Scottish Government

Guidance on Dispersal of Groups

Antisocial Behaviour etc. (Scotland) Act 2004

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CONTENTS

Introduction
Contact
Context and Background
What constitutes significant, persistent and serious antisocial behaviour?
Authorising the use of the power to disperse
The procedure leading to the making of an authorisation
Withdrawal of an authorisation
Designation
The area to be designated
The period of designation
Publication of the authorisation notice
Exercising the powers
Other considerations

INTRODUCTION

1. This circular provides operational guidance, primarily to the Police, about the circumstances in which the dispersal provisions in Part 3 (sections 19 to 25) in the Antisocial Behaviour etc. (Scotland) Act 2004 might be used. It will of course be a matter for senior police officers to authorise when, and in what circumstances, the powers of dispersal can be exercised within their locality. The Act received Royal Assent on 26 July 2004 and can be accessed at: www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2004/20040008.htm

Contact

2. If you have any queries about this guidance please contact Police Division, at Scottish Executive Justice Department, on 0845 774 1741 or e mail :antisocialbehaviourunit@scotland.gsi.gov.uk 3. In addition, as part of the wider programme of support for the implementation of the Antisocial Behaviour etc (Scotland) Act 2004, the Executive is funding a telephone advice line for practitioners. The service will provide telephone advice and support on a wide variety of technical issues such as how to apply for an Antisocial Behaviour Order, the process of granting a closure notice etc. This service will be available from the end of November 2004 and the number will be widely published in advance. If you want to find out more information about the advice line, you can contact the Executive's Antisocial Behaviour Unit by email at :antisocialbehaviourunit@scotland.gsi.gov.uk

CONTEXT AND BACKGROUND

4. The powers contained in the dispersal provisions are not intended to be used as a first resort or in isolation. There is certainly nothing in these provisions which would allow a police officer to disperse persons of any age who are merely gathering peacefully in the streets of their communities to meet and enjoy each other's company. Rather they are intended for use as part of a package of measures agreed with partner agencies, only in circumstances where other approaches have been tried and have failed. The power of dispersal will only be used if it is believed that the presence or behaviour of groups has distressed members of the public, where the antisocial behaviour has become significant, persistent and serious and when it is felt that use of the power will provide respite to those at the receiving end.

5. This guidance cannot cover every eventuality. Every situation is different and each needs to be assessed on its merits and dealt with accordingly. It might be appropriate in some circumstances to apply these provisions to a whole street or neighbourhood. It might equally be appropriate to apply them only around or in the vicinity of a single building. Wherever it is considered that the provisions should apply, there must be consultation with the local authority in the relevant area. Other partners should also be consulted so that, where possible, a long term solution can be found to whatever is causing or prolonging the significant, persistent and serious antisocial behaviour in question. Little is gained if applying these provisions simply displaces the problem to a different community or area.

6. The dispersal provisions in the Act are not considered to be appropriate for dealing with football related antisocial behaviour (mainly because the numbers involved are likely to be too big to make the provisions workable), nor are they appropriate for industrial disputes, demonstrations (e.g. Reclaim the Streets/Stop the War) or other public processions which either require permission or are exempt from requiring permission under the Civic Government (Scotland) Act 1980. Police powers in these situations will be governed by the common law and the Public Order Act 1986 as appropriate.

7. The provisions should be used in line with the National Intelligence Model and as part of the normal Tasking and Co-ordinating process. The approach to designation and dispersal should also be considered within the overall context of the statutory duty applying to forces, under Section 22A of the Crime and Disorder Act 1998 (due to be repealed on 28 October) and Part 1 of the Antisocial Behaviour etc. (Scotland) Act 2004, to participate in the creation of a local authority antisocial behaviour strategy.

8. These guidelines set out in a practical way the issues which senior police officers should consider when faced with the question of whether or not to designate an area as one in which the power of dispersal can be exercised. The aim is to ensure as far as possible that a consistent approach is taken across Scotland.

WHAT CONSTITUTES SIGNIFICANT, PERSISTENT AND SERIOUS ANTISOCIAL BEHAVIOUR?

9. Under section 19(1) of the Act, a senior police officer (of superintendent rank and above) must have reasonable grounds for believing that members of the public have been alarmed or distressed as a result of the presence or behaviour of a group (or groups) of 2 or more persons in public places within the officer's police area (the relevant locality) and that the antisocial behaviour is significant, persistent and serious.

