Criminal Justice & Police Act: New powers to deal with protests outside homes and changes to the Malicious Communications Act 1988

This circular is addressed to:

• The Chief Officer of Police (England and Wales)
• The Chief Clerk of the Crown Court
• The Clerk to Magistrates Court Committee
• The Clerk to the Justices
• The Chief Crown Prosecutor

1. This circular sets out the changes which come into effect as a result of sections 42 and 43 of the Criminal Justice and Police Act 2001. These measures came into force on the Act receiving Royal Assent, on 11 May 2001.

2. These powers, and the new offences in section 42, are particularly relevant when dealing with actions carried out by animal rights extremists. However, they are also applicable in any other situation in which the criteria set out in the law are met.

Protests and demonstrations outside homes

3. Section 42 gives the senior police officer present in the vicinity of a person's dwelling the power to give a direction to any individual or group there, providing that

the police officer reasonably believes that the purpose of the protestor's presence is to persuade somebody (not necessarily somebody resident or staying in that house) to do something which they are not under any obligation to do, or conversely, not to do something which they are entitled to do;

and

the police office reasonably believes that the presence of the person or people to whom he is giving the direction amounts to harassment of the resident, or is likely to result in harassment or to cause alarm or distress to the resident.

4. Directions may be given orally, and may be made to an individual or a group. They may include a requirement to leave the vicinity of the dwelling immediately or after a specified period. They may incorporate conditions. Directions already given may be varied. A direction may not be made where the person(s) present are exercising their right to picket a workplace peacefully under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992.

5. The direction may include any requirements the police officer considers necessary to prevent the harassment of the resident or the causing of alarm or distress to the resident. "Resident" is defined as any person who uses the premises as their dwelling.

6. The Act uses the definition of dwelling which is found in section 8 of the Public Order Act 1986: any structure or part of a structure occupied as a person's home or living accommodation, whether separate or shared, including tents, caravans and temporary or moveable structures.

7. A new offence is created, of knowingly contravening a direction. A police officer in uniform may arrest anyone he reasonably suspects of committing the offence. The maximum penalty on summary conviction is 3 months' imprisonment, a level 4 fine, or both.

Amendments to the Malicious Communications Act 1988

8. Section 43 of the Act makes a number of amendments to the Malicious Communications Act 1988 to update and strengthen it as a measure to deal with the offence of sending communications or other articles with intent to cause distress or anxiety.

9. Subsection (1) amends section 1(1) of the 1988 Act to make it clear that communications sent by electronic means are included in its scope.

10. Subsection (2) amends section 1(2) of the 1988 Act, which provided for a defence of making a threat on the grounds of reasonableness, by replacing the former subjective test with an objective one:

• under the former test it was a defence for the accused to say that he believed his demand and the use of the threat to reinforce that demand to be reasonable, whether or not either was in fact reasonable;
• under the new test the accused will need to show that the demand was made on reasonable grounds and that he or she honestly and reasonably believed that the threat was a proper means of reinforcing that demand. This defence might cover, for example, circumstances in which a legitimate threat of court action to recover a debt were made.

11. Subsection (3) inserts section 1(2A) into the 1988 Act to provide that communications sent by electronic means include any oral or other communication by telephone or other means of telecommunication. This covers for instance telephone calls, faxes and e-mails. The purpose of the 1988 Act as amended is not to replicate the Telecommunications Act 1984, which prohibits the abuse of a public telecommunications system. The purpose here is to tackle a different mischief, which is malicious communications by whatever means, including a private telecommunications system, aimed at individuals.

12. Subsection (5) amends section 1(5) of the 1988 Act to increase the maximum penalty from a level 4 fine to six months' imprisonment or a level 5 fine or both.

13. The above changes to the 1988 Act, including the increased penalty, apply only to offences committed on or after 11 May.

Enquiries

14. Enquiries about these powers may be made to:

Protests outside homes:
Public Order Section, 020 7273 3885

Malicious communications:
Sentencing and Offences Unit: 020 7273 4424.

Action Against Crime & Disorder Unit
Home Office
May 2001