Criminal Justice and Police Act 2001
The Criminal Justice and Police Act creates the offence of harassing a person in their home and provides the power to the police to give directions to others to stop such harassment happening. Section 42 covers the powers of the police to give directions / place conditions on a protest in order to stop any harassment, etc. Section 42a is the wording of the actual offence of causing harassment and so on. Further notes and examples are given below the official wording of the law.
The Law (covers Scotland and N. Ireland as well as England & Wales).
Section 42 – Police directions stopping the harassment etc. of a person in his home.
(1)Subject to the following provisions of this section, a constable who is at the scene may give a direction under this section to any person if—
(a)that person is present outside or in the vicinity of any premises that are used by any individual (“the resident”) as his dwelling;
(b)that constable believes, on reasonable grounds, that that person is present there for the purpose (by his presence or otherwise) of representing to the resident or another individual (whether or not one who uses the premises as his dwelling), or of persuading the resident or such another individual—
(i)that he should not do something that he is entitled or required to do; or
(ii)that he should do something that he is not under any obligation to do;
and
(c)that constable also believes, on reasonable grounds, that the presence of that person (either alone or together with that of any other persons who are also present)—
(i)amounts to, or is likely to result in, the harassment of the resident; or
(ii)is likely to cause alarm or distress to the resident.
(2)A direction under this section is a direction requiring the person to whom it is given to do all such things as the constable giving it may specify as the things he considers necessary to prevent one or both of the following—
(a)the harassment of the resident; or
(b)the causing of any alarm or distress to the resident.
(3)A direction under this section may be given orally; and where a constable is entitled to give a direction under this section to each of several persons outside, or in the vicinity of, any premises, he may give that direction to those persons by notifying them of his requirements either individually or altogether.
(4)The requirements that may be imposed by a direction under this section include—
(a)a requirement to leave the vicinity of the premises in question, and
(b)a requirement to leave that vicinity and not to return to it within such period as the constable may specify, not being longer than 3 months;
and (in either case) the requirement to leave the vicinity may be to do so immediately or after a specified period of time.
(5)A direction under this section may make exceptions to any requirement imposed by the direction, and may make any such exception subject to such conditions as the constable giving the direction thinks fit; and those conditions may include—
(a)conditions as to the distance from the premises in question at which, or otherwise as to the location where, persons who do not leave their vicinity must remain; and
(b)conditions as to the number or identity of the persons who are authorised by the exception to remain in the vicinity of those premises.
(6)The power of a constable to give a direction under this section shall not include—
(a)any power to give a direction at any time when there is a more senior-ranking police officer at the scene; or
(b)any power to direct a person to refrain from conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (right peacefully to picket a work place);
but it shall include power to vary or withdraw a direction previously given under this section.
(7)Any person who knowingly fails to comply with a requirement in a direction given to him under this section (other than a requirement under subsection (4)(b)) shall be guilty of an offence and liable, on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale, or to both.
(7A)Any person to whom a constable has given a direction including a requirement under subsection (4)(b) commits an offence if he—
(a)returns to the vicinity of the premises in question within the period specified in the direction beginning with the date on which the direction is given; and
(b)does so for the purpose described in subsection (1)(b).
(7B)A person guilty of an offence under subsection (7A) shall be liable, on summary conviction, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 4 on the standard scale, or to both.
(7C)In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for summary offences), the reference in subsection (7B) to 51 weeks is to be read as a reference to 6 months.]
(9)In this section “dwelling” has the same meaning as in Part 1 of the Public Order Act 1986 (c. 64).*
Section 42A – Offence of harassment etc. of a person in his home.
(1)A person commits an offence if—
(a)that person is present outside or in the vicinity of any premises that are used by any individual (“the resident”) as his dwelling;
(b)that person is present there for the purpose (by his presence or otherwise) of representing to the resident or another individual (whether or not one who uses the premises as his dwelling), or of persuading the resident or such another individual—
(i)that he should not do something that he is entitled or required to do; or
(ii)that he should do something that he is not under any obligation to do;
(c)that person—
(i)intends his presence to amount to the harassment of, or to cause alarm or distress to, the resident; or
(ii)knows or ought to know that his presence is likely to result in the harassment of, or to cause alarm or distress to, the resident; and
(d)the presence of that person—
(i)amounts to the harassment of, or causes alarm or distress to, any person falling within subsection (2); or
(ii)is likely to result in the harassment of, or to cause alarm or distress to, any such person.
(2)A person falls within this subsection if he is—
(a)the resident,
(b)a person in the resident’s dwelling, or
(c)a person in another dwelling in the vicinity of the resident’s dwelling.
(3)The references in subsection (1)(c) and (d) to a person’s presence are references to his presence either alone or together with that of any other persons who are also present.
(4)For the purposes of this section a person (A) ought to know that his presence is likely to result in the harassment of, or to cause alarm or distress to, a resident if a reasonable person in possession of the same information would think that A’s presence was likely to have that effect.
(5)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 4 on the standard scale, or to both.
(6)In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for summary offences), the reference in subsection (5) to 51 weeks is to be read as a reference to 6 months.
(7)In this section “dwelling” has the same meaning as in Part 1 of the Public Order Act 1986.*
* (taken from the Public Order Act – part 1.8) “dwelling” means any structure or part of a structure occupied as a person’s home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose “structure” includes a tent, caravan, vehicle, vessel or other temporary or movable structure
Explanation and examples.
