CPS updates guidance on protest laws

The Crown Prosecution Service (CPS) has announced it is revising its guidance on protest-related prosecutions in response to a legal challenge from environmental campaigners Chris Packham CBE and Gaie Delap. This decision follows a letter from the pair highlighting urgent concerns regarding section 78 of the Police, Crime, Sentencing and Courts Act 2022 (PCSCA), which they claim is being used to criminalise peaceful protests and violates fundamental rights protected under the European Convention on Human Rights (ECHR).

In their Pre-Action Protocol (PAP) letter to the Director of Public Prosecutions (DPP) and the Secretary of State for Justice, Chris and Gaie expressed that section 78 is so broad and imprecise that it risks targeting entirely peaceful environmental protests. They emphasised that it lacks adequate protection for the rights to freedom of speech and assembly outlined in Articles 10 and 11 of the ECHR. The letter indicated their intention to seek a judicial review regarding section 78 should they not receive a satisfactory response.

The Justice Secretary, alongside the Home Secretary, recently wrote to the legal team representing Chris and Gaie at Leigh Day, disputing their assertion that section 78 is incompatible with the ECHR. However, the CPS has confirmed that it is in the process of updating its guidance to reflect recent developments in case law, expecting to publish it by the end of July 2025. In light of this commitment, Chris and Gaie have decided to delay their application for judicial review, but only if the CPS adheres to this timeline and ensures the new guidance aligns with essential human rights and environmental standards.

The legal team from Leigh Day provided a detailed letter outlining their expectations for the revised guidance to prevent further legal action. They are calling for clear instructions for prosecutors to consider the rights to freedom of expression and assembly under the ECHR, guidance on what constitutes a “reasonable excuse” for protest, a framework to assess proportionality at all prosecution stages, and clarification that the public’s right to protest remains intact, ensuring peaceful disruption alone does not warrant criminal charges.

Drawing parallels to the CPS’s guidance on assisted suicide cases, which was developed following a House of Lords ruling to ensure clarity, Chris and Gaie maintain that the same level of transparency in relation to protest offences is urgently needed. They argue that without robust safeguards and clear guidelines, the law may continue to suppress dissent, criminalising peaceful protests and threatening the democratic process.

Chris Packham CBE articulated the importance of peaceful protest in shaping UK history, stating that oppressive legislation serves only to deter citizens from using their democratic rights. He noted that “these laws will punish everyone who seeks to stand up for their beliefs,” highlighting the wider societal implications of imposing such restrictions.

Gaie Delap, a recent victim of section 78, expressed her concerns regarding the erosion of democratic rights. She emphasised that “this new guidance must be robust. It must provide real clarity and protection, so that ordinary citizens who speak out against injustice are not treated like criminals.” Tessa Gregory, a partner at Leigh Day, reiterated that section 78 is vague and prone to misuse, insisting that the CPS must offer meaningful guidance that clearly outlines when prosecutions related to protest are appropriate, ensuring that they remain lawful and proportionate while respecting fundamental rights.