Manifesto Club | Dispersal notices – the crime of being in a public place

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 Dispersal notices – the crime of being in a public place 

A Manifesto Club briefing document 

by Josie Appleton 

The new dispersal powers 

From 20 October 2014, the Anti-Social Behaviour, Crime and Policing Act 2014 created wide-ranging powers for police officers and Police Community Support Officers to ‘disperse’ members of the public from a particular locality.

An area can be declared a dispersal zone if an officer of the rank of police inspector or above is

satisfied on reasonable grounds that the use of those powers in the locality during that period may be necessary for the purpose of removing or reducing the likelihood of— 

(a)members of the public in the locality being harassed, alarmed or distressed, or 

(b)the occurrence in the locality of crime or disorder.

A police officer can order members of the public to disperse from this area if they have

reasonable grounds to suspect that the behaviour of the person in the locality has contributed or is likely to contribute to— 

(a) members of the public in the locality being harassed, alarmed or distressed, or 

(b) the occurrence in the locality of crime or disorder.

The officer can specify the route by which a person must leave the area, and the ‘exclusion period’ within which they must not return.

These new dispersal powers are an extension of the dispersal powers available under section 30 of the Anti-Social Behaviour Act 2003, and differ in the following ways:

– Under the 2003 powers, areas had to be designated a dispersal zone on the basis of a particular problem of crime and disorder; the local authority had to be consulted and any planned order publicised. Now, any area can be declared a dispersal zone on the spot. This can be done in advance, for example covering a town centre over the weekend, or ‘spontaneously’, for example giving authorisation over the phone to a constable who wishes to use the powers.  [The Inspector must also record the authorisation in writing].

– The 2003 powers could only be invoked if ‘anti-social behaviour is a significant and persistent problem in the relevant locality’. The current powers can be applied if an inspector believes that the use of the powers ‘may be necessary for the purpose of removing or reducing the likelihood of…members of the public in the locality being harassed, alarmed or distressed’ – a substantially vaguer condition.

– The new powers additionally allow for the confiscation of property ‘that the constable reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or distresses members of the public’;

– The new powers allow for somebody to be banned from an area for 48 hours, rather than 24 as under the previous powers. This has led to ‘weekend curfews’ in town centres, as police forces can issue orders on a Friday night to last the weekend;

– The new powers can be used against single individuals, rather than groups of two or more people. This means that the powers are not restricted to defusing group situations but have a broader application in the policing of individuals;

– The new powers can be used by Community Support Officers in addition to police officers.

These shifts mean that the power to disperse individuals from public spaces is no longer an exceptional power existing only in particular areas. Instead, it has become part of the ordinary powers of policing to be applied in all areas. In effect, police forces now have a roaming power to banish people from the streets.

How have the new powers been used? 

We issued FOI requests to all 43 England and Wales police forces, requesting information about their use of dispersal powers in the six-week period between 20 October and 30 November 2014. We asked them about: the number of dispersal zones declared; their reasons for declaring dispersal zones; the number of people dispersed; any information about these individuals; and whether any items had been confiscated. We also searched local press reports for accounts of the use of these powers. Our findings can be summarised as follows.

Number of dispersal zones and dispersals 

We received responses from 37 police forces, 23 of which were able to supply some information. These responses show that in the six-week period after the passing of the Anti-Social Behaviour, Crime and Policing Act, 19 police forces used dispersal powers 528 times to declare dispersal areas. Data from 19 police forces recorded the dispersal of 1344 individuals in this period (for statistics, see Appendix).

If this were scaled up for all 43 police forces, this would suggest that around 1000 dispersal areas were declared in that six-week period, and around 3000 individuals were dispersed. Assuming these powers are being used at the same rate, corresponds to some 5000 dispersal areas and 13,000 dispersed individuals in the six-month period following the enactment of the powers.

In practice, this figure is likely to be higher, since larger police forces such as the Greater Manchester Police and Metropolitan Police were among those unable to provide data, and Merseyside Police – a very frequent user of dispersal powers – was only able to provide very incomplete data.

There is very little data on the use of confiscation powers, but some police forces reported the confiscation of alcohol. One police force, Lancashire, confiscated ‘four pedal cycles’ from young people, which it said had been ‘used for the committing of ASB’[FOI response, Lancashire Police].

Reasons for declaring dispersal zones 

Our FOI responses indicate that police forces are invoking dispersal powers pre-emptively in advance of public gatherings, such as fairs or bonfire night, rather than in response to significant public disorder.

Several police authorities, such as Essex, cited ‘bonfire night’ as the reason for introducing a dispersal zone. South Wales Police declared dispersal zones in Bridgend  town centre for Halloween, and Barry Town for bonfire night [FOI response from South Wales Police ].Stoke-on-Trent South police called a dispersal zone in Fenton Park to ‘Prevent ASB at firework display’.