The author of this article can only remember two cases going to magistrate’s court since the SOCPA legislation of 2005 brought in changes to this piece of law. Both of these cases were to do with protests outside the Lower Upham site of Wickham labs (they had proposed to move there) in 2007. The owner’s daughter’s house was next to the driveway (she and her children worked for the lab). The demonstrations were at night and consisted of about 12 people doing candlelit vigils. On both occasions the demonstration occurred at the bottom of the driveway to the house. The case was only pursued against one activist because she was believed to have entered the front garden of the house and banged on the windows (she was found guilty as you can read in the article below). Other protesters who did not enter the garden and were standing closer to the Wickham labs sign were not charged even though the police took their details. A second earlier case was thrown out due to the police charging them with harassing someone who was away on holiday at the time.
http://www.portsmouth.co.uk/news/local/east-hampshire/granarchist_vows_not_to_stop_protests_1_1230346
Activists from SARC (the Southern Animal Rights Coalition) were also arrested under section 42a in 2007. The case was soon dropped (as it was a demonstration against a foie gras restaurant). Additionally, one activist remembers hearing legal advice saying that it wasn’t just whether you were doing a home demonstration, it was whether you were or could be causing alarm, harassment or distress according to the dictionary definition. As they were only holding placards and standing on the street (not even chanting) the legal advice stated that it was unlikely to meet the criteria necessary.
This is often why demonstrations against labs such as Wickham are allowed by the police because, although they are right next to houses, the individuals in those houses are not caused alarm, harassment or distress. They are sometimes annoyed but the demonstrations are not aimed at them and are not big enough to affect the local residents enough to fit the definitions below.
The problem of course is knowing what the threshold of the local police force is when you are doing a demonstration. There is no defence of “acting reasonably” in this case, so even if you are holding a demonstration against a target and a local resident suffers a reaction that is completely over the top due to factors beyond your control, there’s not much you can do about it.
Doing a demonstration aimed at an individual dwelling alone is normally going to cause some alarm (and maybe distress) especially if it is at night, there are a large number of people, megaphones are used or loud noises are made, or it is associated with a protest movement that is seen as “dangerous” or a personal threat to them.
This law revolves around a number of subjective factors about what behaviour would constitute alarm, harassment and distress, and what “vicinity” means. No case law has pinned these down yet and as such the only legal advice given is “common sense” and reasonableness.
Further notes:
Those in the dwelling (or neighbouring dwellings) have to feel, or the police have to believe they are likely to feel, alarm, harassment or distress (as defined below). This is a subjective assessment by the police (or resident) and is very difficult to predict or judge. Cases have been dropped against protesters who have annoyed neighbours of a target company because the alarm, harassment or distress criteria have not been met. The neighbours have simply been annoyed and disturbed by noise. However, the mere presence of a demonstration against a residence is highly likely to be viewed as one of the above by the police and court. Again, there is no “reasonable behaviour” defence under this law.
If you believe that what you are doing is clearly not causing alarm, harassment or distress (as defined below) to the neighbours of a premises and the police are trying to use this act to move you on, film the police and your demonstration if possible and point out why you do not believe you are committing an offence. Ask the police if the neighbours are truly alarmed, harassed or distressed or whether they are just annoyed by the noise or if it’s just that the police believe they might be caused harassment, alarm or distress and why they think so. If it is during the day point out the fact that it is likely that many nearby houses will be empty as their occupants may be at work. Ask if the police have spoken to any neighbours. Try and find a way to cut the annoyance you are causing and tell the police you don’t want to annoy anyone and that you just want to use your right to freedom of speech. Ask the police how they are trying to legally facilitate your protest, point out they have to legally facilitate it and ask them to be reasonable. Try to negotiate with the police over your protest if possible to maximise your effectiveness but minimise the impact on the community while avoiding getting arrested.
The problem with this law is often you will not see the individual who is complaining so you can’t make your own judgment as to the effect you are having on them or whether they even exist. The police and courts have a legal responsibility under the Human Rights Act 1998 to facilitate protests and you have the right to protest and this has to be factored into the decision making process by the police and the courts.
The police have the right to arrest without warrant or warning if they reasonably believe that someone is committing an offence under s42. To be guilty of this offence you must actually have harassed/be harassing someone. So if the nearby buildings are empty, you cannot be arrested/convicted for this offence. Additionally, the act does not cover hotels where people are not permanent residents.
There is no definition in the law (or case law) of “vicinity of a dwelling” and this has meant that in many cases the police have misused the law to move protesters back long distances (even miles). However it is likely that a court would take a “common sense” approach on a case by case basis, with demonstrations aimed squarely at dwellings being viewed dimly (the law is meant to ban these demonstrations – even if a long distance away from a dwelling) and demonstrations against a stand-alone, non-residential premises getting more leeway (given that these demonstrations would be seen as less likely to cause alarm, harassment and distress). This is a very subjective matter though, with the individual officer’s reading of your intentions also playing into this (whether they believe that the aim of your demonstration was to intimidate or to inform, etc.). It is likely that moving a demonstration a great distance (miles for instance) away from a company would not be seen as reasonable.
If the protest is deemed to be carried out in order to intimidate an individual who is connected to a company conducting animal research or connected to animal research it would not only constitute an offence under section 42a but also section 146 of the Serious and Organised Crime and Police Act 2005 (SOCPA) which carries a tougher sentence of up to five years.
Dictionary definitions.
Distress: extreme anxiety, sorrow, or pain
Alarm: an anxious awareness of danger, make (someone) feel frightened, disturbed, or in danger
Harassment: aggressive pressure or intimidation
Vicinity: the area near or surrounding a particular place
Legal definitions from the Police Operational Handbook (in regard to s5 Public Order Act).
Harassment: constant and repeated verbal and/or physical persecution
Alarm: to cause someone to feel a frightened anticipation of danger
Distress: to cause someone anguish, pain, trouble or hardship