The PCSCA 2022: prevention of crime, protest, and politics?

Cathál MacPartholán examines the Police, Crime, Sentencing and Courts Act 2022

The Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) came into force from 12 May 2022 to 1 August 2022, after receiving Royal Assent on 28 April 2022. The Act’s journey through the Parliamentary stages had been extensive. The Act consists of 209 sections, divided into 14 parts – and aggregating with 21 schedules. The provisions of the Act make important changes to the criminal justice system in England and Wales.

This article shall outline and examine Police Covenants, Serious Violence Reduction Orders (SVROs), Knife Crime Prevention Orders (KCPOs). the debate arising from the English and Welsh bloviate legislative functions – and how this generally caused consternation as to the authority of Parliament and the Welsh Assembly role. Furthermore, the article shall examine the imposing of conditions on public processions and the abolishing the common law of ‘Intentionally or recklessly causing a public nuisance.’ Lastly, the article shall outline the statutory time limit for commencing common assault or battery offences defined as domestic abuse.

Police Covenant

Part 1 of the Act creates a new Police Covenant. This was a pledge to do more as a nation to help those who serve the UK – and specifically, to recognise the bravery, commitment, and sacrifices of those who work, or have worked, in policing. The Covenant aims to ensure that members or former members of the police workforce in England and Wales are not disadvantaged because of working in policing (gov.uk/government/collections/police-covenant).

The Police Covenant was a manifesto commitment by the Conservative Party to make the country safer by empowering the police and courts to take more effective action against crime and lead “a fair justice system.” This included the specific commitment to enshrine the Police Covenant into law; and introduce “a new court order to target known knife carriers, making it easier for officers to stop and search those convicted of knife crime” (Circular 0052022).

Yet, while the phrase “a fair justice system” may be over-used in the modern political and legal lexicon, it is hard to view the situation in those terms, as the new Police Covenant wrestles with the complexities of stop and search. This is also set against the backdrop of the decision taken by Her Majesty's Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) that the Metropolitan Police was to be placed under ‘special measures’ over its poor performance as of July 2022.

Serious Violence Reduction Orders

The Act enables courts to make Serious Violence Reduction Orders (SVROs) in respect of offenders convicted of offences where a knife or offensive weapon was used or was present. SVROs have been inserted into the Sentencing Code. The Sentencing Code is the name given to Parts 2 to 13 of the Sentencing Act 2020 (SA 2020), together with the Criminal Procedure Rules 2020 (Crim PR), SI 2020/759. These are procedural requirements to be applied in the Magistrates’ Courts, Crown Courts, and the Court of Appeal (Criminal Division), and form the creative osmosis of rules to be followed when sentencing convicted offenders.

However, the court must be satisfied on the balance of probabilities (to a civil standard) in respect of an offender convicted of an offence involving a bladed article or offensive weapons, before they can be made subject to a SVRO. The gravity and increase of recent knife attacks, particularly in London, have created an interregnum or a zugzwang for the public. Setting aside the complexity of knife crime, the government took a conscious decision to provide the police with the power to search a person subject to an SVRO.

To ascertain if the person has a bladed article or offensive weapon with them – and to detain them for the purpose of carrying out that search, if person is in a public place – Chapter 2 of Part 10 PCSCA 2022.

Knife Crime Prevention Orders

Similarly, Knife Crime Prevention Orders (KCPOs) are inserted to s19 Offensive Weapons Act 2019 – Orders made on conviction – after subsection 9. Similarly, to SVROs, these Orders have operational guidance for the relevant authorities involved in the prevention of serious violence and knife crime incidents.

Furthermore, an application may be made for the variation, renewal, or discharge of an SVRO or KCPO. But an application for a KCPO without notice can be established, where the court may grant an interim KCPO, pending a full hearing. This would usually occur where a without notice hearing has been sought, to prevent imminent harm or absconding.

Under Part 1 of Youth Justice and Criminal Evidence Act 1999, there is a provision for consultation with the Youth Offending Team (YOT), which remains relevant.

