The draft Anti–social Behaviour Bill: pre–legislative scrutiny

Transcription

House of Commons
Home Affairs Committee
The draft Anti–social
Behaviour Bill:
pre–legislative scrutiny
Twelfth Report of Session 2012–13
Volume III
Additional written evidence
Ordered by the House of Commons
to be printed on 15, 22 and 29 January, and 5 and 12 February
2013
Published on 19 February 2013
by authority of the House of Commons
London: The Stationery Office Limited
Home Affairs Committee
The Home Affairs Committee is appointed by the House of Commons to examine
the expenditure, administration, and policy of the Home Office and its
associated public bodies.
Current membership
Rt Hon Keith Vaz MP (Labour, Leicester East) (Chair)
Nicola Blackwood MP (Conservative, Oxford West and Abingdon)
James Clappison MP (Conservative, Hertsmere)
Michael Ellis MP (Conservative, Northampton North)
Lorraine Fullbrook MP (Conservative, South Ribble)
Dr Julian Huppert MP (Liberal Democrat, Cambridge)
Steve McCabe MP (Labour, Birmingham Selly Oak)
Bridget Phillipson MP (Labour, Houghton and Sunderland South)
Mark Reckless MP (Conservative, Rochester and Strood)
Chris Ruane MP (Labour, Vale of Clwyd)
Mr David Winnick MP (Labour, Walsall North)
The following Members were also members of the Committee during the
parliament.
Rt Hon Alun Michael MP (Labour & Co-operative, Cardiff South and Penarth)
Karl Turner MP (Labour, Kingston upon Hull East)
Powers
The Committee is one of the departmental select committees, the powers of
which are set out in House of Commons Standing Orders, principally in SO No
152. These are available on the Internet via www.parliament.uk.
Publication
The Reports and evidence of the Committee are published by The Stationery
Office by Order of the House. All publications of the Committee (including press
notices) are on the Internet at www.parliament.uk/homeaffairscom.
Committee staff
The current staff of the Committee are Tom Healey (Clerk), Richard Benwell
(Second Clerk), Ruth Davis (Committee Specialist), Eleanor Scarnell (Committee
Specialist), Andy Boyd (Senior Committee Assistant), Michelle Garratty
(Committee Assistant), Iwona Hankin (Committee Support Officer) and Alex
Paterson (Select Committee Media Officer).
Contacts
All correspondence should be addressed to the Clerk of the Home Affairs
Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone
number for general enquiries is 020 7219 3276; the Committee’s email address is
[email protected].
List of additional written evidence
Page
UK Noise Association
Ev w1
Paddy Tipping (Police and Crime Commissioner for Nottinghamshire)
Ev w1
Kent Police
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The Kennel Club
Ev w5
Preston City Council
Ev w8
London Borough of Camden
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Dog Trust
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Living Streets
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John Dwyer (Police and Crime Commissioner for Cheshire)
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Association of Convenience Stores
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Martyn Underhill (Police and Crime Commissioner for Dorset)
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Blue Cross
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Association of Chief Police Officers
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Leicestershire Police and Sir Clive Loader (Police and Crime Commissioner)
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Catch 22
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Swindon Borough Council
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Katy Bourne (Police and Crime Commissioner for Sussex)
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Guide Dogs for the Blind Association
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Kirklees Council
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Big Brother Watch
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British Veterinary Association and British Small Animal Veterinary Association
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Transition to Adulthood Alliance
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Criminal Justice Alliance
Ev w44
Stephen Braund
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Norwich City Council
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Ramblers and Open Spaces Society
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London Borough of Hammersmith & Fulham
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The Hyde Group
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Buckinghamshire County Council
Ev w62
Wyre Forest Community Housing Group’s anti Social Behaviour Unit
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Social Landlords Crime and nuisance Group
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Mayor’s Office for Policing and Crime
Ev w74
Mark Dziecielewski
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South Yorkshire Police
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JUSTICE
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Bridget Phillipson MP
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The Office of the Children’s Commissioner
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Norfolk’s County Community Safety Partnership
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Liberty
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Home Affairs Committee: Evidence Ev w1
Written evidence
Written evidence submitted by the UK Noise Association [ASB 01]
The UK Noise Association (http://www.ukna.org.uk/) is the national body which lobbies on noise matters.
It brings together a unique coalition of key organisations lobbying on different aspects of noise. Its members
include leading experts in the field, as well as individuals who are suffering particular noise problems.
This response has been written by John Stewart on behalf of the UK Noise Association. He chairs the
Association and is the author of Why Noise Matters, published by Earthscan in 2011.
1.1 The UK Noise Association welcomes this Bill. It will provide noise victims redress from their problems
that is not currently available. At present redress from noise is too dependent on the 1990 Environmental
Protection Act. To prove noise nuisance can be a difficult and lengthy process. The provisions in this bill could
provide a quicker solution to the problem.
Injunction to Prevent Nuisance and Annoyance
2.1 We welcome the fact that this Injunction can be issued “on the balance of probabilities” that the behaviour
causes “nuisance or annoyance”. This requires less proof than noise nuisance under the terms of the
Environmental Protection Act. It is a commonsense approach which will benefit many noise victims.
2.2 We also welcome the fact that an application for this injunction should not be restricted to local
authorities but also includes the Police and housing providers. Some local authorities—and in particular the
professional associations representing environmental health officers—may argue that this undermines their
position. It would be a mistake for them to do so as, in many instances, the other agencies would ask their
advice before seeking these injunctions. Moreover, this is a proposal which will assist noise victims. It will
allow them to seek effective redress quickly from a range of agencies rather than the current over-dependence
on the opinion of an environmental health officer.
2.3 We welcome the fact that, in certain circumstances, the power of arrest can be attached to injunctions.
This is important as, in our experience, there are individuals who will only take note of the injunction against
them if it is accompanied by the power of arrest.
2.4 We welcome in section 13 of the draft bill—Tenancy injunctions: exclusions and power of arrest—the
recognition that tenancy agreements can be used effectively to deal with anti-social behaviour. Given the willpower on the part of a local authority or a housing provider, tenancy agreements can provide an effective route
to deal with an offender.
Criminal Behaviour Orders; Community Protection Orders; Public Spaces Protection Orders
3.1 We support the principle of introducing these orders. They will make it easier to deal with noise across
a range of different circumstances.
Local Involvement and Accountability
4.1 We strongly support the concept outlined in this section, including the community remedy document to
be drawn up in consultation with the local community. This section has the potential to return powers to local
communities and to victims, making them less dependent on outside agencies.
UK Noise Association
December 2012
Written evidence submitted by Paddy Tipping (Police and Crime Commissioner for Nottinghamshire)
[ASB 02]
In response to your call for evidence on the Government’s draft Anti-Social Behaviour Bill, I would like to
draw your attention to the antisocial behaviour scrutiny undertaken here in Nottinghamshire between May and
November last year.
I provide a full copy of the report which contains evidence of the findings and recommendations which I
believe will be helpful to your inquiry.1
As the peoples Police and Crime Commissioner for Nottinghamshire my vision is to ensure that victims and
citizens have a bigger voice in policing to achieve a safer Nottinghamshire. It would therefore be remiss of me
to miss this opportunity to influence the national agenda relating to tackling all facets of antisocial behaviour
especially neighbourly antisocial behaviour which I believe requires special attention as incidents are often
both civil and criminal in nature and can often fall between legislative boundaries and prolong the suffering
of victims.
1
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Ev w2 Home Affairs Committee: Evidence
Whilst the scrutiny was undertaken by the former Police Authority I have recently had the opportunity to
meet a number of victims who had taken part in the scrutiny process and I heard firsthand of their experiences,
the adverse impact on their lives and what changes need to be made to bring about more effective solutions. I
am satisfied that the scrutiny report identifies the key issues relevant to neighbourly antisocial behaviour
and therefore I endorse the report and its findings and would invite you to consider the findings as part of
your deliberations.
The scrutiny report is already in the public domain having been considered and accepted by both former
Police Authority and Chief Constable. There are no Data Protection issues and I am happy for you and your
Committee to use any of the evidence as you see fit. The names of victims are not identified in the report.
Whilst the scrutiny report is self explanatory I would like to draw your attention to some key issues which
I believe have been overlooked in recent years. I include these points as an Addendum to this letter. I would
also ask that you consider all of our 32 recommendations and assess whether the draft legislation could be
further strengthened to address the issues identified in our scrutiny process.
If having reviewed the written evidence, you consider that the Home Affairs Committee would benefit from
receiving oral evidence on the range of issues identified through our scrutiny process, I am more than willing
to allow one of my team to attend an appropriate Committee meeting as a witness.
Furthermore, you have indicated that the Committee is keen to hear from individuals who have suffered
from anti-social behaviour, in this respect, if you would like one of the victims who took part in the scrutiny
to give oral evidence, I will ensure that suitable enquiries and arrangements are made.
Finally, I too very much welcome the Government’s decision to overhaul the statutory framework for tackling
anti-social behaviour. I agree that we must ensure that the new Act is more robust than the original ASBO
legislation, and would invite you to consider whether the new proposed measures would help to make the lives
better for all antisocial behaviour victims but especially victims of neighbourly antisocial behaviour who took
part in our scrutiny process.
I wish you well in this endeavour.
Paddy Tipping
Police and Crime Commissioner
January 2013
ADDENDUM
KEY ISSUES ARISING FROM ASB SCRUTINY (NOTTINGHAMSHIRE)
1. Whilst reports of ASB have fallen significantly over recent years, the majority of incidents take place in
the public domain and we are unclear what impact police and partners are having on persistent neighbourly
ASB—perhaps this should be measured separately? Scrutiny evidence identifies that many persistent
neighbourly ASB incidents continue for numerous years unabated.
2. The report identifies that the ASB behaviour of neighbours only stopped when enforcement action at Court
was taken. Caution therefore needs to be placed on advocating the restorative justice approach in such cases.
3. Unlike ASB occurring in the public domain which is easier to monitor and capture evidence, gathering
evidence of neighbourly ASB proves difficult suggesting that capabilities and powers of Police and Partners is
limited. Without evidence victims lives continue to be made a misery.
4. Evidence gathering is slow and this explains why ASB victims have experienced problems over many
years. Further complications are also present because incidents of ASB cross civil and criminal boundaries.
Where there is joint partnership work ie the “twin track” approach as adopted in Nottingham City, the civil v
criminal boundaries appear to have been overcome. This joint working means that there is knowledge of both
ASB tools and powers across civil and criminal law and overcomes staff working in silos.
5. The Police and Partners appear to use a range of surveillance equipment and operations to gather evidence
for ASB occurring in neighbourhood ASB “hot spots” or public space environments to good effect, but there
is limited evidence of this approach being used to tackle persistent neighbourly ASB where there are only a
few victims. If securing evidence is critical to improving the lives of victims then the police and authorities
should be encouraged and allowed to use appropriate means of securing that evidence including the use of
CCTV. It seems there is a professional fear of breaching privacy rights of offenders in this respect.
6. The lack of action by Housing Associations and Private Landlords has led to ASB victims suffering for
many years. In addition, Police and other Partnership resources continue to be requested time and time again
for incidents which are not within their powers of control ie persistent noise.
7. Issues of mental health in both victims and offenders are significant. The contribution of Health
organisations especially Mental Health is inconsistent and a major issue in tackling ASB.
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8. At the heart of the scrutiny recommendations is the recognition that neighbourly ASB cases need to be
resolved much quicker. If Court action is the point at which the neighbourly ASB is stopped then all steps
which lead to this outcome need to be improved and speeded up.
9. The cost of these persistent neighbourly ASB cases being prolonged is huge not only to the victim, but
demand on Police response call outs and healthcare support to victims.
10. If the lack of evidence is a barrier then new ways to secure it should be considered and utilised. If
Housing Associations or Private Landlords are dragging their feet on taking action, then in the interest of saving
future demand through repeat calls for service, Police and Partners could be more proactive in engaging them.
11. The catalyst for most neighbourly ASB cases was noise and yet very few cases if any appeared to breach
the statutory noise nuisance definition, in the eyes and ears of the victim, the noise was ASB but when assessed
by local authorities it failed to meet the standard. I would invite the Home Affairs Committee to review the
statutory noise legislation in light of the findings of our scrutiny.
12. Also, does the draft legislation deal effectively with preventative measures? For example, given that
noise is the main catalyst for ASB, it is surprising how little attention appears to be given to effective sound
proofing during the build of new houses. There is legislation in place as the report identifies but it is unclear
what priority local authorities give to ensure compliance.
13. The Scrutiny Committee found that persistent neighbourly ASB only abated when either Court action
was taken or the offender moved voluntarily or was evicted. However, although this solved the case in hand,
it was clear that the offender was then able to start again in another local authority area. This is why it is
recommended that the Police and Partners should consider introducing an offender management program
around tenants evicted or moved for causing neighbourly ASB to ensure that there are control measures in
place (as far as permissible) to prevent neighbourly ASB with new neighbours. It is unclear how the draft
legislation will address this issue.
Paddy Tipping
Police and Crime Commissioner
Written evidence submitted by the Kent Police [ASB 03]
The streamlined and simplified toolkit approach for ASB is to be welcomed particularly as it provides a
system that would enhance enforcement and would also make information sharing amongst partners easier. In
particular this menu of options does provide flexibility for practitioners.
In order to clarify the points identified by practitioners within Kent these have been broken down into the
constituent elements.
Criminal Behaviour Order
What are particularly welcomed are the positive requirements about changing behaviour, which provide the
opportunity to add positive provisions to resolve the underlying issues of the behaviours. There is concern
about how these will be managed by services especially dealing with potential breaches effectively. A
systematic approach and set of guidelines will be needed to ensure the prohibitions are agreed at the first
hearing, otherwise the benefits of the positive requirements will not be realised if the prohibitions are adjourned
at the first hearing.
The report is crucial to ensuring effective decisions and actions are taken that are relevant to the defendant’s
circumstances. However, it is unclear on the lead agency for this will be. If there is no direct responsibility
then some agencies may think twice about submitting or supporting an application.
Whilst we all hope the positive requirements will reduce the breach rate, one should not get concerned
regarding high breach rates. By the very nature of ASB, these are individuals who require parameters put on
their behaviour, as the community requires action. It would be more concerning if breach rates for ASBO/
CBOs were higher than the short-term prisoners re-offending rates, as we are dealing with problematic members
in our community.
The teeth to this implementation is through effective use of the positive requirements at two stages. Firstly,
at the assessment stage by the relevant expert practitioner, and then at the “delivering” stage by the appropriate
agency. Finally monitoring and compliance of this requirement will need some thought to ensure its
effectiveness. Offenders within the community could be managed more effectively as there are sanctions that
are enforceable yet more flexible to the needs of that particular individual or community.
Crime Prevention Injunction
Could it not be called a nuisance prevention order as many types of behaviour do not fit into the harassment,
alarm or distress criterion but do affect quality of life—nuisance and annoyance would be more appropriate to
cover these.
What is not made clear in the paper is whether a breach of the injunction would constitute a civil or
criminal offence.
Community Protection Order
The differing tiers within this could prove confusing to both practitioners and the public.
As with all the orders it will be the details relating to administration, enforcement, breaches etc that will
determine how successful this will be in combating ASB. The more onerous the responsibilities on agencies
in terms of costs or resources the more reluctant agencies may be to pursue them, to the detriment of the
community.
Direction Power
The dispersal power, if applied to PCSOs, will reduce the burden on police officers and will provide
enforcement capability that is welcomed by the public. However, because it will be exercised within the
Neighbourhood Policing remit, this will ensure that the PCSO role is still one focused on the key areas of
problem solving and community priority identification.
There is potential for this power to just move people on and not address the underlying problems that may
be associated with an issue.
Community Trigger
This could create an artificial level of repeat business as the public decide that the best way to get a response
is to mobilise a collective approach to what may be a relatively minor issue of ASB. In particular, this could
make it much more difficult to ensure that the harm element is not overlooked by sheer quantity, often based
on intolerance or perceptions of ASB. Kent Police have invested heavily in driving forward the tackling of the
harm based nature of ASB, looking closely at risk factors that impact on a person’s vulnerability. We have
seen very positive changes in the overall satisfaction of those we have worked with using this approach. The
Community Trigger could negatively impact on this.
Individuals could use the trigger in a malicious, vexatious or indeed prejudicial way that would place the
police in a difficult situation to provide action where none may be needed. Identification of vexatious issues
would therefore necessitate a bureaucracy that would take resources away from dealing with problems.
Impact upon Partners
The ability to enhance partnership working would be immeasurably helped by joint case management tools,
procedures and protocols that would ensure “joined up” thinking in problem solving.
Police and Partnership Community Safety Units would provide the fulcrum for a partnership approach to
ASB as well to ensure that victims receive the correct service at the first time of asking from the correct agency.
There needs to be greater emphasis on the contribution that partners can make lest this becomes another
police-only initiative. Any new legislation should use the opportunity to ensure that partner agencies have a
statutory responsibility to deal with certain kinds of ASB. Noise and environmental ASB should be ones where
local authorities take a statutory lead, with associated tools and powers.
Harm Based Approach
The report still utilises the 1998 definition of ASB, comprising of harassment, alarm and distress, which
does not incorporate the word harm. With current Home Office trials of harm based approaches it is
recommended that the evaluation of these pilots is incorporated into the consultation.
Restorative Practice
Currently the Home Office outlines sanctions and outcomes that are to be introduced. However, we would
recommend further detail around how these can best be achieved to change behaviour, reduce re-occurrences
and increase the feeling of safety in homes and communities. Restorative practice has a proven track record in
achieving many of these goals The use of restorative “language” within the proposed legislation would allow
complainants to see that the authorities are taking the matter seriously.
