A barrister nails exactly why we should all worry about Sajid Javid’s knife ASBOs

On 31 January, home secretary Sajid Javid announced how he plans to tackle knife crime. Javid wants to introduce “knife crime prevention orders” (KCPOs). Children as young as 12 could receive an order, and anyone breaching one could face up to two years in jail.

Critics of the scheme, including Labour MP Sarah Jones, say it’s “flawed” and “disproportionate”. Even justice secretary David Gauke thinks it’s a bad idea. He said in November 2018 that the orders could:

accelerate the criminalisation of young people

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But a barrister has taken to Twitter to really nail the problems with Javid’s scheme.

“The devil is in the detail”

Human rights barrister Adam Wagner pointed out that, while “knife crime is a problem”, the “devil is in the detail”:

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2/ Knife crime is a problem so any sensible measure which might prevent it is a good idea.

But is this sensible?

The devil is in the detail and there may be significant human rights issues as the orders are available for children and, as BBC report, include social media bans

— Adam Wagner (@AdamWagner1) January 31, 2019

And the detail doesn’t look good for anyone concerned about civil liberties.

“Beyond reasonable doubt”

If you commit a crime in the UK, the prosecution has to prove “beyond reasonable doubt” that you are guilty of that crime. This ensures a high level of proof is necessary for a conviction.

But as Wagner highlights, this high standard of evidence won’t apply to KCPOs:

4/ Here’s the requirements for getting a KCPO – notice (this is important) this isn’t the criminal standard of proof. All you need to show is it’s more likely than not that a person had a bladed article with them twice in the past 2 years pic.twitter.com/KrUfyMUGHK

— Adam Wagner (@AdamWagner1) January 31, 2019

In other words, KCPOs replace “beyond reasonable doubt” with “on the balance of probabilities” – and however a court wants to interpret such an ambiguous term. Wagner believes that the lower level of evidence needed will lead to the police pursuing KCPOs rather than criminal charges:

11/ I have acted in gang injunction and serious crime prevention order cases and my experience (though others will have more) is that they are liberally applied for by police – why wouldn't they be?

So much easier to hit a suspect with one of these than a criminal charge

— Adam Wagner (@AdamWagner1) January 31, 2019

Does the punishment fit the crime?

As Wagner points out, there’s a further problem with the type of penalties that can be imposed. These range from curfews to social media bans. All these punishments can be meted out without the burden of proof needed for a criminal conviction:

9/ My second concern is that this is just another in a long line of laws which chip away at the requirement for police to prove *beyond reasonable doubt* that a crime has taken place before a person can be punished by the state – including onerous restrictions on their lives

— Adam Wagner (@AdamWagner1) January 31, 2019

And if any of these conditions are breached, the person can go to prison:

12/ And the bonus is that if you put onerous enough restrictions on a person (e.g. curfews, contact restrictions (including with family members), internet bans) then if they breach the order, you can get them sent to prison for up to two years.

As I said, easier than a charge.

— Adam Wagner (@AdamWagner1) January 31, 2019

A 12-year-old, meanwhile, could end up with a two-year sentence for breaching a KCPO. Wagner further states that:

13/ My worry is that this ever expanding (how many powers ever get taken away from police?) set of sub-criminal standard of proof tools means that the bar for criminalisation, with all the stigma and unintended consequences it brings with it, becomes ever-lower.

— Adam Wagner (@AdamWagner1) January 31, 2019

And he says that, particularly in regard to children:

14/ A third concern.

As with any issues around children, there must be sufficient safeguards put in place to make sure their welfare is properly considered by courts. By developing yet another strand it adds confusion and complication to a delicate area

— Adam Wagner (@AdamWagner1) January 31, 2019

Human rights

Wagner sees the potential for human rights violations in the restrictions that can be imposed under KCPOs. As he states:

15/ 4th, I am concerned about the confusion that this will cause:

"using the internet to facilitate or encourage crime involving bladed articles"

How will judges (not the most internet-savvy) interpret?

There are obvious instances e.g. using WhatsApp to plan a knife attack…

— Adam Wagner (@AdamWagner1) January 31, 2019

This is an important point considering the implications it has for limiting freedom of speech:

16/ But what about e.g. artists who rap about violence?

Is that facilitating or encouraging crime involving bladed articles?

What about sharing a video by a famous Grime artist whose subject matter is knives?

There are significant free speech and right to privacy issues here

— Adam Wagner (@AdamWagner1) January 31, 2019

And Wagner also highlights a huge problem with preventing children from using social media:

18/ We are just beginning to understand positive and negative effects that social media has on children.

e.g. they may use it to contact their gang mates but also their sister who lives elsewhere and is a positive influence. Or a gamer group which gives positive reinforcement.

— Adam Wagner (@AdamWagner1) January 31, 2019

In short, this is a draconian piece of legislation that rips up the standard of proof for a criminal conviction. It imposes severe restrictions on children’s lives with the threat of imprisonment should they fail to keep to the conditions. This legislation is also ripe for abuse, potentially leading to kids being criminalised and locked up without having committed a crime.

It’s down to all of us to oppose it and to tell Javid that we won’t stand by and let him tear up our human rights.

Featured image via Flickr/Jeon Han