New bill makes it harder to prosecute police for dangerous driving.

[Pete Owens]

I guess that comes down to whether you want to live in a free society.

[Zulu Eleven]

And then there are the provisions to give them greater powers to suppress peaceful protests.
A few more goose steps on our long march towards becoming a police state.

I’m afraid I’m pretty unconvinced that this is the case.

What’s missing from much of the public dialogue from a number of vocal lobby groups is any of the context.

This part of the bill comes off the back of an extensive 2015 law commission report discussing the need to codify the existing common-law offence of public nuisance: https://s3-eu-west-2.amazonaws.com/lawc ... isance.pdf

That report itself came off the back of another extensive 2010 consultation: https://s3-eu-west-2.amazonaws.com/lawc ... isance.pdf

Essentially, a key argument is that the existing offence was still somewhat woolly, and although it had been confirmed by the courts to be article 7 compliant (ie. that the offence was defined enough for use in courts) there were been concerns about its practical and consistent application in use, and the government should bring the offence it within statute, rather than common-law, with a clearer definition.

This also details some of the background and examples of where the existing common-law offence has been used, as something of a catch-all where other offences did not cover the behaviour involved, from repeated hoax phone calls to 999, to the F4J ‘spiderman’ protester, whose protest caused severe disruption (but was, indeed, found not guilty) to the far more severe offence of attempting to manufacture ricin for terrorist use, which resulted in a 17 year sentence for public nuisance.

So effectively the previous use of this common-law offence was to catch people at the edge of existing offences, sometimes for minor offences and disruptive protests, but also very serious criminal behaviour that was not otherwise covered by the law

Notable of course that in the clamour to decry the government, the fact that the proposed new 10 year sentence is significantly lower that the unlimited sentencing available under the common-law offence hasn’t been mentioned by any of the ‘vocal’ groups.

Joshua Rosenberg (former law bod at BBC) discussed those points in his blog here: https://rozenberg.substack.com/p/more-than-a-nuisance - although he does accept that the background here is the codification of the existing common-law offences, he seems to disagree with the potential maximum sentencing, commenting that:

“ The government can plausibly say that it is simply following the Law Commission’s recommendations. But the Law Commission did not recommend a 10-year sentence. If the maximum had been set at two years, prosecutors would have little incentive to charge this new statutory offence whenever a more suitable alternative was available.
Peaceful protestors who have caused inconvenience but no damage — or damage but no inconvenience — will, for the first time be facing lengthy prison sentences. This is precisely the wrong time to be proposing such a fundamental change.

However, I would argue that his thinking is flawed here, returning to the original consultation, the law commission commented:

Sentencing
6.10 If the offence of public nuisance is restated in statutory form, it may be desirable to consider at the same time whether to alter the sentencing powers, for example by providing for a fixed maximum sentence. This is a matter to be considered by the Government department sponsoring any legislation resulting from our proposals.
6.11 We envisage that the offence of public nuisance, with the strengthened fault element as proposed, will be used mainly for instances of wilful and serious misbehaviour for which the existing specialised statutory offences are not adequate. Any fixed maximum sentence provided by statute should therefore be considerably in excess of that for the specialised offences.

Therefore you can see that Joshua Rozenbergs argument is that the sentence should be lower in order to prevent prosecutors seeking to use the ‘public nuisance’ offence, however the law commissions argument is that the sentence has to be higher precisely because it should only ordinarily be used in more serious cases which by the nature of what has happened do not fit into existing offences, as in the examples where very serious sentences have been applied under the common law offence previously.

So. There you go. Isn’t it amazing that none of the media channels are discussing these facts and context? That so few people in the public are likely to hear this, and will instead be left with the impression that this offence has been cooked up by the government over a period of weeks rather than as a result of years of consultation and law commission reports?

Remarkable eh?

Now, that’s not to say I don’t think there are problems with the new bill. I think the one highlighted in this thread of the potential effect on prosecuting dangerous police driving is one - and I’m reminded of the tragic death of Hayley Adamson in the West and of Newcastle a few years ago, a young woman killed by a police car driving at close to 90mph without lights or sirens in a residential area. But I strongly believe the inaccurate and IMO increasingly hysterical ‘noise’ about protest etc will draw attention from these real issues, and lead to the government forcing through the bill rather than a more constructive dialogue to rectify the problems.

