In my LibCon article on the Antisocial Behaviour, Crime and Policing Bill I was criticised for
i) overstating the dangers of the Bill,
ii) offensive language,
iii) failing to appreciate the reality of street thuggery and other social problems which need addressing.
The first two I have no issue with – I wrote in massively hyperbolic fashion, because it’s fun to be a bit demagogue on my own blog and I didn’t expect LibCon to take it, and because I felt some populist urgency was warranted, given how little media attention the issue had received.
The third criticism is more difficult. At a wider angle, there are much more positive things the government could be doing to ameliorate antisocial behaviour. However, without vast economic and social changes, I acknowledge the need for an effective police force.
With this in mind, I’ve written a sober letter to my MP, which I’ll forward to relevant committee members and ministers. It’s less alarmist and more boring than previous blogs, but hopefully will make more of a difference. If you feel strongly about these issues, feel free to quote parts for your own correspondences. Find your MP’s details here.
Dear Mrs Buck,
My name is Jonathan Lindsell and I’m currently working as a research fellow at Civitas think tank, and living in Westminster North. I write here in a wholly personal capacity to draw your attention to potential flaws in the Anti-Social Behaviour, Crime and Policing Bill, currently at Report Stage in the Commons.
I would like to point out that, overall, I have great respect for the police force and the work of local authorities, and that I fully understand the need for order. Nevertheless, authorities have historically abused power – the Hillsborough disaster, ASBO misuses,150+ officers’ sexual misconduct – meaning laws which increase the scope for abuse by ‘bad eggs’ are especially daunting.
Firstly chapter 12, paragraph 132 amends protocol on awarding compensation for miscarriage of justice. It allows compensation “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent“. This is offensive in theory, since it suggests a presumption of guilt, and offensive in practice, since it is not in the authorities’ interests to continue searching for evidence to exonerate an individual already determined not guilty – the burden of proof of innocence is unduly high.
Secondly, I’m highly alarmed by provisions within the new ‘Injunctions to Prevent Nuisance and Annoyance’ (IPNAs). Whilst I note above my respect for order, I cannot help but suspect that part of the motivation for this ‘new ASBO’ is to reflect the Conservative party’s traditional tough stance on law and order, which courts populism and implicitly demonises the ‘chav’ (or ‘hoodie’ or ‘yob’) subcultures.
The IPNA widens the scope for expansive interpretation: whereas the ASBO required someone to have caused ‘harassment, alarm or distress’, IPNAs require only that someone ‘on the balance of probabilities…engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person’. [1,1]
There are two discrete issues with this wording.
The subjunctive, future-oriented language requires that courts determine what action might construe antisocial behaviour, but does not break any laws or even social norms. Moreover, the terminology is too vague – all manner of legal activities cause ‘annoyance’ (or ‘on the balance of probabilities might threaten to do so’). Giving anyone power to arrest the same is absurd. Annoyance is highly subjective – activity such as whistling on the bus could be appreciated or scorned by fellow passengers. Other irksome activities are sometimes biologically unavoidable – flatulence, burping, sweating on public transport.
The IPNA is applicable to children as young as 10, can be granted in perpetuity, and those breaking IPNAs can be penalised by the revocation of social housing. [See evaluation by Steeles Law Solicitors]. It’s draconian to suggest a family’s home/stability is contingent on the unfaltering behaviour of a pre-teen. Conflated with human error and subjectivity (above) this appears beyond reason.
The other worrying provision is the Public Spaces Protection Order (PSPO). I appreciate the need to control littering, late-night street parties, drug dealers etc. However, PSPOs suffer from the same hopeless scope as IPNAs. They too have a pre-emptive element: ‘activities carried on or likely to be carried on in a public place… will have or have had a detrimental effect on the quality of life of those in the locality’ [2,55,2.,a-b]. PSPOs can last three years and be renewed ad infinitum [paragraph 56]. Analysis by think-tank The Manifesto Club shows PSPOs will be easier to serve than alcohol protection zones, and can target specific groups (e.g. ethnicities, protesters). Those breaching PSPOs can be subject to on-the-spot fines of up to £100 (summary:152).
The most troubling aspect is PSPOs’ augmentation of ‘dispersal powers’. Allowing authorities to disperse groups that they think might harass, alarm or distress others (para32) is a civil liberties nightmare. Human rights group Liberty note the Bill fails to define ‘locality’, so bans could cover districts, cities or even counties (p.17).
PSPOs could be used against lawful protest – as a disincentive or actually to prosecute. Meanwhile indiscrete use of these instruments will waste huge chunks of court time on misdemeanours and prosecutions of ‘children being children’ (Matthew Reed, Chief Executive, The Children’s Society, HuffPo UK).
This Bill comes before Parliament as many coalition moves and historic abuses contribute to an oppressive state atmosphere. The Snowden revelations demonstrate that GCHQ monitors citizens’ correspondence more than was thought possible or legal. A spectre is entirely imaginable, in which citizens’ communicate to organise a legal/peaceful protest, are spied upon, then prevented from gathering via PSPO.
This climate is accentuated by the Home Office’s ‘GO HOME’ van; Chris Grayling’s astonishingly poor criminal justice, legal aid & appeals reforms; new prohibitive price of taking employers to court for unfair dismissal; revelations that the friends/relatives of Stephen Lawrence were illegally monitored during his murder’s investigation; and Cameron’s ill-considered internet/pornography policies.
One further ‘topical’ aspect to consider is the Bill’s applicability under the Human Rights Act and European Convention on Human Rights. I am not wholly acquainted with either document, but Article 11 ECHR and Articles 10 and 11 HRA both seem to contradict the spirit of the PSPO prima facie, and could at the very least lead to an embarrassing and costly test case in the European Courts (assuming Theresa May has not managed to withdraw from ECHR by the time the Bill is passed.)
Criticisms including some of those above have been aired in The Times in a letter signed by 50 representatives of children’s charities and academics including Barnardos, The Children’s Society and Play England; by an article on Liberal Democrat Voices; by the news website Liberal Conspiracy; and by the civil liberties website Trebuchet. However, the concerns above were not raised, discussed or mitigated in the second reading or committee stage of the bill (insofar as the minutes reflect). Nor have these issues received due attention from mainstream media or specialised legal journals.
I urge you to investigate these concerns, raise the issues with relevant ministers/committee members, and to support amendments to ameliorate such concerns.
Jonathan J Lindsell
BA (Oxon) 2011
Read the response from my MP here. It’s a real shaggy dog story.
Feel free to comment!
You may have had the good fortune to read an abridge version on HuffPoUK. If you haven’t, I imagine there are more rabid comments over there.