Lancashire East Division declared a dispersal zone in Lancaster City Centre between 1645-2359hrs on 23 November 2014, when the town centre became ‘crowded with attendees for (Christmas) lights switch-on’ [FOI responses from Lancashire Police ]. It seems that the switching on of the Christmas lights proceeded without incident, however, and there were ‘0 dispersal notices issued’.

The mere presence of crowds is often seen as justification enough to invoke powers, just in case they may be required. Blackpool town centre was declared a dispersal zone with the justification: ‘ASB anticipated this Saturday evening due to greater numbers of people than usual expected in town this evening.’ [FOI responses from Lancashire Police ]

Police forces created dispersal zones in anticipation of lower division football matches; as well as fairs, including the South Staffordshire Victorian fair [FOI from Staffordshire Police ] and Long Eaton Chestnut Fair. Other police forces said that they declared zones in response to the ‘night-time economy’, commonly running from Friday until Sunday night in a town or city centre. In South Wales these weekend dispersal zones include Swansea city centre, and Bridgend and Porthcawl town centres [FOI responses from South Wales Police]

Stoke-on-Trent police enacted dispersal zones ‘Due to drunkenness’ and ‘Nuisance vehicles’, and several authorities invoked the powers against car enthusiast meet-ups. Kent Police enacted dispersal zones in response to ‘homeless people’, while others mentioned beggars or street drinkers. Warwickshire Police declared dispersal zones in Leamington town, Warwick town and Stratford town centre in response to ‘student night’, ‘drunks on high st’, ‘begging’, as part of an ‘enhanced policing initiative’, and in response to the ‘Mop fair’.

In some cases, groups’ mere presence in public space was cited as ‘intimidating’ or ‘distressing’ for others, which was particularly the case with groups of homeless or young people. One dispersal area in Cornwall, targeted at young people, was justified on the basis that ‘Local residents feel intimidated by the large amount of young people who congregate in areas around the town.’12

Some police forces seem to be suggesting that merely being present in a public place for any length of time is an illegitimate and questionable activity. One police superintendent said that people would automatically be asked to move on from the dispersal area within Worcester City Centre: ‘People are more than welcome to use the pubs, clubs and food outlets in the area. However, once they leave these premises we will politely ask them to move on quickly.’

Dispersal powers have been used in most city centres, but also in small towns, villages and rural areas: 16 people were barred from Lambton village centre (Sunderland) over a weekend, and powers were used in a village park in Kirton, Lincolnshire.

It is striking that many of the areas declared dispersal zones do not experience significant unrest or disorder, such as Oxford and Grantham city centres. It is also striking that police authorities discuss dispersal powers as a measure with which they can experiment, rather than a last resort. The measures are described as ‘flexible’, a ‘useful new tool’, or ‘preventative measure’, which authorities are ‘testing’. Such language suggests that the powers are being used pragmatically to deal with a variety of different situations. It also suggests that authorities are not imposing very stringent conditions upon the use of powers which deprive citizens of their freedom of movement.

Who has been dispersed? 

Police forces were unable to provide significant detail about the individuals who had been dispersed, or the reasons for their dispersal. Some forces said that the orders had been used against homeless or young people, but without more detail on the circumstances. For example, Lancashire South Division reported that ‘The ages of the people directed to leave ranged from 11 to 22, but were typically 14-16 years old’ [ FOI response, Lancashire Police].

Several political protesters have been targeted with dispersal powers, which poses a direct threat to freedom of speech and assembly. Merseyside Police used the powers against political protesters on consecutive weekends – in one case targeting activists who were chatting and deciding which pub to go to for a drink. Police used the powers to remove protesters against the redevelopment of a Southwark estate. Westminster Police dispersed street drinkers and rough sleepers from Trafalgar Square, along with activists who were preparing to hand out meals for the homeless.

Other cases which have been brought to the attention of the Manifesto Club include the unjust use of dispersal notices against football supporters. Supporters of one Championship side were issued with dispersal orders when their coach had pulled up by the side of an isolated road on the way to a match. A football fan reports:

‘…. our treatment was unreal, around 48 of us received section 34 (dispersal) orders. We simply pulled up on the edge of town, got out of our bus, and were surrounded by police within a minute. We were held there for two hours and given one option – accept the order or be arrested. Each one of us had a match ticket, this was very poor and easy policing. There was no trouble at all, the road we were on was remote, there were absolutely no rival fans anywhere near us, there was no public order. This was a planned police operation…’ [Email to Manifesto Club. The football clubs cannot be named since the fans are considering legal action].

Finally, a disabled man in a wheelchair was issued with a dispersal order for handing out food for the homeless in central Brighton. He was told that if he returned to the area he would be arrested.

Lack of central recording 

Our FOI request also revealed that many police forces are failing to record their use of the dispersal power.

Of the 37 forces who answered our FOI request, only 19 were able to specify the number of dispersal zones declared between 20 October and 30 November 2014, and 19 were able to specify the number of individuals dispersed. The forces which refused the request said that there was no central procedure for recording the use of dispersal powers; some said that they would need to examine every officer’s pocketbook in order to find out how the powers had been used.

