How Legal Drafting Chills Freedom of Speech and Freedom of Assembly

Borrowed from @jamesdmorris twitter feed.

Parliament begins to debate the Police, Crime, Sentencing and Courts Bill today. Following the scenes of heavy-handed policing at the vigil for Sarah Everard this weekend, there is perhaps a greater degree of attention being paid to the proposals than the government may have hoped for. The measures to update the common law offence of nuisance are a particular focus for those of us worried about state encroachment into civil liberties. Doing something that might annoy someone else should not be the basis of a criminal offence that carries a ten-year prison sentence.

I imagine that the authors of this legislation would resist the suggestion that it is authoritarian. They will point to the repeated use of the word ‘serious’ in the wording, and say that this limits the offence to… well… only the most serious of cases.

Not also the provision at clause 59(1)(c) that introduces a mental element (the mens rea) to the offence. That, too, will limit the ability of the police to prosecute people for doing something innocuous or incidentally annoying.

Another limit on the scope of the offence can be found in clause 59(3), where the person has a defence if they can show a ‘reasonable excuse.’ I’ve not read the explanatory notes for this clause yet (if indeed there are any) but ‘reasonable excuse’ in other contexts can be drawn quite widely and effectively exclude much of our day-to-day behaviour from prosecution.

So a government lawyer looking at this clause will claim it is reasonable and proportionate. When Home Office ministers rise in parliament to defend these measures, you can be sure they will claim that the bill contains appropriate ‘safeguards’ to prevent abuse. Similar language will be used by members of parliament, when they respond to constituents who have expressed a worry about the new law.

None of this matters, however. Because the threat to freedom of speech and the freedom of assembly that this Bill poses is not that significantly more people will be prosecuted under the new law. I doubt there will be a significant number of additional prosecutions.

Instead, the threat to our Article 10 and Article 11 rights comes from the law’s capacity to ‘chill’ — that is, to discourage lawful behaviour.

Crucially, the chilling effect pays no heed to ‘appropriate safeguards’ in the law. Because what constitutes ‘seriousness’ and what is a ‘reasonable excuse’ can only be determined after an investigation. The mental element of an offence can only be determined after a police interview and the gathering of evidence.

The conclusion that, actually, the person’s activities did not meet the threshold for prosection, and were in fact legal all along, can only be arrived at once the individual has been carted off down the station for questioning. After the heavy knock on the door.

To determine whether a new measure will have a chilling effect, one should read only the conduct element (the actus reus) of the proposed law, shorn of the qualifiers and caveats that the draughtsmen have inserted into the clause. When we consider whether our free speech rights and freedom of assembly rights are impacted, the clause 59(1)(c) mental element, and the clause 59(3) defence may as well not be there, because its not something that the police will consider before breaking up a political protest.

The clause 59(2)(c) definition may as well define harm as “distress, annoyance, inconvenience or loss of amenity” because that’s how it will be processed in the minds of those tasked with enforcing the law in the heat of the moment.

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