10. A public place is defined in section 25(1) of the Act as any place to which the public have access at the material time (whether on payment of a fee or otherwise) and includes doorways or entrances of premises abutting on any such place; a road; any common passage, court stair or yard of any tenement or group of separately owned houses; as well as any place to which the public do not have access but to which access has been unlawfully gained. A group is two (or more) people who are clearly associated with each other whether because of their physical closeness or through speaking to each other or by their actions. While there is no clear test, it will be for police officers to reasonably judge whether a group of two or more persons has been formed.

11. Antisocial behaviour is defined in section 143(1) of the Act as acting in a manner that causes or is likely to cause alarm or distress, or pursuing a course of conduct that causes or is likely to cause alarm or distress to any member of the public. The sort of behaviour covered therefore includes: threats, noise nuisance, harassment and intimidation, vandalism, graffiti and drunken and abusive behaviour. It may be caused by those on foot, cycles, motor bicycles, motor vehicles or any other form of transport. The net effect of this behaviour will be the creation of an intimidating environment for residents, which curbs their ability to go about their normal daily business. By definition, antisocial behaviour may not be criminal behaviour but it may be difficult in practice and on occasion to separate out criminal activity from antisocial behaviour. An example of this would be the menacing behaviour and disorder associated with drug dealing, an activity which often attracts into a locale persons who subsequently cause disorder or alarm.

12. Evidence of antisocial behaviour could come from those who have been alarmed and distressed by such behaviour. It could also come from a range of other sources - police officers, neighbourhood or community wardens, community safety partnerships, housing officers, social work officers, other members of the public or CCTV footage.

13. Where there is evidence that a crime or offence has been committed, that should be dealt with using existing police powers and procedures. Where, following an arrest for a breach of the criminal law, an officer reasonably believes that the presence or behaviour of two or more of the remaining individuals (who have not been arrested or detained) is causing or is likely to cause alarm or distress, the officer can direct those involved to disperse.

14. The power of dispersal does not provide an automatic right to search any person. However, evidence of antisocial behaviour taking place can be taken into account when considering whether to conduct a search, for example, if the behaviour involved the alleged use of a knife.

15. What constitutes significant antisocial behaviour is not defined formally in the Act., For the purposes of this guidance, the word significant is taken to mean "of considerable effect or importance". For antisocial behaviour to be significant, it must therefore considerably affect the lives of the people on whom it impacts. Arguably that impact may differ from individual to individual. It will be for the senior police officer, based on his/her judgment, to gauge whether the behaviour is significant in each case for them to authorise the use of the dispersal power.

16. The senior police officer should normally support his or her decision with other tangible evidence such as receipt of several calls/complaints about the behaviour made to the police, either directly or through third party reporting, by members of the public, local officials (including neighbourhood wardens) and/or evidence by police officers themselves or CCTV evidence. Calls/complaints made by a single person or family would not normally be sufficient although, in some circumstances, they may be. Possible examples could be an individual, family, residence or business being harassed, victimised or threatened for whatever reason (including racist behaviour) or a concierge or a warden of a block of flats acting on behalf of residents in the flats. Clear signs of the kinds of alarm and distress that the power is designed to relieve are people becoming afraid to leave their homes when it is dark, people feeling terrorised even when in the supposed safety of their homes or sheltered accommodation (for example as a result of the throwing of stones or intrusion into garden space) and people being harassed and abused on the streets of their neighbourhoods.

17. It is important, in light of the above, that incident recording procedures are clearly written down and followed. It is recommended that police forces agree a national procedure for this. This should ensure as far as possible that the senior police officer considering or being asked to consider designating an area has an accurate and consistent picture of the extent and type of antisocial behaviour in that area. Examples of the sort of incidents that might be recorded in this way include:

• gang fights in an estate;
• groups targeting sheltered accommodation or other vulnerable groups by engaging in vandalism or disorder;
• drug dealing;
• deliberate and malicious fires in public places
• intimidation of workers and shoppers around commercial premises; and
• drinking, including underage drinking, in streets, parks, etc.

18. Once the authorisation of the use of the power of dispersal is in place, the management of information will also be crucial in keeping track of designated areas as well as those who have been dispersed from them.

19. Care should be taken to ensure that young people should not be stigmatised simply for gathering together where there is no supporting circumstantial evidence of any of the activities described above.