The use of restorative practice to bring those suffering from anti-social behaviour together with those
responsible offers a pragmatic and timely approach. This approach has also has demonstrated a sustainable
reduction in re-offending across the whole of the criminal justice arena from the most serious crimes to low
level, but very harmful, anti-social behaviour.
The Home Office’s has already highlighted the power of restorative practice to empower communities to
become involved in tackling anti-social behaviour and bringing long term solutions to communities.
The Community Remedy
The use of restorative practice in communities would provide a method of delivery for the Community
Remedy and would provide the best opportunity to achieve the goals of the Home Office in demonstrating the
issues of communities are being taken seriously, offering a prompt and efficient service that would stop the
problem from happening again. Additional proven benefits include communities owning the resolutions,
educating and parameter setting for those involved.
There are many similarities in the Community Remedy approach and the Neighbourhood Resolution Panels
being piloted across the country.
Conclusion
Overall the approaches identified by the consultation paper are to be welcomed but there needs to be greater
emphasis on clear identification of priorities. Furthermore, flexibility around the identification of what
constitutes ASB would ensure that localism is to the fore but could lead to differing interpretation being used
in differing areas that could confuse the public rather than inform.
Concerns exist around the time and costs associated with monitoring and enforcing breaches of all aspects
of the new toolkit, much as they did with the previous orders available.
Positive requirements for the orders could include such concepts as volunteering and restorative practises,
especially where these are directly linked to the community within which the ASB occurred.
Training for courts, county, magistrates and youth, would also be welcome so that the guidance available is
contextualised and greater understanding is given to the harm that ASB causes.
Prepared by Kent Police Partnership and Communities Directorate. Released under authority of Chief Supt
S Corbishley.
January 2013
Written evidence submitted by the Kennel Club [ASB 04]
The Kennel Club is the largest organisation in the UK devoted to dog health, welfare and training. Its
objective is to ensure that dogs live healthy, happy lives with responsible owners.
It runs the country’s largest registration database for both pedigree and crossbreed dogs and the Petlog
database, which is the UK’s biggest reunification service for microchipped animals. The Kennel Club Assured
Breeder Scheme is the only scheme in the UK that monitors breeders, in order to protect the welfare of puppies
and breeding bitches. It also runs the UK’s largest dog training programme, the Good Citizen Dog Training
Scheme and licenses shows and clubs across a wide range of activities, which help dog owners to bond and
enjoy life with their dogs. The Kennel Club runs the world’s greatest dog show, Crufts, and the Discover Dogs
event at Earls Court, London, which is a fun family day out that educates people about how to buy responsibly
and care for their dog.
The Kennel Club invests in welfare campaigns, dog training and education programmes and the Kennel
Club Charitable Trust, which supports research into dog diseases and dog welfare charities, including Kennel
Club Breed Rescue organisations that re-home dogs throughout the UK. The Kennel Club jointly runs health
screening schemes with the British Veterinary Association and through the Charitable Trust, funds the Kennel
Club Genetics Centre at the Animal Health Trust, which is at the forefront of pioneering research into dog
health. The new Kennel Club Cancer Centre at the Animal Health Trust will contribute to the AHT’s wellestablished cancer research programme, helping to further improve dog health.
The Kennel Club will be answering the Committee’s Terms of Reference questions from a dog welfare
position and will as such only be referring to the main proposals relating to dogs in the Anti Social Behaviour
(ASB) Bill.
Terms of Reference
Q1. Whether the draft Bill would introduce more effective measures to tackle antisocial behaviour?
1. The Kennel Club does not believe that the Anti-Social Behaviour Bill would introduce more effective
measures to tackle antisocial behaviour relating to dogs. In fact, it can be argued that there are currently better
measures in place in the UK to tackle dog related ASB which includes the Dogs Act 1871, Dog Control Orders
in the Clean Neighbourhoods and Environment Act and Dog Control Notices in the Control of Dogs (Scotland)
Act 2010 as well as the Dogs (Amendment) Act (Northern Ireland) 2011.
2. Under the proposals, Public Spaces Protection Orders (PSPOs) would serve as new powers to deal with
community protection which would see the repeal and replacement of Dog Control Orders (DCOs) under the
Clean Neighbourhoods and Environment Act 2005. The Kennel Club has serious concerns regarding such
proposals as it feels that DCOs, when implemented effectively, can have a positive impact in communities by
promoting responsible dog ownership.
3. The obligation to consult on the PSPOs would principally remain with the local policing body, chief
police officer and any community organisation/representatives that the local authority believes is appropriate
to consult with. Whilst the Kennel Club understands that removing certain requirements within the consultation
process is intended to help save costs, it would argue that the consultation process is a vital element to ensure
a fair and democratic process. The Kennel Club also has evidence of incidents when the local authority has
consulted with residents regarding dog issues and received a positive response. By engaging with the residents,
local authorities can benefit from being kept informed of situations and causes of particular problems which
could be potentially solved with a simpler solution. In addition, local councils can also benefit with better
compliance from the community due to positive engagement and proactive approach with the public on local
issues. We therefore feel that largely keeping the public in the dark regarding any future PSPOs by using the
proposed consultation methods would have a negative impact and have an opposite effect to the positive
“community action” that has been witnessed as a result of engaging effectively.
4. There are distinct differences between PSPOs and DCOs which raise concerns regarding how effective
the PSPOs would be to tackle dog related antisocial behaviour. There are five different types of Dog Control
Orders which include dogs on lead, dogs on lead by direction, dog fouling, dog exclusion and the maximum
number of dogs being walked by one individual. These five orders allow the local authority to effectively deal
with different issues surrounding irresponsible dog ownership. Under the Public Spaces Protection Order
however, there is no limit to what can be required which raises concerns on proportionate responses to antisocial
behaviour and the consistency of these responses, especially in light of the reduced consultation requirements.
It would therefore be much easier for less dog tolerant councils to implement particularly draconian Orders
with no restriction.
5. As mentioned above, the consultation process required of local authorities before implementing PSPOs is
less demanding. For example, there will be no obligation for a local council to advertise in local newspapers
(a requirement that the Kennel Club already deems to be inadequate in current legislation) which would
inevitably lead to a lack of informed consultation responses and an undemocratic method of consulting amongst
the public and stakeholders. These differences combined will be far less effective in tackling dog related
antisocial behaviour than the current measures in place.
6. Furthermore, the implementation of PSPOs would only apply to local authorities and unlike Dog Control
Orders, parish councils would no longer have the power to implement the new proposed measures. The Kennel
Club believes that this will also weaken the effectiveness of these new measures on tackling antisocial
behaviour. In addition, PSPOs only remain active for three years compared to Dog Control Orders which
currently have no time limit. The replacement of Dog Control Orders with Public Spaces Protection Orders
also raises questions regarding whether the already introduced DCOs would still remain in force.
7. Regarding the Community Protection Notices (CPNs) in the Anti-Social Behaviour Bill, local councils
and police will be able to issue these Notices if they believe there is conduct which is continuous in nature
and has a detrimental effect on the quality of life. In the Home Office’s “Putting Victims First” White Paper
which was published in May 2012, it was suggested that a Community Protection Order could also be placed
on an individual who repeatedly allows their dog to foul or requiring an owner to repair their fencing if their
dog frequently escapes.
8. The Kennel Club does not condone irresponsible owners who allow their dog to be a nuisance to other
animals and people, and therefore believes that a provision creating a Dog Control Notice (as has been enacted
in Scotland and Northern Ireland and currently being proposed in Wales) to require leashing, muzzling or
attending training would be ideal.
9. The Kennel Club believes that Dog Control Notices are an effective pre-emptive tool would allow
authorities to take action against irresponsible dog owners at the first signs of their dogs causing nuisance to
the detriment of quality of life.
10. There is no evidence to suggest that Community Protection Notices would promote responsible dog
ownership as effectively as the already implemented Dog Control Orders and Dog Control Notices utilised in
the devolved administrations. This raises questions whether CPNs in this instance are the best means of
addressing issues of dog nuisance and whether there is a legitimate and justified need to replace the current
measures which serve to both help tackle dog related antisocial behaviour as well as promote responsible
dog ownership.
11. Lastly, the Anti-Social Behaviour Bill would replace Anti Social Behaviour Orders (ASBOs) with
Injunctions which would have the power to ban individuals from doing certain activities or place a requirement
on them to do specific things. In the Home Office White Paper, it was suggested that in dog related incidents
Injunctions could be used in “the most serious cases” which could (1) require owners to muzzle their dogs in
public, (2) prevent owners from taking their dogs to certain locations at certain times and (3) require owners
to take their dog to training.
12. In any case where a dog has injured or made an individual fear injury, the Dogs Act 1871 or the
Dangerous Dogs Act could be used instead of the Draft Bill’s proposed Injunctions. Furthermore, the Kennel
Club believes that any annoyance related issues would be more appropriately covered by Dog Control Notices
as is currently the case in Scotland and Northern Ireland, and is under consideration in Wales. The similarities
between existing Dog Control Notices in the devolved administrations and the proposed Community Protection
Notices and Injunctions only serve to confuse the public as to why they are defined differently. The Kennel
Club strongly recommends definitional continuity in this case, especially in relation to promoting responsible
dog ownership and would stress its view that a clear and united message will achieve the most effective results
in gaining public understanding and compliance.
Q2. How the proposals will benefit victims of antisocial behaviour?
13. On the contrary, the Kennel Club believes that the Draft Bill’s proposals which relate to dog related
antisocial behaviour may even lower the current standard of benefits and protection offered to victims. As
discussed in greater detail in the Kennel Club’s answer to Q1, the Kennel Club feels there are already measures
in the Clean Neighbourhoods and Environment Act, Dogs Act 1871, Dangerous Dogs Act and in other UK
legislation which offer the same level of protection and benefits to victims and in certain cases, better protection
and benefits.
Q3. If the Bill provides individuals, communities and businesses affected by antisocial behaviour with a more
effective long-term solution?
14. Similar to our answer to Q2, the Kennel Club believes that there are a number of measures currently in
place in the UK (including Dog Control Notices currently enforced in Scotland and Northern Ireland) which
offer better solutions to antisocial behaviour for individuals, communities and business both in the short and
long term than that which is being proposed in the Draft Anti-Social Behaviour Bill. These measures are
discussed in greater detail in the Kennel Club’s answer to Q1.
Q4. Whether the Community Remedy is a proportionate response to antisocial behaviour?
15. The aim of a Community Remedy is to help the Police and Crime Commissioners (PCC) or the relevant
policing body in London to make community justice more accountable and responsive to victims and the public
by introducing meaningful and proportionate punishments. Although this is not the Kennel Club’s area of
expertise, we would recommend that any such Community Remedies should be kept consistent for similar
types of low level crimes, treated individually in order to appropriately decide which measures are adopted
and should always be proportionate to the different types of antisocial behaviour in question.
Q5. How the new measures would affect young people in particular?
16. Not applicable.
Additional Comments
17. The Kennel Club is involved in promoting responsible dog ownership at all levels and launched an
initiative last year to work more closely with local authorities and help them hold “Responsible Dog
Ownership” (RDO) days. The Kennel Club has worked with numerous councils in London and the South East
offering them help to organise RDO days by providing related literature, free merchandise and advice on all
aspects of responsible dog ownership, including the importance of permanent identification via microchipping,
dog training and dog walking related access issues such as dog control orders and how to walk your dog
responsibly. The Kennel Club will continue this initiative in 2013.
18. The Kennel Club also runs the Good Citizen Dog Training Scheme—the UK’s largest dog training
scheme and the Safe and Sound Scheme—the Kennel Club’s education initiative to teach children how to be
safe and interact around dogs. It also provides extensive information guides covering everything from travelling
with your pet to dog law, up to date access information for dog walkers and responsible dog ownership
messages from a trusted source. The Kennel Club is committed to continuing this work now and in the future
for the benefit of dogs and their owners alike.
19. Lastly, the Kennel Club views its management of and link to Petlog, the UK’s largest pet reunification
database, as a significant strength and of great benefit to the aims and objectives of both the government in
terms of promoting responsible dog ownership and the wider public. Petlog is the only database which can
also communicate the level of information and expertise associated with the Kennel Club to those whose data
it manages.
The Kennel Club
January 2013
Written evidence submitted by Preston City Council [ASB 05]
Executive Summary
Preston City Council makes a preliminary consultation response to the Select Committee in relation to
replacement of Dog Control Orders by Public Spaces Protection Orders and requests clarification in the Bill
that existing Dog Control Orders, and the power to amend them, will be unaffected by the proposed new Public
Space Protection Order powers.
Brief Introduction
Preston City Council is most concerned regarding parts of the Bill which relate to Public Spaces Protection
Orders. It is envisaged by the Home Secretary that these would repeal and replace Dog Control Orders. The
Bill states that Public Space Protection Orders can be made by a Local Authority if there are activities that are
taking place in a public place which are having a detrimental effect on quality of life.
Introduced by Part 6 of the Clean Neighbourhoods and Environment Act 2005, existing Dog Control Orders
are well understood and working well where Councils deploy the resources to effectively enforce them.
Factual Information
The Council has spent a considerable amount of time, effort and resources over the past two years introducing
Dog Control Orders in the City, including extensive public consultation and engagement. Existing Dog Control
Orders address dog fouling, exclusion of dogs from certain public areas, the requirement to keep dogs on a
lead in certain public areas and the requirement to put a dog on a lead in certain public areas if requested to
do so by an authorised officer of the Council.
There is cross party agreement within Preston City Council in support of the current Dog Control Order
system.
Recommendations for Action
The Bill contains no specific detail on what will happen to existing Dog Control Orders once the power to
make new orders is repealed. Preston City Council seek reassurance that all the effort and cost spent on the
introduction of Dog Control Orders is not undone if this Bill is enacted. The Council strongly recommends
and requests that if the Bill is to be enacted Parliament does so in a way which allows Councils to maintain
existing Dog Control Orders and to make amendments to those orders. The Council also strongly recommends
and requests that the fixed penalty notice enforcement powers associated with such orders also remain.
Councillor John Swindells
Deputy Leader and Cabinet Member for Planning and Regulation
Preston City Council
January 2013
Written evidence submitted by London Borough of Camden [ASB 06]
1. General Comments:
1.1 Camden Council has a long and successful history of using antisocial behaviour (ASB) legislation
creatively and flexibly to address a wide range of issues that matter to our communities. There has been public
concern around the proposed changes to these powers and we are not convinced that the recommendations and
re-branding of powers proposed in the draft bill will provide improvements to the current position. The powers
to deal with crime and disorder need to be reviewed regularly, but to abolish a successful policy rather than
improve on it, is a total waste of public resources.
1.2 Camden Council’s use of ASB legislation is based around people accessing service interventions prior
to the use of any formal sanctions. This is especially the case with young people and vulnerable groups such
as the street population. The council is concerned that the proposals within the draft bill place less emphasis
on the process of early intervention, something that is actually compounded by the fact that positive stipulations
can now be included within Criminal Behaviour Orders (CBOs) especially where this is not being supported
through additional resources.
1.3 Camden has successfully gained over 500 Antisocial Behaviour Orders (ASBOs) since the legislation
was introduced. The potential resource implications and community impact of dealing with applications to
discharge or vary these due to changes in legislation is considerable. The proposals in the Bill will also mean
that we will lose the excellent relationship we have built up with our local Magistrates Court and the corporate
knowledge that goes with this, something that may be damaging given other changes proposed for the criminal
justice system.
1.4 The council is concerned that the definitions within the Draft Bill are inconsistent, and refer at various
stages to victims being “members of the public” and “those in the vicinity”. We would suggest that a consistent
definition is adopted here.
1.5 The council requests that there is specific guidance published around the potential use of the new ASB
Tools and Powers in relation to “Looked after Children” given other recent changes to the Criminal Justice
System for this group.
2. Specific Issues on Amended Powers:
2.1 Crime Behaviour Injunction—Camden is concerned around the significant increase in council officer
time and resources that are outlined in the proposals given that the cases are heard at the County Courts, there
are reduced powers of arrest and the burden of prosecution has shifted from the police and the Crown
Prosecution services to applicant agencies that are likely to be local authorities in the main.
Restricting the power of arrest to issues relating to “violence or the threat of violence” significantly
undermines the protection and respite the current ASB legislation provides to local communities. The removal
of immediate sanctions means that the legislation is also less likely to be effective in terms of influencing
positive behaviour change. These issues are particularly pertinent in regards to addressing issues around
vulnerable client groups such as the street population.
The council is concerned about the potential impact on young people, especially in regards to the definition
that “Conduct capable of causing nuisance or annoyance to any person” could be grounds for seeking an
injunction. The definition is dangerously ambiguous and council suggests that it is amended to be clearer about
the thresholds of behaviour that would lead to injunctions being considered for people under 18.
2.2 Criminal Behaviour Orders—The council is concerned that there is no consultation process around the
use of CBOs and suggests that applicants are required to formally consult with the local authority before
using the power. This is especially pertinent with orders relating to vulnerable client groups such as the
street population.
2.3 Dispersal Powers—The removal of the current safeguards around the use of dispersal zones will make
it harder for Community safety Partnerships to maintain an overview of how the power is applied, meaning
that inconsistencies could occur. The council suggests that there is a requirement for local governance structures
to be put in place around the powers to oversee why and when they are used and to manage any issues around
displacement from other areas.
2.4 Community Protection Notice—It is not clear whether the range of sanctions available would be
sufficient to address the issues Camden would want to continue to tackle, particularly in regards to street
activity.
