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Five areas of concern for street evangelists in the PCSC Bill

The difficulties faced by Christians wishing to share their faith in public were recently brought to the fore by the arrest of John Sherwood, a 71-year-old evangelist in north London. He was arrested while preaching in the open air (his custom for 35 years) for expressing his view that marriage was between one man and one woman – a belief rooted in the Bible, core to his faith, and protected under the Human Rights Act 1998.

Upon receiving complaints from bystanders, police officers arrested Sherwood for allegedly using ‘threatening or abusive’ words and behaviour causing ‘harassment, alarm or distress’ contrary to section 5 of the Public Order Act 1986.  He was placed in jail overnight and released the next day without charges and now awaits a decision on prosecution from the Crown Prosecution Service. The grandfather wholeheartedly denies any ill-intent and charges are not expected to be authorised.

In a similar case reported last week, supported by The Christian Institute, West Yorkshire Police Force admitted liability for arresting a street pastor, David McConnell, due to an alleged “hate-related public order offence”. McConnell was stopped and heckled by bystanders who questioned him on his views on sexuality and abortion, even though he had not been preaching on either subject. The force admitted that this chilling practise of unjustified arrest, detain and release was unlawful, agreeing to pay £3,250 in damages – plus his legal costs.

Sadly, this pattern of complaint, arrest, detention and possible prosecution of street evangelists has been a far too familiar occurrence over the last two decades. Police officers have struggled to navigate the line between genuinely preserving public order and protecting the fundamental rights of free speech and protest. As a result, street evangelists are increasingly uncertain as to when their preaching will incur criminal liability.

Yet, the government appear to have baulked at the opportunity to introduce clarity and more robust safeguards of street evangelists’ rights in the newly announced (11 May 2021) Police, Crime, Sentencing and Courts Bill (PCSC). On the contrary, the Bill’s current wording appears to introduce even more uncertainty and interference with fundamental rights.

In the first week of July, the PCSC Bill passed its third reading in the House of Commons with 365 votes to 265The Bill is now set to be debated in the House of Lords in September, after the summer recess The following are five broad areas of concern that the Bill, as currently drafted, raises for street evangelists. 

  • The existing laws have already seen many street evangelists arrested for expressing their faith in public. The most obvious example is section 5 of the Public Order Act 1986, which criminalises words and behaviour deemed threatening and abusive and used within the hearing or sight of a person likely to be caused ‘harassment, alarm or distress’.

  • In 2013, Parliament removed the word ‘insulting’ from section 5 following concerted pressure from human rights organisations. This made it clear that the right to free speech was too valuable to a democratic society to be restricted and criminalised simply because some considered the speech to be insulting or offensive.

  • Section 29JA of the Public Order Act is also clear that any discussion, criticism of, or urging of persons to refrain from marriage that concerns the parties’ sex or sexual conduct shall not be taken of itself to be threatening or intended to stir up hatred. Section 29J contains similar provisions protecting speech that criticises religions and beliefs.  

  • Though sections 29J and 29JA relate specifically to offences of stirring up hatred, the provisions serve as a useful indication that Parliament was keen to uphold, rather than criminalise, freedom of speech in the context of the contentious topics of public debate – particularly those relating to the definition of marriage, sexuality and religion.

  • Despite these protections and the welcome repeal of the word ‘insulting’, street evangelists continue to be arrested or threatened under the Public Order Act for expressing minority viewpoints. The fact that these arrests rarely lead to conviction in court is the clearest indication that police officers struggle to apply the law fairly and consistently. Clear legislation and guidance coupled with training are needed to ensure officers are able to appropriately strike a balance between apprehending genuinely threatening and abusive behaviour and protecting the fundamental right to freedom of speech, according to Parliament’s intent.

  • The public’s understanding of their rights to free speech without criminalisation is not helped by the sparsity of guidance from the College of Police and the Crown Prosecution Service. The Crown Prosecution Service’s guidance on section 5 is particularly confusing in its observation that prosecutors will – in the majority of cases – likely find “that behaviour that can be described as insulting can also be described as abusive”. This reading is arguably at odds with the clear intention of Parliament described above.

  • Under existing law, police have broad powers to restrict protest involving two or more people. This includes imposing conditions on participants to limit the length, duration or number of people participating in the protest.

  • Under clause 60 of the PCSC Bill, these powers are significantly expanded and can now apply to a single person. There is no definition of ‘protest’ in legislation, so the courts will look at the ordinary meaning, i.e. an expression or declaration of objection, disapproval, or dissent. Police officers may construe street evangelists as falling within the scope of the meaning of ‘protest’ and therefore within their powers to impose conditions previously reserved for groups.

  • The PCSC Bill also removes the limits on the conditions that may be imposed on protest. Instead, it gives officers the discretion to impose any condition to prevent ‘impact’ or ‘serious disruption’ on any organisation or person in the vicinity of the protest. ‘Impact’ is defined as including noise that ‘may’ result in bystanders feeling ‘serious unease, alarm or distress’, which, on its face, is an extraordinarily low bar. It is important to note that the ‘serious unease, alarm or distress’ need not be caused by the activity in issue; there only need be a risk of that effect.

  • A failure to comply with a condition imposed by officers using the vague criteria and broad powers above could incur a sentence of up to 51 weeks imprisonment, a significant increase of the previous maximum of 3 months imprisonment.

  • The PCSC Bill seeks to abolish the common law offence of statutory nuisance and replace it with a new statutory offence. Examples of public nuisance under the common law include the obstruction of highways, individuals deliberately dangling from bridges, unauthorised lighting of flares or fireworks in public places, and littering forests with excrement.

  • However, recently, police officers have utilised common law public nuisance to curb protest. This practice is set to increase under the new proposals given the wider protest-curbing context of the Bill and the government’s clear intention to increase police powers.

