The Anti-Social Behaviour, Crime and Policing Act 2014 contains a range of powers designed to tackle anti-social behaviour.
Section 35 allows a police officer to direct a person to leave a particular locality and not return for a period of up to 48 hours. Failure, without reasonable excuse, to comply with a section 35 direction is an offence punishable by imprisonment, although it is usually dealt with by way of a financial penalty.
A section 35 direction can only be made if it is correctly authorised and justified in the circumstances.
Authorisation:
Section 34 provides that a police officer of at least inspector rank may authorise the use of powers under section 35 in a specified area for a specified period of up to 48 hours.
The authorising officer must be satisfied that there are reasonable grounds to use section 35 powers in that specified locality and for that specified period for the purposes of:
- Removing or reducing the likelihood of members of the public in the locality being harassed, alarmed or distressed; or
- Removing or reducing the likelihood in the locality of crime or disorder.
In granting an authorisation under section 34, the authorising police officer must have particular regard to a person's freedom of expression and assembly rights under articles 10 and 11 of the Convention.
The authorisation must be in writing, signed by the police officer giving it and specify the grounds on which it is given.
Exclusion from a Locality:
Section 35 can only be utilised if a valid section 34 authorisation is in place.
It allows a police officer to direct a person in a public place in the locality to:
- Leave the locality, or part thereof; and
- Not to return to the locality, or part thereof, for the period specified in the direction, which can be for a maximum of 48 hours (even if that exceeds the section 34 authorisation period).
Two conditions must be satisfied before a police officer can make such a direction.
- Firstly, they must have reasonable grounds to suspect that the behaviour of the person has contributed or is likely to contribute to:
- Members of the public in the locality being harassed, alarmed or distressed; or
- The occurrence in the locality of crime or disorder.
- Secondly, they consider that making the direction is necessary for the purposes of removing or reducing the likelihood of the events mentioned in the first condition.
The direction:
- Must be given in writing, unless not practicable to do so;
- Must specify the area to which it relates;
- May include requirements as to the time the person has to leave the area and the route they must take to do so.
The police officer giving the direction must, unless not reasonably practicable, inform the person subject to it that failure to comply, without reasonable excuse, is an offence.
If the police officer giving the direction reasonably believes the person subject to it is under the age of 16, then the officer can remove that person to their place of abode or other place of safety.
Any police officer can withdraw or amend a direction given under section 35, but they cannot extend it beyond 48 hours from when it was first given.
A police officer making such a withdrawal or amendment must do so in writing, unless it is not reasonably practicable to do so.
Restrictions:
Section 36 states that a direction under section 35 shall not be made where it appears the person subject to the direction would be under the age of 10.
Furthermore, a direction cannot be made where it would exclude a person from their normal place of abode, place of employment or any other place they are required to attend by virtue of a court order.
Surrender of Property:
Section 37 allows a police officer to require a person subject to a section 35 direction to surrender any property in their possession that the officer reasonably believes could be used to cause harassment, alarm or distress to members of the public in the locality.
A direction to surrender property must be made in writing unless it is not practicable to do so.
A person who fails to surrender such property, without reasonable excuse, commits an offence.
Unless another enactment applies, surrendered property must be returned on request at the end of the exclusion period.
Surrendered property may be destroyed or otherwise disposed of if its return is not requested within 28 days.
Property surrendered by an unaccompanied person under the age of 16 can be retained until they are accompanied by a parent or other responsible adult.
Offences:
It is an offence under section 39(2) for a person to fail to comply, without reasonable excuse, with a direction given under section 35.
The maximum penalty for this offence is 3 months' custody or a fine at level 4 (£2,500).
It is an offence under section 39(4) for a person to fail to comply, without reasonable excuse, with a direction given under section 37.
The maximum penalty for this offence is a fine at level 4 (£2,500).
Provision of Personal Details:
There is no specific requirement for a person subject to a section 35 direction to provide their personal details at the time the direction is given.
However, a direction can only be given in circumstances where an officer would be entitled to require a person to provide their name and address under section 50 of the Police Reform Act 2002. Failure of a person to provide their name and address in those circumstances is an offence punishable by a fine at level 3 (£1,000).
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