Finally – and most decisively – the police will have stop and search powers to target those individuals who have SVROs. This is part of the collaboration philosophy promoted by the current government. This require the specified authorities to collaborate and plan to prevent and reduce serious violence. But the dictum from the European Court of Human Rights may or may not test this latest government approach to tackle knife crime with stop and search laws. This default posture from the government is a kind of coiled expansionist, politicised application of stop and search laws. These laws have a long and troublesome past, where the police at times infringe on the right to privacy or to freedom of movement and association – even if that polemical infringement is rational, proportionate, and lawful.

The Serious Violence Duty 

At this stage, it is worth drawing attention to the mea culpa during the debating of the Act, evidenced by government accepting amendments to the Serious Violence Duty guidance. This is issued by the Secretary of State as statutory guidance under Chapter 1 of Part 2 of the Act – and has been produced to support organisations and authorities exercising functions in relation to the Serious Violence Duty.

The guidance also outlines the changes made under s6 Crime and Disorder Act 1998, requiring Community Safety Partnerships (CSPs) to formulate and implement a strategy to prevent and reduce serious violence.

In addition, the guidance is for specified authorities defined in Schedule 1 of Act – namely chief officers of police, fire and rescue authorities, clinical commissioning groups, local health boards, local authorities, youth offending teams and probation services), prison authorities, youth custody authorities and educational authorities – and, as defined in Schedule 2 of the Act, local policing bodies – and, lastly, to any person prescribed in regulations under s9 of the Act.

The Wales question

A schism arose over several issues relating to the Serious Violence Duty outlined above. This was highlighted at the Lords Committee Stage on 27 October 2021 – and was an issue between the English and Welsh jurisdictions.

The focus of the rift between both jurisdictions was the concerns that that Serious Violence Duty provisions would give the Secretary of State power to direct a devolved Welsh authority without the Welsh Ministers being properly involved – which, in turn, would breach the Legislative Consent Memorandum (LCM).

Standing Order (SO) 29.2 prescribes that a Legislative Consent Memorandum must be laid, and a Legislative Consent Motion may be tabled, before the National Assembly for Wales, if a UK Parliamentary Bill makes provision in relation to Wales for any purpose within, or which modifies, the legislative competence of the National Assembly.

However, if consent is refused, due to the nature of the United Kingdom, the British Parliament can continue regardless. With the current Welsh Assembly, the Welsh Government have laid 16 LCMs, ranging from the Armed Forces Bill, the Police, Crime, Sentencing and Court Bill, the Environment Bill, Health and Care Bill and the controversial Nationality and Borders Bill (now an Act).

By way of example, the controversial Nationality and Borders Act 2002 gives the government the power to strip British citizens of their citizenship without any reason (see R (D4) (Notice of Deprivation of Citizenship) v SSHD [2022] EWCA Civ 33). In essence, the LCMs are increasing each year – and the argument from the corridors of the Welsh Senedd is the creeping encroachment on Welsh independence.

Public nuisance?

Another important change of the new Act relates to public order – or more specifically imposing conditions on public processions, abolishing the common law of ‘intentionally or recklessly causing a public nuisance.” s73 of the Act amends s12(1) of the Public Order Act 1986 – allowing a senior police officer additionally to impose conditions on a public procession where they reasonably believed the noise generated by that procession may result in serious disruption to the activities of an organisation in the vicinity, or have a significant, relevant impact on people in the vicinity.

Previously, there were a variety of different public order powers to deal with a protest march and a static assembly. s73 allows senior police officers to give directions imposing conditions on those organising, or taking part in, either a procession or assembly that the police decide are necessary to prevent ‘disorder, damage, disruption, impact or intimidation.’

No protest?

In practical terms, and much to the disappointment of protest groups and civil liberty organisations, the lachrymose protester who previously under the Public Order Act 1986 may have faced arrest if they ‘knowingly fail to comply with a condition’ may now be criminalised much more readily. The new Act amends this so it is an offence if ‘a person who knows or ought to know that the condition has been imposed.’

This confluence was intended to “close a loophole which some protesters exploit” because “some will cover their ears and tear up written conditions handed to them by the police so that they are likely to evade conviction for breaching conditions on a protest” (according to a Public Order Bill factsheet in March 2021 and Government Circular 005/2022 in June 2022).

Critics claimed this was an attempt to prevent the right to protest and free expression. Advocates argued that the European Convention on Human Rights creates a rights culture, and the proliferation of that rights culture has spun out of control.

