Tougher punishments, increased police powers and state-controlled protests under the new Police, Crime, Sentencing and Courts Bill

by Mahum Fatima

The Police, Crime, Sentencing and Courts Bill 2021 (The Bill) was introduced on 16 March 2021. It increases police powers, introduces tougher punishments and regulates the way in which protests will be carried out. The Bill also changes the sentencing of serious violence and sexual violence offences. The government says that it will reduce public spending on disruptions caused by protests such as the delays in emergency services and public transport and will protect the police when protests turn violent. This article will cover the main provisions of the Bill and discuss the implications of the new law upon our basic human rights.

The new proposals

The Bill widens the conditions on protests as the police can now impose a noise limit and decide the timings of protests. Currently, the law only allows the police to sanction conditions which they consider ‘reasonably necessary to prevent serious public disorder.’ This includes the number of people that may take part in a protest, the location and maximum duration of protests. At present, some protestors can simply ignore the existence of conditions, without any repercussions.  However, under the new Bill, if someone knows or ought to have known that the conditions have been imposed, it will be sufficient to charge the individual(s) with a criminal offence in the event of a breach. 

The Bill will contain a recommendation to the Law Commission to replace the common law offence of public nuisance (judge made law) with a new statutory offence. This will allow the police to charge individuals if they are “intentionally or recklessly causing public nuisance”. This will capture ‘conduct which is capable of causing serious harm, endangering life, health, property or comfort of the public, or that which obstructs the public from enjoying a right common to the public’, according to the proposals.

The Bill further says that serious harm will include serious distress, serious annoyance, serious inconvenience or serious loss of amenity (enjoyment), caused by excess noise, smell, or offensive and dangerous behaviour in public. It is not limited to this and can include any other acts which cause serious harm and which fit this definition. The proposed legislation lowers the maximum sentence to 10 years’ imprisonment if someone is found guilty of this offence. The defendant can raise a defence of ‘reasonable excuse’ for their act or omission. Although public nuisance is traditionally a criminal offence, injured parties can also bring civil proceedings against the perpetrator and claim an award of damages if they have suffered a loss.

The police have also been afforded new stop, search and seizure powers to avoid serious disruption to the public. This will allow the police to search individuals who have previous convictions for knife crime and will no longer need reasonable grounds for suspicion before doing so.  Under the current law, previous convictions cannot alone be used as a reasonable ground for stop and search. For more on police powers of stop and search, please click here.

The noise element of the Bill 

The new law will not necessarily ban noisy protests, but it will allow the police to impose conditions on noise that is classed as unjustifiable. The threshold for this is quite high, allowing only senior police officers to decide whether this threshold is met. There are a number of factors which are to be taken into account when deciding this, including significant impact on those nearby, duration of the noise, disruption to individuals or organisations, the intensity of the impact and whether this will affect the protestors’ human rights or those that are in the vicinity. The Bill defines impact as ‘intimidation, harassment, serious unease, alarm or distress’.  For example, a noisy protest taking place in town centre is unlikely to disrupt those nearby, whereas a protest near a hospital would likely cause disruption to patients and staff.

The police may impose conditions as to the start and finish time, set noise limits and also apply these conditions to one party demonstrations. As the Bill grants the police the authority to set conditions on a noisy protest, it is open to their interpretation if a protest is simply noisy and/or if whether it causes ‘serious unease, alarm or distress.’ This links heavily with the human rights argument as it may curb the ability of individuals to exercise their right to assembly and expression, which is integral to a democratic society.

The Human Rights argument

Although these proposals aim to reduce public spending on disruptions caused by protests, there are growing concerns about powers granted to the police, which have the potential to infringe basic human rights. Article 11 of the European Convention of Human Rights (ECHR) allows individuals freedom of assembly, where they can gather in groups to voice their opinion on a particular issue. Some argue that the Bill reduces our ability to exercise the right to assembly by allowing the state to control how we exercise it.

The Bill also creates an offence of trespass, allowing ‘the police to seize property (including vehicles) where individuals reside or intend to reside on land with a vehicle, without first obtaining permission. There are certain exceptions to this provision, for example, those who enjoy the countryside such as ramblers (hikers / walkers) are not caught by this. The maximum punishment for this offence is three months imprisonment and/or a fine of up to £2,500 or both. 

There were concerns that the Gypsy, Roma and traveller communities would be at risk of losing their homes under the proposed law. However, it appears that the government is committed to tackling the inequalities that these communities face by developing a cross-government strategy. Schemes like the New Homes Bonus have been backed by the government to increase housing and authorised traveller sites. Despite these efforts, it is understood that the Gypsy, Roma and Traveller community are still anxious about the new Bill and the expansive police powers. Virgil Bitu (Roma activist) commented on the proposed legislation by saying  that ‘it [Bill] threatens to outlaw traditional nomadic way of living’.

Human rights organisations and many public members have voiced their concerns. For example, Liberty (an independent membership organisation that defends freedom and campaign) has reviewed The Bill. They concluded that a poll showed two- thirds of the public expressed their concerns over the government’s plan to criminalise protests. Mary Foy (Labour MP, Durham) stated that The Bill ‘‘ will turn civil offences into criminal ones and punish littering and inconvenience with prison and homelessness. The Bill does not target a problem, it targets minority and ethnic communities.’’ This shows that there is growing concern over how the new proposals may affect minorities and curb our ability to exercise the rights to assembly.

This article is intended for guidance only and ‘must not’ be relied upon for specific advice.

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