Joint Committee On Human Rights Fifteenth Report

Government Bills

Bills drawn to the special attention of each House

1. Anti-social Behaviour Bill
Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

27 March 2003

24 June 2003

House of Lords 84


1.1 We reported on the Anti-social Behaviour Bill in our Thirteenth Report of this Session.[1] Since then, a new Part 8 of the Bill was introduced by way of Government amendment at the Report Stage in the House of Commons. The Home Secretary has written to our Chair explaining the new provisions. His letter is printed as an appendix to this Report.[2]

1.2 The provisions in new Part 8 of the Bill (clauses 59 to 65) would amend the Public Order Act 1986 and the Criminal Justice and Public Order Act 1994 in the following respects.

1.3 First, clause 59 would amend section 16 of the Public Order Act 1986 to make it possible for the police to impose conditions on "public assemblies" in certain circumstances if the assembly consists of only two people, instead of (as at present) 20 people. Such conditions would have to meet the requirements of ECHR Articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) if they were to be lawful.

1.4 It is distinctly odd to speak of two people as a "public assembly". The purpose of the power to impose conditions on public assemblies under section 14 of the 1986 Act is to allow the police to prevent serious public disorder, serious damage to property, serious disruption to the life of the community, or intimidation of people going lawfully about their activities, caused by large groups of people. Part of this rationale would be lost if conditions could be imposed on only two people. We are concerned that the reduction in the minimum number of people on whom conditions could be imposed might well tend to undermine the claim that the conditions were being imposed for a legitimate purpose under ECHR Articles 10.2 (freedom of expression) and 11.2 (freedom of peaceful assembly), and would also tend to give rise to a significant risk that the powers would be used in a disproportionate way. This could lead to a violation of those Convention rights. We note that a number of important safeguards for rights would remain in place under section 14 of the 1986 Act. In particular:

a)  conditions can be imposed only if a senior police officer reasonably believes that the the assembly may result in serious public disorder, serious damage to property, or serious disruption to the life of the community, or that the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do;

b)  the officer is empowered to give directions to the organizers of or participants in the assembly only in relation to the place at which the assembly may take place, its maximum duration, or the maximum number of persons who may participate, so there is no power to ban an assembly;

c)  the directions may only be given so far as they appear to the senior officer to be necessary to prevent the disorder, damage, disruption or intimidation mentioned in (a) above; and

d)  any direction given in advance of an assembly by a chief officer of police in respect of intimidation must be given in writing.

1.5 These safeguards would help to ensure that the decision to give directions would be taken within the framework of considerations which are relevant to justifying an interference with a Convention right under ECHR Articles 10 and 11 on the facts of each individual case. Those considerations include the legitimacy of the purpose for which the directions can be imposed, the necessity for them, the need to ensure that the directions do not take away the very essence of the right, and the ability of those affected to assert their rights in legal proceedings. Nevertheless, we are concerned about the potentially chilling effect on the freedom of association and expression of small gatherings of private individuals if the power to impose conditions were to apply to groups of two or more people, who are inherently far less likely than groups of 20 or more to cause serious public disorder and so on.

1.6 We recommend that the Government should clarify the mischief at which this extension of the power to impose conditions is aimed, and should explain why existing powers (such as those at common law to combat breaches of the peace, and statutory provisions such as those under the Public Order Act 1986, the Criminal Justice and Public Order Act 1994, and the Protection from Harassment Act 1997) cannot adequately address the mischief.[3] This would allow each House to assess the legitimacy of the aim of the amendment, the general necessity for allowing the police to exercise the powers over very small groups of people, and the proportionality of doing so.

1.7 Secondly, clause 60 would amend sections 68 and 69 of the 1994 Act so as to extend the reach of the offence of "aggravated trespass". This is an offence committed by people who trespass on land in the open air, and while trespassing do anything intended to intimidate people who are engaging or about to engage in a lawful activity on the land so as to deter them from engaging in that activity. It is also an offence for the trespassers to do anything intended to obstruct or disrupt such an activity. The offence was originally aimed at hunt saboteurs. It has clearly been found to have an application to other circumstances. As a result, clause 60 of the Bill would make it an offence to do any of those things while trespassing whether or not the trespassing takes place in the open air. Such provisions engage the right to freedom of expression under ECHR Article 10, but are likely to be justified as a proportionate response to the pressing social need to prevent harassment of people going about their lawful activities, protecting their rights under Article 10.2.

1.8 Thirdly, clause 61 would insert a new section 62A in the 1994 Act. This would allow the senior police officer present to direct a trespasser who is on land with at least one other person and a vehicle or vehicles, to leave the land, removing any vehicle or other property of theirs, if (a) the trespassers have the common purpose of residing there for any period, (b) where the people have a caravan with them, it appears to the officer that the there is a council-run caravan site in the area to which the people could move, and (c) the occupier has asked the police to remove the trespassers from the land. It would be an offence to refuse to comply with a direction given by the officer.[4] This engages the right to respect for private life and the home under ECHR Article 8.1. The right of the occupier of the land to peaceful enjoyment of his or her possessions, under Article 1 of Protocol No. 1 to the ECHR (hereafter 'P1/1'), is also engaged, together with the rights of adjacent occupiers to respect for their private lives and homes and enjoyment of possessions. Balancing these rights is difficult.[5] Factors which might influence a decision as to whether these powers are being exercised compatibly would include whether the police officer has reasonable grounds for his or her belief that there is a council-provided site nearby to which the person could move.

1.9 We conclude that the provisions of the new Part 8 of the Anti-social Behaviour Bill could give rise to a significant risk of incompatibility with Convention rights.

1   HL Paper 120, HC 766. Back

2   See p 22 Back

3   At common law, a constable may take any reasonable steps if necessary to prevent a reasonably anticipated and imminent breach of the peace (which involves use or threat of force against a person, or damage to property in the presence of its owner), or to stop a breach of the peace which is in progress. Under the Public Order Act 1986, it is an offence knowingly to use threatening, abusive or insulting words or behaviour towards someone else, or to display a threatening, abusive or insulting sign or representation, where the words, etc., are intended or likely to cause the other person to fear immediate unlawful violence or to provoke such violence. There is a power of arrest for this offence. (See s. 4 of the Act.) It is also an offence, under s. 4A, to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, with the intention of causing harassment, alarm or distress (with a power of arrest attached), and, under s. 5, to use such words or behaviour where it is likely to cause harassment, alarm or distress. The latter offence has been used against people conducting a protest against the building of a road. Where the words or conduct are used on land to which the people (currently 20, but reduced to 2 if the amendments contained in the Bill are enacted) concerned do not have a right of access, and the intention is to intimidate others so that they do not do something they have a right to do, or do something they are not required to do, it may constitute the offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994. Such behaviour may also constitute the offence of watching and besetting contrary to the Conspiracy and Protection of Property Act 1875, or one of the offences of harassment under the Protection from Harassment Act 1997, ss. 1, 2 and 4. In addition, a court may grant an injunction under the 1997 Act to restrain further harassment. Finally, protests on highways may amount to obstruction of the highway, for which a person may be arrested. It might seem that there is no shortage of powers and penal provisions to deal with the problem of harassment by small groups of people, and that the solution is to use the existing powers rather than to create new ones. Back

4   New section 62B of the 1994 Act as added by clause 62 of the Bill. Back

5   On the complex balance between these rights when local authorities are deciding whether to enforce planning controls on travellers, see Wrexham County Borough Council v. Berry, South Bucks District Council v. Porter, Chichester District Council v. Searle [2003] UKHL 26, affirming the decision of the CA [2002] 1 WLR 1359.  Back

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