Written evidence submitted by ADF UK (POP0039)
1. Organisation introduction
1.1 ADF International is a faith-based legal advocacy organization that protects fundamental freedoms and promotes the inherent dignity of all people.
1.2 In the UK, we work with local allies to provide research, training, funding, and legal advocacy.
1.3 On an international level, we are accredited by the UN Economic and Social Council, the European Parliament and Commission, and the Organization of American States. Additionally, we enjoy participatory status with the EU’s Agency for Fundamental Rights and engage regularly with the Organization for Security and Co-operation in Europe.
2. Summary
2.1 The police force in England and Wales has faced serious criticisms in recent years for its handling of largescale public disorder and vandalism; application of rapidly evolving emergency powers; and monitoring of criminal behaviour in increasingly used technological spaces.
2.2 It is also evident that there has been a steady decrease in public confidence in the internal priorities of the police. Instances of “virtue signalling”, the over-prioritization of “woke” values, and allegations of general police politicization are increasingly reported by the mainstream media.
2.3 A lack of clarity in some legislation and in College of Policing guidance has undoubtedly contributed to police officers facing uncertainty in understanding and interpreting the law and their duties. Arguably, this has resulted in an over-emphasis of the police prioritising subjective allegations of ‘offence’ and an under-appreciation of the need to balance the civil liberties of citizens. It has also left the police vulnerable to being influenced by political ideas or modern ideologies.
2.4 ADF UK welcomes the policing priorities review initiated by the Home Affairs Committee. We urge members to consider policing priorities in light of the need to balance individual liberties, freedoms and rights. In particular, we urge the Committee to fully integrate considerations on protecting and promoting free speech and expression into their analysis, evaluation and recommendations.
3. The impact of giving police broad, interpretive powers
3.1 Basic principles of the rule of law are intelligibility, clarity and predictability.[1] Law must be sufficiently understandable and precise to enable citizens to know what is, and is not, permissible, and for the judiciary to be able to clarify legal meaning, when required to do so. Moreover, law needs to be clear in order for law enforcement agencies to dutifully, effectively, and correctly respond to wrongdoing in a way that maintains and builds public confidence.
3.2 However, legislation and police guidance are increasingly vague, ambiguous, and broad with an unfair expectation for police officers to correctly interpret and apply without suitable training or instruction. The inevitable errors mean that the already scarce resource of police forces risks being further stretched by the constant diversion of energy and time to address spurious allegations of criminality. A lack of police confidence and certainty in applying the law also increases their vulnerability to pressure groups who wish to see the law applied in a particular way, even if this is contrary to the intention of the legislator and human rights protections. Misapplication of the law, be it due to an unjust caution, arrest or prosecution severely damages public confidence in the police.
3.3 We would like to highlight two areas of law in which police officers are required to interpret vague and broad clauses or guidance and the impact this has on individual citizens. We would like to highlight two areas of law in which police officers are required interpret vague and broad clauses or guidance and the impact this has on individual citizens; online expressions and public order legislation.
i- Online expressions
3.4 Police officers are increasingly monitoring speech and expression in online platforms and spaces. Certain online speech and interactions have been subject to criminal sanctions for over thirty years from provisions in the Malicious Communications Act 1988 and the Communications Act 2003, although the police have only started diverting a lot of their attention to online forums in recent years. These Acts include broadly worded offences whereby individuals can be criminalized by sending “grossly offensive” communications which cause “annoyance, inconvenience or needless anxiety” to others”, and include the threat of prison sentences for individuals who intentionally cause “distress or anxiety” to the reader.
3.5 Last year, the Law Commission released its proposals to reform online communications offences which fed into the Online Harms government strategy and Online Harms Bill that is still making its way through Parliament. The Commission recommended new offences related to “harm-based” communications; threatening or false communications; “encouraging or assisting serious self-harm”; and “cyber flashing”.[2] The first port of call for individuals to report these offences will be to the police who will be required to make a decision on whether to pursue action or not.
3.6 The more vague the offence and the more inconclusive the level of harm to the reader, the more time will be taken up by police officers to investigate the matter. The police could potentially be inundated with allegations of ‘harm’ caused by reading publicly available controversial opinions on twitter posts by strangers, emotionally ‘harmful’ private WhatsApp messages between friends in a brawl, or pictures on Instagram that ‘falsely’ portray another person.
