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Dispersal Power

Introduction

Sections 34 - 42 of the Anti-social Behaviour, Crime and Policing Act 2014 (the 'Act') concern dispersal powers.  Sections 34 - 42 of the Act came in to force on 20 October 2014.

The dispersal power is available to uniformed police officers and designated Police Community Support Officers (PCSO) to deal with individuals engaging in anti-social behaviour, crime and disorder, not only when they have occurred or are occurring but when they are likely to occur and in any locality.  The dispersal power replaces those available under s27 of the Violent Crime Reduction Act 2006 and s30 of the Anti-social Behaviour Act 2003.  Important features of the new power are that:

  • PCSOs may use the power;
  • There is no longer a requirement for the pre-designation of a 'dispersal zone' in which the power can be used;
  • The power is available to disperse individuals without a requirement that two or more people be engaged in the offending behaviour;
  • There is an additional power to confiscate items associated with the behaviour of the person being directed to disperse;
  • The period of a person's exclusion from a specified area has been extended to a maximum of 48 hours;
  • There is no longer a requirement that publicity is given to an authorisation; and
  • There is no longer a requirement for the police officer or PCSO to definitively establish the person's age as the new power is available if the person appears to be aged 10 or over.

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Dispersal power

A police officer of at least the rank of inspector may authorise the use of dispersal powers in a specified locality, during a specified period of not more than 48 hours.  'Specified' means specified in the authorisation.  An officer may give such an authorisation only if satisfied on reasonable grounds that the use of those powers may be 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 authorising the dispersal power the inspector (or above) must have regard to Articles 10 and 11 of the European Convention on Human Rights that provide for the right for lawful freedom of expression and freedom of assembly.

An authorisation under s34 of the Act must -

(a) be in writing

(b) be signed by the officer giving it, and

(c) specify the grounds on which it is given.

Where an authorisation is in force under s34, a constable in uniform may direct a person who is in a public place in the locality specified in the authorisation -

(a) to leave the locality (or part of the locality), and

(b) not to return to the locality (or part of the locality) for the period specified in the direction.

Two conditions need to be met for a direction to be given:

  • the officer must have reasonable grounds to suspect that the behaviour of the person in the locality has contributed or is likely to contribute to -

(a) members of the public in the locality being harassed, alarmed or distressed, or

(b) the occurrence in the locality of crime or disorder.

  • The officer considers that giving a direction to the person is necessary for the purpose of removing or reducing the likelihood of anti-social behaviour, crime or disorder.

The exclusion period may not exceed 48 hours.

The direction must be given in writing, unless that is not reasonably practicable.  The written notice must specify the locality to which the direction relates and for how long the person must leave the area.  The officer can also impose requirements as to the time by which the person must leave the locality and the route they must take.  The officer must also tell the person that failure to comply, without reasonable excuse, is an offence unless it is nor reasonably practicable to do so. 

The information should be provided as clearly as possible and the officer should ensure the person has understood it.  If the direction is given verbally, the officer should make a written record of it.

A direction cannot be given to someone engaged in peaceful picketing that is lawful under s220 of the Trade Union and Labour Relations (Consolidation) Act 1992 or if they are taken part in a public procession as defined in s11 of the Public Order Act 1986.  In addition, the direction cannot restrict someone from having access to the place where they live or from attending a place where they:

  • Work, or are contracted to work for that period of time;
  • Are required to attend by a court or tribunal;
  • Are expected for education or training, or to receive medical treatment during the period of time that the direction applies. 

The police officer or PCSO can direct the person given the direction under section 35 to surrender items which the officer reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or distresses members of the public, (s37).  A direction under s37 must be given in writing (unless it is not reasonably practicable). The officer does not have the power to seize the item; the person's consent is required to take the item.  It is an offence for the person not to hand over the item if asked to do so. 

The officer giving the direction under s35 must record -

(a) The individual to whom the direction is given;

(b) The time at which the direction is given; and

(c) The terms of the direction (including the area to which it relates and the exclusion period).

The officer giving the direction under s37 must make a record of -

(a) The individual to whom the direction is given

(b) The time at which the direction is given

(c) The item to which the direction relates.

If a direction is varied or withdrawn, the officer must record the time this was done and the terms of the variation. 

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Dispersing young people

A police officer (or PCSO where designated) can give a direction to anyone who is, or appears to be, over the age of 10 years.  If the officer reasonably believes the person given the direction to be under the age of 16 years, the officer may remove the person to a place where the person lives of a place of safety. 

Case law in relation to Part 4 of the Anti-social Behaviour Act 2003 states that to 'remove' a person under 16 to their place of residence carries with it a power to use reasonable force, if necessary, to do so, (R (on the application of W) v Commissioner of Police for Metropolis, Richmond-upon-Thames, London Borough Council, Home Office [2006] EWCA Civ. 4580).

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Failure to comply

Failure to comply with the direction to leave is a criminal offence.  Failure to surrender items is also a criminal offence.

The Court of Appeal in Carter v CPS [2009] EWHC 2197 (Admin) considered the conduct of proceedings involving the breach of directions given under a dispersal order.  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 [2009] EWHC 2197 (Admin) did not give guidance on the factors to consider in making this determination.

The Crown must prove all elements of the offence:

  • The authorisation was in effect and was valid
  • 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 and the written notice are submitted to the CPS as part of the initial file provided by the police.  The CPS must have these documents in order to prove the validity as an element of the offence.

In order to prove that the officer acted lawfully, the validity of the authorisation must be proved.  It is suggested that the officer of the rank of inspector or above who gave the authorisation makes a s9 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 decisions and exhibiting the authorisation.  A copy of this statement can be used in all subsequent prosecutions. 

A police officer seeking to give a direction pursuant to the authorisation and written notice should ensure that the terms of the direction are clear, for example, when the person must leave the area and the manner in which the person must do so (including the route).

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 should all leave the area.

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Sentencing

A person given a direction under s35 who fails without reasonable excuse to comply with it commits an offence and is liable on summary conviction -

(a) To imprisonment for a period not exceeding 3 months, or

(b) To a fine not exceeding level 4 on the standard scale.

A person given a direction under s37 who fails without reasonable excuse to comply with it commits an offence.  A person guilty of an offence under s37(3) is liable on summary conviction to a fine not exceeding level 2 on the standard scale. 

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