A bill with grave ramifications
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Marc Bloomfield
Description: London protest (Pexels_Lina Kivaka)
Rosie Brighouse, Leon Kidd and Katy Watts set out key provisions of the Police, Crime, Sentencing and Courts Bill and their consequences for civil liberties and human rights.
On 9 March 2021, the Police, Crime, Sentencing and Courts Bill had its first reading in parliament. It is a long and complex piece of legislation. It is also deeply concerning from civil liberties and human rights perspectives, with particularly significant implications in relation to the policing of serious violence, protest rights and Travellers’ rights.
Policing powers in relation to serious violence
Part 2 of the bill contains new duties and powers aimed at preventing and reducing serious violence at a local government level. ‘Serious violence’ is defined very widely. The bill clarifies that ‘preventing’ and ‘reducing’ serious violence include ensuring that individuals do not become ‘victims’ of serious violence. Its scope is therefore incredibly broad – anyone within a local government area is potentially a victim and authorities are relatively free to reach their own conclusions as to what amounts to serious violence within the terms of the bill. The new duties and powers therefore have the potential to have a very wide reach.
The key duty requires specified authorities to collaborate to prevent and reduce serious violence. Authorities must identify the kinds and causes of serious violence that occur in the area and implement a strategy to tackle them. There is a corresponding duty to consult educational, prison and youth custody authorities when preparing the strategy. Once this consultation process is complete, authorities are free to implement any strategy they think fit subject to a duty to keep the strategy under review and to implement a revised strategy from time to time. There are clear parallels to the Prevent duty, and any strategy to identify at-risk individuals will pose the same privacy and discrimination concerns that have been well documented in that context. The practical outcome of a strategy is significant – educational, prison and youth custody authorities are obliged to carry out any action specified. Further, the secretary of state has the power to oblige any authority to comply with its duties by way of a mandatory order.
The bill also grants local authorities, the secretary of state and the police the power to bypass any obligation of confidence owed to a person making a disclosure of information related to serious violence, unless the disclosure would contravene data protection legislation or the Investigatory Powers Act 2016. The bill clearly anticipates that the dissemination of information will be a central consequence of the new serious violence reduction strategies.
There are numerous problems with these proposals. For example, it is very difficult to see how the erosion of relationships of trust (through a dilution of the confidence obligations) will contribute to a reduction in serious violence. Furthermore, the police will have the power to oblige any relevant authority to provide them with the information they request, as long as it will be used for the purpose of enabling them to assist the authority. But the power to assist is framed in a way that is extremely broad, and the police could therefore justify seeking access to information relating to any potential perpetrators or victims on the basis that they are simply implementing a serious violence reduction strategy. There is a serious risk that police bodies will engage in discriminatory practices, such as the creation of a database similar to the widely criticised gangs violence matrix, with very little actual impact on rates of serious violence.
Conditions on protest
Part 3 of the bill contains proposals that amount to a concerted attack on the right to protest. First, the bill would create new powers to impose conditions on protests. Previously, the police’s powers to impose conditions on static protests were more limited than those on marches, recognising the more limited impact of static protests and the greater ease of facilitating them. The bill creates parity between static protests and marches with the consequence that any condition that appears ‘necessary’ could be imposed on any kind of protest, meaning that a senior police officer could ban a static protest altogether.
The bill also creates a new trigger for the power to impose conditions on both types of protest, based on the ‘noise generated by persons taking part’. The police could intervene if the noise created by a protest ‘may’ result in ‘serious disruption to the activities of an organisation which are carried on in the vicinity’ or if that noise ‘may have a relevant impact on persons in the vicinity’. The relevant impact described in the bill is that the noise may cause persons in the vicinity to suffer serious unease, alarm or distress.
New protest offences
Currently, where an individual breaches police-imposed conditions under the Public Order Act 1986, the prosecution must establish that the individual knew of the conditions. The bill reduces that level of knowledge to establish an offence where an individual ‘ought to know’ the conditions that have been breached, thus removing a significant defence.
The bill also introduces a statutory offence of public nuisance. Elements of this reform are welcome: for example, there is now a requirement of recklessness or intent in the offence. However, the offence is incredibly broad, including any conduct that risks serious annoyance or inconvenience to a section of the public or that obstructs them in the exercise of rights belonging to the public, and it carries a maximum sentence of up to 10 years’ imprisonment. Given that the nature of protest is to ‘obstruct’ the public, it is a proposal that potentially criminalises anyone taking to the streets to make their voices heard.