3.7 In addition to police considering the vague words held within these incumbent Acts and prospective legislation, officers have increasingly chosen to respond to allegations of online ‘hate speech’ and non-crime hate incidents – both of which are only defined in guidance but not in statute.[3]
3.7.1 ‘Hate crime’ was internally defined by the criminal justice institutions in 2007 (which included the Metropolitan Police) as “any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice towards someone based on a personal characteristic”. The numbers of recorded ‘hate crimes’ have increased year on year, and government statistics totalled nearly 156,000 in 2021.[4] In order for speech to fall within this vague concept, it must be related to a “monitored strand”, namely race or ethnicity, religion or beliefs, sexual orientation, disability, or transgender identity.
3.7.2 ‘Transgender identity’ is not a term mirrored in legislation, yet the number of transgender ‘hate crimes’ investigated by the police have also increased year on year.[5] Some police forces have faced criticism for encouraging people to report this type of ‘hate crime’ more often. Serving as two high profile examples, Leicestershire Police have been forced to delete their ‘stay safe’ tweet which encouraged the public to report transgender online hate speech by using a fictitious quote and stock image[6], and Northumberland Police have been publicly berated for actively pursuing spurious online transgender ‘hate crimes’.[7]
3.7.3 Non-crime hate incidents have been the subject of a lot of controversy over the past few years, not least due to the Miller v College of Policing legal challenge which exposed how non-compliant with the law the practices of police were when officers told a man they needed to “check [his] thinking”.[8] The police have recorded 120,000 of these over the past five years; comprising of incidents which are recorded on peoples’ criminal records yet do not amount to criminal offences.
3.7.4 The College of Policing updated its guidance in July 2022 as a result of the Miller judgment. The new guidance requires officers to apply ‘proportionality, common sense and discretion’ whether a report should be recorded as a non-crime hate incident and advises that incidents should not be recorded if they are trivial, irrational and, or, there is no evidence of a motivation by ‘hostility against a monitored strand or protected characteristic’. Yet, the new guidance still lacks direction for officers on what constitutes ‘hate’ or how to consider spurious subjective feelings of the reader of private social media posts. Importantly, the guidance still permits officers to record non-crimes on peoples’ criminal records. Police officers are given huge discretion in how they manage this.
3.8 ADF UK submits that the Home Affairs Committee should raise concerns regarding the amount of time engaged by police officers in responding to and investigating online ‘hateful’ speech claims, particularly where the protected characteristic of the victim is also vague and intent to harm cannot be proved. The Committee should be mindful of the need to clarify terms in the Online Safety Bill as it passes through the parliamentary stages in order to avoid further complexity to the interpretative task of the police. The Committee should moreover advocate for the removal of non-crime hate incidents from police guidance and a review of ‘hate crime’ guidance through the lens of human rights law.
ii- Public expressions
3.9 Since the enactment of the Public Order Act 1986, police officers have used broad, discretionary powers to interpret the public expression of viewpoints. While the word “insulting” was removed from section 5 of the Act in 2013, Crown Prosecution Service guidance still states, “in the majority of cases, prosecutors are likely to find that behaviour that can be described as insulting can also be described as abusive.”[9] Consequently, police officers have continued to over-apply the words “abusive” or “harassing” within the section as it has been within their remit to make value judgments on speech in the streets; officers have arrested and investigated many peaceful individuals for ‘insulting’ or ‘offending’ other people. For example, evangelical street preachers have been frequently cautioned or arrested under section 5 of the Public Order Act because the words of the Bible have caused offence to passers-by.[10] In some instances, they have been required to pay damages to the arrested individual as a result of their incorrect application of the law.[11]
3.10 It is fair to anticipate that the activities of the police in addressing public order issues will only further encroach into the liberties of peaceful individuals and create greater confusion for officers understanding their remit, following the recent legislative reforms.
a) Police, Crime and Sentencing Act 2022
3.11 Recently brought into law, the Police Crime and Sentencing Act increased police powers in public spaces, permitting the police to arrest individuals who intentionally or recklessly cause public nuisance, including by creating a risk of “serious distress, serious annoyance, serious inconvenience” under section 78 (2)(c). These words are broad and imprecise, and place officers in the difficult position of having to determine, based on the subjective reactions of other people, whether the criminal threshold underpinning the risk of distress, annoyance or inconvenience has been reached.
3.12 Powers in the Police, Crime and Sentencing Act place police officers under pressure from people who merely dislike the expression of others and want to call an end or censor to the public activity. This may affect peaceful protestors; religious activities in the streets; and charitable support offered to other people outdoors.
b) Public Order Bill 2022
3.13 Although not yet having passed through all parliamentary stages, the Public Order Bill further expands the remit of the police in public spaces and will likely create tensions and confusion about how to balance individuals’ rights when it becomes law. An example of new police powers is the introduction of Serious Disruption Prevention Orders, which will encourage members of the public to use surveillance to report others to the police for protesting and causing ‘disruption’.
