How can we resist the misuse of Section 35 powers?
Under Section 35 of the Anti-social Behaviour, Crime and Policing Act 2014, the police have sweeping and draconian powers. They can direct anyone to disperse [leave an area] based on their suspicion you are engaged in “anti-social behaviour”. They may set a time by which you must leave the area and can even tell you the route you must take. If you have been issued with a ‘direction to leave’ but fail to comply, you may face arrest.
The legislation also allows police to seize any item of property from you.
Protest is not ‘anti-social behaviour’
The police already use the concept of ‘anti-social behaviour’ to justify shutting down many different forms of gathering or assembly These new powers allow the police to criminalise you for merely taking part in a public protest.
Section 35 allows the police to arrest and prosecute activists. Although the offences set out in Section 35 – failing to leave an area when instructed or failing to hand over property – are relatively minor, if you are convicted, you could have to pay a fine and could, in rare cases, result in imprisonment.
However, taking part in a protest – including spontaneous demonstrations – is a legitimate means of exercising your rights to freedom of assembly and expression. It might cause temporary disruption and the police might find it a nuisance, but that is not the same thing as anti-social behaviour.
We believe there are very real dangers that these new powers will be abused. This is why it is important to challenge the use of dispersal powers.
How to challenge Section 35 dispersal orders
- Don’t feel intimidated. If you believe your protest is not ‘anti-social behaviour’ but legitimate political expression, you should consider carefully how you respond to a dispersal order and whether to refuse to comply. It may not be justifiable for the police to arrest everyone at a demonstration, even if a dispersal order has been issued.
- Be prepared. If you think there is a possibility of arrests for breaching Section 35, it is sensible to make sure that Legal Observers are present, so that everyone also has access to information and (if necessary) legal advice. Contact Green and Black Cross for further information.
- Obtain evidence. There are a number of things the police must do in order to lawfully make a dispersal order (see below). Take note of what the police are doing, and keep any pieces of paper they give to you. Film the police whenever possible.
- Ask questions. The law states that both the Inspector authorising dispersal powers and any police officer using them must have given “particular regard to the rights of freedom of expression and freedom of assembly”. If an police threatens to use Section 35 powers during a protest, ask them if they have done this. If you can find them, it is better to put this question to the Inspector (or higher rank) and note down or film what they say.
- Take legal action. If you think that the police have unlawfully shut down your protest, or unreasonably forced people to disperse or surrender property, you should get advice on whether it might be possible to take further legal action. We can refer you to appropriate lawyers or you can check the Netpol Recommended Solicitors List for civil law firms you can approach directly.
- Contact Netpol. We are monitoring and documenting the way that the police are using Section 35 powers. If you are dispersed from an area during or after any form of protest, please let us know. We will use your evidence to push for the abolition of Section 35.
The law and your rights
When can the police use Section 35 powers?
The police must be ‘satisfied’ that the use of these powers is ‘necessary for the purpose of removing or reducing the likelihood of (a) members of the public in the locality being harassed, alarmed or distressed, or (b) the occurrence in the locality of crime or disorder.
In practice this is a very low threshold for them to reach.
‘On the stop’ dispersal notices
A police officer wishing to use Section 35 can simply call an Inspector and have a specified area authorised on the spot.
However, once police officers have received this authorisation, they must issue each individual with a written dispersal orders, specifying the area the dispersal relates to, how long it applies for, and the time by which the individual must leave the area. They may also specify the manner they must do so (including the route).
Make sure you keep this written dispersal notice – these ‘on the spot’ authorisations in particular may be unnecessary, disproportionate and therefore open to legal challenge.
Seizure of possessions
Police now also have the power to direct an individual who has been given a dispersal notice to hand over any items in their possession if the officer “has a reasonable belief that the items have been or are likely to be used in behaviour that harasses, alarms or distresses members of the public”.
This may include the seizure of placards or banners.
If you have items seized, the police will not return them within the period of the dispersal notice. You should receive information in writing about when and how to recover surrendered items, but officers may decide it is “not reasonably practicable” to do so.
The law says the police must return items if asked to (unless there is power to retain then under another piece of legislation). If you are 16 years old or under, they will only do so if you are accompanied by a parent or other responsible adult.
You only have 28 days from the issuing of a dispersal notice to request the return of seized items – after that, the police will probably destroy them.
If a police officer issues you with a dispersal notice, you do not have to provide your name and address. The offence under this legislation is to refuse to disperse or refuse to surrender items seized under these powers, not a refusal to give your personal details.
If a police officer threatens to arrest you for obstructing them in the course of their duty because you refuse to give your personal details, you still do not need to give your name and address.
However, there are separate stop and search powers under Section 50 of the Police Reform Act that do allow the police to obtain your name and address (but not your date of birth) if they reasonably believe you have engaged in anti-social behaviour.
Dispersal notices and ‘Section 50’ stops and searches are regularly used together, but in both cases protest is not ‘anti-social behaviour’ and it is therefore legitimate to refuse to comply. If you refuse to give your name and address under this stop and search power, you may face arrest, but this is not always the case. Find out more here.