What is Section 35?
Part 3 of the Anti-social Behaviour, Crime and Policing Act 2014 provides the police with powers to dispense individuals in order to remove or reduce the likelihood of members of the public becoming “harassed, alarmed or distressed” or “the occurrence of crime or disorder” in a particular area.
A police officer of the rank of Inspector or above must authorise in writing the use of dispersal powers under section 34 of the Act in a specified locality and during a specified period.
Section 35 itself sets out how an officer with “reasonable grounds” can direct people to leave and not return for up to 48 hours.
The 2014 legislation replaced previous dispersal powers (under section 27 of the Violent Crime Reduction Act 2006 and section 30 of the Anti-social Behaviour Act 2003) that were just as subjective but there were a number of important changes.
The period of a person’s exclusion has been extended to 48 hours
Police Community Support Officers as well as police officers now have the power to use dispersal powers
There is no longer a requirement to designate and publicise a ‘dispersal zone’ in advance.
Officers can disperse individuals without a requirement that two or more people are engaged in offending behaviour
Officers can disperse individuals without firmly establish a person’s age first (as dispersal is available if the person ‘appears’ aged 10 or over).
In a concession forced by the House of Lords during the passage of the Act, a police officer or PCSO must have “regard to the rights of freedom of expression and freedom of assembly” set out in articles 10 and 11 of the European Convention on Human Rights.
The only specific exclusions are, however, peaceful picketing or “taking part in a public procession of the kind mentioned in… the Public Order Act 1986”.
What’s the problem?
Fuelled by sensationalism
Dispersal orders introduced under legislation in 2003 were controversial precisely because of their infringement on individuals’ rights. Fuelled by sensationalist media representations of ‘youth gangs’ and ‘feral children’, ASBOs (anti-social behaviour orders) have attracted the most attention and scrutiny. However, police powers to exclude individuals, overwhelmingly young people, from an area meant they no longer need to engage and negotiate with groups of teenagers to obtain their consent to move elsewhere, if their behaviour was causing offence to others.
As a report by the Joseph Rowntree Foundation concluded in 2007, dispersal was as much about providing an “important symbolic response that something concrete is being done to address local concerns about anti-social behaviour and perceptions of incivility.”.
However, researchers also concluded that the use of these powers stigmatised its targets: that it tended “potentially criminalise youthful behaviour on the basis of the anxieties that young people congregating in groups may generate among other people”.
“As such, the power is potentially less concerned with the agency of individuals than the assumptions that are made about what they might do”.
Research in Sheffield and Leeds by the Centre for Criminal Justice Studies (CCJS), also in 2007, found a powerful explanation why young people preferred to stick together in groups: they were particularly vulnerable themselves as the victims of crime and anti-social behaviour, more so than older groups of people.
In the two case studies, researchers found that more than four-fifths (82%) said they felt safest in public places in groups (two-thirds of whom felt safest in large groups of six or more), with only 11% feeling most safe out with one other person and 7% safest by themselves. Generally, girls were more likely to prefer large groups. However, the young people who were interviewed also recognised that in large groups they might appear intimidating to others and were conscious of and sensitive to their unintentional capacity to prompt anxiety in others. The result concluded:
“In the absence of alternative meeting places, the paradox for many young people was that dispersing them from safe, central locations and making them split up was likely to render them more, rather than less, vulnerable as they were both displaced to less safe areas and dispersed from the safety of groups.”
The studies also found that young people felt uncertain how police officers might respond to their presence in a dispersal zone and some felt officers had too much scope o base their judgements on “stereotypes of inappropriate clothing or demeanour”. As research about the racially discriminatory use of stop and search powers has illustrated, items of clothing worn by youths that make them “suspicious” in the eyes of the police, such as baseball caps and hooded jackets, are often signifiers of racial profiling and the targeting of young black people.
Under the 2003 Act, the necessity for police to first consult with a local council to designate a dispersal zone in advance did, at least in theory, provide a space for debate about whether the use of such powers was appropriate and proportionate. However, the government felt that this was too ‘cumbersome’ and so the Anti-social Behaviour, Crime and Policing Act 2014 scrapped that requirement.
This leaves officers with a huge level of discretion about what constitutes ‘reasonable grounds’ to disperse and what is “human-rights compliant”. It is now so easy to use dispersal powers that the police too often apply them in an extremely restrictive way.
In July 2014, the Home Office issued “Reform of anti-social behaviour powers – Statutory guidance for frontline professionals”, which says:
“Police forces may wish to publish data on the use of the dispersal power to be transparent about their use of it. Police and Crime Commissioners will have an important role in holding forces to account to ensure that officers are using the power proportionately. Publication of data locally will help highlight any ‘hotspot’ areas that may need a longer-term solution, such as diversionary activities for young people or security measures in pubs and clubs to prevent alcohol-related anti-social behaviour in town centres.”
Netpol contacted one police force where dispersals powers have been used but were told that figures on their use were not collected centrally and it was too expensive to obtain them.
We then asked five local Police and Crime Commissioners from around the country, representing both urban and rural areas, whether they receive information from their police force on the number of authorisations for dispersal powers. In the majority of cases, no data was available.
It seems as though nobody is scrutinising the use of dispersal powers and it is impossible to even find how often they are used.