3.14 Another example of how the police will be put under increased pressure to apply vague law is amendment NC11 that was passed on 18 October 2022 in the Commons. This amendment introduced ‘buffer zones’ around abortion clinics nationally. In effect, this clause will create a boundary line of 150 meters around abortion clinics where members of the public will not be able to “seek to influence”, “persuade”, or “otherwise express opinions”, and introduces financial penalties and/or a prison sentence.
3.15 If brought into law, this clause will invariably place an onus on police officers to make evaluative decisions about whether certain peaceful behaviour amounts to “influencing”, exposing them to political pressures and the persuasion, or dislikes, of the crowd. This clause demonstrates the increasing will of Parliament to expose the police to investing more time investigating potential, instead of actual, crimes.
4. The difficult task of balancing human rights
4.1 The balancing act of protecting individual rights and freedoms alongside the public interest lies at the heart of legislation passed after the enactment of the Human Rights Act 1998. This includes several rights in the European Convention on Human Rights –Article 9, the right to freedom of thought, belief and conscience; Article 10, the right to freedom of expression; and Article 11, the right to freedom of assembly and association. The balancing requirement is also required by public officers, including the police. This means that the police must effectively and fairly apply the law and their powers to any given situation that arises, while simultaneously upholding and safeguarding individual liberty.
4.2 However, the complexity underpinning the balancing of human rights considerations has implications for the public perception of police officers, especially when legislation authorizes greater interference with individual liberty, expression, or conduct for the arguable sake of maintaining order, security or safety.
4.3 It has become increasingly apparent that the proportionality exercise that is required by law when civil liberties are limited is often neglected or misunderstood by police officers. This can be evidenced by the ‘heavy-handed’ policing of speech, expression or assembly when prospective victims raise concerns related to their hurt feelings or personal dislike of the speech or assembly. It is also of interest to note that while the College of Policing has a section on proportionality on its website, it provides no information on Articles 9 to 11 of the European Convention on Human Rights.[12]
4.4 Yet, domestic courts and the European Court of Human Rights have clearly ruled that freedom of speech is the cornerstone of any democratic society. Robust protection of speech is essential in order to foster tolerance in society, as well as to hold authorities to account. This includes speech or expressions which may “annoy or cause offense to persons opposed to the ideas or claims it is seeking to promote…”.[13] Other than in cases of incitement to violence or behaviour which is aimed at the destruction of the fundamental rights of others, the law requires freedom of speech to be protected – however shocking and unacceptable it may appear to the authorities, including the police force.
4.5 Therefore, when faced with applying vague and ambiguous law to online situations where readers may feel emotionally harmed, or public events where passers-by may feel offended by the words or actions or others, it should be the responsibility of the police to fully integrate considerations of the ‘perpetrator’s’ fundamental human rights to speak, express, or be in assembly with others. The bar set in law for protecting an individual’s right to speak or express an unpopular or minority opinion is currently far lower than what the police have been considering it to be.
4.6 For individuals embroiled in the criminal justice system as a result of a police investigation or arrest, even when they are acquitted at trial, the process and not just the end result is the punishment. Police officers should be encouraged to seriously consider the impact of an investigation on peaceful members of the public who were merely expressing opinions, engaging in charitable work, or promoting legitimate religious beliefs.
5. Summary
5.1 While the growing lack of confidence in the police force by the public is likely due to multiple complicated factors, ADF UK encourages the Home Affairs Committee to focus their review on how to better balance the interests of law enforcement and individual liberty. We submit that many of the public concerns with the police could be limited by police officers better understanding their duty to safeguard freedoms and liberties, while focusing to a greater extent on crime that involves a tangible perpetrator and victim.
5.2 ADF UK submits that in being required to interpret vague statutory provisions related to online expressions and public order, police officers are diverted from more pressing criminal concerns and are more likely to take an over-cautious approach to investigating or arresting innocent individuals. This does little to build rapport and build confidence with the public, particularly when confidence is already low and when many police forces face special measures for failing to respond to serious crime allegations from 999 calls, or protect the public from violent or sexual offenders.[14]
5.3 ADF UK also recommends that the Committee conducts a review of police training to identify whether there is scope to strengthen the training that the police receive on Articles 9, 10 and 11 of the European Convention on Human Rights to ensure they are equipped to balance law enforcement with fundamental rights.
October 2022