Joint Committee On Human Rights Thirteenth Report

Part 4 of the Bill: dealing with groups of people in public places

29. Part 4 of the Bill would extend police powers to deal with groups of two or more people who are in a locality where it is reasonably believed that anti-social behaviour is a significant and persistent problem and such groups have intimidated, harassed, alarmed or distressed members of the public there. In such circumstances, a police officer of or above the rank of superintendent would be able to authorise the exercise of various powers by constables (including constables of the British Transport Police) and community support officers for a period of up to six months.[24] The powers would be:

a)  if the constable or community support officer has reasonable grounds for believing that the presence or behaviour of a group in the relevant locality has resulted or is likely to result in any members of the public being intimidated, harassed, alarmed or distressed, the constable or community support officer would be allowed to direct the members of the group to disperse, or to leave the locality and not return for up to 24 hours if their home is not in the locality;[25] or

b)  to take to his or her home a person whom the constable or community support officer reasonably believes to be under 16 and is not in the effective control of a parent or responsible adult, and who is found in any public place in the relevant locality between 9 p.m. and 6 a.m.[26]

It would be an offence (for which a person could be arrested on reasonable suspicion) knowingly to contravene a direction given under a).[27]

30. The Government accepts that the provisions may give rise to issues relating to the right to liberty (ECHR Article 5) where someone is arrested for failure to comply with a direction, the right to respect for private life (Article 8), and the rights to freedom of expression and association (Articles 10 and 11).[28] The Government does not seem to accept that the right to liberty would be engaged where a child is taken to his or her home against his or her will, but in our view there can be no doubt that such action requires a justification under Article 5.

31. In relation to the dispersal of groups, there are a number of safeguards. The power could not be used against people engaged in lawful picketing in furtherance of a trade dispute, or in a lawful procession.[29] No direction could be given that would prevent someone from going home.[30] The Secretary of State would have a power, but no duty, to issue a Code of Practice governing the giving of authorizations under this Part.[31] Constables and community support officers using the powers would be acting lawfully only if they act compatibly with Convention rights.[32]

32. We note that arrest to enforce a lawful order to disperse would probably be justifiable under ECHR Article 5.1(b) as being 'in order to secure the fulfilment of any obligation prescribed by law'. We consider that the safeguards would be also sufficient to avoid incompatibility with ECHR Articles 8, 10 and 11, as long as it advances a legitimate aim within Articles 8.2, 10.2 and 11.2, and is a proportionate response to a pressing social need. The legitimate aim is the prevention of disorder or crime, and the pressing social need is said by the Government to be to protect other users of the areas concerned against harassment, alarm or distress.[33]

33. We accept that these are important problems in some areas. However, when we initially examined the Bill we wondered how the measures would in practice make it easier to deal with the problem than it is at the moment. The police already have extensive powers to deal with public order problems. There are many statutes conferring such powers, including the Public Order Act 1986, the Criminal Justice and Public Order Act 1994, and the Criminal Justice and Police Act 2001. In addition, there is the common law power to take such steps as are necessary to prevent a reasonably apprehended and imminent breach of the peace. If the measures were of no more practical assistance than existing powers, it would be hard to say that they are necessary in a democratic society for the legitimate purposes.

34. When we raised this question, the Government replied that the proposed powers would not be dependent on the commission of a criminal offence by any individual in the group, or on the apprehension of an imminent breach of the peace. These powers would be entirely directed to allow potentially threatening situations to be defused before any harm or disorder becomes imminent.[34]

35. We are concerned by this response, insofar as it is used to justify the introduction of new powers which engage Convention rights. It suggests that the proposed powers are not intended to be a response to threats of serious disorder, but rather to allow the police to manage people in public spaces in such a way as to prevent any more remote risk of minor disorder. It is true to say that this power does not currently exist in the law. There is a reason for that: it has heretofore been regarded as an unnecessary intrusion on the liberty of the individual to allow a constable to give orders to someone where there is no threat of crime or danger to safety. We consider that the potential intrusion on private life and liberty is so extensive, and the benefits in any case likely to be so speculative, that it might be difficult to establish (either in general or in specific cases) that the powers granted under clause 29 of the Bill will or would be used only when it was proportionate to a pressing social need. A constable or community support officer who considers using these powers will be in a difficult position, without much guidance from the legislation as to when and how he or she should exercise them. We draw this to the attention of each House.

