Section 42 of the Criminal Justice and Police Act 2001 confers power on the police to impose conditions on demonstrations taking place outside someone's home. Much was made of this new law at the time, as it was supposed to be one of the government's "package of measures" designed to stop animal rights 'extremism'. But it has quickly become apparent that this law has had little impact on home demos - for example For example a recent article in the Sunday Times stated that in the first 5 weeks of 2004 alone, there had been over 28 separate attacks on the homes of HLS scientists. The police and pharmaceutical industry are still lobbying for such demos to be made completely illegal.
Section 42 empowers a constable to impose directions verbally on persons demonstrating in the 'vicinity' of someone's dwelling, if he reasonably believes that their presence is likely to cause harassment, alarm or distress. This includes the power to require you to leave the vicinity altogether. A constable can ask you to move even if your behaviour is entirely peaceful, so long as you're in the vicinity of someone's home.
Can the police still use Section 42 if the dwelling is also used as a
Yes they can. So for example if you are protesting outside an animal breeding facility and you are also in the vicinity of someones dwelling - which is the current situation at the Newchurch guinea pig farm then the police could issue you with a Section 42 direction.
Are home demos now illegal under Section 42?
No they are not. Until the police arrive at the scene, the situation is exactly as it was before the law was passed. The Section 42 offence is committed when you fail to comply with the police officer's direction. This could be a direction to leave the area or to demonstrate in a certain location. Activists frequently avoid Section 42 directions, by doing a series of home demos and leaving before the police arrive. If anything this has resulted in even more home demos than before the legislation was passed!
What is the vicinity?
The law does not define what is meant by 'vicinity'. At the moment therefore this is being left to the discretion of individual police officers - and this can very considerably. You will often be asked to move to the end of the road or to the next street. But at Newchurch -the scene of animal rights protest against vivisection - police officers are defining the vicinity as an area comprising over 50 square miles, with protestors being told that they have to go several miles away from the residence in each direction in order to comply with the direction to leave. This abuse of power is almost certainly illegal and is due to be challenged in the High Court soon.
How long do I have to stay away for after being told to leave?
The section does not specify a minimum time limit, during which it would be an offence to return to the dwelling after having been told to leave. Often the police will not specify, but some of the more extreme police officers - eg at Newchurch - say that you must stay away for 24 hours, and this is probably unlawful. The longest the police can probably lawfully ask for is that you do not return on the same day.
How does the law define "the resident"?
The section can only be used to protect the resident of the premises. The resident is defined as "any individual who uses the premises as his dwelling". It follows that the police cannot use the section to prevent harassment to persons who are not using the premises as their dwelling - eg builders.
The police can issue Section 42 direections in order to prevent the harassment of ANY resident, not just the resident who is the subject of the protest. So if you are conducting a demo outside someone's house and they are not at home, the police can still issue a Section 42 direction if they reasonably believe your protest amounts to harassment of other residents in the vicinity - eg neighbours.
Does the resident have to be at home during the demonstration?
The law states that the constable must believe, on reasonable grounds, that the presence of protestors amounts to or is likely to result in harassment, alarm or distress to the resident. The resident is defined as "any individual who uses the premises as their dwelling". We believe that the police must therefore take some steps to establish whether someone is actually at home before they can lawfully issue a direction and at least one district judge has already stated that someone should be at home in order for the section to apply. The law is not clear however and sometimes the police say that no-one need actually be at home - this point will hopefully be decided in the High Court in March or April 2004.
How does Section 42 affect my human rights?
When exercising their discretion in imposing directions on a home demo, the police must not act in a way, which is incompatible with your European convention rights. This could create problems for the police, where a demonstration is taking place outside commercial premises, which also double up as someones home. This is the situation at Newchurch, where guinea pigs are bred for vivisection. The guinea pigs are bred from three sites, two of which also double up as dwellings. At one of the sites the police currently require protestors to leave immediately, whereas at another site protest is allowed up to a certain time after which protestors are directed to leave under Section 42. If the police had effectively banned protests altogether by imposing a Section 42 requirement to leave all the sites, they would probably be acting in breach of Section 6 of the Human Rights Act. This shows that the police are, and must be mindful of the Human Rights Act when exercising their discretion under the act.
What defences are available if I am charged under this section?
Unlike the Protection from Harassment Act 1997 and Section 5 of the Public Order Act 1986, there is no statutory defence that your conduct was reasonable. But like all legislation, the section must be interpreted consistently with your human right to protest. A Section 42 direction which is deemed to be incompatible with this right would be unlawful and failure to comply with it would not be an offence. This would therefore be a possible ground of defence if you were charged with failing to comply with a police direction. For example, you could argue that the police's interpretation of the vicinity covered such a wide area that it was unreasonable - thus rendering the Section 42 direction unlawful.
When can the police arrest me under Section 42?
An offence is committed by anyone who knowingly fails to comply with a Section 42 direction. Section 42 is not an arrestable offence and you can only be arrested by a police officer in uniform who reasonably suspects you of committing an offence.
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