This lack of reporting runs counter to the recommendations in the Guidance accompanying the Anti-Social Behaviour, Crime and Policing Act, which specifies:

‘As a safeguard to protect civil liberties, data on the use of the dispersal power would have to be published locally. Police and Crime Commissioners will have a key role in holding forces to account on this to ensure that officers are using the power proportionately.’

This lack of formal checks and reporting means that the public would in general be unaware that a particular area was a dispersal zone. (By contrast, under the 2003 powers, dispersal zones were marked with signage or documented on council or police websites). Therefore, the police have gained extensive new powers which are to a large extent undocumented and invisible.

Arrests/prosecutions for violation of dispersal orders 

Those who violate a dispersal order have committed a criminal offence, for which they can be prosecuted and fined. Our FOI requests show that there were 120 prosecutions in Magistrates’ Courts for the offence of violating a dispersal order between 20 October and 31 December 2014 [FOI Response from the Ministry of Justice, 15 April 2015. 100 of these prosecutions were successful].

Since the person was issued with the order only on the basis of an officer’s suspicion that their behaviour might in the future contribute to harassment, alarm or distress, the person’s actual offence was only that they had been found in a public space.

For example, of 10 people dispersed from Leicester Town Hall square, three were found the next day in the prohibited area and prosecuted for the offence.

Meanwhile, Dorset Police carried out 12 arrests for the offence of violating a dispersal order in the six-week period 20 October-30 November [FOI request to Dorset Police]

Local Magistrates’ Court reports show that dispersal orders are being issued against homeless people, an offence for which they can be fined hundreds of pounds. The Bournemouth Echo reports the case of a man

‘aged 76 of no fixed abode. Admits at Bournemouth on 9/4/15 failing without reasonable excuse to comply with a direction given in that they failed to leave the locality specified, namely Princess Road under section 35 of the Anti-social Behaviour, Crime and Policing Act 2014. Fined £100. To pay victim surcharge of £20. Costs of £85. To be detained in courthouse. Also admits to failing without reasonable excuse to surrender to custody at Bournemouth Magistrates’ Court on 10/4/15. Fined £50. To pay criminal courts charge of £150.’

Of course, if this individual has committed a crime then they should be held to account for it. But in this instance, a homeless person was criminalised for nothing more than the offence of being found in a public place after having being ordered to leave. The fact that they had no home to go to makes such use of powers of banishment particularly unreasonable.

Blurring crime and non-crime 

It also appears that dispersal powers are being used where stronger action could have been taken, in place of prosecution of criminal offences. For example, dispersal areas were declared in response to robberies, criminal damage, and break-ins in areas including South Staffordshire and Blaenau Gwent. Surely the investigation of these crimes, and prosecution of the individuals responsible, would be more appropriate action, rather than banishing groups from the streets on the suspicion that they might have or may commit a crime.

In other cases, individuals were dispersed for drug possession and other offences. A ‘prolific shoplifter’ was issued with an order barring him from Bedford town centre.

The chief inspector of Doncaster Police said that one individual was issued with a dispersal order for ‘possession of cocaine’[South Yorkshire FOI response]. The South Yorkshire Police FOI response reported that ‘3 People were dispersed from the Doncaster Town Centre’: ‘1 for Verbal Altercation, 1 for Anti Social Behaviour, 1 for Possession of Cocaine.’ Here, somebody guilty of the vague misdemeanours ‘verbal altercation’ or ‘anti-social behaviour’ – neither of which is itself a designated public order offence – is apparently given the same penalty as someone possessing a prohibited substance.

The dispersal power has the effect of blurring the distinction between crime and non-crime, with the police simply removing groups of people from an area, pushing them away, whether they have done something wrong or not. Criminal and non-criminal behaviour becomes lumped together in the broadening, pseudo-criminal category of ‘ASB’, or the even broader category of ‘suspicions of possible ASB to be committed in the future’.

It was striking that police forces mentioned criminal and non-criminal activities alongside one another as the reasons for declaring dispersal zones. Norfolk Police declared zones in Norwich town centre in response to ‘begging’, ‘drugs’ and ‘prostitution’, applying the same legal remedy to these activities of very different legal status [FOI response, Norwich Police].

Similarly, Staffordshire Police declared dispersal zones in response to ‘House burglaries and vehicle crime in locality’, as well as to ‘Car cruising’ and ‘Nuisance vehicles’, lumping together serious offences with something that would have been seen as a misdemeanour or indeed entirely outside the purview of the criminal law [FOI response, Staffordshire Police].

The attraction of the dispersal power is likely to be that it can be issued on the spot, by handing out a card or filling in a form, without the time and effort required for prosecuting an offence. If the individual violates the dispersal order then their arrest and prosecution is a straight-forward matter, since the officer need only prove that the person had actually been found in the public place.