2.5 Public Space Protection Orders—Camden Council is eager to confirm whether these could be applied to
tackle issues currently covered by the powers being replaced (eg public drinking and dog control). Again there
is a possibility that ‘inconsistent’ or piecemeal approaches may be adopted in different parts of the borough.
2.6 Closure of Premises associated with nuisance and disorder—There is a crucial issue around the definition
of “habitual residency” as it relates to this power within the Draft Bill as it may mean that Camden is no
longer able to use the power in response to cases where vulnerable residents have had their property taken
over and are in need of alternative housing options. The council requests urgent clarity around this, we suggest
that an exception to this is included in the Act, where appropriate alternative accommodation has been made
available.
2.7 Possession of a Dwelling House—The council has a concern about whether the application of condition
4 (mandatory possession order if a closure order is obtained) in practice will mean that closure orders will
become more difficult to get, because effectively they will become the equivalent of a possession order. There
is a similar concern in relation to condition 2 (injunctions).
3. Proposed New Powers
3.1 Community Remedy—The council is concerned that the responsibility for preparing the “community
Remedy” document, sits with the local policing body. Our suggestion would be for the responsibility to be
given to Community Safety Partnerships in London and to elected police commissioners elsewhere.
Tom Preest
Head of Community Safety
London Borough of Camden
January 2013
Written evidence submitted by the Dogs Trust [ASB 07]
1. About Dogs Trust
Dogs Trust is the UK’s largest dog welfare charity. Every year, we care for around 16,000 stray and
abandoned dogs at our nationwide network of 18 re-homing centres. No healthy dog is ever destroyed. We
also promote dog welfare substantially through educational, neutering and lobbying campaigns.
We believe in the importance and effectiveness of non-legislative interventions in tackling anti-social
behaviour. To reflect this belief, we invest £6 million a year in outreach work to combat irresponsible dog
ownership across the UK.
Dogs Trust runs a successful City Dogs Outreach project in London which reaches out to young urban dog
owners to help them understand their dogs’ needs and become more responsible owners. The project has
neutered one dog a day in Greater London since its launch in 2010, helping to reduce the number of unwanted
Staffie type puppies. Dogs Trust has also provided local authorities in Greater London with 2,750 free neutering
vouchers and the Metropolitan Police with an additional 200 vouchers that are largely offered to the more
vulnerable owners of bull breeds. We operate similar schemes in other parts of the UK, often holding
“Responsible Dog Ownership” events where local dog owners can come along and avail themselves of free
microchipping, free health checks, educational materials, and free neutering vouchers. We generally welcome
a very high turnout to such events.
We also have 13 education officers based around the UK who visit schools to educate children about dog
welfare, responsible dog ownership and how to be safe around dogs and we operate an annual Poop Scoop
Week to raise awareness about picking up after your dog in order to maintain a clean and safe environment
for all.
2. Introduction
Dogs Trust has a number of concerns about this Draft Bill, which proposes to examine irresponsible dog
ownership under Anti Social Behaviour (ASB) legislation.
We are concerned that owners who deem themselves to be “responsible”, but have dogs in need of training
or have dogs causing issues in parks, who would not associate themselves with ASB. It is our opinion that the
stereotypical image of the “ASBO kid” is not something that these dog owners will relate to.
Dogs Trust has tried to follow the terms of reference as best as possible, but owing to our restricted nature
of expertise in this area, and the fact that many aspects of the Bill are not relevant to our work, we have not
addressed each point in our response. As such, we are considering the first two terms of reference.
3. Will the draft Bill introduce more effective measures to tackle antisocial behaviour?
We have concerns that this draft Bill will not necessarily introduce more effective measures to tackle
antisocial behaviour. Overall, we are concerned that examining issues surrounding dog control under Home
Office legislation may be overly complicated, and possibly lead to a duplication of proposals which may
ultimately confuse enforcers and the general public. The main proposals with which we have problems are
outlined below.
3.1 Public Spaces Protection Orders
Dogs Trust is very concerned by the proposal to repeal Dog Control Orders (DCO’s) and replace them with
Public Spaces Protection Orders (PSPO’s). We believe that Dog Control Orders, as established by Sections
55–67 of the Clean Neighbourhoods and Environment Act, are effective in their current form, recognised by
the public and easily enforced by Local Authorities who have the available resources to do so. Furthermore,
DCO’s have no time limit, whereas PSPO’s would expire after three years (although they may be extended for
a further three years). It is not clear in the Draft Bill whether existing DCO’s would remain in force, expire
immediately upon the introduction of PSPO’s, or expire after three years as per PSPO’s. We fear that in terms
of Dog Control Orders, the government should take into consideration the old adage of, “if it ain’t broke, don’t
fix it”.
3.2 Community Protection Notices
It is not completely clear from this Draft Bill how Community Protection Notices (CPN’s) would apply to
dog control related offences. Offences such as “persistant or continuing” barking can be dealt with under
existing legislation—namely Section 79 of the Environmental Protection Act 1990.
Furthermore, the Draft Bill states that “a person who fails to comply with a CPN may be issued with a
remedial notice by the local authority in respect of work which the local authority proposes to carry out in
order to rectify the problem (for example, cleaning graffiti from a wall)”. Again, we are unsure as to how this
would apply to dog control related anti social behaviour. If for instance we look at the problem of barking or
out of control dogs, rectification would not take long, unless failure to comply with a CPN in a dog owner’s
case would result in an obligation to attend training classes.
Dogs Trust would rather see the introduction of Dog Control Notices in response to irresponsible dog
ownership related anti-social behaviour (such as excessive barking or dogs being a nuisance in public areas
such as children’s playgrounds). Such Notices have been introduced in Scotland and Northern Ireland with
great success, and are currently being consulted on in Wales. They apply to dog control issues only, and thus
provide suitable solutions (such as the requirement to leash or muzzle a dog in public, or attend training
classes) for dog-related problems. We fear that the generic nature of CPN’s would lead them to be less effective
in tackling dog-related offences than DCN’s have proved to be in other parts of the UK.
3.3 Crime Prevention Injunctions
Dogs Trust does not foresee a circumstance where Crime Prevention Injunctions would be the best response
in the case of a dog related incident. In most situations where a dog has injured a person or made them fear
injury, the Dangerous Dogs Act could be used. In less severe cases, where the Dangerous Dogs Act could not
be invoked, it is unclear where Injunctions could cover any dog-related Anti-Social Behaviour offence where
a proposed Community Protection Notice could not.
4. How will the proposals benefit victims of antisocial behaviour?
Dogs Trust is not convinced that the proposals will benefit victims of antisocial behaviour relating to dogs.
In the Bill it is suggested that local agencies will have to focus their response to ASB on the needs of the
victim, rather than the incident, which it has been in the past. While accepting that the needs of the victim are
paramount, Dogs Trust believes that the issues surrounding each incident must also be considered to enable
anti social behavior with dogs to be properly assessed. Action must be taken before an incident occurs and we
have concerns that this may not happen within the proposed measures.
5. Additional Points and Conclusion
Dogs Trust is disappointed with the Draft Bill, which we fear overcomplicates the issues surrounding dogrelated Anti-Social Behaviour. While we acknowledge the problems caused by a minority of dog owners, we
do believe that there is already ample legislation in place (many of it dog-specific) which serves the same
purpose as many of the Bill’s proposals. Where such legislation does not exist, we think that there are more
effective measures—such as Dog Control Notices—that could be introduced instead.
Dogs Trust
January 2013
Written evidence submitted by Living Streets [ASB 10]
1. About Living Streets
We are the national charity that stands up for pedestrians. With our supporters we work to create safe,
attractive and enjoyable streets, where people want to walk. We work with professionals and politicians to
make sure every community can enjoy vibrant streets and public spaces. We started life in 1929 as the
Pedestrians Association and have been the national voice for pedestrians throughout our history. In the early
years, our campaigning led to the introduction of the driving test, pedestrian crossings and 30mph speed limits.
Since then our ambition has grown. Today we influence decision makers nationally and locally, run successful
projects to encourage people to walk and provide specialist consultancy services to help reduce congestion
and carbon emissions, improve public health, and make sure every community can enjoy vibrant streets and
public spaces.
2. Key Messages:
— The Bill provides a more flexible route for local authorities to tackle anti-social behaviour
which reduces local environmental quality such as littering, graffiti and dog fouling.
— In order for the Bill to achieve its aims there is a need for government to provide guidance and
advice to the users of the new powers, such as local authorities, to ensure the proposals have
maximum impact in delivering safe, attractive and enjoyable streets.
3. Living Streets welcomes the measures outlined in the Bill to tackle persistence place-related anti social
behaviour such as littering, graffiti and dog fouling which can negatively affect the quality of life of local
communities. We know that these issues are of importance to local people from a YouGov poll carried out for
Living Streets in March 2012, which revealed that one third of British adults said they would walk more in
their local area if streets were kept in better condition and 46% of 18–24 year olds and 51% of 25–34 year
olds would walk more if the streets were safer and more attractive.
4. However, we believe the system of Community Protection Notices and Community Protection Orders
(Public Spaces) will only succeed through the provision of advice and guidance to local authorities police and
staff of registered providers of social housing.
5. It is seven years since the introduction of the Clean Neighbourhoods and Environment Act (CNEA) 2005
which introduced the system of Dog Control Orders, Litter Control Notices and Graffiti/Defacement Removal
Notices (although this power was amended and not introduced by the CNEA) and it is only in the last few
years these powers are being used to maximum effect. Defra supported the initial roll out of the powers with
other Government Departments in 2005–6 and without such support for the new system of Community
Protection Notices and Community Protection Orders (Public Spaces) there is a serious risk of the effectiveness
of these powers being reduced unintentionally as local authorities take time to understand these new powers.
6. Table One below shows a broad correlation between the numbers of Fixed Penalty Notices (FPN) issued
and increased awareness and knowledge of the CNEA provisions by local authorities from 2006 until the
collection of the figures stopped in 2010. Figures were not collected centrally regarding the numbers of Dog
Control Orders and Graffiti/Defacement Removal Notices issued, therefore, the number of FPNs, in table one,
is used a proxy measure.
7. Table One—Number of Fixed Penalty Notices issued for CNEA related offences
Year
2006–07
2007–08
2008–09
No. FPNs for
Litter Clearing
No. of FPNs
Notices Issued issued for graffiti
120
257
381
43
138
119
No. of FPNs
issued for flyposting
No. FPNs
issued for dog
fouling
No. FPNs issued for
dog control
1133
1577
1257
3434
1938
2071
109
658
1306
Source http://data.gov.uk/dataset/fixed-penalty-notice-overview (Accessed May 2011).
8. One example of where guidance and the sharing of best practice would be useful concerns the potential
use of Community Protection Notices to tackle litter outside office blocks. Under the present system of Street
Litter Control Notices Sections 93 and 94 of the Environmental Protection Act 1990 give local authorities the
power to issue Street Litter Control Notices on premises that have a frontage on a street, and outside which
litter or refuse is causing defacement of the land. However, the legislation was originally envisaged to tackle
fast food litter and till receipts, as such, notices cannot normally be served on office buildings unless they sell
food and drink whether or not for consumption on the premises (eg from a canteen or snack kiosk). The
proposed Community Protection Notice would allow local authorities to require the occupiers/owners of offices
and non-food retail outlets to play a greater role in dealing with this type of litter problem and would, therefore,
provide a vital tool for local authorities to deal with localised littering problems, and would close a loophole
in the legislation. It would also encourage members of the public to take increased responsibility for their litter.
9. Living Streets is concerned that the use of Community Protection Notice to tackle graffiti appears to
misrepresent the purpose of existing powers. Graffiti/Defacement Removal Notices are served upon building/
structure owners who are not normally recipients of ASB action. The owners and occupiers of such land are,
therefore, victims of anti-social behavior and are not the usual groups for which ASB action is necessary. FPNs
or prosecution may take place for those who carry out graffiti or fly-posting through section 43 of the Anti
Social Behavior Act 2003 and the Criminal Damage Act 1971. However,
10. Living Streets believes it is important that the new system of Community Protection Notices and
Community Protection Orders (Public Spaces) retains the powers currently contained within the present system
of Litter Clearing Notices which allows local authorities to recover the costs they have incurred in cleaning
the property or land concerned. This is in order to prevent local communities paying twice, firstly through the
amenity cost of having their quality of life reduced by neighbouring land blighted by litter and secondly the
financial cost of removal through their Council Tax.
11. Finally, the 2005 Clean Neighbourhoods and Environment Act (CNEA) attempted to bring together a
variety of legislation to enable land managers to improve local environmental quality. To ensure the primary
legislation achieved these aims a variety of secondary legislation and guidance was reviewed or introduced.
One such area of guidance which was reviewed was the Code of Practice on Litter and Refuse (COPL&R)
which was introduced to set minimum standards which communities could expect from their local authorities
and statutory providers. Accordingly the Litter Control Notice sections of the CNEA are linked with the
COPL&R.
12. Section 92A of the Environmental Protection Act as amended by Sec 20 of the CNEA allows a Litter
Clearing Notice to specify the standards of compliance. The standards of compliance for Litter Clearing Notices
are detailed in the COPL&R. Therefore, any repeal of the system of Litter Control Notices would need to be
linked with a review of COPL&R to ensure minimum standards of compliance are achieved by landowners
when removing litter and refuse from their land.
Living Streets
January 2013
Written evidence submitted by John Dwyer (Police and Crime Commissioner for Cheshire) [ASB 11]
“MORE EFFECTIVE RESPONSES TO ANTI-SOCIAL BEHAVIOUR”
I welcome the opportunity to comment on the proposed changes regarding anti-social behaviour tools and
powers as contained within the Home Office publication—“More effective responses to Anti-Social
Behaviour”. In my manifesto I pledged to tackle yobbish behaviour and I see these proposals as generally
helpful in achieving that pledge.
In broad terms the proposals contained within the document are practical, positive, reasonable and balanced.
I feel that the paper proposes a simplified and consolidated process for dealing with anti social behaviour
(ASB) and recommends more streamlined and seemingly less bureaucratic methods of tackling these issues.
Community behaviour orders will rely on effective interventions and system compliance. These will require
effective partnership resourcing and it will be dependent on Police and Crime Commissioners to influence and
develop force area wide community safety discussions to ensure consistent good practice, as well as to ensure
that the whole responsibility for coordinated case management does not fall to the police. I do, however, have
some concerns about partner agencies capacity and capability to deliver effective partnership working and
appropriate support for victims and perpetrators in this difficult economic environment. In addition this
approach will require integrated data and information sharing to be effective and existing data sharing protocols
may not be sufficient. Data integration has not, as yet, been achieved and I believe that this has been raised
with the Government by Cheshire Constabulary and its partners as part of the Community Budgets pilot project
in Cheshire West and Chester Council entitled “Altogether Better”.
Specific feedback and observations on the proposed changes:The Criminal Behaviour Order—(CBO)
My enthusiasm for the CBO is slightly tempered by concern about how potential breaches will be effectively
managed. A systematic approach and set of guidelines may be needed to ensure the prohibitions are appropriate
and relevant to the defendant’s circumstances. If there is no direct responsibility then some agencies may be
reluctant to submit or support an application.
Whilst it is a legitimate expectation that the positive requirements will reduce the breach rate, one should
not get overly concerned regarding high breach rates. Individuals subject to anti social behaviour interventions
who require parameters put on their behaviour, are the more problematic members of our communities. The
monitoring and compliance requirements will need some thought to ensure its effectiveness.
Some clarification would be helpful regarding the phrase “any criminal offence” in relation to the Criminal
Behaviour Order, namely whether this refers to just “anti social behaviour” related crime or any crime in
general. I see the latter as being preferable.
The Drinking Banning Order is similar to an ASBO in that it can be obtained on application or following
conviction for an offence committed while under the influence of alcohol. It differs in that the Order can
include a positive condition by a referral to an approved course to address alcohol misuse. It appears logical
that this power be incorporated into the Criminal Behaviour Order which enables the same necessary and
appropriate conditions to be applied. This helps to keep the powers simple and flexible as opposed to different
powers for each specific issue.
The Crime Prevention Injunction—(CPI)
The proposed measure appears significantly quicker and more cost effective than the current ASBO
processes, although clarification over the most appropriate venue for court applications would be appreciated.
My view was that it could be heard in either a county court or a magistrate’s court sitting under its civil
jurisdiction. This could provide more options to use it and encourage the police to use both courts where
necessary. For example a young person and an adult causing a nuisance together can be heard in the magistrates’
court whereas housing could use a possession case in the County Court to request a Crime Prevention
Injunction (CPI).
There continues to be a perception that there is still a lack of understanding of civil law within some
magistrates courts and that there will need to be a supported training initiative to ensure magistrates and court
staff are fully aware of issues/policy relating to CPIs.
Housing providers and other practitioners are confident in the existing case law and are cautious about the
implications of introducing a new tool and awaiting new case law to develop. As a consequence partners will
need to be prepared for legal challenges when the new processes are first used and be resistant to any temptation
to allow court costs to be obstructive to their use. A view has also been expressed that breaches of a positive
mandatory condition may be more problematic to prosecute.
The lower threshold of “nuisance or annoyance” may enable wider use of CPIs but it may also result in the
temptation to act on “tolerance issues”. As such there is a need to consider the potential for over-reaction and
misuse of the power if the lower impact threshold was adopted, and I would therefore support the retention of
the “harassment, alarm and distress” test rather than the lower threshold.
Community Protection Order (Level 1)—CPO (1)
Although there is a minor danger that the differing tiers within the Community Protection Order may prove
confusing to practitioners and the public, I welcome these proposals. Rather than having a number of slightly
different processes available to close premises, there will be one generic approach which should be more cost
effective and simpler to apply for.
The proposal could be further enhanced by considering and accommodating the need for extensions to
the orders.
