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Police, Crime, Sentencing and Courts Bill – a Legal Analysis

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Carolina Hughes


The Police, Crime, Sentencing and Courts Bill (henceforth, “the Bill”), having its first Parliamentary reading in March,[1] has been dubbed as a “Bill that has a bit of everything”.[2] However, the Bill’s controversiality can be understood when considering the contextual background of social injustice, anti-establishmentarianism sentiment, and demonstrations that have reached a critical point this year. The Bill, inter alia, proposes a new, strengthened set of police powers that have caused reactions amongst protesters and the media. This article will provide some legal analysis of clauses currently being debated within Parliament, a discussion of their potential application and scope, and how these interplay with fundamental Human Rights.


Background

The Bill’s introduction in March has particular pertinence to the public’s reaction regarding police powers. It follows the murder of George Floyd; Black Lives Matter protests across the US and the UK (regarding colonial statues, public memorials and colonisation of the press and educational systems); and countless incidents of racial aggression, climate change protests, and public unrest. These events brought to the fore deepened issues that had been consistently avoided by the media and governments, and publicly exposed the extent of our fractured ‘collective social solidarity’.[3] The tentative relationship between governments, public officials, corporate entities, and the public was therefore further strained by the Bill’s introduction into Parliament. Much of the backlash, such as Bristol’s “Kill the Bill” protest and reaction to the police force at Sarah Everard’s vigil, have caused academics, lawyers, and politicians to (re)consider the Bill’s potential legislative effects.[4]


The Bill

As the title indicates, the Bill seeks to extend or reform powers in many areas within the criminal law system. However, the context noted above has placed particular emphasis on Part 3 (Public Order)[5] that seeks to amend parts of the Public Order Act.[6] Clauses 54 and 56 are perhaps the two most pertinent provisions within the Bill. Section 54 extends powers over noise levels of processions and permits police to set conditions where noise may cause ‘serious disruption’ or ‘serious… distress’ to those in the protest’s vicinity. Importantly, the quantification of “disruption”/“distress” is left to senior police officers.[7] The power to personally assess noise levels gives police officers significant authority to curtail protests that, though perhaps peaceful, may be particularly evocative in expressing their message.


Neil Parpworth notes the legal significance of other changes proposed;[8] under the 1986 Act, it is required that an ‘organiser or participant in a procession or assembly… knowingly fail[s] to comply with a condition attached to the gathering’. The 1986 legislation therefore dictates a more clearly definable threshold of what a breach of a condition is. Section 56(5) of the Bill inserts a new provision that alters this “knowing” to whether a participant ‘knows or ought to know[9] of conditions (emphasis added). As Parpworth highlights, this has raised concerns over criminalisation where rules and conditions of protests and public demonstrations are less clearly noted.[10]

The Bill therefore appears to propose provisions that “blur”. Subjective opinions of senior police officers regarding noise and the possibility of participants being liable for breaches of conditions they “ought” to have known widens the scope of police powers. Without clearly defined boundaries, it predilects that the law may be applicable (or manipulated to apply) to protests that perhaps threaten governmental power or Parliament’s reputation. It is perhaps questionable ‘how the government can be said to be acting in a manner which genuinely defends the freedom to peacefully assemble’.[11] Though the extension of police powers is not in itself unlawful, the fervent reaction to the Bill suggests that the proposed legislation poses a significant threat to social cohesion. It has thus been felt that the Bill is ‘the tip of an authoritarian iceberg’;[12] if such powers were to be given Royal Accession, it may culminate in a dangerous unbalancing between the fundamental freedom to assemble and governmental/police power.


Human Rights

The concerns noted have quickly brought the Human Rights Act[13] into the debate. The Act, inter alia, protects the freedom of thought, freedom of expression, and freedom of assembly.[14] However, the rights enshrined in the 1998 legislation are not absolute. This has given rise to concerns over the potency of the Bill to permit an overriding of these rights by the police and government. The Bar Council noted ‘clear tensions between the Bill and the freedom of protest and expression’[15] and many lawyers have urged its retraction as it could invite a severe curtailment of human rights.[16] Though the provisions are not yet enacted in legislation, fears over increased police power were bluntly displayed by the events at Sarah Everard’s vigil in Clapham in March, 4 days after the Bill was introduced. The murder of Sarah Everard by a Met Police Officer had added to anti-establishment/police sentiment; thus, the subsequent arresting of protestors by the very same institution incited considerable public reaction. The coinciding of the Bill’s presentation in Parliament and the arrests made at the vigil have led to vehement criticisms of the proposed legislation regarding the protection of the human right to assemble and protest.


Though the Bill perhaps presents many legal issues and conflict, it still has an extensive path to make through Parliament, where its compatibility with human rights and fundamental legal principles will be scrutinised. However, if the breadth of powers proposed are enacted, it remains to be seen whether this would profoundly affect the right to protest and create a more ‘authoritarian’ system.[17]



 

[1] 9th March 2021. [2] Michael Zander, ‘A Bill that has a bit of everything… (Pt 2)’ (2021) 171 NLJ 7972 17. [3] David Mead, ‘The Police, Crime, Sentencing and Courts Bill reinforces tensions and division at the expense of collective social solidarity’ (LSE British Politics and Policy, 22 May 2021) < https://blogs.lse.ac.uk/politicsandpolicy/police-crime-sentencing-courts-bill/>. [4] ibid. [5]Police, Crime, Sentencing and Courts Bill HC Bill (2019-2021) [268], cls 54-60. [6] 1986. [7] Bill (n 5), cls 54(2) and (3). [8] Neil Parpworth, ‘Crossing the (thin blue) line? (Pt 2)’ (2021) 171 NLJ 7933 11. [9] Bill (n 5), cl 56(5). [10] Parpworth (n 8) 11. [11] ibid 12. [12] Clive Lewis MP, HC Deb 16 March 2021, vol 691, col 198. [13] 1998. [14] ibid sch 1, part 1, Arts 9, 10, and 11 respectively. [15] Jan Miller, ‘Bar Council urges caution on Police Bill’ (2021) 171 NLJ 7934 4. [16] Jemma Slingo, ‘Up Front: Law Society and academics criticise new policing bill’ [2021] LS Gaz 3. [17] Lewis (n 12).

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