[cycle tramp]

Still one of my favourite clips...

https://m.youtube.com/watch?v=dKnjxT5HRJQ

I don't think we should ever forget that Adolf Hitler took a democratic country and turned it into a dictatorship.

[Pete Owens]

And then there are the provisions to give them greater powers to suppress peaceful protests.
A few more goose steps on our long march towards becoming a police state.

I’m afraid I’m pretty unconvinced that this is the case.

An absolutely critical part of a free society is the right to protest. This bill effectively makes any protest at the discretion of the police - who already abuse their existing powers. For example we have seen police infiltrate peaceful protest groups and form sexual relationships under false pretences and even father children That is rape if you or I did it.

And you think the law need to be changed to give them even more impunity?

They regularly abuse their existing powers to put a stop to even the politest of protests - in Warrington we had a tradition "walking days" (basically church parades) that the police have stopped most of them. And you can be absolutely sure that once the police are granted powers they will be used indiscriminately.

And you think they need more powers?

Yes - we will always need them to act to prevent violence and disorder - which they can and will do using existing powers. But this bill goes much further than that giving them power to act on the grounds of nuisance or noise - and what is more giving the home secretary the power to redefine what counts as a nuisance without consulting parliament. With that much discretion you can effectively stifle all dissent - any protest is bound to cause nuisance of some sort - indeed that is essential to protesting. The right to hold a placard up in a darkened sound proof room is no right at all.

These are all baby steps towards authoritarianism - and we have been drifting that way for some time now. Slowly losing our liberties drip by imperceptible drip. Emergency powers that tend to become permeant - measures that are justified to tackle terrorism used far more generally and so on. Usually laws will be aimed at an unpopular minority travellers, or blacks or Muslims or Jews or refugees Catholics or ... whoever is the current fashionable scapegoat. But once a law is in place it can be used against any of us.

[Pete Owens]

Worth reading this:
https://www.theguardian.com/commentisfree/2021/mar/16/johnson-government-authoritarian-policing-bill-free-speech

[Fruity]

My interpretation of the intention of this bill is to provide a legal basis for TPAC.

It is, IMO. There's a legal gap when it comes to elements of police driving, particularly TPAC, between law on use of force and law relating to definitions of dangerous or careless driving.

The easy scenario to imagine is something like the videos circulated a few years ago where the Met were highlighting that they had trained some drivers to knock down scooter riders - generally the knife-wielding, violent robbing sort of scooter riders.

There loads of law and precedent around the use of force that puts the police in the right, but if you look at the Road Traffic Act elements it's problematic.

[Zulu Eleven]

And then there are the provisions to give them greater powers to suppress peaceful protests.
A few more goose steps on our long march towards becoming a police state.

I’m afraid I’m pretty unconvinced that this is the case.

An absolutely critical part of a free society is the right to protest. This bill - who already abuse their existing powers. For example we have seen police infiltrate peaceful protest groups and form sexual relationships under false pretences and even father children That is rape if you or I did it.

And you think the law need to be changed to give them even more impunity?

1) you clearly haven't taken on the point I make above - this is *already* a common law offence, so your argument that it "effectively makes any protest at the discretion of the police" is moot, its already the case.

2) No, it isn't, as the CPS explains fully here: https://web.archive.org/web/20170311122 ... squad.html

They regularly abuse their existing powers to put a stop to even the politest of protests - in Warrington we had a tradition "walking days" (basically church parades) that the police have stopped most of them. And you can be absolutely sure that once the police are granted powers they will be used indiscriminately.

And you think they need more powers?

The police have stopped them? Are you sure about that - isn't is actually the case that the police have just refused to police them, it the council who have actually prevented them

Yes - we will always need them to act to prevent violence and disorder - which they can and will do using existing powers. But this bill goes much further than that giving them power to act on the grounds of nuisance or noise - and what is more giving the home secretary the power to redefine what counts as a nuisance without consulting parliament. With that much discretion you can effectively stifle all dissent - any protest is bound to cause nuisance of some sort - indeed that is essential to protesting. The right to hold a placard up in a darkened sound proof room is no right at all.

Again, you've entirely failed to grasp the nettle that this is already a criminal offence that the police can resort to, so it doesn't really change a thing (other than in fact reducing the maximum sentence from life to ten years)

These are all baby steps towards authoritarianism - and we have been drifting that way for some time now. Slowly losing our liberties drip by imperceptible drip. Emergency powers that tend to become permeant - measures that are justified to tackle terrorism used far more generally and so on. Usually laws will be aimed at an unpopular minority travellers, or blacks or Muslims or Jews or refugees Catholics or ... whoever is the current fashionable scapegoat. But once a law is in place it can be used against any of us.