Community Protection Order (Level 2)—CPO (2)
The proposals will be useful as they increase the number of people who can action nuisance caused by anti
social behaviour and thereby support problem orientated partnership approaches to improve community safety.
Police “Direction” Power
This proposal will strengthen police powers to remove people from areas for poor public place behaviour in
general and are not overly focussed on alcohol related disorder as at present. Both Section 30 and Section 27
Dispersal orders have proved to be very effective tools and combining these orders will simplify their
administration and reduce costs.
The current dispersal power is instigated by police and is risk assessed as part of its inception. This at
present designates areas after consultation and agreement of the local authority. This helps facilitate a problem
solving approach for a period of time up to six months. It involves an exit strategy, community involvement
and the responsibility not to displace the problem elsewhere. This new powers could benefit from a similar
approach or guidance.
I suggest that these powers should be open to police officers and police community support officers
simplifying present powers.
Community Trigger
Further detail and clarity is required regarding the new “Community Trigger” mechanism, specifically as to
how the mechanism could operate in a meaningful, balanced manner and what thresholds it would operate at.
Anti social behaviour is often a complicated matter, with complexities that the public do not always understand,
have an appreciation of what agencies are actually empowered to deliver for them, or the affordability of
their proposals.
Any implementation of the trigger processes would need to be mindful that it may make it more difficult to
ensure that the “harm and vulnerability” element of anti social behaviour is not overlooked by the sheer
quantity of incidents, or inappropriate intolerance or perceptions of anti social behaviour.
If the issue of the trigger process and thresholds are left to local interpretation there is a risk that as
Commissioner I may receive pressure regarding a topic of concern that is disproportionate to the scale of the
problem. Individuals may also use this in a malicious, vexatious or indeed prejudicial way that would place
the police in a difficult situation as being required to provide action where none may be needed. Identification
of vexatious issues would therefore need strong clarity and oversight.
In addition if the exact mechanism for supporting the “community trigger” is to be a matter for local
determination by a community safety partnership, there is a risk of varying practices developing across the
force area.
General Feedback
Although not perfect the current tools and powers have enjoyed a sustained period of time to be tested and
developed within court and subject to judicial reviews. A settled position has been reached in many aspects of
tackling perpetrators and the implementation of new powers will need to consider how best to mitigate the
potential for fresh legal challenges.
As I have mentioned previously the new tools and powers will do little to deal with inadequacies in case
management skills including application/enforcement processes and information sharing. Further developmental
work in these enabling skills would be welcome.
Anecdotal evidence suggests a dissatisfaction from communities and practitioners that courts do not deal
with anti social behaviour related breaches seriously enough, which has the potential to encourage a lack of
confidence. Similarly consideration of appropriate steps to minimise adjournments or assessments, which can
easily damage community confidence should also be considered. I also would question what will happen to
existing ASBOs when the new powers come into force.
In general I welcome the new powers, but feel that it should be noted that less formal, restorative justice
and out of court disposals still have a role, especially when considering younger offenders and these should be
included within the wider narrative of anti social behaviour interventions.
Conclusion
The proposed intervention landscape still relies on the 1998 definition of anti social behaviour, of
“harassment, alarm and distress”. The current Home Office/ACPO trials of a “harm” based approach to tackling
anti social behaviour are close to the assessment stage and it may be prudent to ensure that the learning from
these areas is incorporated and considered in a harm based approach.
I would suggest that providing effective responses to incidents of harm is not simply a matter for the police
alone and there is a clear need for a partnership approach. The police service and its partners have long
recognised this fact and our staff are engaged in first class work, preventing and intervening in issues, and
making a difference to people’s lives. The ability to enhance partnership working would be immeasurably
helped by joint case management tools, procedures and protocols that would ensure “joined up” thinking in
improving community safety.
Equally harm in our neighbourhoods cannot be “solved” by public services alone. Society requires confident
and resilient communities, demonstrating a culture of mutual respect between people. We and our partners
support communities to develop their own capacity and capabilities.
Through an informed appreciation and interpretation of individual and social harms the Police Service is
best able to prioritise resources and respond appropriately to community needs and expectations. The proposed
toolkit of anti social behaviour interventions is consistent with this ambition and we look forward to working
with both the Government and partners in making our communities even safer places to live, visit or work.
John Dwyer
Police & Crime Commissioner
January 2013
Written evidence submitted by the Association of Convenience Stores [ASB 12]
Introduction
1. ACS (the Association of Convenience Stores) welcomes the opportunity to submit evidence to this inquiry.
ACS represents 33,500 local shops across the UK and encourages retailers to combat retail crime and antisocial
behaviour through staff training, age verification initiatives and crime reduction partnerships. ACS works
closely with the Home Office on a range of retail crime issues and is a member of the National Retail Crime
Steering Group.
2. ACS welcomes the Anti-Social Behaviour Bill and has been working with the Home Office from the
outset to ensure that Bill will deliver effective measures to support local shops and the communities they serve.
Local shops regularly suffer from anti-social behaviour whether through direct abuse and property damage.
3. ACS supports the swift implementation of the Bill so that the Police, Local Authorities and communities
should have access to robust powers to tackle anti-social behaviour and be able to deliver visible and
effective outcomes.
Local Shops and Anti-Social Behviour
4. The latest retail industry crime figures2 shows that out of the categories of retailers affected by antisocial
behaviour, convenience stores are particularly vulnerable with 53% of incidents per 1,000 employees in
2010–11 against convenience stores.
5. ACS Voice of Local Shops Survey3 on crime shows that anti-social behaviour remains a significant
problem for convenience retailers. 41% of retailers surveyed in the last quarter said that levels of violence and
verbal abuse had stayed the same and 18% reported an increase. Members also reported high levels of shop
theft, with no more than 11% of retailers reporting no instances of shop theft for the entire four quarters.
6. Anti-social behaviour goes beyond staff intimidation, violence and theft, retailers also have to contend
with environmental anti-social behaviour such as graffiti, littering and vandalism and staff intimidation. These
issues cause a significant amount of lost trade to retailers and compel them to further invest in crime reduction
measures, thus taking money away from other areas of their business.
7. Research recently commissioned by ACS called Local Services: Happy Places4 identified that two of
the key drivers for citizens’ satisfactions within their community are safety and security and appearance and
cleanliness. Local shops are at the heart of the community and they work hard to mitigate any perception that
they are the sources of environmental or physical anti-social behaviour.
8. The perception that local shops are the source of drink-fuelled anti-social behaviour is a simplistic
assumption, particularly in relation to the supply of alcohol to underage drinkers. Independent industry
2
3
4
BRC Retail Crime Survey 2011
ACS Voice of Local Shops Survey 4
Local Services Happy Places
figures5 show that local shops match supermarkets in test purchase pass rates and perform better than pubs
and clubs. There are also strong industry commitments to age verification schemes, Community Alcohol
Partnerships and the Government’s Responsibility Deal reducing the number of alcohol units in store.
New Powers
9. The most
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—
—
—
relevant new powers set out in the bill for ACS and included in our written evidence are:
Community Trigger.
Community Remedy.
Community Protection Notices.
Community Harm Statement.
Community Trigger
10. ACS welcomes the inclusion of the Community Trigger policy in the Bill. This policy did not originally
include businesses within its scope but the Home Office have been responsive to our concerns that businesses
need to be allowed to use the trigger.
11. Providing local shops with a consistent and guaranteed response to anti-social behaviour and level one
criminal activity is of fundamental importance. Currently, inconsistent police response to offenders against
local shops reinforces the view that retail crime is victimless and encourages reoffending. The Community
Trigger will go some way to ensuring that shops can get a joined up consistent approach to persistent offenders.
12. The provisions in the draft bill for the Community Trigger should provide a maximum threshold for the
number of instances of reported crime in a prescribed timeframe. We understand the importance and value of
Ministers’ intention to allow the relevant local bodies to set their own threshold for this, but a statutory
maximum would ensure an easy to understand and consistent standard across the country. Local authorities
would be free to vary their thresholds below the maximum according to local priorities.
13. The danger of not having a limit to response level set out in legislation is that the community trigger
becomes inconsistent in its application and therefore confuses the victims that it is designed to reassure. The
trigger is after all first and foremost a reassurance for victims that low level crimes that cause distress and
worry will be taken seriously, especially where they are persistent.
Community Remedy
14. ACS welcomes the Community Remedy policy in the Bill and will be responding in full to the Home
Office’s public consultation. Consultation with victims of all types of crime is a vital to the credibility and
effectiveness of our justice system. The Community Remedy policy is a great opportunity to give citizens a
visible and accountable response to low level offences and anti-social behaviour.
15. To be effective the Community Remedy must be implemented effectively and the business community
needs to be a key consultee on the penalties available under the list of sanctions. In the majority of cases
retailers are likely to favour payment of direct financial compensation for lost stock or damage to the property,
such as cleaning graffiti from walls. The inclusion of direct compensation in the list of options for victims is
important to making this proposal credible with victims.
16. Implementation of the Community Remedy must not compound the problem of over use of out-of-court
penalties or the inappropriate application of penalties. Appearances at magistrates’ courts and the application
of custodial sentences are important elements in dealing with prolific and violent offenders. A number of
retailers have been so disillusioned by the ability of the criminal justice system to deal with offenders that they
have now pursued civil proceedings against offenders, banning them from stores and seeking compensation.
17. Previous experience of Restorative Justice Programmes has shown that retailers and retail staff are not
always consulted on penalties given to offenders. This has resulted in a number of unsatisfactory outcomes for
retailers and lack of reparation for the harm they have received. There has been extensive debate about the
application of out-of-court penalties and their effectiveness in delivering victim satisfaction and preventing
reoffending. The latest data6 on fixed penalty notices shows that there were 127,530 notices issued in 2011.
34,688 notices were issued for retail theft under £200; over half of these notices (18,411 notices) went unpaid.
Moreover, retailers report that police are not issuing fixed penalty notices appropriately ie for repeat offenders
or where there has been aggression to staff.
Community Protection Notices
18. Retailers want to ensure that their premises are not a source of any form of anti-social behaviour in their
community. ACS acknowledges that Community Protection Notices (CPNs) have a role to play in the
elimination of antisocial behaviour, but want to ensure that the guidance on how they are implemented is fair
and consistent if used against businesses.
5
6
Checked out: The Role of ID Checks in controlling under-age drinking
Nick Debois MP, Parliamentary Question, 3 September 2012
19. For example, to what extent is a local shop responsible for litter outside their store if refuse facilities are
made available to customers, or the presence of street drinkers if all licensing conditions and due diligence
procedures have been met by a retailer? CPNs would only affect retailers that persistently choose not to manage
anti-social behaviour that they are directly responsible for affecting their local community; this will have no
impact on responsible businesses.
Community Harm Statement
20. A mechanism to report the wider impact of crime on the community, including businesses, would be a
welcome measure. ACS has been working with the Ministry of Justice on improvements to the provision for
business in the Victims’ Code and Victim Personal Statement. ACS has recommended that the Ministry of
Justice create a business impact statement allowing businesses to report the wider impact of crime against
them. Community Harm Statements would also provide Magistrates’ Court with more information to deliver
informed sentencing decisions.
Association of Convenience Stores
January 2013
Written evidence submitted by Martyn Underhill (Police and Crime Commissioner for Dorset)
[ASB 13]
Further to call for evidence by the HASC on the draft ASB Bill, please find below some general comments
and feedback on the key changes proposed from Martyn Underhill, Police and Crime Commissioner for Dorset.
Community Remedy
The PCC is generally supportive of this proposal, but will be responding in more detail to the Home Office
consultation on Community Remedy that is currently open.
Cutting the Range of Powers
The PCC is supportive of any attempt to streamline the current range of powers available, provided that they
are faster, more flexible and effective, as is the government’s intention.
Community Trigger
There is some nervousness locally regarding this as such triggers are already in use in Dorset. The separate
Dorset Police response should expand on this issue accordingly.
Civil Injunction
The PCC would question why a civil injunction is being proposed rather than a criminal injunction? Civil
injunctions invariably have less power and tend to be more bureaucratic.
Power to Close Premises
The PCC agrees with this proposal.
More Effective Police Powers
Whilst possibly not relating directly to the proposed police powers, the PCC is keen to see ASB Awareness
training for offenders included in the proposed legislation. Such training would encourage offenders to focus
on the outcomes of their behaviour and empathy with the victim. Ideally this would be used as a diversion,
and not post conviction.
Eviction of Anti-Social Tenants
The PCC is not opposed to measures to speed up the eviction of anti-social tenants, but the real concern is
that eviction simply moves the problem elsewhere, rather than tackling the underlying issues. Eviction would
clearly need to be used in conjunction with other powers and diversions to be truly effective.
Martyn Underhill
Police and Crime Commissioner for Dorset
January 2013
Written evidence submitted by Blue Cross [ASB 14]
Introduction
Blue Cross is one of the UK’s leading pet charities. Every year we rehome thousands of pet animals through
our network of rehoming centres across the UK. In addition, Blue Cross offers free veterinary treatment to pet
owners on low and reduced incomes.
Blue Cross is pleased to respond to the Home Affairs Committee call for evidence on the government’s
proposed measures to tackle anti-social behaviour. Blue Cross can comment only on the measures that are
likely to impact on dog owners and dog ownership within the community, and so the comments below are
limited. Blue Cross operates three animal hospitals in London, and supports a wide range of pet owners many
of which are young dog owners and many own dogs of a “status” type breed. Blue Cross also provides free
educational services to young people through the RespectaBULL workshops, offered in London, Manchester
and Birmingham.
Blue Cross also submitted both written and oral evidence to the EFRA Committee inquiry into dog control
in late 2012.
Whether the draft Bill would introduce more effective measures to tackle antisocial behaviour;
Anti-social behaviour involving dogs can have a significant and negative impact on a community.
Irresponsible dog ownership can blight enjoyment of community open spaces at one end of the scale, but also
result in serious risk to the public at the other.
In our opinion dog control and dog welfare are inexorably connected, and Blue Cross has been campaigning
for current dangerous dog legislation to be amended to include measures that better reflect this and that actually
work to prevent dog attacks. It was strongly suggested that the new range of measures put forward by the
Home Office in the draft Bill could provide such an opportunity. It is our opinion that the proposed measures
do not provide what is necessary to effectively tackle anti-social behaviour involving dogs, prevent dog attacks
and promote responsible dog ownership. More detail is attached below.
Public Spaces Protection Orders (PSPOs)
We understand that the PSPO will replace the Dog Control Order (DCO). We do have some concerns that
the new orders will not be as effective as those which they are to replace. Dog Control Orders have been in
operation for some time now, and have very specific requirements (fouling; lead; lead by direction; exclusion;
limit on numbers). Where the DCOs have been properly resourced and enforced they generally work quite well
to reduce dog related problems locally, and to promote responsible dog ownership. The proposed PSPO is
unlimited, which raises some concerns about consistency and the proportionality of response in the each case.
In addition, the consultation process for PSPOs is not as inclusive as that for the DCOs, and therefore we are
concerned that a general lack of information and opportunity to input could potentially confuse and alienate
dog owners. PSPOs only last for three years, whereas a DCO has no time limit. This may result in a situation
where restrictions can be evaluated on a regular basis and amended as necessary. However, without a fully
inclusive consultation process it is impossible to see how this will make the orders more effective at tackling
anti-social behaviour involving dogs.
Community Protection Notice (CPN)
The new order will be used to address an issue that is having a detrimental impact on an individual’s quality
of life. In the case of a dog that was causing a nuisance to people and/or other dogs it does not appear obvious
why a CPN would be more effective than for instance a Dog Control Notice (DCN) (as in Scotland and NI,
and proposed in Wales). A DCN includes dog specific requirements (muzzling, training, neutering), whereas a
CPN will not. Unlike a DCN or Dog Behaviour Contract the CPN will not necessarily contain any behavioural
change elements, and/or preventative measures. In the long term if we are to reduce anti-social behaviour
involving dogs and promote responsible dog ownership such measures must work to guide the owner as well
as preventing certain undesirable activities.
Injunctions
Injunctions are to replace ASBOs, which are to be obtained in a County Court (or the Youth Court if under
18) and can be obtained by various bodies including the local authority, the Police and a housing provider. In
the White Paper it is suggested that injunctions could be used in serious cases to restrict, prevent and direct
activity with dogs. It doesn’t appear obvious how this would work in practice and when an injunction is likely
to be used rather than a CPN in the case of a “nuisance”. In the most serious cases and there is an injury or
fear of injury then the Dangerous Dogs Act would apply. Rather than the specifics being directed under an
injunction it would appear to make more sense for such measures to be imposed by the CPN? However, none
of these measures are likely to be as effective at promoting responsible dog ownership as a DCN, which unlike
the injunction wouldn’t require the courts involvement therefore reducing both bureaucracy and costs.
From extensive consultation with dog wardens, local authority staff, Police dog legislation officers and others
on the issue of dangerous and out of control dogs in our communities, Blue Cross is strongly of the opinion
that the proposed measures will not provide enforcers with what is desired. That is the ability to effectively
impact on someone’s anti-social behaviour with their dog immediately and decisively through the use of dog
specific control notices and orders, providing an early preventative strategy.
How the proposals will benefit victims of antisocial behaviour;
We consider that the use of new terminology will to a certain extent confuse the general public, both those
that are victims of anti-social behaviour and those that are the perpetrators of.
There is merit in involving the local community to a greater extent when dealing with anti-social behaviour,
as suggested through the Community Remedy. However, ultimately the key to reducing anti-social behaviour
involving dogs in the longer term is the consistent use of measures that restrict and direct behaviour whilst
also allowing for effective punishment for those that do not comply, acknowledging it for the social issue it is.