Westminster and memorials
The bill expands controls on activities that cannot take place around parliament, widening the areas subject to these controls and increasing the activities prohibited in those places to include ‘obstruction of vehicular access’. The proposals effectively create a buffer zone around parliament that prevents protestors from gathering and protesting at the heart of power.
The bill also removes limits on sentencing for damaging memorials, in direct response to the Black Lives Matter protests and the toppling of the Colston statue in Bristol. Damage to anything that has a ‘commemorative purpose’ would carry a vastly disproportionate maximum penalty of 10 years in prison.
Unauthorised encampments
Part 4 of the bill contains new powers that pose an existential threat to the nomadic lifestyle of Gypsies, Roma and Travellers by inserting new provisions into, and amending, Part 5 of the Criminal Justice and Public Order Act (CJPOA) 1994. Police and local authorities already have powers under that Act to require trespassers to leave land on which they intend to reside, and to remove their vehicles, but the bill goes much further. Public authorities are sidestepped, and it becomes a criminal offence not to leave land as soon as reasonably practicable once notice has been given by the occupier of the land. Notice can be given if significant damage or disruption has been caused by the trespasser or, crucially, where it is considered likely that it would be caused. There is no provision made in the bill for what will constitute valid notice and no procedure that has to be followed before notice is given. Failure to leave can result in the seizure of any vehicles by the police and, following prosecution, by imprisonment for up to three months. There is no provision in the bill requiring account to be taken of the best interests of any children involved.
The bill provides that where notice has been given requiring a person to leave a certain place, they may not return to that place within 12 months. The CJPOA 1994 is also to be amended so that the existing powers that allow Travellers to be removed from land will be brought in line with the new regime. For example, the current exclusion period of three months under the existing, more limited, powers will also be extended to 12 months. This will make it much more difficult for Travellers to maintain local links to, for example, schools or medical services.
These provisions follow from the government’s consultation into the criminalisation of trespass, which ended in March 2020. According to research by Friends Families and Travellers, only 21.7 per cent of police forces who responded to the consultation agreed with the proposals to criminalise trespass, and only 18.7 per cent agreed with the power to seize the vehicles of trespassers. Instead, 93.7 per cent of police forces called for more sites to be made available to those with a nomadic lifestyle as the primary way of dealing with unauthorised encampments.
Such responses point to the fundamental problem with these new powers. Gypsies, Roma and Travellers do not stop on unauthorised sites out of choice, but because there are so few authorised alternatives available to them. Local authorities face no consequences for failing adequately to meet the need for Traveller pitches and have instead resorted to large-scale injunctions preventing Travellers from stopping on any public land in their areas, a practice recently criticised by the Court of Appeal in Bromley LBC v Persons Unknown, London Gypsies and Travellers and others (interveners) [2020] EWCA Civ 12; December 2020/January 2021 Legal Action 18.
Gypsies, Roma and Travellers are not the only people likely to be criminalised by these provisions. Rough sleepers could be forced to move on by landowners under threat of prosecution. Protest camps, such as the Greenham Common Women’s Peace Camp or the activities of the Occupy movement, would almost certainly be criminalised by the bill. These powers, which essentially transform what has always been a civil dispute between private actors into a criminal offence with no effective safeguards against misuse, must be seen in the context of the increasing privatisation of public space. Decisions about who can use land, and how, will be made without the prior involvement of public authorities, which would be bound by the Human Rights Act 1998, the public sector equality duty (Equality Act 2010 s149) and relevant statutory guidance.
Passage through parliament
If the Metropolitan Police had not violently suppressed a peaceful vigil for Sarah Everard in the same week as the bill had its first reading, the government may have succeeded with its original plan to push the legislation through parliament at breakneck speed. Instead, there has been much opposition. Protestors have taken to the streets in support of the ‘Kill the Bill’ campaign and its proposals have been widely criticised across a full spectrum of civil society organisations. The parliamentary timetable has now been delayed and the bill will return from committee stage in the summer. It must be hoped that significant changes will be made before this rights-reducing bill becomes law.

About the author(s)

Description: Rosie Brighouse - author
Rosie Brighouse is a solicitor in the legal team at Liberty.
Description: Leon Kidd - author
Leon Kidd is a trainee solicitor at Clifford Chance and is currently seconded to Liberty.
Description: Katy Watts - author
Katy Watts is a solicitor in the legal team at Liberty.