Yet such methods blur the distinction between criminal and non-criminal behaviour, and resort instead to pragmatically pushing individuals out of public spaces. Where  these powers are used against young people, they also supplant the socialisation and disciplining role of police officers and other adults in public spaces. Rather than a police officer having ‘words’ with young people to deal with low-level misdemeanour, young people are simply sent home and removed from these spaces.

Dispersal powers and the corrosion of criminal justice 

Police authorities including Staffordshire Police are producing dispersal ‘cards’, which can be given out on the spot to members of the public, indicating the area from which they are barred. Such summary powers clearly have the potential to be used in a pre-emptive and arbitrary manner.

Indeed, in some cases officers have made it quite clear that they can disperse whomever they wish. The group of Liverpool political activists were dispersed while chatting and deciding which pub to go to for a drink, asked on what grounds they were being dispersed, and received the response:

‘One officer farcically commented that activists may have “polystyrene balls”, and these “may cause distress”. However, when invited to search for these mysterious balls, he declined.’

A South Derbyshire police chief spelled out the pre-emptive and subjective application of the powers:

‘These new powers mean we can be much more effective in cutting out crime and antisocial behaviour before it has a chance to happen. If officers out on patrol see people who they think may cause a nuisance, they can now address it and move them on if they feel that the problem could escalate.’

Since police officers do not possess clairvoyant powers, we must doubt their claim to be able to stop behaviour ‘before it has a chance to happen’. There is an obvious danger that these powers will be used against innocent and law-abiding members of the public, who are then effectively placed under curfew for the weekend. None of these thousands of dispersed individuals had been shown to actually have committed an offence.

Historically, powers to disperse groups (such as the Riot Act) were used to defuse critical public order situations. The 2003 dispersal powers could be invoked on broader grounds, but were still limited to particular areas where ASB was a ‘significant and persistent problem’. As this report shows, dispersal powers have now become part of everyday policing and can be used in any public space. As a result, these powers now require urgent critical review.

The growth of dispersal measures represents a return to more primitive forms of law enforcement, which were defined by banishment. These rough tools were employed by societies without a developed system of criminal justice or law enforcement. The fact that banishment has returned in our times indicates a lack of regard for legal principles and public rights.

Therefore, although police forces celebrate these new powers as a handy ‘new tool’, the vagueness and loose nature of these mechanisms means that they act to the detriment of both public liberties and of effective law enforcement.

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Repeal section 35

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Discriminatory. anti-democratic, open to abuse and completely unaccountable.

Section 35 of the Anti-social Behaviour, Crime and Policing Act 2014 gives police officers new powers to force individuals to leave an area for up to 48 hours.

There is growing evidence that police are misusing these ‘dispersal’ powers against vulnerable and often socially excluded people: teenagers, sex workers. the homeless, particularly in areas with a large black population. Section 35 powers are also increasingly targeting people exercising their democratic right to freedom of protest. These powers are used with absolutely no public oversight.

We believe it is time Section 35 is repealed.

What is Section 35?

Part 3 of the Anti-social Behaviour, Crime and Policing Act 2014 provides the police with powers to dispense individuals in order to remove or reduce the likelihood of members of the public becoming “harassed, alarmed or distressed” or “the occurrence of crime or disorder” in a particular area.

A police officer of the rank of Inspector or above must authorise in writing the use of dispersal powers under section 34 of the Act in a specified locality and during a specified period.

Section 35 itself sets out how an officer with “reasonable grounds” can direct people to leave and not return for up to 48 hours.

The 2014 legislation replaced previous dispersal powers (under section 27 of the Violent Crime Reduction Act 2006 and section 30 of the Anti-social Behaviour Act 2003) that were just as subjective but there were a number of important changes.

The period of a person’s exclusion has been extended to 48 hours

Police Community Support Officers as well as police officers now have the power to use dispersal powers

There is no longer a requirement to designate and publicise a ‘dispersal zone’ in advance.

Officers can disperse individuals without a requirement that two or more people are engaged in offending behaviour

Officers can disperse individuals without firmly establish a person’s age first (as dispersal is available if the person ‘appears’ aged 10 or over).

In a concession forced by the House of Lords during the passage of the Act, a police officer or PCSO must have “regard to the rights of freedom of expression and freedom of assembly” set out in articles 10 and 11 of the European Convention on Human Rights.

The only specific exclusions are, however, peaceful picketing or “taking part in a public procession of the kind mentioned in… the Public Order Act 1986”.

What’s the problem?

Fuelled by sensationalism

Dispersal orders introduced under legislation in 2003 were controversial precisely because of their infringement on individuals’ rights. Fuelled by sensationalist media representations of ‘youth gangs’ and ‘feral children’, ASBOs (anti-social behaviour orders) have attracted the most attention and scrutiny. However, police powers to exclude individuals, overwhelmingly young people, from an area meant they no longer need to engage and negotiate with groups of teenagers to obtain their consent to move elsewhere, if their behaviour was causing offence to others.

As a report by the Joseph Rowntree Foundation concluded in 2007, dispersal was as much about providing an “important symbolic response that something concrete is being done to address local concerns about anti-social behaviour and perceptions of incivility.”.