20. Persistent antisocial behaviour will normally be behaviour which occurs repeatedly over a reasonable period. Therefore isolated incidents, with no clear pattern, cannot be considered as persistent. While it will be for each senior police officer to reach a judgement on the basis of his/her experience and knowledge, the following factors may be helpful in making a decision:

• Behaviour would be persistent where significant antisocial behaviour
  • involving groups is reported to have occurred
  • within a council ward or wards;
  • within part of a council ward; or
  • at the boundary between council wards or the boundary between 2 or more local authorities;

usually on a minimum period of six days (not necessarily consecutive) at any time within a period of 21 days. However if antisocial behaviour occurs in particular areas at particular times during the week (such as at weekends) it would make sense to consider an alternative, more flexible timeframe. 21. Antisocial behaviour should be regarded as serious if there is a possible danger or risk to members of the public, arising from the antisocial behaviour in a relevant locality. On this basis, minor antisocial behaviour that mainly causes irritation might not be deemed to be of sufficient gravity to be considered "serious". However, it will be for each senior officer to use his/her discretion in reaching a judgement on the basis of his/her experience and knowledge, and the circumstances in the area concerned, as to just what constitutes "serious" antisocial behaviour. The cumulative effect on residents of a pattern of behaviour over time will be a relevant factor to be borne in mind. The provisions of the Act are intended to provide the flexibility required for senior officers to adapt their response to the specific situation of the area for which they are responsible.

AUTHORISING THE USE OF THE POWER TO DISPERSE

The procedure leading to the making of an authorisation

22. Sections 19 and 20 of the Act set out procedures to be followed where a senior police officer is minded to authorise the exercise of the dispersal powers. Authorisation can only be made by an officer of the rank of Superintendent (including an officer carrying out the role of Acting Superintendent) or above. That officer should normally have responsibility for policing the area(s) being considered for designation.

23. The triggers for making an authorisation (under section 19(1) of the Act) are that:

• the officer has reasonable grounds for believing that any members of the public have been alarmed or distressed as a result of the presence or behaviour of groups of 2 or more persons in public places in any locality in the officer's police area (the "relevant locality"); and
• the senior police officer has reasonable grounds for believing that the antisocial behaviour is significant, persistent and a serious problem in the relevant locality.

Both conditions have to be satisfied before authorisation can be considered.

24. Where a senior police officer is considering designating a particular area, and this area adjoins another command area, division or force, the senior police officer must inform his/her opposite number (who will also be at the rank of Superintendent or above) in that adjoining area. Subject to any issues emerging from that exchange, the next step is for the senior police officer to consult the relevant local authority (or local authorities if the area extends into more than one local authority areas).

25. Consultation with the local authority (or authorities) should be at the level of the Chief Executive or such other senior officer in each authority as may be agreed with the Chief Executive in advance, such as the Chief Social Work Officer in relation to incidents involving young people. This in no way precludes discussions at local level with elected representatives, community councils, residents/ tenants associations, community groups, local youth groups, etc. Indeed, dialogue at this level should already have taken place if antisocial behaviour is an ongoing problem in the area. Such an approach, which should build on existing contacts between the police force and the local authority or authorities, should set out the context in which the authorisation is being considered. It should set out in writing such arrangements as have already been discussed with the relevant local authority's officers to deal with the problems for which it is now considered necessary to seek an authorisation, including such other steps as are planned, in line with the antisocial behaviour strategy for the area.

26. The senior police officer should take full account of the views of the local authority, and the approach outlined in the antisocial behaviour strategy for the area, before reaching a final decision on whether to authorise.

27. Section 19(3) of the Act provides that the formal authorisation must also be made in writing, signed by the senior police officer giving it, and must specify:

• The relevant locality;
• The grounds on which the authorisation is given; and
• When the powers of dispersal are exercisable, that is, the period during which the exercise of these powers is valid (including specified days and/or times).

28. A copy of the formal authorisation should be sent to the council. It may also be prudent to include more information on the formal authorisation. For example, a map of the designated area may prove useful. It might also be useful to outline the nature of the problem, include a brief summary of relevant incidents, outline any action which was previously taken to deal with the problem, list any other solutions and give the reason(s) why this is considered to be the most appropriate course of action. Finally, if possible an authorisation notice should contain the measures taken to publicise the notice, including details of its publication in newspapers circulated in the relevant locality and in which conspicuous places in the locality the notice is displayed.

29. Once the decision to authorise has been taken, every effort should be made to contact the relevant local councillor for any ward affected.

