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Antisocial Behaviour, Crime and Policing Act 2014

A initial look at how Powers in this Act differ from existing Powers and their potential impact
on our Freedom of Expression and Freedom of Assembly.

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Foreword
This Guide is an initial look at some of the new Powers in the Antisocial
Behaviour, Crime and Policing Act 2014. The Powers in this Act, if applied in
particular ways, have the potential to devastate the right to protest. It is
important, therefore, for us to consider how they might be used so we can
remedy against them.
I lobbied and monitored the Bill as it progressed through Parliament.1 Whilst it
was clear to me that Parliament did not intend these Powers to be used to stifle
protest, I fear these Powers will allow others to do so. I believe this is
incompetence and not conspiracy.
By introducing these Powers, Parliament has demonstrated it does not
understand how protest tactics have developed over recent years - they too
readily blur the line between legitimate peaceful protest and Antisocial
Behaviour. For the sake of expediency they have shifted the onus onto the
protester to proactively challenge unlawful use of these Powers, limiting
protections once aorded by the Courts.
Powers in this Act came into force in October 2014. This Guide will be revised
in the coming months and years as it becomes evident how these Powers are
utilised. If you are aware that these Powers are being used then I would
appreciate if you submit details of the incident at http://legalobservers.org/
reporting-ASBCPA/ .
If you would like to know more about this Act then I strongly recommend you
read the extensive Home Oce Guidelines.2 They have greatly assisted me in
the production of this Guide.

Matthew Varnham

Disclaimer: Please note that this Guide should not be considered legal advice. It
is strongly advised that you consult with a lawyer if ever Powers under this Act
are used against you.

Submissions to the Joint Committee on Human Rights

Home Office Statutory Guidelines for Frontline Professionals

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Antisocial Behaviour, Crime and

Policing Act 2014
What are the new Powers under the Act?
The Antisocial Behaviour, Crime and Policing Act 2014 (ASB) reforms the
Antisocial Behaviour Powers that previously existed. It covers a wide range of
areas but this guide will focus on Part 1 - Injunctions, Part 3 - Dispersal Powers
and Part 4 - Community Protection.
In many ways these Powers are a step forwards from those that existed
previously as they equip the relevant Authorities with far better tools to
respond to Antisocial Behaviour and harassment.It is part of an approach by
the Government to put the victim first which this Act will look to do through
the introduction of the Community Trigger.
The dangers of these new Powers, however, are that they can put too much
Power at the hands of the relevant Authorities who could stifle free expression.
Furthermore, it will be far easier for members of the public to compel the
relevant Authorities to move a person or group on, or even out of their homes,
because they object to that person.
As the Courts, Local Authorities and Police all have a duty to have regard to the
rights of protest, it isnt clear to what extent the Powers of this Act will impact
on protest. It is likely that the new Powers will have the greatest impact on
buskers and the homeless.

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Part 1 - Civil Injunction

How do the new Injunctive Powers differ from
ASBOs?
One of the most contentious parts of the ASB is the injunctive Power. It
replaces Antisocial Behaviour Orders (ASBO) introduced through the Crime
and Disorder Act 19983 and Antisocial Behaviour Injunctions (ASBI)4
introduced through the Housing Act 1996.
Unlike ASBOs, a person doesnt need to have actually done anything antisocial
for an Injunction to be bought against them. It is sucient for a person to have
engaged in or threatened to engage in Antisocial Behaviour. Once granted an
Injunction can prohibit a person from doing something described in the
Injunction or, when the Injunction application gave notice, require a person to
do something described in the Injunction. The positive obligation is a new
Power.
The Act defines Antisocial Behaviour as any behaviour that has caused, or is
likely to cause, harassment, alarm or distress - this will be the most common
threshold in a protest context. There is a lower threshold of nuisance or
annoyance in relation to a persons in occupation of residential premises.
These new Powers allow far more agencies to make an application to the Court.
Section 5(1) opens this Power up to local Authorities, housing providers, chief
ocers of police, chief constables of the British Transport Police, Transport for
London, the Environment Agency, Natural Resources Body for Wales and
Secretaries of State (when exercising security management functions.)5

Penalty for Breach of an Injunction

Breach of an Injunction under the new Powers isnt an oence under the Act
though there is a Power of arrest when a person has failed to comply with an
Injunction as it is considered Contempt of Court. Whereas previous sanctions,
on summery conviction, could result in imprisonment for a term not exceeding
6 months, Contempt of Court can result in a prison sentence for up to 2 years
for adults. Contempt proceedings will require a criminal standard of proof,
beyond a reasonable doubt.