If the Bill provides individuals, communities and businesses affected by antisocial behaviour with a more
effective long-term solution;
As previously stated we do not consider that the proposed measures will provide a solution to the problem
of dangerous and out of control dogs in our communities, and we see this as a wasted opportunity to bring
about real change and to improve public safety. Ideally Blue Cross would wish to see a new consolidated piece
of dog control legislation introduced by the government. In the absence of this, we were hopeful that the key
preventative measures we have been calling for (Dog Control Notices/Dog Behavioural contracts) could be
included in the draft Home Office Bill. As such measures have not been included, we do not consider (where
dogs and anti-social behaviour involving dogs is concerned) that these measures will offer an effective long
term solution to the problem, as detailed above.
The repeal of DCOs is also undesirable as these orders can work very effectively and are well understood
by the general public, where they have been properly enforced and resourced by local authorities. We
recommend that you consult the Kennel Club on the effectiveness of Dog Control Orders as they provide an
information service for dog owners, publishing details of local consultations and restrictions.
It is also unclear what will happen to existing DCOs once the Bill is enacted. Clarification on exactly how
the new measures will work with the DCNs in the devolved administrations would also be desirable.
Whether the Community Remedy is a proportionate response to antisocial behaviour;
There is clearly a need for a range of measures to be included in any enforcer’s toolkit, and when dealing
with low anti-social behaviour then informal agreements and arrangements are often appropriate.
However, the key to improving public safety and reducing anti-social behaviour involving dogs is to enforce
the principles of responsible dog ownership before an incident occurs. The current legislation (the Dangerous
Dogs Act) does not allow action to be taken until such a point that an attack has taken place, or there is fear
of an attack. In many cases an out of control dog has been known to the local community before an incident
occurs, and at present enforcers can do very little to compel the owner to take reasonable steps such as
neutering, training classes, muzzling in public etc, reasonable steps that could provide an effective solution.
Whilst Acceptable Behavioural Contracts do offer the opportunity to be case specific with requirements (for
a dog owner), the contact is informal and is not legally reinforced. A breach can only result in legal action if
there is supportive legislation, which in the case of a dog related incident would mean reverting to the
Dangerous Dogs Act only when an incident has already taken place. We do not consider such measures to
offer a long term solution to the problem of dangerous dogs and irresponsible dog ownership in our
communities. Behavioural change is the key to addressing the problems of anti-social behaviour involving dogs
in the longer term, but there must be a level of compulsion for the irresponsible owner and sanctions should
they transgress.
How the new measures would affect young people in particular.
As a rehoming organisation that has to deal with thousands of stray and unwanted dogs every year Blue
Cross understands only too well that some young people are defined in the media, by politicians, and by the
public as “status dog owners” due to the breeds of dog they own. These are typically bull breeds including the
Staffordshire Bull terrier. We have to turn away hundreds of these types of dogs every year as there are simply
too many for the good homes available for them. We are confident that other rehoming organisations will detail
this ongoing issue associated with the Staffordshire Bull Terrier.
Blue Cross works to encourage young people to be responsible dog owners through our educational services,
and our RespectaBULL workshops focus on young owners of bull breed–type dogs specifically. We consider
that dog ownership can be a very good thing for young people (regardless of the breed-type they own), when
they are properly informed and supported.
If effective measures to address issues of anti-social behaviour involving dogs are not implemented then we
consider that in the longer term the reputation of both young dog owners, and of the breeds of dogs they
choose to own, will continue to suffer. This we consider is not acceptable from either a public safety or an
animal welfare perspective. This could lead to younger people in a community being penalised and marginalised
as a result of their dog ownership, yet will do little to improve either their behaviour or their knowledge of
their responsibilities. As previously stated, Blue Cross would like to see the introduction of a Dog Control
Notice (DCN) or similar, that combines preventative measures such as muzzling and training, with effective
sanctions, that is useful for enforcers and would have quick and identifiable benefits to a community. This we
consider could be achieved without increasing either the bureaucratic or financial burden.
Blue Cross
January 2013
Written evidence submitted by the Association of Chief Police Officers [ASB 15]
1. The police service continues to recognise that all individuals and communities have a right to live their
lives free from intimidation and harassment that affects their quality of life. One of the core purposes of
policing is to keep people safe and this includes dealing effectively with anti social behaviour (ASB). ACPO
believes that the critical determining feature of the police service’s response to crime and anti social behaviour
should be the risk of harm to the victim or community. ACPO sustains a culture that treats the harm caused
by crime and anti social behaviour as a strategic priority for all our forces, the service as a whole and
encourages appropriate partner agency involvement.
2. We believe the “spectrum of harm” concept should be at the heart of our policing model. By adopting
this approach we avoid the dangers of “policing by categories” whereby a predetermined response is provided
by officers, staff and partners. We prioritise our response to the most vulnerable or those suffering the greatest
harms. Practitioners approach incidents with an open and an enquiring mind to establish what has happened,
who has been harmed or who is at risk of harm, and how they can respond in a way that prevents further harm.
Comprehensive care plans are in place to support community members who require elevated levels of support.
We deliver a bespoke, differentiated service which meets individual victim’s needs.
3. In framing our response to the call for evidence on the Government’s Draft Anti Social Behaviour Bill,
the police service acknowledges the need to take the issues surrounding ASB seriously, to deliver efficient
local policing services with a multi agency approach to help and protect all members of our communities but
particularly the vulnerable, and it aspires to prevent and stop issues which affect people so that they feel safe
in their homes.
4. The ACPO Anti-Social Behaviour Portfolio welcomes the opportunity to comment on the proposed
changes to legislation which followed the Home Office publication “Putting victim’s first—more effective
responses to Anti-Social Behaviour”. Throughout the past three years the portfolio has consulted a number of
times with the wider police service on anti social behaviour issues including tools and powers.
5. In broad terms the proposals contained within the draft bill are practical, positive, reasonable and balanced.
The bill proposes a simplified and consolidated process for dealing with anti social behaviour (ASB) taking
into account the shortcomings of the existing tools currently available and recommending more streamlined
and seemingly less bureaucratic methods of tackling these issues with the emphasis on localisation. In short
the de-cluttering of the intervention landscape will increase the likelihood of positive outcomes, using a reduced
number of powers, with potential gains in terms of efficiency and effectiveness.
6. Specific feedback and observations on the proposed changes:Injunctions to Prevent Nuisance and Annoyance
7. The proposed measure appears significantly quicker and more cost effective than the current ASBO
processes with the “balance of probability” level of proof and the “threaten to engage” a key factor which will
assist. It can be obtained in the County Court for adults and in the Youth Court for 10 to 17-year-olds but the
question has been raised whether it could possibly be heard in the Magistrates Court also, with the correct level
of training, which would alleviate any court availability issues but still leave the most appropriate application at
the most appropriate court.
8. The new injunction, it seems will be based on the ASBI but replaces the ASBO and will expand the range
of agencies that can use it, and increase the range of circumstances in which it can be used, all of which are
seen as positives. A power of arrest could be attached to the injunction if the individual had used or threatened
violence or if there was a risk of significant harm to the victim. The attached power of arrest creates an
obligation on the police to take positive action: in that sense we would have a duty to arrest once a breach
occurs. This is a significant difference from current powers which (because a breach of an ASBO is an offence)
provide a power of arrest for a breach but not a duty. We recognise, and fully respect, that a breach of an
injunction is a contempt of court and not an offence, but we feel that retention of the discretion to arrest would
allow us and our partners to decide upon the best course of action according to the circumstances. This may
mean we do not arrest for every breach, particularly when there is a “minor” breach, but it would give us the
power to arrest which is an effective tool in the right circumstances
9. There would be no minimum or maximum length for the injunction and a breach would be punishable as
contempt of court in the case of an adult, which might include being punished by up to two years in prison.
For a child between 10 and 17 the penalty for a breach would be a curfew, activity or supervision requirement,
with repeated breaches causing serious harm, resulting in custody for up to three months. Interim orders could
be obtained without notice and in the absence of the defendant, we see these proposals as positive. Breaches
of a positive mandatory condition may be more problematic to prosecute with associated bureaucratic issues.
The stipulation that the “Chief of Police” should be informed when either conditions have been complied with
or breached should be removed as the police may not have any direct involvement with the perpetrator and
this again would create unnecessary bureaucratic issues in how and why we would have a need to record.
10. There is a lower threshold of “nuisance or annoyance” in comparison to the ASBO which required
“harassment, alarm and distress”. This would enable injunctions to be sought in the most typical scenario of
ASB by youths in residential areas, when a higher test may be more difficult to prove. Accepting that the
courts would be the safeguard, there is a need to consider the potential for the power to be used inappropriately,
thus stigmatising and possibly criminalising young people unnecessarily. In addition the expectations of the
public need to be managed and having this low threshold could result in people expecting action that simply
would not be possible or appropriate which would affect satisfaction and put unsustainable pressure on
resources. ACPO’s view would be to retain the “harassment, alarm and distress” test. Similarly with the
terminology “just and convenient” where it was thought that this could be misinterpreted or misused, ACPO
would advocate “necessary” to replace this.
11. Experience has indicated that the effectiveness of ASBOs are maximised when supported with other
elements such as support packages or an individual action plan that addresses the causes of offending behaviour
and meets the varied needs of a perpetrator. Indeed the bill recognises this feature by including both prohibitions
on behaviour and positive requirements to change behaviour in the longer term. However concern about
agencies capacity and capability to deliver this support in difficult economic times has to be considered.
12. Even with a renewed simplified interventions landscape a threat remains that underlying cultural and
partnership issues may still frustrate the practical implementation of these measures. The “Anti Social
Behaviour Case Management trials” provided tangible evidence of the benefits of closer working practices to
improve the interpretation of data protection law. The new proposals and future working practice may further
benefit from an overt positive requirement for Community Safety Partners to pro-actively share information.
The Criminal Behaviour Order—(CBO)
13. This order is available on conviction and is intended to be given, on application by the prosecution, in
addition to a court sentence. This proposal has been favourably viewed with many practitioners seeing it as a
revamped CRASBO with mandatory positive as well as prohibitive conditions. The powers are simple and
flexible and feedback is also very positive over the fact that the CBO is available to other partners and not just
the police and CPS. It is interesting that the threshold for the CBO is causing or likely to cause “harassment,
alarm or distress” as opposed to the lower threshold test suggested in injunctions. This seems to be an
inconsistent approach and ACPO would advocate the higher test in both.
14. There is concern about how potential breaches will be effectively managed. A systematic approach and
set of guidelines may be needed to ensure the prohibitions are appropriate and relevant to the defendant’s
circumstances. If there is no direct responsibility then some agencies may be reluctant about submitting or
supporting an application.
15. Whilst it is a legitimate expectation that the positive requirements will reduce the breach rate, one should
not get overly concerned regarding high breach rates. Individuals subject to anti social behaviour interventions
who require parameters put on their behaviour, are the more problematic members of our communities. It is
seen favourably that the police and other partners will be given flexibility to determine the seriousness of any
first breach and how it should be dealt with. The monitoring and compliance of requirements will need some
thought to ensure its effectiveness and to avoid varying bureaucratic processes.
Dispersal Power
16. These proposals have received significant support as it strengthens police powers to remove people from
areas for poor public place behaviour in general and not overly focusing on alcohol related disorder as it is at
present. Both Section 30 Anti Social Behaviour Act 2003 and Section 27 Violent Crime Reduction Act 2006
Dispersal orders have proved to be very effective tools and combining these orders will simplify their
administration and reduce costs.
17. The use of dispersal powers can be highly controversial. The current dispersal power is instigated by
police and is risk assessed as part of its inception. This at present designates areas after consultation and
agreement of the local authority which helps facilitate a problem solving approach for a period of time up to
6 months. It involves an exit strategy, community involvement and the responsibility not to displace the
problem elsewhere. In these new proposals, although PCC’s would be expected to provide democratic oversight
this is after the event and not through a process which engages the community before the powers are used.
This could result in disproportionate use of the powers and greater tensions in some communities or sections
of communities.
18. The terminology “likely to” contribute to one of the two conditions used in the new proposals has caused
some concern as this is very subjective. It can simply arise from a fear of what someone might do rather than
where ASB or crime has occurred and that person is responsible. The power also appears to be exercisable
when any “crime or disorder” has occurred or is likely to. In theory without proper stipulation this could mean
that a crime totally unrelated to ASB may have been occurring in a location, for example car crime, and people
could be dispersed simply because they are suspected of being likely to commit this offence. This again could
unfairly impact on certain groups such as youths, who very often are doing no more than “hanging out”
together. There would need to be clear guidance in relation to what is trying to be achieved by this part of
the bill.
Community Protection notices
19. A Community Protection Notice would deal with environmental ASB with councils and the being able
to issue the notices. They would be issued to an individual or a responsible person within a business or
organisation to deal with a problem affecting the community and are intended to deal with a range of issues
such as graffiti, littering, and dog-fouling of a persistent nature rather than single incidents. They could also
be used to tackle neighbourhood noise issues. Breach of the notice would be a criminal offence punishable by
a fine of up to £2,500 or £20,000 for businesses. Where there was a requirement under the notice to “make
good” but this was not done, councils could complete the works and charge the individual responsible. This is
all seen as a positive from an ACPO perspective with the positive requirement to do or stop doing behaviour,
and forfeiture of items seen as useful powers.
Community Protection Orders
20. Although there is a minor danger that the differing tiers within the Community Protection Order may
prove confusing to practitioners and the public, these proposals have been well received. The proposals will
be useful as they increase the number of people who can action and deal with nuisance caused by ASB and
includes consultation with amongst others, residents. The emphasis is taken away from the police to deal and
thereby problem orientated partnership approaches are supported in order to improve community safety.
Recovery of Possession of Dwelling Houses: Anti Social Behaviour Grounds.
21. ACPO have no specific comment to make in relation to this power but will continue to work alongside
and support our housing colleagues.
Community Remedies
22. The use of restorative approaches and informal tools is welcomed by ACPO and can play a significant
part when dealing with anti social behaviour, putting the victim at the heart of any decisions that are made,
thus helping to heal situations, some of which have been ongoing for some considerable time.
23. Concerns have been raised however, around operational practicalities surrounding this part of the bill
and the bureaucracy it may introduce. The police service has gradually and carefully been reintroducing
discretion for officers in order to allow them to deal with individual situations as required having consideration
to the needs of the victim and situation. This has worked to good effect in relation to ASB and it is feared that
by introducing a pre mandated “list” or menu of sanctions that outlines how low level crime and ASB will be
dealt with outside of court in a particular area, will stifle this discretion and force police officers and partners
in to pre determined courses of actions that will not necessarily benefit either the victim or police.
24. It is accepted that this list contained in the community remedy document will be agreed by the Chief
Constable and PCC for a particular area following consultation with the local community and that the victim
will be able to choose from the list. ACPO believe that the menu should be kept as broad as possible,
strengthening the caveats around an officer’s freedom to use something more suitable even though it isn’t on
the menu (perhaps an Inspector could authorise that) might be good practical ways to make the idea work. A
concern is how robust this process will be to ensure fair representation of the whole community when compiling
the list and deciding a chosen sanction offered to an offender is proportionate to the offence. It seems that
there will be significant added bureaucratic processes required to administer this remedy.
Responses to Complaints about Anti Social Behaviour
25. ACPO supports any intervention which assists to identify and support any individual whose life is being
affected as a result of anti social behaviour. We recognise, and support, measures that improve accountability
and help to sustain public confidence. ASB is however often a complicated matter, with complexities that the
public do not always understand, have an appreciation of what agencies are actually empowered to deliver for
them, or the affordability of their proposals. The implementation of this process would need to take in to
consideration that there may be difficulties ensuring that the harm and vulnerability element of ASB is not
overlooked by the sheer quantity of incidents, malicious, vexatious or indeed prejudicial reporting or
inappropriate intolerance or perceptions of people.
26. In addition if the exact mechanism for supporting this part of the bill and determining what is a trigger
is a matter for local determination, there is a risk of varying practices developing across areas and therefore
very different interpretations and services. ACPO would welcome the results of the trial areas as soon as
possible to alleviate concerns.
General Feedback
27. Although not perfect the current tools and powers have enjoyed a sustained period of time to be tested
and developed within court and subject to judicial reviews. A settled position has been reached in many aspects
of tackling perpetrators and the implementation of new powers will need to consider how best to mitigate the
potential for fresh legal challenges.
28. Any new tools and powers will do little to deal with inadequacies in case management skills, application/
enforcement processes, lack of information sharing or failing to take a joined up approach. To make behaviour
orders successful requires multi agency involvement support and buy in, engagement with families, victims
and offenders, ownership and effective enforcement when necessary.
29. Anecdotal evidence suggests a dis-satisfaction from communities and practitioners that courts do not
deal with anti social behaviour related breaches seriously enough, which has the potential to encourage a lack
of confidence, although data on sentencing (in relation to breaches of ASBOs) suggests that this dissatisfaction
is based more on perception than reality. Similarly consideration of appropriate steps to minimise adjournments
or assessments, which can easily damage community confidence, should also be considered.
Conclusion
30. Providing effective responses to incidents of anti social behaviour and risk of harm is not simply a matter
for the police alone and there is a clear need for a partnership approach. We build on excellent foundations
where the police service and its partners have long recognised this fact and our staff are engaged in first class
work, preventing and intervening in issues, and making a difference to people’s lives. The ability to enhance
partnership working will be immeasurably helped by joint case management tools, procedures and protocols
that would ensure “joined up” thinking in improving community safety.