36. We turn to the power to remove children to their homes if they are found in public places, where the use of the power has been authorized, between 9 a.m. and 6 p.m. This power, in clause 29(6), effectively turns the authorizations into an extension of child curfew schemes. Our predecessors were concerned about the impact of a similar power in the Criminal Justice and Police Bill, extending the use of child curfew schemes under the Crime and Disorder Act 1998, in the 2000-01 session. In its First Report of 2000-01 our predecessors noted that such schemes arguably interfere with children's human rights to liberty, to privacy, and to freedom of association and peaceful assembly. They were prepared to accept that an individual child curfew scheme might be justifiable in certain circumstances, but they were concerned about the degree of discretion allowed to individual constables, and the lack of specificity in relation to the purposes for which the power to take children home could be exercised. They noted that other powers are available to the police to deal with criminal behaviour and anti-social behaviour in public places. In the light of this, the Committee was not satisfied that the powers would be proportionate to a legitimate aim so as to be necessary in a democratic society for such a purpose. They recommended that the use and effects of the power should be closely monitored.[35]

37. The same considerations are relevant to the power contained in clause 29(6) of the present Bill. We therefore asked the Home Secretary:

a)  what use has been made of the power under the Crime and Disorder Act 1998 as amended by the 2001 Act;

b)  what pressing social need was thought to be served by the extensions provided for in Part 4 of the Bill;

c)  how the new powers would provide worthwhile additional ways of addressing the pressing social need; and

d)  why the Government considered that such additional powers would be proportionate to the aim pursued.

38. The Government replied that:

a)  there have been no applications for local child curfew schemes under the Crime and Disorder Act 1998 as amended by the Criminal Justice and Police Act 2001;

b)  the pressing social need is to deal with some locations which have become well-known 'trouble spots', often because children and young people congregate there to take drugs or drink alcohol. Such places present dangers for children, and also worry a significant proportion of local residents;

c)  the new powers to take children and young people home from areas where anti-social behaviour is a persistent and significant problem would protect them from the risks of being out late at night, including becoming involved in anti-social or criminal behaviour;

d)  the new powers would be proportionate to the objective because of the safeguards. Before authorizing the use of the powers in a particular area, the senior police officer must consult with the local authority, and be satisfied that serious and persistent anti-social behaviour has occurred in the locality and that intimidation, harassment, alarm or distress has been caused to members of the public by the presence of groups there. The authorization would last no more than six months. The constable or community support officer would have no duty to take a child home. Use of the power leads to no sanction against the child, and applies only to 'unaccompanied minors'.[36]

39. We are only partially persuaded by these answers. The lack of child curfew orders under earlier legislation suggests to us that there is no objective evidence (as distinct from anecdote) of a pressing social need to remove children from the streets after 9 pm, or that removing them would be likely to remedy the local problems to which the Government refers. There are many other pieces of legislation allowing the police and local authorities to combat drunkenness and drug-taking in public, including the Misuse of Drugs Act 1971 and the Crime and Disorder Act 1998 as amended by the Criminal Justice and Police Act 2001 (if it were ever found necessary or useful to use those powers).

40. While removing a child might sometimes benefit the child, it is not correct to say that only 'unaccompanied children' could be taken home under the proposed measures. The test is whether the officer has reasonable grounds for believing that the child 'is not under the effective control of a parent or a responsible person aged 18 or over'.[37] This would sometimes require the officer to make a difficult judgment, and it would always be possible to remove a child who is in the effective control of a responsible person aged under 18. Moreover, clause 29(6) provides that the officer would not be permitted to take the child home if there are reasonable grounds for believing that the child would, if taken home, be likely to suffer significant harm. Not only does this require the officer to decide whether significant harm (whatever that means) is likely to result, but it gives no guidance to the officer as to what he or she should do if the child is likely to suffer significant harm if taken home. Presumably the local social services authority should be informed, but the clause says nothing about how the officer should proceed in the meantime.

41. Despite the safeguards to which the Government refers, we are not satisfied that the measures in clause 29(6) of the Bill are a proportionate response to a pressing social need, or that the safeguards provide assurance that the power would be used only where it is necessary and proportionate to do so to protect the child. We therefore conclude that there is a risk of incompatibility with ECHR Articles 5 (right to liberty), 8 (right to respect for private life) and 11 (freedom of association). We draw this to the attention of each House.

24   Cll. 29, 32, 34, 35 Back

25   Cl. 29(4) Back

26   Cl. 29(6) Back

27   Cll. 31(2), (3) Back

28   EN para. 180 Back

29   Cl. 29(5) Back

30   Cll. 29(4)(a) and (b) Back

31   Cl. 33 Back

32   Human Rights Act 1998, s. 6(1) Back

33   Annex A to the Home Secretary's letter, p 27 Back

34   Annex A to the Home Secretary's letter, p 27 Back

35   Joint Committee on Human Rights, First Report of 2000-01, Criminal Justice and Police Bill, HL Paper 69/HC 427, paras 52-57 Back

36   Annex A to the Home Secretary's letter, p 27 Back

37   Cl. 29(6)(b) Back

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