3Section

1 Crime and Disorder Act 1998

Section 152 Housing Act 1996

Section 5(1) Antisocial Behaviour, Crime & Policing Act 2014

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Injunctions can be applied for with or without notifying the Respondent.

Either the person who applied for an Injunction or the Respondent can apply
to have the Injunction varied or discharged at a Magistrates Court. If an
application to vary or discharge an Injunction fails then the Court can refuse to
hear all other applications to vary or discharge without the Court first giving
consent.

Challenging an Injunction
If an Injunction is granted, it will be worth making an application to vary or
discharge as the Injunction could last for any period up to 12 months. It is
worth consulting with a lawyer so the application has the greatest chance of
success. Needing to ask permission of the Court for a second application is
likely to lengthen the process of varying or discharging the order and will
invariably increase the cost.
Home Oce Guidelines suggest that it is best practice for agencies applying
for an Injunction to consult with all potential victims and witnesses to

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understand the wider harm to individuals and the community.6 Although the
Burden of Proof is on the authority to prove their case, it would be useful for a
person or group subject to Injunctive proceedings to engage in their own
consultation. Being able to demonstrate that those in the locality are supportive
of them will go a long way to help their case.

Page 22, Home Office Statutory Guidelines for Frontline Professionals

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Part 3 - Dispersal Power

How do the new Dispersal Powers compare to
existing Powers?
The new Power of dispersal compliment dispersal Powers that already exist
through the Public Order Act 1986. It repeals dispersal Powers in the Antisocial
Behaviour Act 2003 and the Violent Crime Reduction Act 2006. The
fundamental dierence with the 2014 Act is that it can be preemptive, rather
than responsible, to a situation.
The 2003 Act required members of the public to have been intimidated,
harassed, alarmed or distressed as a result of behaviour of a group of two or
more people that is a significant and persistent problem.7 Although the Act allows
for a Police Constable to then disperse a group whose presence or behaviour is
likely to cause intimidation, harassment, alarm or distress8 - it is responsive to
the groups initial conduct.
This is also the case for the 1986 Act which allows for conditions, including
dispersal, to be imposed on public processions or assemblies. This Act requires
a Senior Police Ocer to have reasonable belief that the procession or assembly
may result in serious public disorder, serious damage or serious disruption to
the life of the community.9
The 2014 Act, in contrast, allows for an Inspector to preemptively order
dispersal for up to 48 hours if satisfied, on reasonable grounds, that it is
necessary for the purpose of removing or reducing the likelihood of members of
the public in the locality being harassed, alarmed or distressed.10 It will be for
an Inspector to anticipate what behaviour is likely to cause harassment, alarm
or distress.
A dispersal notice must be given in writing, specifying the grounds on which it
is given and detailing the area it applies to. It must be signed by the Inspector.
Unlike previous provisions, the dispersal area does not need to be designated as
a dispersal zone in advance and there need not be any consultation with the
local authority. The order, once given, can be enforced by uniformed Police
Ocers and Police Community Support Ocers. (PCSO)
7

Section 30 Antisocial Behaviour Act 2003 (Repealed)

Section 30(3) Antisocial Behaviour Act 2003

Section 12 and Section 14 Public Order Act 1986

10Section

34(2) Antisocial Behaviour, Crime & Policing Act 2014

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Home Oce Guidelines suggest that the decision to authorise dispersal should
be made on objective grounds which, it suggests, could include intelligence
that there are likely to be problems at a specific time.11
Although the Act requires an Authorising Ocer to have particular regard to
the rights of Freedom of Expression and Freedom of Assembly,12 there is still a
risk to protest. Once an authorisation is in place a Constable in uniform can
direct a person within the specified area to leave that area and not to return
during the time specified in the direction.13

How the new Dispersal Powers might impact on

Freedom of Expression and Freedom of Assembly.
The overarching objective for any Police Force is to maintain law and order. It
is unlikely that the right to protest will be the primary consideration of an
Inspector when deciding whether to use a dispersal Power.
This contrasts with the role of a Court whose starting point is that the rights to
Freedom of Expression and Assembly are engaged. They then work through
evidence put before them to determine whether interference with such rights is
necessary and proportionate.