31. Equally harm in our neighbourhoods cannot be “solved” by public services alone. Society requires
confident and resilient communities, demonstrating a culture of mutual respect between people. We and our
partners support communities to develop their own capacity and capabilities.
32. Interventions in the proposed anti social behaviour bill, with some considerations, are consistent with
the police services’ ambition to allow people to live their lives without fear of intimidation and harassment
and we look forward to working with both the Government and partners in making our communities even safer
places to live, visit or work.
Association of Chief Police Officers
January 2013
Joint written evidence submitted by Leicestershire Police and Sir Clive Loader
(Police and Crime Commissioner for Leicestershire) [ASB 16]
1. Introduction
1.1 The attached chart outlines the journey undertaken by Leicestershire Police and our partner agencies in
respect of ASB over the last three years. This sets the context for our reply to this consultation.
1.2 We continue to recognise the damage done to both individuals and communities by ASB and see tacking
the harm caused is as one of our core functions. ASB remains a strategic priority.
1.3 Between October 2011 and May 2012, together with a consortium of 11 local partners we rolled out the
SENTINEL, multiagency ASB case management database. This provides a vehicle through which the preexisting willingness amongst partners to work together can be optimised. Our aspiration is for this to become
the primary tool for the management of ASB across the whole of Leicester, Leicestershire and Rutland.
1.4 Our success to date has been derived primarily through the professionalism and commitment of those
involved in the management of ASB but it is also a reflection on the effectiveness of the existing legislation.
However, we recognise the opportunities to further enhance the service to our communities via the proposals
presented in the Draft Bill and welcome the opportunity to comment.
Specific Feedback and Observations on the Proposed Changes
2.1 Injunctions to prevent Nuisance and Annoyance
2.1 This appears a quicker and more cost effective process with the “balance of probability” level of proof
and the “threaten to engage” changes seen as positives. Whilst understanding the safeguards aspect of the
requirement for this to be obtained via the County Court or Youth Court we believe that an appropriate level
of safeguarding could be applied to allow this to be dealt with in the Magistrates Court; it is felt that this
would ease practical application leading to a more efficient process.
2.2 The application of an Injunction with or without a power of arrest fetters operational discretion in that
the officer is compelled to act in one way or another regardless of a dynamic assessment of risk or impact of
a course of action at that time. It is felt that under the current proposals an officer will be compelled to arrest
for a minor matter, where a power of arrest is mandated, and yet would not be able to act immediately where
a more serious matter (falling below the threshold for other powers) has occurred where no power of arrest is
attached. It is felt that if a breach of the injunction were to become an offence then the Injunction would be a
more effective tool; appropriate safeguards against misuse of the power of arrest would be provided via PACE
Code G.
2.3 The lower threshold of “nuisance or annoyance” in comparison to the ASBO which requires “harassment,
alarm and distress” has both benefits and risks. On the plus side the injunction would be able to deal ASB by
youths in the street where the higher test would be difficult to meet, however the lower test is more subjective
and could potential criminalise certain groups; specifically young people. In addition it is unclear how one
persons interpretation of “nuisance or annoyance” taken at its lowest, might impact on the rights of others to
freedom of association and expression within the European Convention on Human Rights; it is suggested that
guidance is provided on this issue.
3. Criminal Behaviour Order—(CBO)
3.1 This proposal is viewed favourably as a revision of the CRASBO. The powers seem simple and flexible
and it is a positive that the CBO is available to other partners. It is however unclear why the test here is
“harassment, alarm or distress” as opposed to the lower threshold test suggested in Injunction. The use of a
single definition is seen as helpful in terms of the practical application of the new legislation.
3.2 The positive requirements set out in the proposals are likely to reduce the breach rate and it is seen as
helpful that the police will be given flexibility to determine the seriousness of any first breach and how it
should be dealt with.
4. Dispersal Power
4.1 This proposal is welcomed in that it strengthens police powers to remove people from areas for ASB
and does not rely on alcohol related disorder. Both Section 30 and Section 27 Dispersal orders have proved to
be very effective tools and combining these is seen as helpful.
4.2 The use of dispersal powers can be seen as draconian or to focus on particular groups rather than the
behaviours of those groups, this is particularly relevant to the sort of diverse community enjoyed in Leicester.
4.3 The current dispersal powers require the consultation and agreement of the local authority which, by
extension, often involves local political leaders. This encourages collective problem solving but also adds a
level of legitimacy to the decision which can make it more accepted to communities than if the decision was
made by the Police alone. Whilst the proposals do not mandate this approach it should perhaps feature in any
guidance as an important step towards ensuring public confidence. Furthermore the office of PCC has been
created since the introduction of the current legislation and it may well be that any guidance may wish to
consider how the role of the PCC might assist in respect of public consultation.
4.4 As with the “nuisance or annoyance” used in the Injunction, the term “likely to contribute to” causes
concern because it is so subjective. The fact that it can be used “where crime and disorder” has occurred
potentially opens the door for this power to be used in circumstances where what might be classed as traditional
ASB is not evident. Whilst potentially a useful crime prevention tool, “over use” is likely to have negative
implications and it questionable if this type of use was envisaged by legislators. It may be helpful if this were
clarified in any guidance.
5. Community Protection notices
5.1 These are welcomed from a Police perspective with the positive requirement to “do” or “stop doing” a
specific behaviour, along with forfeiture of items, seen as useful powers.
6. Community Protection Orders
6.1 These proposals are helpful in that they increase the number of people who can action and deal with
nuisance caused by anti social behaviour. The emphasis is taken away from the Police to deal and thereby
supports the multi-agency problem solving approach. In reality it may have less impact in the Leicester Police
area than elsewhere because multi-agency problem solving is already an embedded approach.
7. Recovery of Possession of Dwelling Houses: ASB Grounds.
This proposal will support our housing colleagues, which will in turn support work at the Neighbourhood
Policing level consequently it is seen as positive.
8. Community Remedies
8.1 The appropriate use of restorative approaches and informal tools within ASB is welcomed and they will
have an important part to play in further engaging victims in problem solving in cases were resolution can be
achieved without the need for traditional enforcement.
8.2 We have for some time been moving away from a process driven approach to one more focused on the
exercise of discretion and professional judgement guided by overarching principles. This is recognised as the
best way of effectively managing risk, providing personalised service and maximising on the skills of our staff;
this remains a work in progress.
8.3 The fact that the Chief Constable and PCC will consult with the local community to provide a menu of
community remedies is helpful in insuring that services best match the needs and expectations of the
community. Given the ever evolving landscape of ASB and differing thresholds with communities in respect
of what “is”, and “is not” acceptable public behaviour, we would wish to see the menu of options being as
broad as possible and for the application of Community Remedies to entail the minimum of bureaucracy.
8.4 The effectiveness of Community Remedies would seem to be maximised where a decision is made as a
result of a mature discussion between the victim and the officer. The “menu” if used to inform choices would
be of value, however there is a risk that it could become a “tick box” exercise used to proscribe the minimum
requirements to deal with a particular type of ASB. Whilst appealing in terms of ease of recording this would
have a negative effect. Conversely creative solutions may be proposed that are outside the menu of options
and it is unclear how this would be allowed for; it we be helpful for this issue to be addressed in any guidance.
9. Responses to Complaints about Anti Social Behaviour
9.1 These proposals will support and improve perceptions of accountability and thus help to sustain public
confidence. However ASB is complicated and the public do not always understand these complexities which
could lead to an over expectation in respect of the ability of agencies to deal with offenders in the way they
would want. Whilst most people respond to reasoned explanation, even if they find the outcome unsatisfactory,
some do not and view the world solely through the lens of their own beliefs or perceptions. This might be
expressing itself in excessively narrowness of thought, intolerance, prejudice or discrimination or simple
malice. Whilst it is accepted that this would apply to hopefully a relatively small number of complaints, in
order to avoid unproductive business, whilst still supporting the enhanced accountability this proposal offers,
guidance should be provided in respect of how to deal with such cases; IPPC guidance re vexatious litigants
may assist in this respect.
10. General Feedback
10.1 Our experience in Leicester, Leicestershire and Rutland indicates that the best solutions in terms of
ASB problem solving are often achieved through the pooling of information across partners, effective case
management and a structured approach to joint problem solving. Whilst perhaps “implicit” in the Bill it does
not “explicitly” address this issue or mandate further improvement.
10.2 In terms of progress towards achieving our aim that citizens can live their lives free from the crime or
the fear of intimidation or harassment this Bill is a welcome step forward. However effective responses to
ASB and the harm it creates is not simply a matter for the Police or indeed Public Services alone but involves
the engagement of confident communities with the capacity to engage with services and play their part in
addressing ASB. Some aspects of the Bill support this but the need for a collective approach should perhaps
be more emphasised.
10.3 Overall the proposals are welcomed and seen as practical and positive, they seem to simplify and
consolidated ASB legislation, and these changes together with a seemingly less bureaucratic approach are seen
as positive.
Please see the attached timeline at Appendix A.
Leicestershire Police and Sir Clive Loader (Police and Crime Commissioner for Leicestershire)
January 2013
incid
Pre-2009
own
(fisca
2009/10 - 81,131
ing d
l yea
r)
ndar
ye
Oct 09
MOPI Group 4
vulnerability
classification
May 10
HMIC ASB Inspection
CIS New Case Management
2010
a r)
Oct 10
Our Standard introduced
2011
Jan 11
ASB Risk
Management
Matrix goes live
Sept 11
National Decision Making
Model introduced
June 11
Storm history marker
for High Risk ASB
Apr 11 - Oct 11
PVP Training Phase Two
Mar 11
Comprehensive Referral
Desk was formed
Apr 11
Storm Customer
Relationship Management
of callers
ASB code changes
Oct 11 - Dec 11
Sentinel Case Management
System (roll out across
Counties’ BCU)
Nov 11
ASB Lead Officer move to
Supt Mark Newcombe
2010/11 - 71,234
January 2011
82.1%
2011 - 30,027
June 10
Chief Constables
Appointment
JAG Review
Apr 10
First phase of GET OUT
Jan 10
Force ASB Project
Team formed
74.9%
ar year)
(calend
ents
goin
g do
wn (c
2010 - 37,903
ale
f ASB
Sept 09
IPCC investigation
into Pilkington
Spring 09
Policing Pledge roll out /
Attendance Policy changes
Mar 09 - June 10
PVP Training
Phase One
Mar 09
Taskmaster
introduced
March 2009
69.4%
2008 - iR3 and use of Waymarkers
Aug 08 - MDT and Blackberrys introduced
2009
ber o
e go
up
going
n
o
i
t
c
tisfa
ASB sa
January 2010
2009 - 46,219
Num
2008/09 - 86,195
Over
all cr
im
Jan 12
ASB Health Check
completed
2012
March 12
Sentinel goes live
across City BCU
The future
ASB programme of work
refreshed
Good practice from
National HMIC ASB
Inspection
Incremental approach
review changes
Apr 12 - Mar 13
Phase two
Embedding of
Sentinel
2011/12 - 28,546
2011/12 - 68,151
Dec 2012 - 83.4%
Anti-Social Behaviour “Our Journey”
APPENDIX A
Written evidence submitted by Catch22 [ASB 18]
1. About us
1.1 A forward looking social business, Catch22 has over two hundred years’ experience of providing services
that help people in tough situations to turn their lives around.
1.2 Our programmes help those we work with to steer clear of crime or substance misuse, do the best they
can in school or college and develop skills for work, live independently on leaving care or custody, gain new
skills and confidence as parents, and play a full part in their community.
1.3 In 2011–12 we worked directly with 34,000 young people, families and adult offenders in 150 localities,
supporting a further 49,000 young people through national partnership programmes.
1.4 Asked what difference we had made in 2011–12, nearly 93% of the people we supported who responded
said they now had hope for the future, 86% had gained in confidence and felt they had more control over their
lives, and 83% had achieved more than they expected.
1.5 Catch22 welcomes the opportunity to respond to this for evidence. We would be happy to discuss this
submission in more detail and to give oral evidence if required.
2. Summary of Evidence
2.1 Catch22 supports the focus on Restorative Justice approaches through the use of community remedies.
We recognise the added value that this can provide for both victim and perpetrator.
2.2 We would encourage the use of programmes with a track record of successful delivery and a strong
evidence base as part of acceptable behaviour contracts, or even earlier to prevent the need for such contracts.
At the same time we are concerned by the impact of funding cuts on the availability of these programmes.
2.3 We also support the use of out of court disposals that prevent people from being drawn in to the criminal
justice system.
2.4 We would like to see mechanisms in place that where community consultations occur these engage with
all members of those communities and in particular with young people.
3. Community Remedy
3.1 Catch22 welcome the focus on Restorative Justice, promoted through the proposal for community
remedies. This is designed to deal with what is described as low level conduct such as criminal damage, low
value theft, minor assault (without injury) or anti-social behaviour. As an organisation we have a long history
of successful delivery of restorative justice interventions both within the Criminal Justice System (in services
such as the Suffolk Reparation service since 2004) and outside it (East Anglia Community Mediation service
since 2009 and Camden Mediation service since 2009). We know the impact that Restorative Justice processes
can have with, for example, 90% of people who engaged with the community mediation service in Norfolk in
2011 reaching a positive agreement to resolve the issues they were addressing. Mediation as a means to solve
neighbourhood disputes is an effective means of preventing these disputes from escalating in to criminal
behaviour. We would support giving those involved the power (and ability) to develop their own solutions, as
they are more likely to have long term impact than an imposed solution developed by a 3rd party.
3.2 The paper sets out a range of the potential options that might form the possible elements of community
remedy. We would support the availability of a continuum of measures. This allows victims of anti-social
behaviour to identify the options that they feel most comfortable proceeding with and that they feel will give
them the most satisfaction, whilst at the same time ensuring that remedies respond to the needs of the
perpetrator. We would also make the argument that provision needs to be in place to allow for proper on-going
assessment of these needs, conducted by trained and skilled individuals to ensure that these remedies have
maximum impact.
3.3 Whilst we recognise the value of face to face mediation and, as stated above, have evidence of its impact,
we also recognise that this is cost and resource intensive, requiring significant expertise. We would encourage
consideration of how these services can be made as widely available as possible, but we also recognise that
other approaches, such as shuttle mediation, can have a significant impact.
3.4 The paper also proposes that reparation should be made directly to the victim (by, for example, repairing
damage resulting from the anti-social behaviour) or to the community as a whole (in the form of unpaid work).
We need to distinguish between direct reparation that is made to the victim and the community—which
correlates precisely to the action of the perpetrator—and indirect reparation, in the form of unpaid work. Our
experience in delivering reparation work tells us that the more the sanction is directly related to the actions
leading to it, the greater the impact it has. We also recognise that reparation work often requires significant
input to victims to enable them to feel safe enough to have direct involvement in a sanction, with this work
requiring resourcing. This points to the need for high quality support for victims.
3.5 Our ethos as an organisation is underpinned by the impact that relationships have in driving positive
change. The delivery of restorative justice interventions, including reparation or unpaid work allows the
opportunity to develop these kinds of relationships, through the kind of informal communication that can take
place whilst undertaking this work. This gives the opportunity to address underlying issues that have lead to
the commission of the anti-social behaviour. This underpins our argument for the delivery of reparation and
unpaid work by workers and volunteers with the ability to develop these relationships.
3.6 The menu of community remedies also allows for participation in structured activities funded by PCC’s
as part of his or her efforts to prevent crime. We would urge the consideration of the range of excellent
programmes that might be funded through other local or national sources that have a track record of delivering
positive outcomes.
3.7 Examples of these kinds of initiatives include a number of programmes managed by Catch22. Community
Space Challenge, a national environmental programme designed to support young people to play a positive
role in improving their local community. During its first five years, Community Space Challenge has worked
with nearly 7,932 young people who have been formally identified as at risk of offending on initiatives to
tackle anti-social behaviour and improve local community spaces. Of those involved, 5,156 (65%) felt more a
part of their community; 5,949 (75%) had been in trouble less or not at all and 6,346 (82%) reported feeling
that they could now make a difference to improve where they live, and 2,198(27%) were supported to get back
into education employment or training.
3.8 Similarly, Positive Futures, again a programme managed nationally by Catch22, and currently funded by
the Home Office, with 91 projects in some of the most deprived communities in England and Wales, provides
countless other examples of work engaging young people at risk or involved in anti-social behaviour or
offending. Examples from this include an arson awareness programme that delivered an 85% reduction in
incidences of arson in summer 2012, or the project in Manchester that ran a programme for south Asian and
Romany residents, allowing a local park that had been the focus of these tensions to become used again by the
whole community.
3.9 A further example is Realising Ambition, managed by a consortium of partners lead by Catch22.
Realising Ambition is a UK-wide initiative that will invest £25 million in replication of outstanding projects
that have proved their effectiveness in helping young people fulfil their potential and avoid pathways into
offending. While still in its infancy there is a growing evidence base pertaining to preventative interventions
that improve children’s outcomes, harm young people, or most problematic perhaps, proven to be outcome
neutral and potentially not cost effective. Realising Ambition draws explicitly upon this evidence base and,
working with our delivery partners, we hope to be at the cutting edge of driving the burgeoning field of
preventative practice in the UK. We would argue that in identifying interventions it is vital to draw on this
evidence base.
3.10 Projects of this nature have a valuable role to play in engaging with young people as part of an
acceptable behaviour contract. These projects have a wealth of experience in engaging with hard to reach and
at risk young people and delivering targeted work based on the assessed needs of both young people and
communities. They also provide significant value in preventing other young people from reaching the stage
where acceptable behaviour contracts are necessary. However, it is right to note that many projects of this
nature are currently at risk due to funding cuts.
3.11 We would question the value of a compensation payment being requested from somebody who may
well not be in a position to pay and for whom debt may actually increase their vulnerability to further offending.
