Check terms and conditions: Scrutiny, human rights, and civil preventative powers

Developed as a response to risks of recidivism, the piecemeal development of a wide range of Civil Preventative Powers has seen the creation of several powers focused primarily on repeat low-level criminality, anti-social behaviour, or nuisance in public places. Their power to prevent repeat behaviour comes from the conditions that they impose upon individuals, breach of which constitutes a criminal offence. This article focuses on six CPPs: FBOs, CBOs, CPNs, PSPOs, s.35 Dispersal Orders, and s.1 CIASBs. Using examples drawn from case law and local media reports, we demonstrate that these CPPs regularly contain conditions which engage ECHR Article 10 freedom of expression and Article 11 freedom of assembly and association, but do so with insufficient consideration of these freedoms and the proportionality of the restrictions they impose on individuals. This is particularly true where the conditions engaging these freedoms limit socio-cultural activities rather than protest activity. We identify five ways in which legislative, judicial, and public scrutiny of the proportionality of these CPP conditions has failed and highlight how the piecemeal development of the broad family of CPPs, lacking any overarching principles, undermines the ability of the courts to rein in some of the more problematic aspects of their operation. While the recently introduced Serious Disruption Prevention Order has brought concerns regarding the effects of CPP conditions on the “right to protest” to the fore, we conclude that wider reform is now needed to improve scrutiny and consideration of Articles 10 and 11 more broadly.