  • Concerningly, the Bill defines public nuisance in broad terms. It includes when a person’s act or omission ‘causes serious harm’ to ‘the public or a section of the public’ either intentionally or recklessly. ‘Serious harm’ is defined as including an act that causes or risks causing “serious distress, serious annoyance, serious inconvenience”. The phrase ‘section of the public’ is not defined within the act and has been found in other contexts (e.g. charity law) to include protected characteristics such as religion or sexual orientation. The broad wording of these provisions leaves a street evangelists like John Sherwood open to arrest if, for instance, his preaching on marriage is deemed to cause or risk causing serious annoyance to a person who identifies as LGBT.

  • Further, a person convicted of committing a nuisance under the new proposals would be liable to a term of imprisonment of up to 10 years. For context, this sends the courts a signal that statutory public nuisance should be considered as serious as indecent assault (also carrying a maximum sentence of 10 years imprisonment). Such a severe maximum sentence sits at odds with the common law where judges have made it clear that non-violent crimes, in the course of peaceful protest, will not lead to a harsh sentence.

  • If the police arrest an individual, they must promptly address their minds to whether they have sufficient evidence to proceed to charge. If more evidence is needed before a charging decision, the defendant may be released from custody with or without bail (known as ‘pre-charge bail’).

  • Pre-charge bail is when a suspect is released from police custody without charge but required to abide by conditions or return to the police station on a specified date while the investigation continues. Failure to comply with the conditions or return to the police station could lead to arrest and more stringent conditions being imposed.

  • Before 2017, there was widespread concern that suspects were spending extended periods on pre-charge bail, often for the case against that suspect not to proceed. In effect, this meant that suspects were subject to inordinate restrictions on their liberty and stuck in legal limbo without sufficient evidence – a partial reversal of the fundamental common law presumption of innocence.

  • The Government introduced the Police and Crime Act 2017 to address these concerns. It included a statutory presumption against pre-charge bail. This meant that there was a presumption that people would be released under investigation without bail conditions (or a requirement to attend the police station) and could only be arrested if there was evidence justifying further arrest.

  • Under the PCSC Bill, the government propose to scrap the presumption against pre-charge bail. The Bill also significantly expands pre-charge bail by:

    • Increasing the initial period of pre-charge bail before the need for further authorisation from 28 days to three months;

    • allowing officers of lower rank and experience to make decisions on bail (current law requires decisions concerning the initial bail period to be made by an Inspector (28 days) and Superintendent (three months). The proposals allow a ‘Custody Officer’ – typically of relatively junior rank – to make those decisions;

    • allowing decisions to extend pre-charge bail beyond three months to be made by officers rather than the court (the current law requires officers to apply to the magistrates’ court before pre-charge bail can be extended); and

    • allowing officers to extend pre-charge bail for up to nine months, after which it can be extended further still on the authorisation of a magistrate.

  • The government’s consultation response (published on 14 January 2021) revealed that most lawyers and members of the public with first-hand experience of pre-charge bail are against the above proposals.

  • The pre-charge bail proposals represent a real risk to the activities of street evangelists, particularly when juxtaposed with the protest and nuisance provisions of the Bill. Studies show that ‘banning’ conditions, i.e. requirements to keep away from people and places, were most frequently applied by police officers. The low threshold required to contravene the proposed protest and nuisance provisions mean that the police have extraordinarily wide-ranging powers to prevent street evangelists from preaching at the location they desire if they deem it necessary to prevent further offences. In practice, this would require little more than the officer receiving a complaint giving rise to a suspicion that the preaching in issue would cause, for example, serious ‘unease’ or ‘inconvenience’. The evangelist could then be required – potentially for months – to refrain from the very activity they feel called to, under threat of further arrest.

  • Regarding “one person” protests, the Bill states: “the Secretary of State may by regulations make provision about the meaning of— (a) serious disruption to the activities of an organisation which are carried on in the vicinity of a public assembly, or (b) serious disruption to the life of the community.” This means that assuming the Bill is passed into law, street evangelists will be none the wiser regarding the scope of activities that may be criminalised under the ‘serious disruption’ provisions, given that the Secretary of State is given the power to define it by regulation in the future.

  • Though the Bill requires the regulations to be approved by parliament (under what is known as an ‘affirmative procedure’), parliament will not be able to engage in meaningful debate concerning the provisions, nor can they amend the regulations. Indeed, between 1950 and 2015, 170,000 similar regulations were laid before Parliament, and only 17 were rejected (the House of Commons has rejected none since 1979) meaning that the regulations will nearly always pass in the form put forward by the Secretary of State. It is deeply concerning that the Bill seeks to sidestep proper democratic processes of parliamentary debate, scrutiny, and accountability. Arguably, the unavoidable effect of the Bill is to hand the Secretary of State unilateral power to decide the ambit of fundamental rights.

  • The broad power to define laws by regulations means that the government, or indeed any future government, may well adopt a policy that is completely removed from the reasons currently being offered and which apply to a much more comprehensive range of behaviours. Even if a government today introduces helpful freedom-affirming regulations (something that the present government has shown no sign of doing yet for the current Bill), the mechanism used to bring about those policies is crucial. By simply awarding the Secretary of State the power to introduce regulations to set out the scope of criminality, the Bill provides no certainty to street evangelists that they will not be criminalised, now or in the future, for simply living out their faith in public.

In its current form, the PCSC Bill fails to address existing problems in public order legislation and includes provisions that will likely lead to more unjust arrests and prosecutions of street evangelists. At the time of writing, no free speech affirming amendments have been proposed to the Bill to protect the rights of street evangelists. The government has a manifesto commitment to champion human rights; street evangelists will hope that it brings that commitment to bear as the Bill progresses through Parliament.

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