3.12 As a general approach we would support community remedies. We know that victims and offenders
are often the same people, and that becoming a victim either of offending or anti-social behaviour increases
the risk of offending or perpetrating anti-social behaviour. We also know that this has a knock on effect in
other areas such as negative education outcomes and the likelihood of gang membership. As such the increased
likelihood of victim satisfaction through community remedies will have an impact on reducing these risks. At
the same time, the support provided by engagement with positive activities as part of an acceptable behaviour
contract also provides the opportunity to address the underlying causes of anti-social behaviour, and again
serves to significantly reduce risks.
3.13 We also support the use of informal processes that keep people out of the criminal justice system and
the associated institutions. Experience tells us that this will also decrease risk to the individual involved. This
in particular applies if this disposal does not carry with it a criminal record with the associated impact that this
has on, for example, future possibility of finding employment.
4. Public Space Protection Orders:
4.1 This element of the bill gives the right to close a local space that is linked to anti-social behaviour. It is
identified that this requires consultation with any community representatives that the local authority thinks are
appropriate. These people, or groups, are then expected to engage with tenants associations. We would be
concerned that young people or more vulnerable people would not be appropriately represented or engaged by
either those identified as community leaders, or those from tenants and residents associations. We would make
the argument for engaging with local programmes like Community Space Challenge, run by Catch22 (detailed
above in Para 3.7) which are designed to reclaim public spaces. This gives an opportunity to engage with those
most directly affected by this provision.
4.2 Besides working directly with young people formally identified as being at risk of offending, Community
Space Challenge projects in Southwark, Halifax and Blackburn work closely with anti-social behaviour officers
to deliver outreach environmental projects in targeted areas. Staff work closely with young people and families
to understand the causes of ASB and to design and develop practical projects to divert young people from
offending behaviour, to give them new skills and to support them into education, volunteering and training.
5. Requirements Attached to Injunctions
5.1 We would welcome the opportunity offered to attach positive requirements to injunctions, as well as
negative ones. This gives the opportunity to attach positive packages of supports that address the underlying
reasons behind the person’s involvement in anti-social, such as receiving education support, dealing with drug/
alcohol misuse etc. This is dependant on the availability of good quality services to address these needs, as
previously outlined. Against this we would make the argument that it would be far better to put these things
in place before it gets to the point that anti-social behaviour or offending takes place and before legislation is
required. As outlined previously projects like Positive Futures, Realising Ambition and Community Space
Challenge provide some of the vehicles by which this work can be achieved.
6. Conclusion
6.1 We welcome the range of positive measures included in the bill. We would particularly welcome the use
of a restorative approach through community remedies. The bill also simplifies the much wider range of
existing measures in place to tackle anti-social behaviour and we think that this will be very helpful for those
affected by anti-social behaviour. We would also argue though that the most effective measures to prevent antisocial behaviour would be preventative, rather than legislative, thus preventing the act rather than dealing with
its aftermath.
Catch22
January 2013
Written evidence submitted by Swindon Borough Council [ASB 19]
1. Executive Summary
1.1 We have reservations as to:
(i) Whether the Draft Bill will introduce more effective measures to tackle anti-social behaviour.
(ii) Whether the proposals will benefit victims of anti-social behaviour.
(iii) Whether the draft Bill provides individuals, communities and businesses with a more effective
long term solution.
1.2 I outline those concerns at Section 2 of this document. At Section 3 I summarize three ways in which,
if the proposed Bill is to proceed, it could be improved with a view to making it a more effective means of
tackling anti-social behaviour and protecting victims. At Sections 4 to 6 I develop the three suggested changes
in more detail.
1.3 These submissions are simply concerned with the statutory injunction provided for in Part 1 of the Bill
and not with any questions relating to the Community Remedy or how the new measures would affect young
persons, in particular. On the latter subject I would simply observe that young persons can be—and frequently
are—victims of anti-social behaviour, just as much as older persons. So if the proposed new powers should be
less effective than current ones then young persons will be affected adversely in consequence.
1.4 I write as a solicitor with many years of day to day experience of both Housing and Anti-Social
Behaviour Law and a strong concern that the needs of victims should be a matter of top priority. Cases with
which I have dealt over the years include Swindon Borough Council v Michael Redpath (2009) EWCA Civ
943 in which we took substantial risks precisely because of our desire to protect victims in a case where the
police were unable to prosecute under the criminal law for reasons of witness intimidation and where the police
were concerned as to likely consequences if nothing was done. Happily, the Court of Appeal subsequently
upheld a County Court decision in our favour.
Section 2—Our Concerns About the Bill
2.1 One of our concerns, in response to the original Home Office Consultation Paper, was that the AntiSocial Behaviour Injunction (ASBI) provided for in the Housing Act 1996 might be repealed altogether. I
gladly acknowledge that the proposed injunction preserves the essence of the ASBI and actually makes it a
more flexible remedy, available for a wider range of situations, because of there no longer being any need to
demonstrate that the conduct complained of is “housing related”. Such increased flexibility was essential given
the proposed repeal of the ASBO legislation.
2.2 But whilst acknowledging that positive aspect we still have significant concerns. Because the injunction
is to be purely civil there will, unlike the existing ASBO, be no arrestable criminal offence . I deal below with
the consequences of that decriminalisation and suggest that the Bill should be revised to make breach of the
proposed injunction a criminal offence in accordance with existing and continuing family law provisions.
2.3 The present intention that breach is not to be a criminal offence is likely to result in less police
involvement in these matters. My experience is that the police are currently more involved in relation to breach
of ASBO than breach of ASBI. For example, shortly before Christmas a local police officer made the point to
me that ASBOs such as one which we had recently obtained can be successful if policed robustly so that the
defendant knows that he is likely to be arrested, and to spend time in the cells, if he does not comply with
what the Court Order requires. The result of that commitment on the part of the police to monitoring compliance
and enforcement is that we often see a substantial reduction in anti-social behaviour during the currency of
Interim ASBOs, so much so that sometimes it is not necessary to seek a final Order at all because the defendant
has “got the message” and changed his or her behaviour accordingly. This hands on involvement, and endeavour
to secure compliance, is likely to be lost if the procedure becomes purely civil as presently proposed. It stands
to reason that the police will be more proactive in a case where they feel “ownership” as they do in ASBO
cases than in one where their involvement is more peripheral.
2.4 We also have concerns about the proposal at Clause 1(8) that jurisdiction is exclusively to be exercised
by a Youth Court in the case of a respondent aged under 18 or the High Court or the County Court in any
other case, thereby writing the Magistrates’ Court out of the script in respect of adult respondents. I outline
some of the disadvantages of that at Section 5 below and advocate dual jurisdiction as between the County
Court and the Magistrates’ Court.
2.5 Lastly, Schedule 1 of the Bill, concerning remands does not prescribe a timescale with a view to
preventing enforcement becoming protracted and potentially ineffective in consequence. At Section 6 we
suggest a prescribed timescale based upon the existing Civil Procedure Rules 1998 in respect of ASBI
proceedings.
3. How the proposed legislation could be improved
In the light of the concerns which I have indicated we suggest three substantive changes, namely:— (i) Better protecting victims by retaining criminal law powers as under the Family Law Act
1996.
— (ii) Providing for dual jurisdiction in respect of adults as between the County Court and the
Magistrates’ Court rather than the Magistrates’ Court ceasing to have a role in respect of adults.
— (iii) Incorporation, whether by statutory provision or regulation, of a strict timescale within
which Courts should be required to deal with any allegations of breach of injunction with a
view to minimizing delay in enforcement and thereby enhancing protection for victims.
4. Use of Criminal Law Powers
4.1 Whilst a Power of Arrest will be available in some circumstances in support of the statutory injunction
to prevent nuisance and annoyance provided for in Part 1 of the Bill I struggle to understand the logic of decriminalisation. Section 42A of the Family Law Act 1996, which makes the breach of a Non-Molestation Order
a criminal offence, is a relatively new provision which, as I understand it, came into force in 2007 following
concern that the previous purely civil procedure was ineffective in preventing and deterring domestic violence.
It is not obvious why anti-social behaviour should be dealt with in a less robust manner than family law matters.
My understanding is that enforcement of County Court Non-Molestation Orders through the Magistrates’ Court
works well.
4.2 I attach at pages 1–2 of exhibit “FHM1” a copy of a Non-Molestation Order dated 29 August 2012
which is endorsed with the warning “If without reasonable excuse you do anything which you are forbidden
from doing by this Order, you will be committing a criminal offence and liable on conviction to a term of
imprisonment not exceeding five years or a fine or to both”. In addition, on the second page there is a note to
the Arresting Officer confirming that breach of a Non-Molestation Order is a criminal offence, that it is an
arrestable offence and that it is not necessary to obtain a warrant. So the use of the criminal law is made very
clear to all concerned. That procedure could easily be incorporated as an important aspect of the new
injunctions.
4.3 Where an Injunction was granted without a Power of Arrest, and there were subsequent allegations of
breach, it is easy to see difficulty in enforcement. Under the existing criminal procedure arrest for breach of
ASBO, or breach of Interim ASBO, helps to nip trouble in the bud. In contrast, under the new procedure police
officers or others who became aware of evidence of breach would have to supply that evidence to the applicant
authority which would then have to apply for the issue of a warrant for the Respondent’s arrest. So immediately
there is delay under the new arrangements which does not exist at present. There could be difficulties in
executing such warrants, particularly on persons of no fixed abode. There could be problems of persons seeking
to evade service and genuine difficulty in locating individuals of no fixed abode in cases concerning matters
such as street drinking, street begging or persistent disorderly behaviour.
4.4 It seems a pity to reduce the role of the Police in investigation of breach and enforcement. There is a
clear possibility that this reduced role for the Police may result in an increase in anti-social behaviour. In their
response to the “More effective responses to anti-social behaviour” consultation document Wiltshire Police
observed “to make a CPI purely a civil matter a civil matter would introduce a far more restrictive procedure
where the role of the police would be limited to arrest …the opportunity for police officers to investigate and
arrest others involved before delivering the defendant to Court will be limited. …The more restrictive procedure
(outlined above) which diminishes the role of the police in enforcement and investigation of breaches would
be a retrograde step. There is a distinct possibility that this would result in an increase in the occurrence of
anti-social behaviour”.
4.5 I am sure that the Home Affairs Committee will want to give careful consideration to those observations.
At present police officers feel a sense of “ownership” in respect of ASBOs which we obtain locally with the
result that defendants become aware that in the event of non-compliance with Court Orders they are at risk of
arrest. In this way the public are better protected than they would be without such police vigilance. Victims
sometimes receive considerable support from proactive and responsive neighbourhood policing teams. The
police are, of course, principally concerned with the criminal law. It follows from that that if a procedure which
is purely civil is enacted victims are likely to have significantly less protection, because of reduced police
involvement, than they would have if breach of injunction were to be made a criminal offence with a Power
of Arrest in all cases and normal police procedures for criminal offences including remands on police bail and
so forth. With the police being given more responsibility in that way the welcome consequence would be
greater involvement on the part of the police rather than, as seems likely at present, reduced involvement. I
indicated at paragraph 2.3 above that my experience is the police are far more involved in breach of ASBO
matters, usually proceeding in the Magistrates’ Court, than they are in relation to breach of Anti-Social
Behaviour Injunctions under the Housing Act 1996 which proceed in the County Court.
4.6 At page 3 of exhibit “FHM1” I attach a Swindon Advertiser newspaper article dated 7 February 2011
under the heading “ASBOs are having a positive effect” in which the then Community Beat Manager for
Penhill, a sometimes troubled part of Swindon, gives a very positive account of how the police have been
helped to protect the public through the use of both ASBOs and Civil Injunctions. At pages 4 and 5 I attach
further articles dated 5 March 2011 and the 7 June 2011, referring to the success of ASBO proceedings in
greatly reducing anti-social behaviour in one part of Swindon’s town centre and again referring to significant
police involvement.
4.7 I know that there is real concern as to how adequate enforcement will be under the new measures. This
is very serious because if there isn’t adequate enforcement then the result of the changes will certainly be
reduced protection for victims. I note, for example, a Chartered Institute of Housing release dated 13 December
2012 in which their Chief Executive Grainia Long is quoted as saying “We do have some concerns .... there is
a question mark over who will pay for the action if several agencies are involved. Police and Local Authority
cut backs have been well publicized and we have to be careful that landlords aren’t always expected to pick
up the bill”. Within Swindon Borough Council I have heard similar concerns, namely that Housing Associations
may be reluctant to initiate action, leaving it all to the Local Authority. How all of this works out does, of
course, remain to be seen but the fundamental point is that any diminution in the effectiveness of enforcement
will prejudice victims.
4.8 That being the case, I would hope that the Home Affairs Committee would see the wisdom of
incorporating into the Anti-Social Behaviour legislation a provision similar to Section 42A of the Family Law
Act 1996. If that were done, it would still be possible for injunction applications to be made in the County
Court but with the police retaining a more hands on role in enforcement and, the criminal law being engaged,
the Magistrates’ Court also being involved, as a venue for a lot of enforcement. All of that would, I believe,
help to ensure that the policy objective of “More effective responses to Anti-Social Behaviour” was achieved
and not jeopardised.
5. The Case for Dual Jurisdiction as between County and Magistrates’ Courts
5.1 Clause 1(8) of the Bill provides that jurisdiction in relation to the proposed injunctions is to be exercisable
by a Youth Court in the case of a respondent aged under 18 and by the High Court or the County Court in any
other case. In other words, the Magistrates’ Court is written out of the script in respect of adult respondents.
5.2 I would encourage the Home Affairs Select Committee to recommend a more flexible regime under
which injunctions can be sought where most appropriate which, in some circumstances, would certainly be the
Magistrates’ Court and not the County Court.
5.3 One size fits all solutions seldom work. This is a case in point. Where Injunctions are sought in
conjunction with landlord and tenant proceedings it will clearly make sense for the Injunction to be available
in the County Court.
5.4 But where there are existing Magistrates’ Court criminal proceedings with which the Injunction
application overlaps it would seem to make more sense for the Injunction to be available in the Magistrates’
Court. My experience is that there are many defendants in ASBO cases who are well known to local criminal
defence solicitors and who are at present represented by those solicitors in the Magistrates’ Court. On the
whole those solicitors do not practise in the County Court and do not have the necessary contracts to do so.
Whilst I hope that the Injunctions, if enacted, will be within the scope of legal aid under the new framework
provided by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 I imagine that it would be a
concern to County Court Judges if significant numbers of defendants in these cases, for whatever reason, came
before the Court unrepresented. Further, at the stage of enforcement for alleged breach there are issues
concerning the liberty of the subject which make representation desirable. A memorandum by the Home Office/
Department for Communities and Local Government annexed to explanatory notes which accompany the draft
Anti-Social Behaviour Bill helpfully states, in relation to Article 6, “legal representation and interpreters may
be obtained at all stages of the proceedings, and Legal Aid is available” (paragraph 8, page 144). Whilst those
statements are welcome I do wonder whether some “hard to reach” defendants to whom “Court” means the
Magistrates’ Court and to whom solicitors mean defence solicitors in the Magistrates’ Court would find
representation under the proposed new regime. Some doubtless would. Others, perhaps, might not. That is
surely a troubling prospect.
5.5 It does seem incredibly reckless to deprive respondents of the legal representation to which they presently
have access without any certainty, in the context of Civil Legal Aid cuts, that replacement representation would
be obtained from solicitors practising in the County Court. In Swindon there is currently only one firm which
regularly takes publicly funded landlord and tenant cases in the County Court whereas there are a number of
criminal defence firms who represent defendants in ASBO cases in the Magistrates’ Court.
5.6 As an illustration of the loss of representation which is likely to result if the present proposals are
implemented I attach at page 6 of exhibit “FHM1” a letter from Messrs BLB Solicitors of 56 Commercial
Road, Swindon dated 3 January 2013. They write “Our firm does not hold a civil legal aid franchise and
therefore it will not be possible in the future for our firm to represent disadvantaged clients such as Ian Pounds,
Abdi Muse, Martin McDonald and of course the late Buck Rogers”. All of those named individuals have been
defendants in criminal cases in the Magistrates’ Court as well as having been involved in anti-social behaviour
proceedings and it has been natural for them to be represented by their criminal defence solicitors who have
already had substantial knowledge of their circumstances. It is not going to be practical for the one Swindon
firm to which I have referred to absorb all of the clients of the numerous criminal defence firms who will cease
to provide an input if all cases concerning adults are in the County Court. BLB make the points that:
(i) “Once funding has been withdrawn it is very difficult for us to commit to representing
defendants on a pro-bono basis and this will be more so if the case is listed at the County Court”.
(ii) “Our advocates will be usually in the Magistrates’ Court and unable obviously to be at the
County Court on a pro-bono basis. The overwhelming likelihood therefore is that our clients
will be disadvantaged and ultimately unrepresented”. As indicated at 5.4 above I would expect
some defendants to find representation under the new regime and others not to do so. With
insufficient defence solicitors available in the County Court I see no reason to believe that all
of those who are currently represented in the Magistrates’ Court by solicitors known to them
would find representation in the County Court.
5.7 I do not know what enquiries the Home Office have made of the Association of District Judges. But based
upon my local experience my impression is that County Courts are struggling with the combined burdens of:
(i) reduced staffing arising from public expenditure cuts; and
(ii) more litigants in person because of the reduction in eligibility to civil legal aid.
The combined effect of those two changes is that the County Courts are under stress. There is clearly a
question as to whether they have the capacity to absorb all of the new injunction cases, particularly with all
the other reforms impacting upon the County Courts. The substantially increased number of child care cases
is already putting considerable pressure on County Court capacity, particularly when lengthy trials are required.