So, given this is already a criminal offence that the evil police (you know, the people who keep us safe at night) can resort to, why aren't we already all in the gulag?

[thirdcrank]

IMO much of what we are seeing is the bourgeoisie increasingly coming into contact with the long arm of the law. Not so long ago our legal system came down hard on baddies and if the goodies didn't murder their close contacts, they were pretty much immune, except when they took to horseless carriages. To stop the police taking liberties with the baddies, law enforcement was increasingly codified. And now the police have the power to arrest anybody suspected of an offence if they refuse their name and address.

[Zulu Eleven]

IMO much of what we are seeing is the bourgeoisie increasingly coming into contact with the long arm of the law. Not so long ago our legal system came down hard on baddies and if the goodies didn't murder their close contacts, they were pretty much immune, except when they took to horseless carriages. To stop the police taking liberties with the baddies, law enforcement was increasingly codified. And now the police have the power to arrest anybody suspected of an offence if they refuse their name and address.

Well, there an interesting comment on protest policing there isn't there? Liberty et al said very little about human rights while kettling and video evidence teams were being used on football fans and far right demo's.

[thirdcrank]

My comments were really referring to a bit before that. ie the days of powers of arrest depending on knowing which offences were felonies or had their own power. And when your typical baddy who was arrested didn't know whether there was a power of arrest or not. And if it got as far as judge and jury, niceties like that tended to be dismissed on the basis that "we are here now."

In case I'm not making my point clearly, I'm not describing some golden age; on the contrary, I'm saying that the trend isn't towards a police state, just that the bourgeoisie have a much greater chance of being on the wrong end of it. Go back to earlier times and that was even more so.

[Stevek76]

The law as proposed goes considerably beyond the law commission's recommendations.

There is not a shortage of those with legal training and qualifications who are condemning this legislation

https://davidallengreen.com/2021/03/the ... -nuisance/

Note that as pointed out there, and something that Rozenberg seems to skip over is that 59 isn't just if you cause serious annoyance, it is also if your action/inaction is at risk of causing annoyance etc. That is a hugely broad offence.

And then there's the other sections that change most of the laws surrounding protests to also be applicable to a single person. If you think this is just a tidying up exercise I think you are being remarkably naive.

[Zulu Eleven]

The law as proposed goes considerably beyond the law commission's recommendations.

There is not a shortage of those with legal training and qualifications who are condemning this legislation

https://davidallengreen.com/2021/03/the ... -nuisance/

Note that as pointed out there, and something that Rozenberg seems to skip over is that 59 isn't just if you cause serious annoyance, it is also if your action/inaction is at risk of causing annoyance etc. That is a hugely broad offence.

And then there's the other sections that change most of the laws surrounding protests to also be applicable to a single person. If you think this is just a tidying up exercise I think you are being remarkably naive.

I’m sorry, it simply doesn’t. The law commission report from 2015 specifically states that:

“We recommend that the external elements of the offence of public nuisance should consist of:
(1) voluntary conduct by the defendant (including omissions, where the defendant is under a duty at common law or by statute);
(2) which causes:
(a) serious harm to members of the general public or a section of it;
or
(b) obstruction to the public or a section of it in the exercise or enjoyment of rights common to the public at large.

In the foregoing recommendation, serious harm to a person means that that person suffers:
(1) death, personal injury or disease;
(2) loss or damage to property; or
(3) serious distress, annoyance, inconvenience or loss of amenity;
or is put at risk of suffering any of these things.”

“At risk of” was, of course, was also available under the common-law offence, the offence being:

“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.”

The key word being endanger - it has never required something to actually happen, only the risk of the thing happening.

An interesting example used by the law commission was that of a computer virus that caused major disruption, they suggest that that could be prosecuted as public nuisance. You can see how prosecuting that as being ‘risk of major disruption’ is just as valid as punishing it after the fact.



As for DAG’s post. I think it is summed up by this line:

“Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.”

