Section 30 of the Anti-social Behaviour Act 2003
created police powers, exercisable in specified circumstances, to disperse groups of two or more persons in a public place, and to remove under-16-year-olds to their place of residence between the hours of 9pm and 6am. These powers can only be used where a police officer of the rank of superintendent or above has given an authorisation to do so in respect of a relevant area. An authorisation may be made for up to six months where there are reasonable grounds for believing that members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or persons in public places in that area, and that anti-social behaviour is a significant and persistent problem in the area. Authorisations must be made in writing (specifying the relevant locality, the grounds for giving it and the period it is in force), approved by the local authority and published in a local newspaper and/or by notices posted in conspicuous places in the area.
Once an authorisation is in place, a constable in uniform may take the following steps if he or she has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in the area has resulted, or is likely to result, in members of the public being intimidated, harassed, alarmed or distressed:
• Give a direction requiring the group to disperse, either immediately or within a certain time.
• Give a direction requiring any persons in the group who live outside the area to leave the area, either immediately or within a certain time.
• Give a direction prohibiting any of those persons from returning to the area for a period of up to 24 hours.
However, such directions cannot be given in respect of persons engaged in a lawful and peaceful picket as part of an industrial dispute, or those taking part in a lawful public procession pursuant to section 11 of the Public Order Act 1986.
It is an offence for a officer to knowingly contravene a section 30 direction, punishable by a fine of up to £2,500 or three months' imprisonment or both.
Additionally, if a constable in uniform finds a person in the area between the hours of 9pm and 6am who appears to be under 16 and not under the effective control of a parent or other responsible adult, the constable may remove the person to their home.
Liberty challenged this "curfew" power in the case of R (W) v Commissioner of Police for the Metropolis, arguing that it should not be construed as a coercive power and that it breached the Article 8 (privacy) and Article 11 (freedom of assembly) rights of under-16s. The court of appeal found that the word "remove" meant "take away using reasonable force if necessary", but that the power did not have a curfew effect since it should not be interpreted as permitting the police to remove any child under 16 in the area at the relevant time. The power could only be exercised if it was reasonable in the circumstances to do so, and for the purpose for which the legislation was enacted, namely to protect children from the risks of anti-social behaviour by others and to prevent them engaging in anti-social behaviour themselves.
The other relevant provision is section 14 of the Public Order Act 1986 which gives the police the power to impose conditions on "public assemblies". A public assembly was originally defined as "an assembly of 20 or more persons in a public place which is wholly or party open to the air", but this was amended by the Anti-social Behaviour Act 2003 to apply to assemblies of two or more persons. If there are reasonable grounds to believe that such an assembly will result in serious public disorder, serious damage to property or serious disruption to the life of the community, or that the purpose of those organising it is the intimidation of others, then the most senior police officer on the scene may give directions imposing conditions as to: the place at which the assembly may be held; the maximum duration of the assembly: and the maximum number of persons who may constitute it, in order to prevent such disorder, damage, disruption or intimidation.
It is an offence to take part in, or organise, a public assembly and knowingly fail to comply with a police condition. The maximum punishment for this offence is the same as for the section 30 offence.
So there are now two ways in which the police may seek to interfere with a "group" (defined, oddly, as two or more people) who are in a public place (could be your mum or nan)– either on the ground that they are engaged in anti-social behaviour, or as a public order measure to deal with public assemblies. Despite the fact that section 14 is much more obviously intended to govern the policing of protest, the courts have endorsed the use of section 30 against protesters. In the case of R (Singh) v Chief Constable of West Midlands the court of appeal found that it was not unlawful for the police to issue dispersal directions under section 30 against a group of Sikh protesters who were protesting against the staging of a play at a theatre in Birmingham which they considered to be offensive to their religion. Because section 30 specifically exempted lawful public processions, but said nothing about other types of protests, the court concluded that parliament must have intended that section 30 could be used against people involved in other types of protest.
Plainly, however, any attempt by the police to prevent or restrict lawful protest would engage Article 11 of the convention which provides: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
Whether the police use section 14 or section 30, therefore, the conditions imposed or directions given in any individual case would have to be proportionate to the public safety concerns in order to comply with Article 11.