However, researchers also concluded that the use of these powers stigmatised its targets: that it tended “potentially criminalise youthful behaviour on the basis of the anxieties that young people congregating in groups may generate among other people”.

“As such, the power is potentially less concerned with the agency of individuals than the assumptions that are made about what they might do”.

Research in Sheffield and Leeds by the Centre for Criminal Justice Studies (CCJS), also in 2007, found a powerful explanation why young people preferred to stick together in groups: they were particularly vulnerable themselves as the victims of crime and anti-social behaviour, more so than older groups of people.

In the two case studies, researchers found that more than four-fifths (82%) said they felt safest in public places in groups (two-thirds of whom felt safest in large groups of six or more), with only 11% feeling most safe out with one other person and 7% safest by themselves. Generally, girls were more likely to prefer large groups. However, the young people who were interviewed also recognised that in large groups they might appear intimidating to others and were conscious of and sensitive to their unintentional capacity to prompt anxiety in others. The result concluded:

“In the absence of alternative meeting places, the paradox for many young people was that dispersing them from safe, central locations and making them split up was likely to render them more, rather than less, vulnerable as they were both displaced to less safe areas and dispersed from the safety of groups.”

The studies also found that young people felt uncertain how police officers might respond to their presence in a dispersal zone and some felt officers had too much scope o base their judgements on “stereotypes of inappropriate clothing or demeanour”. As research about the racially discriminatory use of stop and search powers has illustrated, items of clothing worn by youths that make them “suspicious” in the eyes of the police, such as baseball caps and hooded jackets, are often signifiers of racial profiling and the targeting of young black people.

Zero scrutiny

Under the 2003 Act, the necessity for police to first consult with a local council to designate a dispersal zone in advance did, at least in theory, provide a space for debate about whether the use of such powers was appropriate and proportionate. However, the government felt that this was too ‘cumbersome’ and so the Anti-social Behaviour, Crime and Policing Act 2014 scrapped that requirement.

This leaves officers with a huge level of discretion about what constitutes ‘reasonable grounds’ to disperse and what is “human-rights compliant”. It is now so easy to use dispersal powers that the police too often apply them in an extremely restrictive way.

In July 2014, the Home Office issued “Reform of anti-social behaviour powers – Statutory guidance for frontline professionals”, which says:

“Police forces may wish to publish data on the use of the dispersal power to be transparent about their use of it. Police and Crime Commissioners will have an important role in holding forces to account to ensure that officers are using the power proportionately. Publication of data locally will help highlight any ‘hotspot’ areas that may need a longer-term solution, such as diversionary activities for young people or security measures in pubs and clubs to prevent alcohol-related anti-social behaviour in town centres.”

Netpol contacted one police force where dispersals powers have been used but were told that figures on their use were not collected centrally and it was too expensive to obtain them.

We then asked five local Police and Crime Commissioners from around the country, representing both urban and rural areas, whether they receive information from their police force on the number of authorisations for dispersal powers. In the majority of cases, no data was available.

It seems as though nobody is scrutinising the use of dispersal powers and it is impossible to even find how often they are used.

How can we resist the misuse of Section 35 powers?

Under Section 35 of the Anti-social Behaviour, Crime and Policing Act 2014, the police have sweeping and draconian powers. They can direct anyone to disperse [leave an area] based on their suspicion you are engaged in “anti-social behaviour”. They may set a time by which you must leave the area and can even tell you the route you must take. If you have been issued with a ‘direction to leave’ but fail to comply, you may face arrest.

The legislation also allows police to seize any item of property from you.

Protest is not ‘anti-social behaviour’

The police already use the concept of ‘anti-social behaviour’ to justify shutting down many different forms of gathering or assembly These new powers allow the police to criminalise you for merely taking part in a public protest.

Section 35 allows the police to arrest and prosecute activists. Although the offences set out in Section 35 – failing to leave an area when instructed or failing to hand over property – are relatively minor, if you are convicted, you could have to pay a fine and could, in rare cases, result in imprisonment.

However, taking part in a protest – including spontaneous demonstrations – is a legitimate means of exercising your rights to freedom of assembly and expression. It might cause temporary disruption and the police might find it a nuisance, but that is not the same thing as anti-social behaviour.

We believe there are very real dangers that these new powers will be abused. This is why it is important to challenge the use of dispersal powers.