Which I take as ‘here be dragons’ - full of dread, but completely devoid of any specifics, or as my dad would have said “all wind and micturate”

And as for your other point:

“ There is not a shortage of those with legal training and qualifications who are condemning this legislation”

All I can really say is “MRDA” - to oppose anything the government does is second nature for many activist lawyers*



*activist lawyers, a phrase the legal profession got very upset about, but seem to want to forget cases like this - the very definition of an ‘activist lawyer’: https://www.lawgazette.co.uk/news/supre ... 14.article

[thirdcrank]

Bearing in mind that Godwin's Law has already been amply demonstrated within the first couple of pages of this thread, it may be appropriate to reflect on our model of democracy. As things stand, it seems that the authority of our state rests with the House of Commons. Put another way, a prime minister enjoying a HoC majority is in a position of considerable power.

There are controversies over how that majority may be achieved - demonstrated by the election of the current HoC - but they don't affect the way we are ruled.

Those who disagree with government have various rights including protesting but it seems inevitable to me that the government will define those rights. On another thread my reference to a written constitution defining and protecting rights was dismissed.

I see that Kenan Malik has tried the ballot box route:

He stood as the (Revolutionary Communist Party's) candidate in Birmingham Selly Oak in the general election in 1992, coming last out of six candidates with 84 votes (0.15%)

https://en.wikipedia.org/wiki/Kenan_Malik

[Mike Sales]

Here is Cycling UK's, and Roger Geffen's take on the Bill.

It all comes down to the legal definitions of 'careless' and 'dangerous'. Cycling UK has long been concerned about the need to overhaul these definitions and the associated maximum penalties, including for offencies which involve causing death or serious injury.

Unfortunately, the Government's proposals could greatly increase this risk, for several reasons.

Firstly, they would vastly increase the gap between sentencing for causing death by 'dangerous' driving (increasing it from 14 years to a life sentence) and for causing death by 'careless' driving (which will remain at 5 years).
Secondly, they would similarly increase the gap between sentencing for causing death by dangerous driving and causing serious injury by dangerous (i.e. equally bad) driving - this too will remain at 5 years. With a few extreme exceptions, this is likely to make the courts even more reluctant than at present to hand down anything even close to the maximum sentence in fatal cases, knowing how much shorter that maximum sentence would have been if the victim had 'merely' been maimed rather than killed.
Thirdly, the new offence of causing serious injury by careless driving will mean drivers who have caused 'serious injury' will be really determimed to plead guilty for a 'careless' offence (rather than risk conviction for the 'dangerous' offence) - and prosecutors will be under pressure to accept those pleas. We therefore risk a repeat of what happend with fatal cases after 2008, when causing death by 'careless' driving was introduced. That led to a wholesale switch from 'dangerous' prosecutions and convictions to 'careless' ones, even though the definitions of 'dangerous' and 'careless' driving remained unchanged.

There is much more.

https://www.cyclinguk.org/blog/what-could-police-bill-do-cycling-and-road-safety

[Stevek76]

Oh dear 'activist lawyers'

I shall clarify then, I'm seeing very little supporting opinion on this from anyone across the legal spectrum so called 'activist' or otherwise and you seem to be able to only rely on a law commission report. Not everything government commissions create are automatically golden, they often tend to be academic in nature and miss practical concerns.

Just because an offence exists in common law doesn't mean it's good thing to codify it in its existing hugely broad state. Ultimately that will still end up with 'activist judges'/'enemies of the people' or whatever they're being called today having to fill in the gaps and make up some interpretation, probably based on the old case law. At a minimum that seems to rather defeat the point of codifying it in the first place?

Unless the intention is to have it overused, prosecutions fail and then another stick to beat the independence of the judiciary with and continue the whole culture war rubbish. Patel busy dog whistling again about human rights laws abuses I see.

Those who disagree with government have various rights including protesting but it seems inevitable to me that the government will define those rights. On another thread my reference to a written constitution defining and protecting rights was dismissed.

By everyone? Don't recall partaking in that. I think certainly the present government is demonstrating quite how imbalanced our power setup is in favour of the executive and how fragile the constitutional setup is. It appears to have worked mostly far more in the past by simply being one big gentleman's agreement, as soon as someone who sees no value in playing fair is in charge. The shift in importance from individual MP to party has perhaps been a major part with many MP candidates seemingly selected for blind loyalty more than anything as such the parliamentary 'check' upon the executive isn't really functioning. It strikes me that the mostly duopoly FPTP countries are struggling more with this aspect since parties cannot split.