5th Report - Legislative Scrutiny: Crime and Policing Bill

We recognise that anti-social behaviour can blight communities, with the most serious and persistent cases undermining well-being, causing intimidation and distress and preventing the full expression and enjoyment of individual rights. We also recognise that those accused of anti-social behaviour, and those found to have engaged in it, also have human rights that must be respected even while action is properly being taken against them. We agree with witnesses that it is vital the law provides protection for victims whilst also ensuring that (a) those accused of anti-social behaviour are able to defend themselves against these accusations where they believe them to be inaccurate and (b) those found to have engaged in anti-social behaviour are subjected to restrictions, requirements and punishments that are justified and proportionate. (Conclusion, Paragraph 13)

The broad definition of anti-social behaviour encompasses a wide range of unacceptable behaviour. While it may be well-established and understood by some authorities, its breadth and subjectivity allows for inconsistency in its application and risks sweeping up less serious matters along with behaviour that demands a legal response. This can disproportionately affect vulnerable groups and result in measures being taken that interfere with human rights to an unjustified extent. It is therefore particularly important that measures taken to combat anti-social behaviour contain effective safeguards against their disproportionate use. (Conclusion, Paragraph 26)

It is important that measures designed to tackle ASB work to protect victims and do not unjustifiably affect the vulnerable. Respect orders would reintroduce criminal offence as a punishment for breach. It is not, however, clear why they would work more effectively than existing measures or the ASBOs that preceded them but were abandoned a decade ago.(Conclusion, Paragraph 47)

Particularly given the emphasis witnesses placed on anti-social behaviour largely being carried out by adults, we welcome the decision to exclude children from the scope of respect orders. However, the youth injunction 55 targeted at under 18s would simply replicate the existing regime. It is unclear whether this would effectively tackle anti-social behaviour and do enough to respect the rights of children. (Conclusion, Paragraph 48)

We also welcome a focus on rehabilitative requirements within respect orders, but note that such requirements are already available under existing measures. From evidence we have received it does not appear they have been used effectively to address anti-social behaviour. Respect orders must be backed up with the resources necessary to make rehabilitative requirements work. (Conclusion, Paragraph 49)

Measures designed to tackle anti-social behaviour affect the rights of victims and those accused of anti-social behaviour. To ensure these rights are properly protected it is important that the impact and efficacy of these measures are properly understood. We agree that the Government should have carried out a review of the wide range of existing measures available to tackle ASB before introducing the respect order on top. (Conclusion, Paragraph 55)

We welcome the fact that the Bill provides for more data on ASB and responses to it be shared with the Secretary of State. The Government should go further, however, and now comply with the Victims’ Commissioner’s request to carry out a review of all existing civil legal tools designed to protect the public from anti-social behaviour to see if they are fit for purpose. If they are introduced, the use of respect orders and their compliance with human rights standards must be kept under careful review – with the Home Office reporting to Parliament on these matters within 18 months of the Bill coming into force. (Recommendation, Paragraph 56)

The respect order resurrects the direct criminal consequences of the ASBO while retaining the lesser procedural protections of the anti-social behaviour injunction. While it is important that anti-social behaviour is addressed, this should not come at the cost of procedural fairness. An unfair process inevitably risks respect orders being imposed without justification. (Conclusion, Paragraph 71)

Taking into account the proceedings as a whole, we have concerns about their compliance with principles of procedural fairness and Article 6 ECHR (the right to a fair trial). This is particularly the case given that respect orders would be available where anti-social behaviour, or even just the threat of it, has been proved to the civil standard of proof (i.e. on the balance of probabilities) and the court has concluded that an order is just and convenient (not ‘necessary’ or ‘proportionate’). Also, given that they are civil orders, the civil rules on hearsay evidence apply (potentially making it harder for the respect order recipient to dispute evidence against them and overcome the lesser standard of proof). Finally, the consequence 56 of receiving a respect order is particularly significant, given that breach constitutes a criminal offence punishable by imprisonment. (Conclusion, Paragraph 72)

As part of the review we have proposed into the use of respect orders and their compliance with human rights standards, the Government should keep both the test for imposing a respect order and the standard of proof under careful review. (Conclusion, Paragraph 73)

Broad prohibitions and requirements can be imposed under Community Protection Notices, which bind individuals, and under Public Spaces Protection Orders, which bind the general public. Their imposition receives limited scrutiny unless they are legally challenged. If their breach is punished by way of fixed penalty notice, handed out by authorised persons employed by local authorities, there is a further lack of oversight. (Conclusion, Paragraph 85)

