Sections 30-36 of the Anti-Social Behaviour Act 2003 (ASBA) gave police forces in England and Wales new powers to:
- disperse groups of two or more people from areas where there is persistent anti-social behaviour.
- take home any young person under 16 who is out on the streets in a dispersal zone between 9pm and 6am and not accompanied by a parent or responsible adult.
On 9 May 2013, the Anti-Social, Crime and Policing Bill was introduced into the House of Commons. Subject to its parliamentary progress, the Bill is expected to receive Royal Assent by the end of the session in spring 2014.
The Bill introduces a number of tools to tackle anti-social behaviour, including a Directions Power to replace the existing s30 Disperal Order.
Implementing the new legislation will take time and, in the meantime, all current legislation remains in force. The current legislation should continue to be used where it offers the most effective means of dealing with anti-social behaviour.
Where a Police Superintendent or above has reasonable grounds for believing that members of the public have been intimidated, harassed, alarmed or distressed in public places in a specific area (referred to as the relevant locality) and that anti-social behaviour is significant and a persistent problem in that area, he may make a written authority under s 30 ASBA with the consent of the Local Authority allowing Police Officers and Police Community Support Officers to disperse groups of more than two people.
- The authorisation requires a brief relevant, concise summary of the nature of the material that gave rise to the issuing officer's belief that such an authorisation was required, (Sierney v DPP  EWHC 716 (Admin)).
- A plan of the relevant locality clearly defining boundaries should be attached to the authorisation.
- Local Government legislation requires specific delegation of powers to the Local Government Officer to give consent to the authorisation and it is good practice for the Local Government Officer to sign the authorisation indicating consent.
- The period of the authorisation cannot exceed six months.
An authorisation notice, stating that the authorisation has been given, the relevant locality and the period it is to run, must be either published in a local newspaper or conspicuously displayed in the relevant area before the commencement of the period in which the authorisation operates (s 31 ASBA).
During the period of the authorisation, where a Police Officer (s 30(3) ASBA) or Police Community Support Officer (s 33 ASBA) has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted or is likely to result in any member of the public being intimidated, harassed alarmed or distressed, the officer may:
- Require the persons in the group to disperse either immediately; or by such time as may be specified; and in such way as may be specified, (s 30(4) ASBA).
- If a member of the group does not have a place of residence within the relevant locality, require that person to leave either the relevant locality or a specified part of it either immediately or by such time or in such a way as may be specified (s 30(4)(b) ASBA) and in addition may require that person not to return to the relevant locality for such period as he may specify, not exceeding 24 hours, (s 30(4)(c) ASBA).
- If, between the hours of 9pm and 6am, he finds a person in any public place in the relevant locality who he has reasonable grounds for believing is under the age of 16, and is not under the effective control of a parent or a responsible adult, may take him home unless he has a reasonable grounds for believing that they would be likely to suffer significant harm at home, (s 30(6) ASBA). This power is coercive, but the Police are not free to use the power for a purpose for which it was not conferred, (R (on the application of W) v Commissioner of Police for Metropolis, Richmond-upon-Thames, London Borough Council, Home Office  EWCA Civ 458).
Breach of a Dispersal Order
Refusal to comply with a direction made under an authorisation (commonly known as breach of dispersal order) is a criminal offence, (s 32(2) ASBA).
The Court of Appeal in Carter v CPS  EWHC 2197 (Admin) considered the conduct of proceedings involving the breach of directions given under authorisations made under these provisions of the ASBA. The effect of the judgment is that all relevant documents should be made available to the court at the first hearing to enable it to ascertain whether the authorisation was admitted by the defence.
At the first hearing, the court will ask whether or not the validity of the authorisation is admitted. If it is not admitted, the case should be put back for a short time on the same day to enable the defendant to consider the relevant documents. If the defence seeks to challenge the authorisation, the question will arise whether the validity of the authorisation is a matter to be determined by the magistrates or by challenge to the High Court. The Divisional Court in Carter v CPS  EWHC 2197 (Admin) did not give guidance on this point.
The Crown must prove all elements of the offence:
- The authorisation was in effect and was valid.
- The publicity provisions had been complied with.
- The officer was in uniform.
- The direction was given inside the relevant locality.
- The Defendant knew that he was being given a direction under the authorisation.
- The direction given was lawful.
- The Defendant failed to comply with the direction.
It is essential that a copy of the authorisation is submitted to the CPS as part of the initial file provided by the police. The CPS must have the authorisation to prove the validity of the document as an element of the offence.
In order to prove that the Police Officer acted lawfully, the validity of the authorisation must be proved. It is suggested that the Police Superintendent makes a s 9 Criminal Justice Act 1967 (CJA) statement at the time he signs the authorisation confirming that he made it, setting out the brief grounds for his decision and exhibiting the authorisation. A copy of this statement can be used in all subsequent prosecutions.
As an authorisation requires the consent of the Local Authority, it is suggested that a s 9 CJA statement is obtained from the official at the time of the making of the authorisation both confirming they have delegated powers and that consent has been given.
A s 9 CJA statement should be obtained from the Police Official who deals with publicity as required by s 31(4) ASBA. Where the authorisation notice appears in a newspaper, a copy of the paper should be exhibited to the statement. Where copies of the authorisation notice are displayed in a conspicuous place, the official should state when and where they were displayed and exhibit a copy of the plan with the locations marked on it.
Copies of the s 9 CJA statements from the Superintendent, Local Authority Official and Police Official relating to publicity should be served on the Defence pursuant to s 9 CJA.
A Police Officer seeking to give a direction pursuant to the authorisation should ensure that it is clear whether the instruction is given under s 30(4) (a), (b) or (c). The terms of the direction should also be clear, for example, when the person is to leave the area or what action he is expected to take. The word "disperse" is not defined in the Act. The dictionary definition is "to scatter, to go or drive or send in different directions". It is submitted that when an Officer tells a group to disperse, this means they shall all leave the area.
The offence under s 32(2) ASBA requires the Defendant to "knowingly contravene a direction". The officer needs to give evidence that the Defendant knew that the direction was given pursuant to the authorisation, for example, that the Officer told the Defendant that it was so given and warned the Defendant of the consequences of failing to comply.
As in all criminal cases, identification must be proved.
A person who knowingly breaches a dispersal direction commits an offence and is liable on summary conviction to:
a) a fine not exceeding level 4 on the standard scale, or
b) imprisonment for a term not exceeding 3 months,
or to both.