Commentary on provisions of Bill
Clause 1: Intentional harassment, alarm or distress on account of sex
18 Clause 1 inserts a new section 4B into the Public Order Act 1986, entitled ‘Intentional harassment, alarm or distress on account of sex’. Subsections 1 and 2 of new section 4B set out that a person commits an offence if they commit an offence under section 4A of the Public Order Act 1986 (whose provisions are set out in paragraphs 11-14), and carried out the conduct in question because of the sex of the person (or what they presumed the sex of that person to be, even if that presumption is in fact wrong) to whom they intended to cause harassment, alarm or distress.
19 Subsection 3 of new section 4B confirms that it does not matter whether the conduct in subsection 1 was carried out for the purposes of sexual gratification, and that it also does not matter whether that conduct was carried out for reasons additional to the sex of the person to whom it was intended to cause harassment, alarm or distress.
20 Subsection 4 of new section 4B provides that a person who commits the offence in subsection 1 of that section is liable:
a. on summary conviction (i.e. in the magistrates’ court), to imprisonment for a term not exceeding the general limit in a magistrates’ court, to a fine or to both; or
b. on conviction on indictment (i.e. in the Crown Court), to imprisonment for a term not exceeding two years, to a fine, or to both.
21 Subsection 5 of new section 4B states that if a person is tried on indictment (i.e. in the Crown Court) for the offence in subsection 1, and is acquitted of that offence, the jury may still find the person guilty of the offence in section 4A of the Public Order Act 1986.
Clause 2: Guidance
22 Subsection 1 of Clause 2 states that the Secretary of State must issue guidance to chief officers of police (i.e. the Commissioner of the Metropolitan Police, the Commissioner of the City of London Police, and the Chief Constables of the 41 other territorial police forces in England and Wales), the chief constable of the British Transport Police Force, the chief constable of the Ministry of Defence Police, and the chief constable of the Civil Nuclear Constabulary, about the new offence introduced by Clause 1 of the Bill.
23 Subsection 2 of Clause 2 states that that guidance must in particular include guidance about the defence available to defendants in subsection 3b of section 4A of the Public Order Act 1986, of proving that their conduct was reasonable. As the new offence in section 4B of the Public Order Act 1986, which Clause 1 would introduce, requires an offence to have been committed under section 4A of that Act, the defences provided for in section 4A will also be available to defendants prosecuted under section 4B.
24 Subsection 3 of Clause 2 states that the Secretary of State may revise the guidance which has been issued.
25 Subsection 4 of Clause 2 states that the Secretary of State must arrange for the guidance to be published.
26 Subsection 5 of Clause 2 states that the chief officers of police and the chief constables to whom the guidance is issued must have regard to it.
Clause 3: Consequential amendments
27 Clause 3 makes consequential amendments to the schedules to three Acts, as a result of the provisions of the Bill. Each of those schedules contains a list of criminal offences to which the provisions of the Act in question apply. The three lists each include section 4A of the Public Order Act 1986. The effect of each of the three subsections of Clause 3 is to add section 4B of the Public Order Act 1986, which Clause 1 would introduce, to the lists. Somebody who carries out behaviour which could lead to their being convicted under section 4B once it is enacted could currently be convicted under section 4A, and hence could be covered by the three lists if the relevant criteria within the Act in question are met. Once the new section 4B offence is enacted such a person might instead be convicted under that section, meaning that they could not be covered by the three lists. The effect of the amendments made by Clause 3 is therefore to maintain the existing coverage of the three Acts.
28 Subsection 1 of Clause 2 would therefore insert the new section 4B offence into Schedule 1 of the Football Spectators Act 1989. Schedule 1 lists the criminal offences for which a conviction will usually cause a person to be issued with a football banning order (FBO). An FBO prevents the person from attending football matches within the United Kingdom, may also place conditions on them on days on which football matches take place – such as not going to a particular city centre or within a certain distance of a stadium – and can require them to report to a police station in connection with football matches overseas.
29 Subsection 2 of Clause 2 would insert the new section 4B offence into Schedule 8B of the Police Act 1997. Schedule 8B lists the criminal offences for which spent convictions will be disclosed on a criminal record certificate in Scotland, unless the sentence was an admonition or absolute discharge, or the person was a minor when convicted and at least seven and a half years have elapsed, or the person was an adult when convicted and at least 15 years have elapsed.
30 Subsection 3 of Clause 2 would insert the new section 4B offence into Schedule 9 of the Elections Act 2022. Schedule 9 – which has not yet been commenced – lists the offences for which a conviction (if the offending behaviour was aggravated by hostility to candidates for or holders of elected office, or to others involved in the electoral process, such as campaigners) will usually result in the offender being issued with an order disqualifying them from being nominated for, standing for or holding elected office for five years.
Clause 4: Extent, commencement and short title
31 Subsection 1 of Clause 4 states that the Act extends to England and Wales, subject to subsection 2.
32 Subsection 2 of Clause 4 provides that an amendment made by Clause 3 has the same extent as the provision that it amends. In practice, as set out in paragraph 16, that relates to subsection 2 of Clause 3 extending to Scotland.
33 Subsections 3-5 of Clause 4 provide that Clauses 1-3 come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint, and that different days may be so appointed for different purposes. It provides that Clause 4 comes into force on the day on which the Act is passed.
34 Subsection 6 of Clause 4 sets out the short title of the Act.