It takes a bad Act to make the law a farce

The Criminal Justice Act was meant to catch criminals and end the anti-social activities of ravers, squatters and the like. A year on, it is failing miserably, reports Heather Mills; Liberty described it as a `hotchpotch of prejudice'. Even the police voiced concernIt has boosted support for a Bill of Rights and numbers belonging to protest groups
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The Independent Online
As Michael Heseltine watched a motley assortment of protesters armed with pickaxes dig up the manicured lawn of his manor house two weeks ago, he was heard to utter, "I thought we had sorted out this trespassing".

The Deputy Prime Minister clearly had in mind the sweeping powers in the Government's much heralded law and order legislation, the Criminal Justice and Public Order Act, designed to crack down on crime and prevent public disorder. But, as ministers have learnt from bitter experience, far from being the answer to every landowner's prayers, the CJA has become a legal minefield.

An investigation by the Independent has found that the first year's operation of its public order provisions has been marred by confusion and allegations of misuse. Police implementation of the Act has been patchy, varying from force to force. In spite of hundreds of arrests there has been only a handful of successful prosecutions. The legislation has suffered two major defeats in the courts, curtailing its effects - and key components are to be challenged in the European Court of Human Rights.

Conceived to rapturous applause at the Conservative Party Conference of 1993, the CJA was designed to deal with activities "which can be a blight for individuals and local communities"; to give police "the powers they need to catch criminals" and to give the courts "the powers they need to sentence the guilty appropriately". To those ends its 171 clauses sought to deal with diverse issues ranging from terrorism, human embryo research, prison privatisation, child offenders and bail bandits to DNA testing. It ended the 300-year-old right to silence as well as including greater powers to stamp on ravers, travellers, mass protesters and squatters - turning trespass, then a civil issue, into a crime.

When the Act came into effect last November, it was described by Liberty, the civil rights group, as an "unworkable hotchpotch of prejudice". Even police officers voiced their concern about criminalising minorities and those engaged in mass protest. And after nearly a year in operation its shortcomings are becoming evident.

The reasons appear fourfold: some of the provisions have proved impractical to implement, there is ambiguity in drafting, there is confusion among police about implementation, and there are already available familiar and less problematic powers - from local authority by-laws to common law breaches of the peace, to statute, including the 1986 Public Order Act. For example, of the 1,200 people arrested at the live animal export demonstrations, only 38 have been charged under the CJA.

Attempts to enforce the Act have been marked by high farce as hunt saboteurs have found themselves explaining the subtleties of legislation to police officers who wrongly believed the very presence of the protesters at a hunt was now a crime. Similar confusion has led to a 10-year-old boy from Stoke being reported for selling the pounds 11 football ticket he could not use for pounds 7, and during a beach chalet eviction two squatters were arrested and subjected to DNA testing for possessing a juggling stick "as an offensive weapon".

Official statistics are not yet available, so it is impossible to form a comprehensive impression. But figures collected by the Hunt Saboteurs' Association and Justice, a Brighton-based protest group, put the arrest tally at 154 for hunt saboteurs, 113 for football fans, 71 road protesters, 43 environmentalists, 38 animal export demonstrators, 35 peace campaigners, 14 tree defenders, 11 travellers, 10 ravers, three illegal gatherers, and one Druid. Of these 493 arrests, they say that about 28 have resulted in successful prosecution. As prosecutions crumble, and growing numbers decide to sue for wrongful arrest and false imprisonment, the results could prove costly.

Some police forces, such as Hampshire and Essex, have been swift to try out their new powers, while others, such as Bedfordshire and Surrey, have preferred to rely upon the wealth of by-laws, common law and statute under which they have always operated. But the inconsistency has led to claims that justice is a lottery, depending upon which force area you are in.

Superintendent Tom Owens, of Bedfordshire police, explained that his force had simply found the Act impractical when it came to policing raves, for example - where to rush into what may already be a hazardous crowded situation may, he believes, only increase the danger. The force had not found it necessary to use it to deal with hunt saboteurs and, fully aware of the welfare needs of travellers, they encouraged landowners and local authorities to deal with the problem.

Kent police have employed the new Act for road protesters at Thanet, but old legislation, primarily obstruction of the highway, to deal with animal protesters at Dover. Other forces, aware of the controversy surrounding the legislation, have not wanted to be seen as keen to wield the new powers. One officer, who did not want his force identified, said they feared that "heavy handed" tactics could simply attract more anti-Act protesters on to their territory.

The CJA has been undermined further by two court tests of its public order provisions. Its eviction powers against travellers were watered down by a High Court ruling last month, which said that local authorities had to take into account the basic human and welfare needs of travellers before evicting them. In another ruling, earlier this month, a Druid, known as King Arthur, knocked a hole in the key "trespassory assembly" provisions. The Act criminalises gatherings of more than 20 people, so the group gathering at Stonehenge, including King Arthur, simply broke up into several smaller ones to side-step the law. Today the Act will face another challenge, this time over its provision of new secure training units for children aged 12-14. The High Court will hear claims that draft rules for the "child jails" breach the Government's obligations under the Children Act 1989 and the UN Convention on the Rights of the Child.

But one of most worrying aspects and largely unseen problems with the legislation, according to civil rights groups and lawyers, is that it has enabled police to set bail conditions without reference to a court, and has removed the presumption of bail for those facing a second charge. This has led to protesters being arrested for relatively minor charges, but having their activities and movements severely curtailed on bail conditions enforced by the threat of jail.

In Essex, Isla Humphreys was bailed on condition that she did not attend any live export protests or meetings after being arrested at Brightlingsea. In Lancaster, 11 people arrested for obstructing the sheriff in an M65 motorway protest were bailed on condition that they reside at their home addresses - thus banning holidays and visits to family and friends. This "home arrest" imposed in February, was overturned a month later by the High Court as "oppressive". But the case has not come to trial and had the group not launched the High Court case, they would still be subject to draconian bail conditions.

Mike Schwarz, a leading human rights lawyer, points out that most people subjected to such stringent bail conditions would not have the resources to launch High Court challenges.

A hard-line political response to huge poll tax demonstrations and increasingly forceful road protests, the Act has singularly failed to halt mass action, as the highly publicised animal export demonstrations earlier this year have proved. Neither has it forced travellers, gypsies, ravers and others to abandon their lifestyles - although there is evidence that some have been deterred. Steve Staines, of the Friends and Families of Travellers support group, says the Act has forced many travellers to go abroad. For those who remain - particularly for those with children - it has heightened insecurity.

What the legislation has achieved is to unite many diverse groups behind a single banner. According to Liz Parratt of Liberty, the civil rights group, it has brought to notice just how difficult it is to claim the "right to protest" that many think is embedded in political tradition. It has boosted support for a Bill of Rights and swollen the numbers belonging to civil rights and protest groups. Liberty will seek to enforce those rights through the European Court of Human Rights, claiming breaches of right to freedom of expression and assembly, and the right to a private and family life.

There were no arrests by Northamptonshire police of the demonstrators who chose to dig up a section of Mr Heseltine's lawn in protest over open-cast mining. Given the difficulties of unravelling the legislation, the costs and problems of pursuing charges successfully through the courts, and the controversy surrounding the Act's powers, the approach of the Northamptonshire force may be the most effective solution for everybody.