retired judge. But it is keen to enlist jobless law graduates to act both as trial advocates and in litigation support roles. “We’re very keen to attract legally qualified volunteers of all levels of experience,” says Turbinas. If you are interested in volunteering, please get in touch on Twitter, Facebook or by commenting on this article and we’ll pass on your details to Occupy.

As for who Occupy is planning to put on trial, the group says it is still undecided. But a clue may lie in the names of individuals – including Sir Fred Goodwin and Tony Blair – that protesters have scrawled on the blackboards outside the cells in the basement of the Old Street courthouse since moving in on 20 December.

Occupy also plans to host a cabaret night at the court, which is located on the corner of Old Street and Hoxton Street, this Friday evening, featuring music, circus performers and comedy mock trials.

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During the last few days I have reluctantly come to the conclusion that it is not currently a realistic objective to occupy the Inns of Court. It has become clear to me that it is simply too dangerous for most law graduates without training contracts or pupillages to attempt an occupation. I include myself in this group. As angry and disheartened as I may be, I continue to be hopeful of obtaining pupillage, and indeed have had some positive news on that front.

For that reason I can see that protest is something that all disenfranchised law graduates must approach with caution. Nevertheless, I am proud of this campaign for raising a good deal of awareness on the matter, notwithstanding some disappointing comments in response to the words I have written. Sadly, I expect more to follow these words.

I make the above statement of retreat with a caveat, however. If a year or two passes and a sizeable number of law graduates remain without pupillages and training contracts, and without the hope of securing one, then the situation could be very different. At that point, it may be more dangerous to continue sleep-walking in a basic legal support role than to publicly draw attention to the situation through an occupation of the Inns of Court.

As Harold Macmillan once said when talking about the greatest challenge for a statesman: “Events, my dear boy, events.” It is also events that will decide the fate of law graduates in my position. Will there be an economic recovery? How will the legal aid cuts fall, and what effect will those cuts have on pupils and trainees? Will legal process outsourcing (LPO) companies continue to grow at present rates?

My personal belief is that this will be a slow recovery, that the legal aid cuts will affect young lawyers disproportionately and that LPO will indeed continue to grow. That is why I believe that to avoid an occupation movement in the future, the profession must be pro-active.

Last week I put forward three key proposals to make pupillages more widely available. These included a freeze on all legal aid cuts to fund more pupillages and tenancies. In hindsight I do not think this went far enough. The government seems determined to push ahead with its legal aid cuts so it is my submission that the burden falls on senior solicitors and barristers to ensure the best of this generation of law graduates find a path into the profession.

Senior lawyers often earn easily in excess of £1 million – and this year Linklaters’ top earning partner took home £2.2 million. Would it truly be asking that much for them to sacrifice a small portion of these sums to fund between them pupillages and training contracts for the jobless graduates who have the strongest CVs (in other words, the people with a reasonable expectation of obtaining a graduate position)? I believe it would not, and that it would be for the good of the profession as a whole if lawyers acted in this way. We are not asking for very much; the minimum pupillage award is just £12,000 and I am sure that would be good enough for most of us even though it is an exceedingly low amount. Food for thought I hope.

OccupyTheInns graduated from the BPTC this summer, and was called to the Bar in July.

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Jobless law graduates should follow the St Paul’s protesters’ example, argues OccupyTheInns

As the Occupy Wall Street camp is cleared, and the City of London commences legal action against the Occupy London protesters, why am I proposing the occupation of the Inns of Court? Simple. Because I, and many law graduates like me, are angry. As we have seen in Egypt, New York and at home in London, anger can be a great energiser.

Through no fault of our own, a generation of Bar Professional Training Course (BPTC) and Legal Practice Course (LPC) graduates find ourselves with no jobs – or no jobs as lawyers anyway. The lucky ones are paralegals. The unlucky ones work in bars (not the Bar).

This generation did all that was required of it, and in many cases much more. We obtained A-stars and high 2.1s from the best Russell Group universities. We undertook all the extracurricular activities that we were told prospective lawyers need to have on their CVs nowadays.

For my sins, I chose to become a barrister, and so did the BPTC. The Bar has always been a dream of mine; in order to promote justice, to help those from less fortunate backgrounds than myself, to pursue an intellectually stimulating career. Those were, and still are, my aims.

As I mentioned above, I have a high 2.1 from a leading Russell Group university, where I read a challenging non-law subject. Also, without wishing to sound arrogant in any way, I am very able as an advocate (something reflected in my BPTC grades and the success I have enjoyed at mooting competitions).

Yet a pupillage remains out of my, and many of my contemporaries’, grasp. The statistics are frightening. Approaching 2,000 students do the BPTC every year, but just over 400 obtain pupillage. Those are not far off National Lottery odds!

It is for these reasons that I propose peaceful direct action. It is time to occupy the Inns of Court. To those of you reading this in my position, please get in touch, by Twitter (@OccupyTheInns), by email (occupytheinns@hotmail.co.uk ) or by commenting beneath this article.

OccupyTheInns graduated from the BPTC this summer, and was called to the Bar in July.

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