30. Before any dispersal powers can be exercised by virtue of an authorisation, the senior police officer who made the authorisation is required to inform local people. Section 19(1) of the Act sets out two ways in which this can be done. An authorisation notice can either be published in a local newspaper or displayed in some conspicuous place or places within the locality. An authorisation notice must state that authorisation has been given; specify the relevant locality in which the powers of dispersal are to be used; and specify when the powers may be exercised.

31. While there is no legal requirement for the senior police officer formally to consult members of the community, it will be vital that the force engages as fully as possible with the community or communities affected; and ideally long before there is any consideration given to granting an authorisation. Indeed, the more that a force has engaged with local communities, and has tested what is and what is not likely to work, the greater the chance that the dispersal provisions will be effective. Intelligence on community views and tensions will be invaluable in shaping the decision on whether or not to grant authorisation. Communities need to understand what is happening, and why, and should be given the opportunity to feed in their views if at all possible. After all, the whole point of the provisions is to help those who are suffering from significant, persistent and seriously problematic antisocial behaviour. Communities also need to be aware of the impact of the designation and why it is (or is not) being imposed. Such engagement may not only reassure those affected, it may also circumvent possible efforts by some communities to unreasonably seek designation for their areas.

32. A further reason for active engagement with a community is that there may be some in an area being considered for designation who are strongly opposed to any such move and who may actively resist it. Their views also need to be taken into account. This group may include those who have businesses in an area or those about to move house who may fear that the value of their properties could be adversely affected by unwelcome association with a designation.

33. Local contacts can of course be gained in a variety of ways - through community liaison officers, through local meetings organised with the residents in an area, through the force's web site or through the many links the police have to active community groups in the area, e.g. community councils, tenants and residents groups. Intelligence on community views and community tensions will also be invaluable in making the decision on whether or not to seek authorisation.

Withdrawal of an authorisation

34. Where the senior police officer considers that the level of relevant antisocial behaviour in a designated area has reduced substantially and is contemplating withdrawing the designation order prior to the end of the publicised expiry date, he/she must consult again with the local authority before any such action is taken.Similarly, it would also be prudent to take in to account the views of any community organisations consulted prior to the original authorisation being made.

35. Where the designating officer withdraws the authorisation prior to its published expiry date, all public notices on display publicising the details of the designation must be withdrawn speedily.

36. Although there is no legal requirement to publicise the withdrawal more extensively, it would be prudent to issue a media release to this effect. This would enable the local community to be informed of the withdrawal while affording an appropriate opportunity for the senior police officer to provide feedback to communities on the effects of the authorisation in reducing the problems of antisocial behaviour in the area.

37. The decision to withdraw an authorisation will not affect the exercise, by virtue of the authorisation, of a power of dispersal which occurred before the withdrawal. Neither does it prevent a further authorisation being issued under section 19 of the Act for either the same, or part of the same, locality at some future date.

DESIGNATION

The area to be designated

38. The first point to make is that the area to be designated needs to be fit for purpose in terms of achieving the aims behind the decision to make an authorisation. An area should not be so large or disparate that enforcing the dispersal provisions causes problems. Nor should youth oriented facilities or areas be designated if at all possible. Issues to be considered before designating an area might be whether there is adequate street lighting; whether there is CCTV; whether there are secluded parts of the area where individuals can congregate out of sight; and whether an adequate policing presence can be provided and enforced at short notice if the dispersal provisions are breached. Equally, there would be no point in designating an area if the result is that the group responsible for the antisocial behaviour is simply displaced to an adjacent area in which they continue to behave in the same way. Careful planning and consideration should be put into avoiding such an eventuality. If dispersal is to be effective, it should always be as part of the antisocial behaviour strategy for the area, taking account of factors such as natural community boundaries, the root causes of the behaviour and whether that behaviour can be tackled in other ways at the same time as it is dispersed.

39. The designated area might therefore be a street or part of a park or curtilage of a building or it might be any combination of one or more of these. Every effort should be made to avoid designating an area which is normally used as a recreational facility, such as a skateboard park or a youth shelter. Where the aim is to prevent certain named individuals from gathering in that area and causing trouble other possible avenues to resolve the problem should be investigated - including giving due consideration as to the use of Acceptable Behaviour Contracts or Antisocial Behaviour Orders.