11

Page 33, Home Office Statutory Guidelines for Frontline Professionals

12

Section 34(3) Antisocial Behaviour, Crime & Policing Act 2014

13

Section 35 Antisocial Behaviour, Crime & Policing Act 2014

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An Inspector whose basis of dispersal is intelligence will be emPowered to act,

without judicial oversight, at a point when it is impossible to ascertain whether
such a step is necessary or proportionate.
The police might, for example, find that a procession organised on social media
is unlawful on grounds that the organisers have not given them prior
notification. The same could be true of a protest where there is an intention to
occupy a space for any period of time.
The new Power introduces a Power of surrender of any property a Police
Constable reasonably believes has been used, or is likely to be used in behaviour
that harasses, alarms or distresses members of the public.14 This might include
loudhailers and tents.

Restrictions on Dispersal Powers

Dispersal Powers do not apply15 in circumstances where a person or group of
people are:
Under the age of 10, or
Engaged in peaceful picketing as defined at Section 220 of the Trade Union
and Labour Relations (Consolidation) Act 1992.
Nor do they apply:
Where where written notice has been given of a public procession in
accordance with Section 11(1) Public Order Act 1986, or
Where such an order would prevent a person from having access to a place
where a person Lives,
Works,
Is obliged to go by a Court Order, or
Is expected to attend for the purposes of Eduction, Training or to receive
Medical Treatment.

14

Section 37 Antisocial Behaviour, Crime & Policing Act 2014

15

Section 36 Antisocial Behaviour, Crime & Policing Act 2014

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Disregarding an Order to Disperse

It is a criminal oence for a person given a Direction to Disperse to fail to
comply without reasonable excuse.16 A person who fails to comply with a
Direction may face arrest.

Challenging an Order to Disperse

It is important to make notes of any interaction with the Police when they give
a Direction to Disperse. A person in this position may want to use audio or
video recording equipment to document or Livestream the justification given
by the Police when giving a Direction. This helps give the situation context.
They should clearly state that they are engaging in their rights to Freedom of
Expression and Assembly and query why dispersal is deemed to be appropriate.
It is the reasonable belief of the Authorising Inspector that needs to be
challenged. Interference with the rights to Freedom of Expression and
Assembly need to be necessary and proportionate. A person who seeks to
challenge and Direction to Disperse needs to demonstrate that such an
Direction was neither necessary or proportionate.
The Home Oce Guidelines suggest that a person who believes they have been
incorrectly dealt with should speak to the Duty Inspector at the local Police
Station.17 Video and audio recording would most likely be useful. It isnt
advisable to record within a Police Station, due to rules against it, but any
conversation with the Duty Inspector should be documented.
Recordings and notes made when speaking with the Duty Inspector will be
useful if, following a visit to the Police Station, the issue is not resolved as the
next step would be to consult with a Solicitor and make a complaint against the
Police.

16

Section 39 Antisocial Behaviour, Crime & Policing Act 2014

17

Page 32, Home Office Statutory Guidelines for Frontline Professionals

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Part 4: Chapter 1 - Community

Protection Notice
How does the Community Protection Notice work?
The Community Protection Notice (CPN) criminalises behaviour that an
authorised person considers to have a detrimental eect on the quality of life of
those in the locality. For a person to face arrest they need to have been
informed that their behaviour is considered detrimental, persist, then fail to
respond to a notice requiring them to desist, to do something or to take steps
to avoid the behaviour in question continuing. The behaviour needs to be
considered unreasonable.
A notice can be issued by Council Ocers, Police Ocers, PCSOs and, in a
social housing situation, landlords. These groups of people are entrusted to
make a judgement on whether behaviour is detrimental.