How to challenge Section 35 dispersal orders
  • Don’t feel intimidated. If you believe your protest is not ‘anti-social behaviour’ but legitimate political expression, you should consider carefully how you respond to a dispersal order and whether to refuse to comply. It may not be justifiable for the police to arrest everyone at a demonstration, even if a dispersal order has been issued.
  • Be prepared. If you think there is a possibility of arrests for breaching Section 35, it is sensible to make sure that Legal Observers are present, so that everyone also has access to information and (if necessary) legal advice. Contact Green and Black Cross for further information.
  • Obtain evidence. There are a number of things the police must do in order to lawfully make a dispersal order (see below). Take note of what the police are doing, and keep any pieces of paper they give to you. Film the police whenever possible.
  • Ask questions. The law states that both the Inspector authorising dispersal powers and any police officer using them must have given “particular regard to the rights of freedom of expression and freedom of assembly”. If an police threatens to use Section 35 powers during a protest, ask them if they have done this. If you can find them, it is better to put this question to the Inspector (or higher rank) and note down or film what they say.
  • Take legal action. If you think that the police have unlawfully shut down your protest, or unreasonably forced people to disperse or surrender property, you should get advice on whether it might be possible to take further legal action. We can refer you to appropriate lawyers or you can check the Netpol Recommended Solicitors List for civil law firms you can approach directly.
  • Contact Netpol. We are monitoring and documenting the way that the police are using Section 35 powers. If you are dispersed from an area during or after any form of protest, please let us know. We will use your evidence to push for the abolition of Section 35.

The law and your rights

When can the police use Section 35 powers?

The police must be ‘satisfied’ that the use of these powers is ‘necessary for the purpose of removing or reducing the likelihood of (a) members of the public in the locality being harassed, alarmed or distressed, or (b) the occurrence in the locality of crime or disorder.

In practice this is a very low threshold for them to reach.

‘On the stop’ dispersal notices

A police officer wishing to use Section 35 can simply call an Inspector and have a specified area authorised on the spot.

However, once police officers have received this authorisation, they must issue each individual with a written dispersal orders, specifying the area the dispersal relates to, how long it applies for, and the time by which the individual must leave the area. They may also specify the manner they must do so (including the route).

Make sure you keep this written dispersal notice – these ‘on the spot’ authorisations in particular may be unnecessary, disproportionate and therefore open to legal challenge.

Seizure of possessions

Police now also have the power to direct an individual who has been given a dispersal notice to hand over any items in their possession if the officer “has a reasonable belief that the items have been or are likely to be used in behaviour that harasses, alarms or distresses members of the public”.

This may include the seizure of placards or banners.

If you have items seized, the police will not return them within the period of the dispersal notice. You should receive information in writing about when and how to recover surrendered items, but officers may decide it is “not reasonably practicable” to do so.

The law says the police must return items if asked to (unless there is power to retain then under another piece of legislation). If you are 16 years old or under, they will only do so if you are accompanied by a parent or other responsible adult.

You only have 28 days from the issuing of a dispersal notice to request the return of seized items – after that, the police will probably destroy them.

No comment!

If a police officer issues you with a dispersal notice, you do not have to provide your name and address. The offence under this legislation is to refuse to disperse or refuse to surrender items seized under these powers, not a refusal to give your personal details.

If a police officer threatens to arrest you for obstructing them in the course of their duty because you refuse to give your personal details, you still do not need to give your name and address.

However, there are separate stop and search powers under Section 50 of the Police Reform Act that do allow the police to obtain your name and address (but not your date of birth) if they reasonably believe you have engaged in anti-social behaviour.

Dispersal notices and ‘Section 50’ stops and searches are regularly used together, but in both cases protest is not ‘anti-social behaviour’ and it is therefore legitimate to refuse to comply. If you refuse to give your name and address under this stop and search power, you may face arrest, but this is not always the case.  Find out more here.

Impact on the freedom of assembly and protest

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In November 2014, Merseyside Police imposed a dispersal order against anti-fur activists in Liverpool city centre – despite the fact that they were not even protesting at the time.

 

 

 

 

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Merseyside Police also used section 35 powers in November 2014 against a peaceful anti-fascist counter-demonstration opposing a National Front ‘day of action’ – even though the far right group failed to show up.

 

 

 

 

 

 

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In February 2015, dispersal powers were used against housing activists occupying empty flats on the Aylesbury estate in Southwark

 

 

 

 

 

Love_Activists_BoE_Occupation,_Liverpool_29_April_2015

Activists who have tried to provide support for homeless people have been criminalised. In February 2016, two campaigners were eventually cleared of charges of failing to comply with a Section 35 notice during a protest in 2015 that occupied a former bank in Liverpool.

 

 

 

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At a student demonstration in London in November 2015, the Metropolitan Police used section 35 powers after containing a group of protesters as the basis for a ‘walking kettle’ to move and disperse them to the nearest railway station.

 

 

Cheshire Police Dispersal Order - Upton

In January 2016, opponents of a proposed fracking well-site in Cheshire were given section 35 dispersal notices when a protest camp was evicted and were excluded from a wide area, apparently for no other reason than to disrupt their efforts to protest against the eviction.

 

 

 

 

 

 

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Lindis Lindis Percy, a campaigner against the American air force base at Menwith Hill who holds a weekly one-hour vigil outside the base, has been arrested and charged using section 35 powers because her long-standing – and entirely peaceful – protest was suddenly designated ‘anti-social’.Percy, a campaigner against the American air force base at Menwith Hill who holds a weekly one-hour vigil outside the base, has been arrested and charged using section 35 powers because her long-standing – and entirely peaceful – protest was suddenly designated ‘anti-social’.

