Monday, 4 June 2018

Dispersal Orders ~ Anti-social Behaviour, Crime and Policing Act 2014

Football Lads Alliance (FLA) was formed in 2017.  According to its website, FLA believes in making a safer environment and community for all of our children and grandchildren - In being inclusive and acceptable to all colours, creeds, faiths and religions - In holding our politicians accountable to bring about a change in anti-terrorist legislation in order to safeguard all communities now and in the future.  Marches have been held in London (October 2017) and Birmingham (March 2018).

A further event was held by FLA in Manchester on 19th May and a counter-demonstration, organised by "Stand Up to Racism" (SUTR), also took place and attracted a large body of people - Counterfire 22nd May.  SUTR comments - HERE - that FLA "claims to be against all extremism but in recent months it has had far right speakers on its platforms and promoted Islamophobic events such as an intimidating march by far right extremists against the East London mosque in Tower Hamlets."

These events necessitated a considerable Police presence.  One video on Youtube shows Police Officers handing out "section 35 orders" to various individuals - Section 35s being given out like free candy in Manchester 19th May   (It is of some interest to note that the video commences near St Peters Square which was, in 1819, the site of the infamous Peterloo Massacre when 15 protesters were killed by cavalry).

Section 35 orders (or Dispersal Orders) are part of the armoury of powers connected with Public Order and they arise under Part 3 of the Anti-social Behaviour, Crime and Policing Act 2014.  Here is a brief look at these orders which enable officers (i.e. constables in uniform and Police Community Support Officers (PCSO) to direct a person who has committed, or is likely to commit, anti-social behaviour to leave a specified area and not return for a specified period of up to 48 hours. 

1). An officer of at least the rank of inspector has to authorise use of the orders in a specified locality. The authorisation can last a maximum of 48 hours.  See section 34 for the detail.  Notably, in deciding whether to give such an authorisation an officer must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.

2).  Section 35 deals with the actual orders.  Persons may be directed to leave the locality specified in the authorisation (or part of that locality) and not to return there for a period stated in the direction. (the exclusion period).

The constable 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.  In addition, the constable must consider that giving a direction to the person is necessary for the purpose of removing or reducing the likelihood of the events mentioned in (a) or (b).

The Act requires the dispersal order to be given in writing unless that is not reasonably practicable.  The Order must specify the area to which it relates; may impose requirements as to the time by which the person must leave the area and the manner in which the person must do so (including the route).

The constable must (unless it is not reasonably practicable) tell the person to whom the direction is given that failing without reasonable excuse to comply with the direction is an offence.

There are some additional provisions in section 35(7) to 35(11).

3).  Section 36 puts in place some restrictions on the use of the dispersal power so that, for example, the power is not used to prevent access to a person's home or place of work.  Section 36(5) states - in deciding whether to give a direction under section 35 a constable must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.

4).  Section 37 - a constable who gives a person a direction under section 35 may also direct the person to surrender to the constable any item in the person’s possession or control 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.

This would clearly extend to items that could be used as weapons (e.g. knives etc).  Whether it extends to a mobile phone seems more debatable.

5).  Section 38 addresses record-keeping, section 39 Offences, section 40 the powers of a PCSO.  Section 41 enables the Secretary of State to issue guidance on the use of the power.  Section 42 is a saving and transitional provision.

Under section 39, a person given a direction under section 35 who fails without reasonable excuse to comply with it commits an offence.  It is punishable with up to 3 months imprisonment.

See Statutory Guidance for Frontline Professionals - Updated December 2017

Dispersal Orders have been widely used - e.g. to deal with protesters against fracking.

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