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How a CPN might impact on Freedom of

Expression and Freedom of Assembly
The danger here is that those emPowered under these new Powers will go too
far. This Power is intended to help immediately address undesirable behaviour
and so the Authorising Ocer is not required to consult with members of the
locality. In drafting a Notice, the Ocer has total discretion and so may include
a requirement that goes far beyond what a Court would consider is necessary
and proportionate in the situation. There is no judicial oversight of the Notice.
Other Powers under the Act require Authorising Ocers to have particular
regard to the right to Freedom of Expression and Freedom of Assembly - this is
not the case here. This omission may be intentional so not to limit the scope of
this Power. An over zealous Authorising Ocer may, as a consequence of this
omission, decide that a protest that disrupts local business is detrimental to the
locality, or perhaps the same could be true of a busker who hasnt sought prior
permission from the local authority. Each of these groups of people may be
excluded from an area for an indefinite period. This can later be challenged at a
Magistrates Court.

Penalty for Breach of a CPN

The Authorising Ocer has the discretion to issue a Fixed Penalty Notice
(FPN) if it is deemed to be the most appropriate sanction for breach of the
Notice. Payment of the FPN would discharge any liability to conviction for the
oence. A FPN should not exceed 100.
When a FPN is not deemed appropriate, a person could face arrest and
conviction.

Challenging a CPN
The CPN should provide details of how to make an appeal. An appeal can be
made to a Magistrates Court within 21 days of issue on the following grounds:18
The behaviour did not take place,
The behaviour has not had a detrimental eect on the quality of life of
those in the locality,
The behaviour was not persistent or continuing,
The behaviour is not unreasonable,

18

Section 46(1) Antisocial Behaviour, Crime & Policing Act 2014

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The individual cannot reasonably be expected to control or aect the

behaviour,
Any of the requirements are unreasonable,
There is material defects or error with the CPN,
The CPN was issued to the wrong person.
If a person or group who are engaged in a protest are compelled to cease their
protest, they may want to challenge the Notice on grounds that the Authorising
Ocer did not have sucient regard to their right to Freedom of Expression
and Freedom of Assembly. It does not matter that the Legislation doesnt give
specific reference to these rights as each type of Authorising Ocer and the
Courts all have a duty to recognise them. The Court might decide to amend a
Notice or disregard it altogether.
Where a person isnt involved in a protest it will be important for them the
argue that their behaviour wasnt detrimental to the locality; the Authorising
Ocer would need to provide that it was. They could do this by providing
audio and video recordings of their activity to the Court giving context to the
situation.
Any interference with a persons right to Freedom of Expression and Freedom
of Assembly needs to be justified. It should be shown to be the least level of
interference necessary to achieve an aim. Where a requirement in a Notice is
disproportionate it should be challenged on these grounds.

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Part 4: Chapter 2 - Public Space

Protection Order
How does the Public Space Protection Order work?
Public Space Protection Orders (PSPO) have a similar scope to CPNs but are
likely to have a far more devastating impact on the right to protest.
As with CPNs, PSPOs seek to address behaviour that a Council deems to have,
or is likely to have a detrimental eect on the quality of life of those in the
locality. The behaviour needs to be, or likely be, of a persistent or continuing
nature and unreasonable.
A PSPO can apply to any space the public has access to - so can include private
land, such as a shopping centre.
Councils must first consult with local Police but are not obliged to consult
further even though they may choose to do so.
A PSPO can include multiple restrictions and requirements and target these at
particular undesirable groups of people. It can apply at certain times and in
certain circumstances.19 It must be published, explain potential sanctions
available on breach and specify the period for which the PSPO has eect.20

19

Section 59(6) & (7) Antisocial Behaviour, Crime & Policing Act 2014

20

Section 59(8) Antisocial Behaviour, Crime & Policing Act 2014

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How a PSPO might impact on Freedom of

Expression and Freedom of Assembly
As with CPNs there is total discretion of what to include in a PSPO so to
achieve the desired outcome. Although with this Power specific regard must be
given to the rights of Freedom of Expression and Freedom of Assembly,21 and
measures must be considered necessary, this is open to abuse. The danger with
this Power is that once an Order has been put in place, and they can exist for up
to three years, there is a limit on who can appeal it. There is no judicial
oversight.

