925: Infrastructure-related criminal offences and material amendment application update

Today’s entry reports on proposals for new criminal offences relating to infrastructure, and provides an update on the first ever material amendment order application.

The one-stop-jail regime.

The government tabled amendments to the Police, Crime, Sentencing and Courts Bill earlier this week including the creation of a new offence of ‘obstruction of major transport works’.

That offence is broadly defined and effectively criminalises obstructing any undertaker who is ‘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 of a ‘major transport works’.

‘Major transport works’ is defined as transport infrastructure authorised by an Act of Parliament (e.g. HS2 or Crossrail), or which constitutes a highway, airport, harbour, railway or rail freight interchange NSIPs (and any associated development in connection with those NSIPs). It also includes provision for transport projects which are brought into the Planning Act 2008 regime via section 35 directions. Non-transport projects are not yet caught under this provision even where they may be controversial and liable to the same kind of protestor activity.

Interestingly, there are also a series of provisions which are seemingly targeted toward stopping obstructions of highways including:

1.  an offence of ‘locking on’ to land, persons or objects – presumably to stop people gluing themselves to roads and trains;
2. an offence of being equipped to lock onto land, persons or objects;
3. powers to stop a search extended for suspicion that a person might obstruct a highway; and
4. power to stop and search in connection with the locking on offence and obstructing a highway ‘without suspicion’ (though an inspector must reasonably believe that offence may be committed).

Relatedly, there is an injunction applying across the country against persons unknown who are deliberately obstructing or otherwise interfering traffic the Strategic Road Network (SRN) and against 135 named parties and which will remain in force until the earliest of a further order, trial or 31 December 2021. Nine protesters have subsequently been jailed as a result of it, see here.

Insulate Britain, Extinction Rebellion, and others will therefore find there is an increasing desire to clamp down on using their tactics against existing and new infrastructure. It’s worth noting in this context that Schedule 5 to the Planning Act 2008 includes the creation of an offence as a matter which can be included under a DCO but only in connection with:

• non-payment of tolls, fares or other charges;
• a person’s failure to give the person’s name or address in accordance with provision relating to penalty fares;
• enforcement of byelaws; or
• construction, improvement, maintenance or management of a harbour.

Of course, Schedule 5 is not an exhaustive list of matters which can be included in a DCO, but it is perhaps why a statutory provision in the Bill is considered prudent. It is also worth contrasting this with Transport and Works Act Orders. To take a recent example, the Network Rail (East West Rail) (Bicester to Bedford Improvements) Order 2020 contains an offence in the order itself for the obstruction of works carried out under it.

Material amendment order application news

In other news, the Preliminary Meeting for the first ever material amendment order (for the Able Marine Energy Park) was held, and the Examining Body (fashionably known as the ‘ExB’ rather than the ‘ExA’ for an initial application) has issued their first written questions (just over 100). If you would like to see Angus on screen, please see here.