40. Whatever the area designated, there must be clear, readily definable boundaries. Dispersal will not work unless the officers on duty and the general public know precisely where the boundary of the designated area lies. It would be good practice to produce leaflets showing a map of the designated area(s), the reasons why those dispersed from these areas cannot return, and for how long. The leaflets should be distributed to local shops, public buildings, schools etc; police officers on duty in the area should be given a supply to distribute to those who are dispersed; and shifts should be briefed before they go on duty. Ideally, every police officer who goes on duty should also be given a laminated pocket-sized aidememoire showing a map of the area, a description of the powers and the process needed to be followed to disperse a group.

The period of designation

41. The maximum period of a designation for any area is 3 months at any one time. Once this time has elapsed, a further authorisation would have to be made in respect of the designated area. However, the period chosen should be selected with regard to the nature of the antisocial behaviour. In deciding what this period should be, senior police officers should ask themselves various questions such as: Does the problem only occur on week-ends? Does it only occur during school holidays? Careful consideration should always be given to issues of proportionality and necessity when considering the appropriate timescale. If the antisocial behaviour is linked directly to a particular occasion which lasts one week, that should be the period of the designation.

42. Where there is a clear pattern of antisocial behaviour occurring on certain days of the week, for example at weekends, the senior police officer should specify clearly those periods within which the designation applies - for example:

2000 hours Friday .. February 2005 to 0300 Saturday .. February 2005
2000 hours Saturday .. February to 0300 Sunday .. February 2005
2000 hours Sunday .. February to 0300 Monday .. February 2005
and weekly thereafter until 0300 Monday .. April 2005

It is possible that, where a number of areas are designated within a single relevant locality, different times may be designated for these different areas. In such a case, the differences should be clearly shown.

PUBLICATION OF THE AUTHORISATION NOTICE

43. Under section 20(1) of the Act, the senior officer is required to publicise an authorisation notice in a local newspaper and display the notice in some conspicuous place or places within the designated area before the dispersal powers can be exercised.

44. As indicated in sections 30 to 33 above, the requirement to publish the authorisation in a local newspaper will have many advantages. Community safety and antisocial behaviour invariably arouse strong feelings locally. Therefore it is likely that a local newspaper will be interested in covering any initiative which is designed to tackle such concerns, particularly one involving the exercise of powers of dispersal.

45. Section 19(3) of the Act sets out what must be included in an authorisation notice (see paragraph 30 above). Such a public notice published in a newspaper may not be widely read. More impact may be obtained if the newspaper is asked, in addition to publishing the notice, to carry an article describing the initiative. Sending the local newspaper the facts about the reasons for issuing an authorisation notice in advance of the publication date should also help to cut down any misunderstanding about how the power of dispersal will operate. In any case, a media release should be issued explaining the background to the decision in addition to the specific details such as the area/s affected and the period of time the designation is to last.

46. Where it has not been possible to arrange for the publication of such an article, the decision on which local newspaper to publish the authorisation notice in should primarily be taken on the basis of readership levels for newspapers in the area. Such a decision should not be based on the cost of placing an advert in a particular newspaper. Where there is an immediate need to invoke the dispersal powers to deal with a pressing situation the use of a national, or where available, a local daily newspaper may be the most appropriate.

47. It is essential to check that the publication of the authorisation notice has appeared on the agreed date as the dispersal powers cannot be exercised unless and until publication takes place. Likewise, it is essential to check the accuracy of the information passed to the newspaper and to check the details of the newspaper notice as this will determine where, when and for how long the authorisation notice will last. Should an inaccurate notice be published by mistake, it should be immediately withdrawn and a new one issued as soon as possible.

48. Section 20(1)(b) of the Act requires the authorisation notice to be "displayed in some conspicuous place or places within the relevant locality." Clearly, the identification of suitable places or premises will depend on the facilities available in an area. A conspicuous place would include a police station, community centre, local shopping mall, library, school, sports centre, hospital or other building where the public have access. Lamp-posts would also constitute a conspicuous place. Care should be taken where possible to avoid - or prevent - vandalism occurring to the posters/signs or to the premises in which they are displayed. Premises associated with vulnerable groups, such as sheltered accommodation, should not be used to display notices unless no other option is available. The fact that notices have been displayed, even though they may be removed from some locations, is sufficient to fulfil the duty to have displayed.