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Section 35 powers have been used against campaigners seeking to gather evidence of illegal breaches of the Hunting Act 2004, with hunt monitors threatened with arrest for alleged anti-social behaviour.In February 2016, four hunt sabs received a dispersal notice and ordered to leave while monitoring a hunt at Redlingfield, Suffolk. None had left their vehicle throughout the day but they were dispersed because of the ‘likelihood of anti-social behaviour’. Others were allowed to remain and and they witnessed and reported illegal hunting. Police officers made reference to ‘experience and history of violence, intimidation and assault’ from hunt sabs, but no-one present had ever been charged with any of these offences, nor had any sab in the local area for well over a decade.

In March 2016, hunt sabs were dispersed from Frostendon, Suffolk, for allegedly ‘shouting and swearing on a public footpath in front of members of public’. These reports did not come from ‘members of the public’ but from supporters of the hunt, who did their best to obstruct monitoring of their activities using their vehicles. Any shouting (there was no swearing) was the result of  observing the illegal hunting of hares, in full view of hunt staff and captured on film. The dispersal notice was issued along with a stop and search under section 50 of the Police Reform Act, which meant hunt sabs were forced to provide their names and addresses.

Bristol City fansOn 12 September 2015 whilst trying to attend the away match at Birmingham City, 51 Bristol City fans were rounded up and issued a section 35 dispersal notice by West Midlands Police, escorted straight to New Street station and put on trains back to Bristol.The Bristol City Supporters Club & Trust has sought legal advice and is challenging the dispersal order.

 

Take action now!

Sign the campaign statement

Section 35 of the Anti-social Behaviour, Crime and Policing Act 2014 gives the police extended powers to dispense individuals from an area for up to 48 hours. Already, these powers have been misused as a new weapon against people who are already routinely targeted for harassment by the police and increasingly against anyone exercising their democratic right to freedom of assembly and protest. These ‘disperse’ powers have absolutely no public oversight.

Police officers have been granted huge levels of discretion about what constitutes ‘reasonable grounds’ to disperse people and it is far too easy for the police to use their new powers in an extremely restrictive way.

We, the undersigned, therefore believe it is time Section 35 is repealed.

READ:

Crawford, A (2009) Criminalising Sociability through Anti-Social Behaviour Legislation: Dispersal powers, young people and the police. Youth Justice

 

CPS | Section 35 Dispersal Notice

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Dispersal Powers

Introduction

Sections 34 – 42 of the Anti-social Behaviour, Crime and Policing Act 2014 (the ‘Act’) concern dispersal powers.  Sections 34 – 42 of the Act came in to force on 20 October 2014.

The dispersal power is available to uniformed police officers and designated Police Community Support Officers (PCSO) to deal with individuals engaging in anti-social behaviour, crime and disorder, not only when they have occurred or are occurring but when they are likely to occur and in any locality.  The dispersal power replaces those available under s27 of the Violent Crime Reduction Act 2006 and s30 of the Anti-social Behaviour Act 2003.  Important features of the new power are that:

  • PCSOs may use the power;
  • There is no longer a requirement for the pre-designation of a ‘dispersal zone’ in which the power can be used;
  • The power is available to disperse individuals without a requirement that two or more people be engaged in the offending behaviour;
  • There is an additional power to confiscate items associated with the behaviour of the person being directed to disperse;
  • The period of a person’s exclusion from a specified area has been extended to a maximum of 48 hours;
  • There is no longer a requirement that publicity is given to an authorisation; and
  • There is no longer a requirement for the police officer or PCSO to definitively establish the person’s age as the new power is available if the person appears to be aged 10 or over.
Dispersal power

A police officer of at least the rank of inspector may authorise the use of dispersal powers in a specified locality, during a specified period of not more than 48 hours.  ‘Specified’ means specified in the authorisation.  An officer may give such an authorisation only if satisfied on reasonable grounds that the use of those powers may be necessary for the purpose of removing or reducing the likelihood of –

(a) members of the public in the locality being harassed, alarmed or distressed, or

(b) the occurrence in the locality of crime or disorder.

In authorising the dispersal power the inspector (or above) must have regard to Articles 10 and 11 of the European Convention on Human Rights that provide for the right for lawful freedom of expression and freedom of assembly.

An authorisation under s34 of the Act must –

(a) be in writing

(b) be signed by the officer giving it, and

(c) specify the grounds on which it is given.

Where an authorisation is in force under s34, a constable in uniform may direct a person who is in a public place in the locality specified in the authorisation –

(a) to leave the locality (or part of the locality), and

(b) not to return to the locality (or part of the locality) for the period specified in the direction.

Two conditions need to be met for a direction to be given:

  • the officer must have reasonable grounds to suspect that the behaviour of the person in the locality has contributed or is likely to contribute to –

(a) members of the public in the locality being harassed, alarmed or distressed, or

(b) the occurrence in the locality of crime or disorder.