While deterring individuals from engaging in anti-social behaviour is obviously valuable, it is not clear that an increase in the fines that can be imposed by way of FPN will have such an effect. Furthermore, the lack of oversight leaves open the risk that fines up to £500 may be imposed on the spot without justification, and potentially in breach of the proportionality required under the Human Rights Act. (Conclusion, Paragraph 86)

The Government should conduct an urgent review of the use of community protection notices and public spaces protection orders, and particularly the use of fixed penalty notices for breach, to determine their efficacy and whether they are being applied and enforced proportionately and with due regard to the circumstances, including the socio-economic circumstances, of those affected. (Recommendation, Paragraph 87) Public order

This is the third piece of primary legislation changing the law on public order on which the JCHR has reported in less than five years. Given the importance of free expression and free assembly to a healthy democracy, the Joint Committee on Human Rights is concerned by the volume of recent change to the law on protest. (Conclusion, Paragraph 98)

We recommend that the Government should conduct post-legislative review of the impact of this Bill, the Public Order Act 2023 and the public order elements of the Police, Crime, Sentencing and Courts Act 2022 on the exercise of the right to protest before embarking on any further legislative change in this area. (Recommendation, Paragraph 99) 57

We agree that the police should be able to take action against individuals using masks to intimidate others and to evade arrest. However, there may be legitimate reasons for actions that conceal identity at a protest. It is important that the law does not disproportionately interfere with human rights, including the right to engage in peaceful protest. (Conclusion, Paragraph 109)

Under the Bill, the power to designate an area within which it would be a criminal offence to conceal one’s identity depends on the police having a reasonable belief that a public procession or assembly “which constitutes a protest” is taking or may take place. There is no definition of “protest” in the Bill, which introduces an element of uncertainty, when the ECHR requires any interference with the right to protest to be accessible and foreseeable. (Conclusion, Paragraph 116)

To improve accessibility and foreseeability, the Bill should be amended to include a definition of “protest” or alternatively the need for the procession or assembly to constitute a protest should be removed. Removing this requirement would, however, widen the reach of the offence and should be accompanied by further changes to the Bill proposed below. (Recommendation, Paragraph 117)

We recognise that the wearing of masks at protests can be intimidating, and that concealing identity can be used as a method of evading criminal responsibility. Nevertheless, the law must provide adequate protection against the unjustified criminalisation of peaceful protesters. (Conclusion, Paragraph 132)

To achieve this, steps should be taken to provide additional safeguards for Convention rights: a. The Bill should be amended so that the police can only designate an area within which it would be a criminal offence to conceal one’s identity if they reasonably believe that offences involving violence or public disorder are likely to occur. Specific guidance must also be given to the police on the need to take into consideration before arrest that individuals may wear items that have the effect of concealing identity for legitimate reasons, including in particular religious and health reasons. b. A defence of reasonable excuse should be added to the Bill. Draft amendments to the Bill to include these additional safeguards are set out in the Annex to this report. (Recommendation, Paragraph 133)

We recognise that protests have the potential to intimidate and interfere with the right to manifest one’s religion through worship. However, the right to protest peacefully must also be respected. We agree with evidence we 58 received that it is important that the right balance is struck between these rights, which means that not all claims of intimidation can trump protest arrangements. (Conclusion, Paragraph 146)

To help ensure the right balance is struck between the right to protest and the rights of people to worship without intimidation, the Bill should be amended so that the police can impose conditions when they reasonably believe that an assembly or procession “would intimidate persons of reasonable firmness” rather than “may intimidate persons of reasonable firmness”. Draft amendments to achieve this are included in the Annex to this report. (Recommendation, Paragraph 147) Other issues

We welcome the introduction of mandatory reporting of child sexual abuse, which represents an important step forward for protection of children’s human rights. However, we are concerned that the scope of the duty and particularly the consequences of breach may not do enough to provide effective protection against child sexual abuse. While concerns about making a failure to comply with the duty to report a criminal offence are understandable, the alternative proposed in the Bill risks a failure to comply having little or no consequence. This could undermine the efficacy of the duty to report. (Conclusion, Paragraph 162)

The Government must keep under review the efficacy of the mandatory reporting duty once it is in place, with a view to expanding its scope if necessary. The Government should also reconsider the consequence of failing to comply with the duty to report child sexual abuse, so that it operates as an effective deterrent. In particular, the Government should ensure the consequence of breach does not depend significantly on referrals being made by employers, managers or personnel providers who may also be under pressure to protect reputation. (Recommendation, Paragraph 163)

We repeat our call for barriers to the exercise of universal jurisdiction to be removed, and our proposed amendment to the Bill to achieve this appears in the Annex to this report. (Recommendation, Paragraph 167) 59