EXERCISING THE POWERS

49. Where an authorisation notice has been issued and all the conditions set out in sections 19 and 20 of the Act have been met (as described in preceding sections in this guidance), a constable can exercise the dispersal powers if he/she has reasonable grounds for believing that the presence or behaviour of a group of (two or more) persons in any public place in the relevant locality is causing or is likely to cause alarm or distress to any members of the public. As outlined in paragraph 6 above, a police officer can not exercise the power to disperse a group of people who are engaged in an industrial disputes or other public processions which either require permission, or are exempt from requiring permission, under section 62 of the Civic Government (Scotland) Act 1980

50. While such "reasonable grounds" will depend on the circumstances of each case, there must be an objective basis for those grounds based on demonstrable facts, information and intelligence relevant to the presence or behaviour of any groups. This could be, for example, from:

• Recorded observations by a police officer or special constable;
• Recorded observations by a neighbourhood warden;
• As captured by public space CCTV; or
• As reported by member of the public identifying individuals either by name or

by providing a description. The test of "reasonable grounds" would not be met where officers simply come across a group whose members had on one or more previous occasions been dispersed unless they had reasonable grounds for believing that those involved were likely to commit antisocial behaviour. Of course, if this group or members of it, without a reasonable excuse knowingly contravened a direction given to them by a constable by returning to a designated area within twenty-four hours, they would then be committing an offence.

51. In determining whether to exercise the dispersal powers, a constable must have regard to whether the exercise of the power would be likely to result in the persons in the group causing less alarm and distress to members of the public in the relevant locality than if the power were not exercised. The members of the public whom the constable should be concerned with here are strictly those members in the designated area. It would not be appropriate for a constable to decide not to use the dispersal powers on the grounds that to do so would not reduce alarm and distress across the police area as a whole, due to any likelihood of the group simply recongregating elsewhere.

52. What the constable should be concerned with is whether the use of the power will lessen the alarm and distress to members of the public within the relevant locality. The constable will want to consider, however, whether a person or persons so dispersed might go on causing alarm and distress to persons inside the relevant locality from outside it. That might be a reason not to use the powers, as would the possibility that sending someone out of the relevant locality will actually inflame the behaviour of the remaining members of the group.

53. The power of dispersal, in keeping with all other police powers, should be used fairly without fear, favour, malice or ill-will. The Race Relations (Amendment) Act 2000 makes it unlawful for police officers to discriminate on the grounds of race, colour, ethnic origin, nationality or national origins when using their powers. In some areas police officers will require to be particularly alert to the possibility of requiring translation services. Likewise police officers are required to give due consideration to all other equally important legislation such as the Disability Discrimination Act 1995 and should consider whether individuals are suffering from autistic spectrum disorder or any other developmental or medical condition (including mental health problems) and require assistance and support.

54. Both uniform and plain clothed police officers may disperse groups. However, plain clothed officers must show their warrant cards. Officers who exercise the powers of dispersal should note the identity of group members in their notebooks, together with a short description of those dispersed, at the time or as soon as possible thereafter. 55. Where available, CCTV or video footage can be used to provide additional evidence. Although this is not mandatory such evidence may be beneficial when dealing with large groups and may also help to provide additional evidence of identification where it is not practical to note individuals' details.

56. A police officer who disperses a group of two or more individuals shall inform the person or persons:

• that the location in which he/she was found has been designated as a dispersal area under the Antisocial Behaviour etc. (Scotland) Act 2004; and
• of the boundaries of that designated area at the time

The police officer shall thereafter note the personal details of the person indicating the time, date and location where they were found together with the other individuals in whose company they were found. The police officer may then give the person or persons:

• a direction to disperse immediately, or by such time as the constable shall specify;
• a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality immediately, or by such time as the constable shall specify and in such a way as the constable may specify;
• a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning within a certain number of hours (not exceeding 24 hours)

And, although this is not a requirement, it would be advisable to inform those required to disperse that their return to the locality within the specified period of time is an arrestable offence under section 22(3) of the Act.

57. Section 22(1)(a) provides that it is competent for a police officer to issue oral directions to a group of people when they are dispersed. Officers should ensure that any individual who is ordered to disperse is informed of how long this direction will be enforced. They should also record this information in their notebook at the time the power of dispersal was used, or as soon as possible thereafter. It should be noted that a police officer can vary or withdraw the direction which is given to groups when exercising the power of dispersal.