Nevertheless, the recent environmental protests throughout late 2021 and into 2022, displayed the extent of the imagination of the protestors, in preventing the public access to the main roads into London and preventing large fuel refiners from delivering fuel across the country. This form of protest proved problematic. Some argue the environmental movement should be fully entitled to their choice of form of protest methods. Others argued the public are equally entitled to judge them and their acts based upon their chosen methods, and that obstructing major transport hubs interferes with key national infrastructure and harms people’s livelihoods, access to hospitals, and the basic right to disagree with this obstruction. The choice of method was, and is, an issue of public controversy for many such protests.

The Police Crime Sentencing and Courts Act has now amended s137 of the Highways Act 1980 to increase the maximum penalty for obstruction of the highway, from a fine, to up to six months imprisonment.

Protest prevented?

It could be argued the PCSCA 2022, in making amendments to the Public Order Act 1986 and the Highways Act 1980, has arguably pushed away the opportunity for some form of dialogue with protesters’ concerns – presently expressed by protesters gluing themselves to roads, securing themselves to gates, or making unexpected alterations to paintings in an art galleries. This therefore raises the legitimate question of whether these amendments to the law will genuinely lead to any change in behaviour by protesters – or whether it will simply increased the enforcement measures and punitive consequences of such actions.

Regardless of which branch of acerbic views you hold on law, politics, and the culture wars, now s12(2A) Public Order Act 1986 makes provision about when a procession may result in serious disruption to the life of the community. This includes where the procession may significantly delay the delivery of a time-sensitive product to consumers, or may result in prolonged disruption of access to any essential goods or services listed in the new s12(2A)(b).

Overall, the Act abolishes the current common law offence of public nuisance – and creates a new statutory offence of causing ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity.’

The environmental cause, it would seem, exemplifies the contemporary struggle of beliefs against pragmatism, and the intellectual inner struggles remain in perpetual motion for the participants. Overall, complexity theory is perhaps setting aside human consciousness – where, today algorithms of measuring crime, sentencing and disruption have brought with them deeply Conservative ideas.

Domestic abuse and the new charging limitation period

The last review of the important elements of the new Act is domestic abuse. Chapter 4 of Part 2 in s49 of the Act now extends the time limit for the prosecution of common assault or battery in domestic abuse cases. This is an update to reflect changes brought in by the Domestic Abuse Act 2021 (DAA 2021).

The CPS has informed prosecutors they should note that the changes brought in by s49 of the PSCSA 2022. The Act has led to an amendment, s39A Criminal Justice Act 1988 to the statutory time limit for commencing common assault or battery offences defined as domestic abuse (with the definition set out in s1 Domestic Abuse Act 2021).

Additionally, further sections of the DAA 2021 will come into force in 2022 and 2023, with subsequence guidance for prosecutors. s49 PSCSA changes the current six month prosecution time limit for such cases, so that it will, in future begin from the date the alleged offence is formally reported to the police, through either a witness statement or a video recording made with a view to its use as evidence, rather than from the date of the alleged offence as is currently the case (or from the time of any initial report to the police, eg a 999 call). This will also be subject to an overall time limit of a prosecution being commenced within two years of the alleged offence occurring – which is a significant increase on the current six month limitation period for charging assault and battery in general (Circular -0052022 Police Crime Sentencing and Courts Act 2022 - domestic abuse, at [36]).

Conclusion

In conclusion, the Police, Crime, Sentencing and Courts Act 2022 is the latest legislative approach to empowering the police and courts to take more effective action against crime and lead “a fair justice system,” while recognising the role of the police with a Police Covenant.

The SVROs and KCPOs may well be, in the measure of time, another failed raison d’être, and it could be argued the neologism from statutory provisions and guidelines assisting ‘stop and search,’ in addition to public processions, only swells the precariat. If the spat between the English Parliament and Welsh Assembly amounts to the last bastion of law, it is possible that now the eschatology of algorithms truly has arrived at legal orthodoxy.

Mr Cathál MacPartholán FRSA is a lecturer in Criminal Law, Evidence, and International Criminal Law at Bangor University, and academic door tenant and mature pupil barrister with Holborn Chambers: https://orcid.org/0000-0001-5645-7999; bangor.ac.uk/law; holbornchambers.co.uk