Online only: updated 19/03/21

Police, Crime, Sentencing, Courts and journalists

A BILL that is due to get its Second Reading in the House of Commons this afternoon, 15 March 2021, has attracted wide controversy. But what does it mean for journalists?

Much of the controversy, as readers may have spotted, relates to the powers that Section 59 of the Police, Crime, Sentencing and Courts Bill would give police against demonstrations that put anyone "at risk" of "serious distress, serious annoyance, serious inconvenience or serious loss of amenity" and goes on to give the Home Secretary the power to change the meaning of this with minimal Parliamentary scrutiny.

Section 60 of the Bill goes on to define "one-person protests" and makes inciting someone to hold one of these a more serious offence than doing (or being) one. If the Freelance were to suggest that readers go to Parliament Square with a placard and make some noise, would we be liable if this were in force?

The direct and intended effects on journalists are in Sections 66 and following, which forbid making or attempting to make an unauthorised recording or transmission of remote court proceedings. If this part passes, anyone doing that will be liable for a fine "not exceeding level 3 on the standard scale" (apparently £1000 in a magistrates' court at present) or proceedings for Contempt of Court.

The Bill scores 8 out of 10 on the Freelance standard scale for obscurity. It consists of 307 pages of amendments to other legislation, which you have to understand to decipher what it means. We therefore present these notes without warranty...

There do seem, unsurprisingly, to be unintended effects on journalists, beyond the "incitement" offence mentioned above.

Section 28 empowers an organisation taking part in an "Offensive Weapons Homicide Review" to compel any person to provide information. We see no provision for journalists to protect our sources.

The Bill introduces two new ways of disposing of a criminal charge: "diversionary cautions" and "community cautions". (These start from Sections 77 and 86.) The Freelance would be quite surprised if police did not try to use these to prevent people, including journalists, going to a particular place. The standard advice not to accept a caution, if you can possibly avoid it, applies.

General nastiness

Beyond that, the Bill is stacked with general nastiness. Section 61 would introduce yet more ways for it to be illegal to be a Traveller. Section 158 would introduce a power to search terrorist offenders who have been released on licence without, as far as we can see, specifying what happens if a police officer falsely believes you to be a terrorist offender.

And there are parts that it seems simply impossible to understand as they stand. Section 41 of the Bill would empower the Home Secretary to make Regulations about the extraction of confidential information from electronic devices, including confidential material as defined in the Investigatory Powers Act 2016 (see here) and "special purpose material" as defined in the Police and Criminal Evidence Act 1984. This is supposed to be in the context of someone who has "voluntarily provided" such a device or "agreed to the extraction of information", or where a responsible adult allows access to a child's device, or where the owner of the device has died. What could the Regulations contain?

Once more, the Freelance expects that the defence of commoners' liberties will be in the hands of the House of Lords in the "Committee Stage" of the Bill.


19 March 2021

Last night it was confirmed that the government is slowing down the Bill (for example in this Tweet from Peter Kyle MP, a member of the Commons Committee that will scrutinise it). They had rushed the Second Reading - which the Bill, to no-one's surprise, passed with 359 votes to 263. But it has now delayed the Commons Committee stage. That was "due to start on Tuesday but has been pushed until after the May elections and I suspect the Queen's Speech too. So expect it to be sometime in May," Peter Kyle wrote. The government "designed it to help with election," he observed, "but that didn't work out well for them, did it!" Check the Bill's path - including the rather important Lords Committee stage - here.