21 November 2013
A year ago the government finally bowed to overwhelming pressure from the House of Lords to remove the unnecessarily low offence threshold from section 5 of the Public Order Act 1986. This was widely seen as a victory for free speech.
This campaign, which took several years to succeed, included a number of leading Christian and secular organisations including the Evangelical Alliance. It eventually resulted in the withdrawal of the subjective term "insulting" from section 5 which, as Lord Dear recently observed, "had been widely abused for many years. It was used by vindictive complainants to urge the police to take action when otherwise they would not, and by over-zealous police officers to deal with something that could have been dealt with by the exercise of common sense. Whether or not the individual went to court, it had a distinct chilling effect on the exercise of free speech."
It is therefore disappointing that in a yet further attempt to drive restrictive legislation through parliament with insufficient scrutiny, and involving a high risk of unintended consequences, the government appears to be trying to row back the ground it was forced to concede. It is doing this through its current proposals to replace anti-social behaviour orders (ASBOs) which were introduced in the Crime and Disorder Act 1998.
The government has decided it wishes to replace ASBOs with injunctions to prevent nuisance and annoyance (IPNAs) in its Anti-social Behaviour, Crime and Policing Bill, currently in the House of Lords. But in the process it seems to want to replace the previous criminalisation of unintentional insulting words or behaviour with criminalising unintentional annoying words and behaviour – an even lower threshold than before.
Although anti-social behaviour is a legitimate concern for communities across the country, there is widespread worry that the new proposals may actually remove many of the safeguards from existing legislation which protect the fundamental civil liberties of freedom of speech, freedom of assembly, freedom of religion, and freedom of private life. There have been protests from a range of influential bodies including Liberty, Justice, the Association of Chief Police Officers, the Home Affairs Select Committee and the Joint Parliamentary Committee on Human Rights.
One of the UK's most senior defence lawyers, leading QC and former director of public prosecutions, Lord Ken Macdonald of River Glaven, has produced a highly critical formal legal opinion which was extensively cited during the recent second reading debate in the House of Lords. Claiming that the wide-ranging and undefined nature of the proposed new orders will constitute "gross state interference" with basic civil liberties, he concludes that "In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights".
The new Bill effectively gives power to the police or local authorities, for example, to be granted injunctions against a person aged 10 or over merely on the basis of whether:
a) the court is satisfied, on the balance of probabilities, that they have engaged or threaten to engage in conduct capable of causing nuisance or annoyance to any person, and
b) that the court considers it just and convenient to grant the injunction for the purpose of preventing them from engaging in anti-social behaviour.
An injunction under this process may result either in preventing a person from engaging in supposed anti-social behaviour, prohibiting them from doing anything described in the injunction, or requiring them to do anything proscribed by the injunction.
Lord Macdonald is concerned that such sweeping restrictions against low-level activity could catch almost anything that people may disagree with and introduce a culture of complaint which the courts are only required to deal with in a subjective way that is merely "just and convenient" rather than "necessary". The potential for unintended consequences and state interference with basic freedoms is therefore enormous.
The new measures would apply both inside and outside buildings. Peers have flagged up warnings that in the future public expression of strong opinions, preaching sermons in church, Street Pastors or Healing on the Streets or handing out leaflets in public spaces could qualify as an "annoyance" or a "nuisance" under the Bill as currently framed. To underline the lamentable absence of definition in the proposed legislation, it has been suggested that even carol singers and the decisions of football referees could be caught if deemed by certain people to be "annoying" or a "nuisance". At least previously an ASBO could only be issued if the court was satisfied that a relatively high threshold of "harassment, alarm and distress" had been caused or threatened against somebody and provided that the order was "necessary" for protection of the victim. And with ASBOs it was a legal defence to show that the behaviour was "reasonable in the circumstances" – now reasonableness will be no defence under the new proposals.
The Liberal Democrat spokesman Lord Marks of Henley-on-Thames summarised the concerns of many:
"The threshold conduct required for an order is both too trivial and too ill defined. The phrase: 'Conduct capable of causing nuisance or annoyance to any person', could cover almost anything…. Conduct should not qualify unless it actually causes or at least is likely to cause – not is merely capable of causing – harassment, alarm or distress, not merely nuisance or annoyance to any person… I cannot understand why the imposition of a sanction for misconduct imposed by a court, which for those involved is effectively a criminal sanction, can require only the civil standard of proof, which is that a court finds that the conduct is more likely than not to have occurred…. The second condition for the grant of an injunction… that it should be 'just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour' involves a very low hurdle, which risks encouraging courts to grant such injunctions far too readily. When a statutory test like this is both insufficiently demanding and poorly defined, implementation is likely to be far too variable, both geographically and over time, so that reasonable uniformity and predictability are unattainable. A test of necessity would be much more appropriate and strike a better balance than the Bill now does between civil liberties and the rights of the wider public not to be subjected to anti-social behaviour."
In view of the many reservations and concerns expressed by a wide cross-section of legal experts and politicians it is vital that the nature of the new injunction to tackle anti-social behaviour be urgently reviewed. A new campaign can be expected and further details will follow.
Don Horrocks, head of public affairs, Evangelical Alliance.