58. It may be that individuals will claim they did not understand the instructions given to them, whether because they were under the influence of drink or drugs or for other reasons. One way to address that possibility is for officers routinely to give every person so dispersed a leaflet (along the lines of that described in paragraph 37 above) setting out clearly what is required of them. The police have a duty to care and should officers feel under-16s are at risk through abuse of alcohol/drugs, they should follow relevant force procedures in relation to child protection.

59. Should an individual, having been directed to disperse as part of a group of two or more persons knowingly contravene a direction, without reasonable excuse, either:

• as part of the same group;
• as part of a different group; or
• alone

prior to the expiry of the time indicated by the police officer, that person will have committed an offence under Section 22(2).

60. Where any of the group to be dispersed, including members of the same family, is found to reside within the relevant locality, officers may still require them to disperse. They may not of course be directed to leave the relevant locality.

61. It will ultimately be for the courts to determine whether the decision by the constable to disperse. individuals was reasonable. Evidence would need to be led that the police officer took the view that a group of two or more people had formed. While people who are walking together can obviously be considered to be part of a group it may be more difficult to judge whether individuals on opposite sides of a street could be classified as such. On these occasions it will be very important to consider what additional information and evidence is available to support the fact that the powers of dispersal have been exercised or that there has been a breach of a requirement to disperse. For instance, if the individuals were displaying a common purpose such as singing or chanting, gesticulating or otherwise communicating to one another this could reasonably be put forward in support of the action taken by the police. However, where none of these elements are present, it would be very difficult to justify the use of the powers under Sections 21 or 22.

62. Exercising the powers will require to be carefully managed over the period of the authorisation (up to 3 months - or possibly longer if the authorisation is renewed), depending on the number of areas designated. Each force should therefore have systems in place which will enable any officers at any time to have up to date information on who has been dispersed and from where.

OTHER CONSIDERATIONS

63. Police officers already have significant powers to deal with those who break the criminal law in general, but on occasion they can use their discretion as to whether it is necessary to enforce the law by either arresting an accused person or reporting the crime to the Procurator Fiscal. It is an accepted exercise of common sense and proportionality which has helped maintain the respect of the community they serve. The power of dispersal should not be interpreted as preventing police officers' exercise of discretion although of course, as in all cases, they will require to consider the full circumstances of each case.

64. Unlike in England and Wales, no curfew power exists alongside the power of dispersal and as such there is no requirement on police officers to transport home any child who is required by them to disperse. However, as in any other operational setting, officers must be alive to their responsibilities in terms of any child's welfare when dealing with such cases. Where a child is found in circumstances where there is reason to believe that child's welfare is at risk officers must follow relevant force procedures in relation to child protection.

65. The Lord Advocate may issue guidelines to Chief Constables and/ or instructions may be issued by Area Procurators Fiscal regarding reporting procedures where a designated area has been established, a direction to disperse is contravened and when there is additional offending behaviour. This should ensure that a consistent approach is taken in dealing with the offence of not complying with a direction to disperse. It is essential that when breaches of directions to disperse, as well as any other relevant offences that have been committed within a designated area, are reported to the relevant Procurator Fiscal the case clearly indicates that the incident(s) took place within a designated area. As with any criminal matter, it is thereafter for the local Procurator Fiscal to decide whether or not to raise criminal proceedings. Under-16s caught contravening a direction to disperse should be reported to the Children's Reporter.

66. Due to the number of individual police officers who could reasonably be expected to undertake patrol duties over a 24 hour/seven day period it is essential that accurate records are maintained of areas designated within a command area together with details regarding individuals who have been directed to disperse.

67. Most if not all Command and Control systems operated by the police allow for the identification of 'hotspots' or areas of standing complaints. Recorded entries are normally categorised under each area in order to advise sub-divisional officers of the details of calls received to the area together with the result of increased police patrols, including any warnings and/or arrests made.

68. Sub-Divisional Officers should ensure comprehensive briefing is provided to all officers and support staff in designated areas so that staff are fully conversant with the procedures to be adopted. Likewise, staff from specialist services such as Support Services and Traffic who are likely to undertake patrols in the sub-division should be kept fully informed.

69. It is recommended that forces utilise Command and Control or a similar IT facility, which can be updated immediately and be available at all times to operational staff, including control room personnel, to assist operational officers in determining whether someone found in a particular area is in breach of a previous requirement to disperse. Careful and accurate updates will also assist senior police officers in their monitoring of the overall effect of dispersal on the type and incidence of antisocial behaviour within the designated area.

Scottish Executive Justice Department
October 2004