Penalty for Breach of a PSPO

Penalties for breach of a PSPO are the same as a CPN. The Authorising Ocer
has the choice to issue a Fixed Penalty Notice22 or, where a FPN is not deemed
appropriate, they may resort to an arrest and conviction.23

Challenging a PSPO
PSPOs can only be challenged in the High Court and any challenge must be
made within six weeks of the order being made or varied.24 Challenges can only
be taken by an Interested Person, defined as a person who lives in, regularly
works in or visits the area in question.25
The danger here is that a protest group met with an Order are likely to have no
recourse against it, other than to be defiant and face arrest. A protest group
may choose to apply for a Judicial Review but this will often be prohibitively
expensive and carry significant financial risks even if they win. Neither of these
options will prevent enforcement action being taken against them.
Any person or group in this situation should record their interactions with
Enforcement Ocers. They should also document their protest. A Magistrate
would be required to consider whether enforcement action against the protest
was necessary and proportionate and providing them with audio and video
footage may help give the situation context.

21

Section 72(1) Antisocial Behaviour, Crime & Policing Act 2014

22

Section 68 Antisocial Behaviour, Crime & Policing Act 2014

23

Section 67 Antisocial Behaviour, Crime & Policing Act 2014

24

Section 66(3) Antisocial Behaviour, Crime & Policing Act 2014

25

Section 66(1) Antisocial Behaviour, Crime & Policing Act 2014

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Further Reading
Articles
Peter Marcus, Zenith Chambers -First Impressions Following Royal Assent
(April 2014)
http://www.zenithchambers.co.uk/cms/document/
14_04_02_ASB_Act_article1.pdf

Evidence to the Joint Committee on Human Rights &

Their Report to Parliament
Evidence - August 2013
http://www.parliament.uk/documents/joint-committees/human-rights/
Matthew_Varnham_on_Anti-Social_Behaviour_Bill_210813.pdf
Evidence - November 2013
http://www.parliament.uk/documents/joint-committees/human-rights/
Further_evidence_from_Matthew_Varnham.pdf
Report
http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/56/56.pdf

Guidelines
Home Oce Statutory Guidelines for Frontline Professionals
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/
352562/ASB_Guidance_v8_July2014_final__2_.pdf

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Legislation
Antisocial Behaviour Act 2003
http://www.legislation.gov.uk/ukpga/2003/38/contents
Antisocial Behaviour, Crime & Policing Act 2014
http://www.legislation.gov.uk/ukpga/2014/12/contents/enacted
Crime & Disorder Act 1998
http://www.legislation.gov.uk/ukpga/1998/37/contents
Housing Act 1996
http://www.legislation.gov.uk/ukpga/1996/52/contents
Public Order Act 1986
http://www.legislation.gov.uk/ukpga/1986/64/contents
Violent Crime Reduction Act 2006
http://www.legislation.gov.uk/ukpga/2006/38/contents

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Glossary
Applicant : A person who makes an application to a Court.

Civil Standard : Refers to Civil Standard of Proof, on the Balance of

Probability - so 51% +.

Criminal Standard : Refers to Criminal Standard of Proof, beyond a reasonable

doubt - so 99.9%.

Livestream : Refers to a mobile streaming services. Bambuser and Livesteam

and the most well-known. They stream video and audio to the internet. They
are free and can be downloaded via most app stores.

Respondent : A person who responds to litigation taken against them.

Without Notice : An Injunction can be applied for by an Applicant without

notifying the Respondent. If a Court agrees that there are grounds for an
Without Notice Injunction, they may decide to grant an Interim-Injunction
that is temporary and open to challenge by the Respondent if and when the
issue is taken to Court.

Credits
Title Page : Blacklist Support Group
Graphics : Home Oce Statutory Guidelines for Frontline Professionals

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