  • The officer considers that giving a direction to the person is necessary for the purpose of removing or reducing the likelihood of anti-social behaviour, crime or disorder.

The exclusion period may not exceed 48 hours.

The direction must be given in writing, unless that is not reasonably practicable.  The written notice must specify the locality to which the direction relates and for how long the person must leave the area.  The officer can also impose requirements as to the time by which the person must leave the locality and the route they must take.  The officer must also tell the person that failure to comply, without reasonable excuse, is an offence unless it is nor reasonably practicable to do so.

The information should be provided as clearly as possible and the officer should ensure the person has understood it.  If the direction is given verbally, the officer should make a written record of it.

A direction cannot be given to someone engaged in peaceful picketing that is lawful under s220 of the Trade Union and Labour Relations (Consolidation) Act 1992 or if they are taken part in a public procession as defined in s11 of the Public Order Act 1986.  In addition, the direction cannot restrict someone from having access to the place where they live or from attending a place where they:

  • Work, or are contracted to work for that period of time;
  • Are required to attend by a court or tribunal;
  • Are expected for education or training, or to receive medical treatment during the period of time that the direction applies.

The police officer or PCSO can direct the person given the direction under section 35 to surrender items which the officer reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or distresses members of the public, (s37).  A direction under s37 must be given in writing (unless it is not reasonably practicable). The officer does not have the power to seize the item; the person’s consent is required to take the item.  It is an offence for the person not to hand over the item if asked to do so.

The officer giving the direction under s35 must record –

(a) The individual to whom the direction is given;

(b) The time at which the direction is given; and

(c) The terms of the direction (including the area to which it relates and the exclusion period).

The officer giving the direction under s37 must make a record of –

(a) The individual to whom the direction is given

(b) The time at which the direction is given

(c) The item to which the direction relates.

If a direction is varied or withdrawn, the officer must record the time this was done and the terms of the variation.

Dispersing young people

A police officer (or PCSO where designated) can give a direction to anyone who is, or appears to be, over the age of 10 years.  If the officer reasonably believes the person given the direction to be under the age of 16 years, the officer may remove the person to a place where the person lives of a place of safety.

Case law in relation to Part 4 of the Anti-social Behaviour Act 2003 states that to ‘remove’ a person under 16 to their place of residence carries with it a power to use reasonable force, if necessary, to do so, (R (on the application of W) v Commissioner of Police for Metropolis, Richmond-upon-Thames, London Borough Council, Home Office [2006] EWCA Civ. 4580).

Failure to comply

Failure to comply with the direction to leave is a criminal offence.  Failure to surrender items is also a criminal offence.

The Court of Appeal in Carter v CPS [2009] EWHC 2197 (Admin) considered the conduct of proceedings involving the breach of directions given under a dispersal order.  The effect of the judgment is that all relevant documents should be made available to the court at the first hearing to enable it to ascertain whether the authorisation was admitted by the defence.

At the first hearing, the court will ask whether or not the validity of the authorisation is admitted.  If it is not admitted, the case should be put back for a short time on the same day to enable the defendant to consider the relevant documents.  If the defence seeks to challenge the authorisation, the question will arise whether the validity of the authorisation is a matter to be determined by the magistrates or by challenge to the High Court.  The Divisional Court in Carter v CPS [2009] EWHC 2197 (Admin) did not give guidance on the factors to consider in making this determination.

The Crown must prove all elements of the offence:

  • The authorisation was in effect and was valid
  • The officer was in uniform
  • The direction was given inside the relevant locality
  • The defendant knew that he was being given a direction under the authorisation
  • The direction given was lawful
  • The defendant failed to comply with the direction.

It is essential that a copy of the authorisation and the written notice are submitted to the CPS as part of the initial file provided by the police.  The CPS must have these documents in order to prove the validity as an element of the offence.

In order to prove that the officer acted lawfully, the validity of the authorisation must be proved.  It is suggested that the officer of the rank of inspector or above who gave the authorisation makes a s9 Criminal Justice Act 1967 (CJA) statement at the time he signs the authorisation confirming that he made it, setting out the brief grounds for his decisions and exhibiting the authorisation.  A copy of this statement can be used in all subsequent prosecutions.

A police officer seeking to give a direction pursuant to the authorisation and written notice should ensure that the terms of the direction are clear, for example, when the person must leave the area and the manner in which the person must do so (including the route).

The word ‘disperse’ is not defined in the Act.  The dictionary definition is ‘to scatter, to go or drive or send in different directions’.  It is submitted that when an officer tells a group to disperse, this means they should all leave the area.
Sentencing

A person given a direction under s35 who fails without reasonable excuse to comply with it commits an offence and is liable on summary conviction –

(a) To imprisonment for a period not exceeding 3 months, or

(b) To a fine not exceeding level 4 on the standard scale.

A person given a direction under s37 who fails without reasonable excuse to comply with it commits an offence.  A person guilty of an offence under s37(3) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.