Section 42 Criminal Justice and Police Act 2001

( This Article was published in the Police Review 10th August 2001 © Neil Addison. It may be reproduced or quoted but the source must be acknowledged )

In the midst of all the "excitement" of the General election and the Deputy Prime Ministers redefinition of the law on self defence Police Officers can be forgiven for not noticing new powers given to them on 11^th May 2001 when the Criminal Justice and Police Act 2001 came into force. Though the new provisions were primarily passed in order to deal with Animal Rights protesters pursuing a Huntingdon Life Sciences type campaign the powers could be useful in other situations.

Section 42 of the Act provides that in certain circumstances a Police Constable can order another person to leave an area and stay away from it even though they have not committed any criminal offence and if the constables order is not obeyed then that person can be arrested, charged and liable for up to three months imprisonment. These are draconian powers which need to be approached with care. In the event of any prosecution under this section, an Assault on the officer in the execution of his duty or any civil claim for unlawful arrest the Police will have to show that they have fulfilled the legal requirements precisely.

First of all the defendant must be outside, or in the vicinity of a dwelling (s42(1)(a)) Dwelling has the same meaning as in the Public Order Act s8. A farm House for example would be a dwelling but not a Barn, a Flat would be a Dwelling but not the stairs outside. However since the section refers to being in "the vicinity" of the dwelling these distinctions may not be too important in practice. Secondly the constable must believe, on reasonable grounds, that the defendant is there for the purpose of persuading another person s42(1)(b)(i) that he should not do something that he is entitled or required to do: or s42(1)(b)(ii) that he should do something that he is not under any obligation to do. (It is important however to note that this persuasion does not have to be directed at the resident of the House. For example if there was a flat above a Fur shop then s42 could apply to protestors outside the shop even though nobody in the shop lived in the flat ). Thirdly the constable must believe, on reasonable grounds, that the presence of the defendant, either alone or with other person present s42(1)(c)(i) amounts to or is likely to result in the harassment of the resident ;or s42(1)(c)(ii) is likely to cause alarm or distress to the resident. (It is important to note that the harassment, alarm or distress must be caused to the resident of the dwelling. To go back to the Fur shop example mentioned. If the Flat was empty then s42 would not apply regardless of how harassed the shop staff felt).

If, and only if, these 3 criteria are met is a Police constable justified in giving a direction under s42(2). A direction can be given orally and can include a requirement to leave the vicinity either immediately or after a period of time (s42(3) & (4)) The direction can be subject to exemptions or conditions and the conditions could, for example, include conditions as to the distance any person must remain from the premises and conditions as to the number or identity of the persons who may remain. Any person who knowingly contravenes a direction given under this section commits an offence and is liable for up to 3 months imprisonment s42(7). A constable, IN UNIFORM, may arrest without warrant any person who he reasonably suspects is committing such an offence s42(8). It should be noted that the arresting constable does not have to be the same as the constable who gives the direction. Also the Act does not require the officer who gives the direction to be in uniform but does require the arresting officer to be in uniform. It should also be noted that a constable cannot give a direction when there is a more senior ranking police officer present at the scene.

As can be seen this section is a strong addition to Police powers in effect allowing police officers to create on the spot Injunctions and exclusion zones. The section was passed because of Animal rights demonstrators suddenly arriving at the homes of Huntingdon Life Sciences employees and shareholders and one of its most obvious uses could be in policing demonstrations outside Farms which are invariably homes as well as places of business. In using s42 in such demonstrations the Police will of course have to have regard to the rights to demonstrate set out in Articles 10 and 11 of the European Convention of Human Rights and so any directions they impose should be "proportionate" to any harassment. However it is important to remember that the purpose of s42 is to prevent Harassment of a person in their own home and under Article 8 of the Convention everyone has the right to respect for their home. Since human rights is always a question of balance police and prosecutors can rely on article 8 to justify restrictions on protests outside a home.

Besides its use in protest situations s42 could be useful in domestic violence or stalking cases. In such cases police may become aware that the presence of a person (often an ex partner) near to a house is causing distress or alarm. In those situations rather than waiting for a "situation" to develop the constable could use their powers under s42 to direct the person to leave and to arrest them if they do not. However useful this potential use of the Act may be any constable who does decide to use the section in this way will have to be prepared to justify their decision.

One particular question may be whether the person, frequently an ex boy friend, has any legal rights in the matter. For example if he is the father of any child and has access rights then he cannot be said to be trying to persuade his ex wife to "do something which she is not under any obligation to do" s42(1)(b)(ii). However if he has a history of previous assaults whether those led to convictions or not then a constable could take those into account in making a decision "on reasonable grounds" that the presence of the ex partner "is likely to cause alarm or distress" s42(1)(c)(ii). If challenged in court about his decision the constable could refer to those previous incidents or even convictions in order to demonstrate his "reasonable grounds". Such evidence would be clearly be prejudicial but it would also be admissible in order to establish an essential point of the prosecution case. As was said by the Court of Appeal in R v Hussain 31^st July 2000

"While the criminal law of evidence imposes a number of artificial constraints upon what may be placed before the jury in their investigation of the offence or offences charged, for fear that prejudice may overcome logic when they reach a decision on the particular factual matters before them, it certainly does not demand that the jury consider those facts and draw the appropriate inference in a vacuum, divorced from the surrounding circumstances or earlier history which are, in cases, essential for a proper understanding of the facts and issues which the jury has to decide."

If however the defence did not dispute that the constable had reasonable grounds then there would be no need to refer to the past history.

Assuming that the constable can establish that he was entitled to give a direction under s42 the next question for a court to consider would be whether a defendant had "knowingly" contravened the direction s42(7). Such consideration would also be relevant in relation charges of assault in the execution of duty or claims for unlawful arrest arising from an alleged breach of a s42 direction.

The Act says that the direction may be made orally but my personal advice is that a constable should not simply "make up" the direction on the spot. Any situation involving the use of a direction will clearly not be a situation where there is any immediate risk to life or property so a constable will have time to think precisely about what they want to order the offender to do. Also if there is to be an arrest and a prosecution it will have to be justified as a breach of the precise words of the direction. I personally would advise any constable to write out on their note book what they intend to say beginning with something like

"I am now going to give you a direction under s42 of the Criminal Justice and Police Act 2001. If you disobey this direction then you can be arrested and prosecuted. You are to …."

The constable should then read the direction out from his note book. By writing it out first the constable will be able to refer to his note book in court and the court can be certain as to the precise words that were used.

If the police are involved in a ;long running protest situation then it may well be the case that a standard set of directions, for example "you may protest at the end of the road but not in the Farm Yard" may have been prepared and written out beforehand. In that sort of situation it will be necessary for the police to record precisely who has been given the direction and when. Also it must be remembered that the highest ranking officer present at any particular time is the only one who can give a direction. It may seem ridiculous but as the act is worded if the Chief Constable happens to be visiting a protest scene then for as long as he, or she, is present he is the only constable entitled to give a s42 direction and any direction given by any other constable will be unlawful as would any subsequent arrest.

It is worth remembering that the offence in this case is the breach of the direction and not any harassment which is caused to the resident. If, for example, the constable gives a direction to someone who turns out to be a stalker then the facts that the defendant happened to be outside the house on the particular day in question could still be relied on as part of a course of conduct under the Protection from Harassment Act even if there has been a prosecution under s42 arising from that incident.

Section 42 is therefore an extremely powerful weapon in the Police armoury but needs to be approached with care and I would certainly recommend any officer who plans to use s42 to read the section very very carefully first.