Meanwhile Magistrates’ Courts are working below capacity, as Ministry of Justice statistics confirm, and in
some Courts the reduction in work is quite dramatic. Locally, I have heard the suggestion that whilst there are
231 Magistrates in Wiltshire there is probably currently enough work in the Magistrates’ Courts for just 120
Magistrates. Likewise, nationwide I am told that there are about 26,000 Magistrates and I have heard it
suggested that there is estimated to be enough work for about 12,000 Magistrates. These figures may not be
entirely reliable but they demonstrate an important practical point, namely that there is a great deal of spare
capacity in the Magistrates’ Court system whereas the County Courts are extremely hard pressed. It surely
does not make sense for cases to be transferred from a Court which has spare capacity, the Magistrates’ Court,
to a Court which is buckling at the seams because of capacity difficulties. Would it not be a better use of
available public resources for ASBO type cases to remain in the Magistrates’ Court, where appropriate? With
dual jurisdiction that would be possible.
5.8 Nationwide there are more Magistrates’ Courts than County Courts and accordingly Magistrates’ Courts
are, on the whole, closer to where people actually are. There can be enough difficulty getting people who ought
to be at Court to Court without introducing unnecessary logistic and travel issues, particularly as some of the
defendants in these cases tend to be amongst the less affluent and less mobile. Does effective law enforcement
not demand that such matters be dealt with as locally as possible? To take cases away from the most local
Court appears to be in conflict with the Government’s localism agenda. And I am quite sure that victims would
prefer cases to be dealt with as locally as possible.
5.9 A welcome aspect of the Government’s proposals is that whilst an ASBO can only contain prohibitions
the statutory Injunction will be able to incorporate positive requirements, eg to attend for drug treatment. The
Magistrates’ Court is surely better placed than the County Court to make such Orders. For example, there will
frequently be a Duty Probation Officer in attendance. If a County Court Judge wanted to insist upon reparation
in a graffiti case it is unlikely that there would be anybody on hand with the ability to cause the necessary
practical follow-up arrangements to be made. If the applicant authority did not already have a worked out
proposal it is likely that there would have to be an adjournment so that further evidence could be provided as
to the suitability and enforceability of any proposed requirement.
5.10 In the event of breach if ASBO type cases remained within the Criminal Justice system there would be
more sentencing flexibility. Whilst the County Court has a somewhat limited range of powers at the point of
breach the Magistrates’ Court also has community sentencing options, eg drug rehabilitation, supervision order,
community pay back work, requirement to participate in a specified activity, curfew, relationship skills and
anger management courses designed to try and stop re-offending and so forth. As well as community pay back
the local Probation Service also run “Get rid of Graffiti” schemes. The County Court has no direct access to
any of these options. The Magistrates’ Court does. Frequently, there will be a duty Probation Officer available
on Magistrates’ Court premises and in a position to facilitate matters. The County Court can imprison a
defendant for breach of Injunction or fine a defendant. But it is simply not equipped to offer reform,
rehabilitation and reparation.
5.11 The fact that the statutory injunction will be a purely civil remedy does not mean that it need be solely
available in the County Court. Magistrates’ Courts already conduct a significant amount of civil proceedings
including for example:
(i) The existing ASBO which is civil remedy in the first instance, albeit that breach of ASBO is a
criminal offence.
(ii) An increasing number of child care cases.
(iii) In Greater Manchester, Wiltshire and West Mercia Domestic Violence Protection Orders
following the Home Office Magistrates’ Court based experimental pilot project under which an
Order can be granted preventing a perpetrator of domestic violence from contacting the victim
or returning to their home for up to 28 days in order to give a victim who might otherwise
have had to flee their home, the opportunity to seek support and consider options.
(iv) Football Banning Orders under the Football Spectators Act 1989, again Civil Orders with a
criminal sanction in the event of breach.
(v) Restraining Orders under Section 12 of the Domestic Violence, Crime and Victims Act 2004,
Civil Behaviour Orders with a Civil Standard of Proof which are available even if a defendant
is acquitted of an alleged criminal offence. If defendants breach a Restraining Order then they
are guilty of criminal offence.
5.12 So, in summary there are quite a range of civil proceedings in the Magistrates’ Court, some with a
criminal sanction in the event of breach. If my suggestion about making a breach of Injunction a criminal
offence, as under existing Non-Molestation Orders, were to be adopted, the Injunctions envisaged under the
draft Anti-Social Behaviour Bill would fit in very comfortably with other Magistrates’ Court powers.
Magistrates’ Courts have become used to conducting both civil proceedings and hybrid matters which contain
aspects of both civil and criminal law. It is a sign of how well these procedures work that breach of a Domestic
Violence Injunction is invariably dealt with now as a criminal offence in the Magistrates’ Court rather than
under breach of Injunction procedures in the County Court. Victims have benefited from these enhanced breach
provisions. I would like victims of anti-social behaviour to benefit likewise.
5.13 Another practical reason for dual jurisdiction is that applicant authorities sometimes act against groups
of young persons. If some members of a group are over 18 then under the Government’s proposals they will
fall to be dealt in the County Court whilst members of the same group who are under 18 will be dealt with in
the Youth Court. In consequence witnesses will have to attend two different Courts and there will be two
separate trials concerning the one matter. Such duplication would patently not be an efficient use of public
resources.
5.14 If dual jurisdiction were to be adopted there would be no need for the procedure presently envisaged
in the Bill under which cases involving respondents aged under 18 are to be transferred to the County Court
when they reach 18. There would be greater continuity with those cases still being dealt with at the same
Court, albeit in the Adult Court rather than the Youth Court. Defence advocates might not have the requisite
funding contract to enable them to continue to represent their client following transfer of the case to the
County Court.
6. Timescale in the Event of Alleged Breach
6.1 The policy objective of effective response requires that any matters of alleged breach of injunction are
dealt with promptly. I suggest that the Home Affairs Committee could usefully make a recommendation that
the Courts be required to deal with any allegations of breach of injunction within 28 days of arrest, whether
under statutory power of arrest or subsequent warrant. That should prevent enforcement becoming protracted
and would mirror the existing Civil Procedure Rules 1998 which provide that in respect of ASBI proceedings
where the Judge before whom a person is brought following his arrest adjourns the matter rather than dealing
with it straight away the matter must be dealt with within 28 days of the date on which the arrested person
appeared in Court. That should prevent the risk of cases being adjourned for many months because of difficulty
in listing with resultant prejudice to victims.
7. Conclusion
7.1 Whilst, as indicated above, I do have concerns as to whether the draft Bill will introduce more effective
measures to tackle anti-social behaviour I have sought in this document to focus on how if the legislation
envisaged by the draft Anti-Social Behaviour Bill is, fundamentally, to proceed it can be improved with a view
to more adequately achieving the entirely correct stated objective of “Putting Victims First”. I believe that the
three practical changes which I have suggested would help to ensure that that policy objective was actually
achieved in practice. At present there is a real danger that if the proposals proceed unamended victims will be
in a worse position than they are at present.
7.2. Lastly, I draw the attention of the Home Affairs Committee to the fact that at no time has any rationale
been provided for the specific changes proposed, as currently drafted. The legitimate objective of reduction of
the present number of statutory provisions does not necessitate what has been incorporated in the Bill. Given
that lack of rationale I have thought it right to pursue my concerns which derive entirely from my day to day
hands on experience of legal practice in the County Court and the Magistrates’ Court over many years. I have
had the privilege of working for Swindon Borough Council for nearly 26 years and approach that work with
the starting point that persons such as myself are in post in order to serve the public and, in particular,
vulnerable members of the public. It concerns me that as a result of the proposals in the draft Anti-Social
Behaviour Bill there is a real prospect that I shall be able to serve the public less effectively than at present.
That risk would be greatly reduced if the three substantive changes which I have suggested at Section 3 were
to be incorporated in the ultimate legislation. I don’t think that any of them have significant financial
implications. But, if adopted, they do offer a means both of ensuring that victims are better protected and also
that some of the rigidities implicit in the draft Bill are removed, for example the need to commence two
separate cases in different Courts where some members of a group are under 18 and others are over 18.
7.3 I hope that these observations are of assistance to the Home Affairs Committee as it seeks to ensure that
victims really are put first. There would be no point in the upheaval involved in the proposed legislation if the
outcome was not of benefit to victims of anti-social behaviour. I wish the Committee well in its important work.
Francis Maples, Senior Solicitor
Swindon Borough Council
January 2013
EXHIBIT SHEET “FHM1”
This is the exhibit “FHM1” referred to in Swindon Borough Council’s submissions.7
Page No.
Item
1—2
3.
4.
5.
6.
Specimen Non-Molestation Order
Swindon Evening Advertiser Article
Letter from Messrs BLB to Swindon Borough
Council
Date
29.08.2012
07.02.2011
05.03.2011
07.06.2011
03.01.2013
Written evidence submitted by Katy Bourne (Police and Crime Commissioner for Sussex) [ASB 20]
Further to your letter dated 21 December 2012, in which you sought the opinions of the Police & Crime
Commissioner (PCC) into the Draft Anti-Social Behaviour Bill, this is the response from the Sussex PCC.
The PCC supports the ambitions of the Bill and welcomes a practical involvement in developing and defining
the Community Remedy Menu, following further consultation with the police, public and other partners.
This local involvement of defining what works in an area is an important principle in finding appropriate
solutions to low level crime and anti-social behaviour.
This office will be making a full response to the current Home Office consultation on the Community
Remedy which closes on 7 March 2013, and will be happy to copy the Home Affairs Select Committee into
the response in due course.
7
Not printed.
Yours sincerely
Katy Bourne
Sussex Police & Crime Commissioner
January 2013
Written evidence submitted by Guide Dogs for the Blind Association [ASB 21]
1.1 Guide Dogs provides mobility and rehabilitation services to increase the independence, well-being and
dignity of blind and partially sighted people in the UK. Services are delivered through 20 local Mobility Teams.
Our core service is the guide dog service. This involves the training and provision of assistance dogs to blind
and partially sighted people, working with both guide dog and owner to create a successful partnership through
which the individual can become as independently mobile as possible, getting out and about safely and with
confidence. We also work closely with other organisations to train and provide assistance dogs for people who
have additional disabilities (such as with Hearing Dogs for the Deaf to provide “dual-qualified” dogs). Guide
Dogs currently provides guide dogs to over 4,500 blind and partially sighted people.
1.2 We are grateful for the opportunity to submit evidence to the Committee. Alongside our mobility work
we campaign to break down physical and legal barriers to enable blind and partially sighted people to get
around on their own. Guide Dogs’ work is informed by blind and partially sighted people and we are responding
to this as an issue of concern for guide dog owners.
Executive Summary
2.1 This submission is concerned with one form of anti-social behaviour which particularly affects guide
dog owners: irresponsible dog ownership. Irresponsible dog ownership leads to an average of eight dog on
guide dog attacks each month.
2.2 In general we welcome the new changes and are supportive of the aims of the Bill, and the direction of
travel. We approve of the more flexible approach to enforcement allowed under the Bill but believe that, in
order to be effective, the new measures must be backed up with compulsory microchipping to ensure offenders
are correctly identified.
2.3 We believe the Bill will benefit guide dogs owners who are the victims of anti-social behaviour by
encouraging responsible dog ownership, thus making attacks less likely, and by improving the range of
punishments available when anti-social behaviour does occur. However, due to the grave seriousness of dog
on guide dog attacks we urge the Government to consider targeted legislation if there is not a reduction in the
number of attacks and an increase in prosecutions as a result of this Bill.
2.4 We hope that Public Spaces Protection Orders will be more effective than Dog Control Orders and will
not impose unnecessary burdens on guide dog owners. We urge the Government to issue guidance to local
authorities to ensure that PSPOs are used effectively and sensibly.
Whether the draft Bill would introduce more effective measures to tackle anti-social behaviour
3.1 We welcome the graduated measures in the Bill which will help to address anti-social behaviour by dog
owners. The greater range of preventative and punitive measures will allow a quicker and more flexible
response to irresponsible dog ownership. The current system works by responding after attacks have taken
place—we hope that new powers, such as the police dispersal power, will prevent dog attacks from happening
in the first place.
3.2 Crime Prevention Injunctions have some shared aspects with Dog Control Notices in Scotland allowing
for restrictions of owners taking their dogs in certain areas, or requiring owners to muzzle their dogs or keep
them on leads. It is too early to assess the efficacy of Dog Control Notices in Scotland but it is clear that they
are being utilised—it is reported that 92 Dog Control Notices were issued within the 12 months following the
passing of the Control of Dogs (Scotland) Act 2010. Guide Dogs believes these measures should be backed up
by compulsory microchipping. Compulsory microchipping will help to ensure that owners of dogs found
dangerously out of control can be easily identified.
3.3 Compulsory microchipping is not only an effective enforcement tool but also works as a preventative
measure. It requires a visit to a vet or dog welfare organisation which will initiate a conversation with the owner
about welfare and the responsibilities involved in dog ownership, encouraging responsible dog ownership from
the outset. Guide Dogs understands that microchipping does not require primary legislation and as such falls
outside the scope of this Bill. However, we find ourselves unable to comment to what extent the measures will
be effective until we know whether they will be backed up by compulsory microchipping of all dogs.
How the proposals will benefit victims of anti-social behaviour
4.1 We are pleased that the Government has recognised the dangers of irresponsible dog ownership. We
hope the proposals announced in the draft Bill will be sufficient to prevent dog attacks before they take place
and sufficiently punish owners when they do. If successful, this will benefit guide dog owners who are victims
of anti-social behaviour. We will be closely monitoring the impact that the Bill has upon the numbers of dog
attacks to measure whether this is the case.
4.2 The gravity of a dog on guide dog attack is extreme. Dangerously out of control dogs are intimidating
enough to those who can see, but fear is magnified for those with little or no sight. An injury to a pet dog can
be distressing for an owner but an injury to a guide dog can mean the animal can no longer work, reducing
the owner’s mobility and quality of life. Attacks also have a significant financial impact through veterinary
bills, retraining and the cost of withdrawing a dog. The lifetime cost of a guide dog is approximately £50,000.
4.3 Guide dogs are more likely to be attacked than other dogs. The nature of visual impairment means that
guide dog owners are less able to protect themselves and their dogs. A sighted person can see potential danger
in the distance and take evasive action or amend their route; a blind person is unable to do this. Guide dogs
have no perception of other dogs as a threat and are specifically trained to ignore other dogs. They are trained
to walk in straight, pre-defined paths and they will continue on their path towards a potential aggressor dog
with no perception of the risk involved.
4.4 In applying the new measures in the Anti-Social Behaviour Bill, the authorities should ensure that attacks
on guide dogs are prosecuted to the full extent allowed by law to provide sufficient deterrent and take full
account of the seriousness of the offence. If new powers prove insufficient the Government should legislate to
provide for an attack on an assistance dog, while working, as an aggravated offence. There are international
precedents for such laws:
—
Connecticut, USA—all dog owners are required to keep their dogs on a leash when in proximity
to an assistance dog in harness. If an owner fails to do this, resulting in an attack on the
assistance dog—the owner is required to pay a fine and damages to the assistance dog owner.
—
New Jersey, USA—currently considering a Bill which would make it a crime to recklessly
allow an animal to kill, injure or interfere with an assistance dog.
—
Manitoba, Canada—it is an offence to allow an animal to interfere with an assistance animal
with a fine of up to $5,000 for a first offence and fines of up to $10,000 for subsequent offences.
If the Bill provides individuals, communities and businesses affected by anti-social behaviour with a more
effective long-term solution
5.1 Guide Dogs had some concerns about Dog Control Orders (DCOs) which we felt were not an effective
long-term solution, being too blunt an instrument to properly address the issue of dangerously out of control
dogs in certain areas. DCOs impose restrictions on all dogs in the area, such as that they be kept on a lead at
all times. Whilst we recognised and welcomed the fact that this may help to prevent attacks in certain areas,
we were concerned about how DCOs impact upon guide dogs and their owners. Guide dogs need to be free
run (that is, exercised off the lead) regularly for their health and wellbeing and this requires a suitable area
such as a park. Guide dog owners have reduced mobility and, if a DCO is imposed on their local park, they
may not be able to travel to another suitable area to free run their dog so may therefore be especially
disadvantaged by such an order.
5.2 The Bill states that Dog Control Orders will be replaced by Public Spaces Protection Orders. Guide
Dogs is pleased that PSPOs will specify to whom they apply (to all people, those in specified categories, or all
people except those in specified categories). This gives an opportunity for local authorities to exempt assistance
dog owners who need to free run their dogs from restrictions such as keeping dogs on leads in certain areas.
We hope the Government will issue guidance to this effect.
5.3 Subsection (7)(b) of the Bill states that, in making a PSPO, the local authority must consult any
community representative the local authority considers appropriate. Guide Dogs believes that the local authority
should have an obligation to consult with representatives of any disability groups likely to be affected by
the Order.
5.4 A further concern about PSPOs is that in removing dogs from one area they may transpose the problem
by creating a greater concentration of dogs in a different spot. Too great a concentration of dogs in any one
area increases the chances of there being an incident. We hope that any guidance issued by the Government
will require local authorities to take this risk into account when making PSPOs.
Guide Dogs for the Blind Association
January 2013
Written evidence submitted by Kirklees Council [ASB 24]
PART 4—CHAPTER THREEE—Closure Notices and Orders
We have concern about the different terminology used in the draft clauses and in the explanatory notes with
regard to closure notices and orders.
— In clause 66(1) the power to issue a closure notice rest on whether there is a “nuisance to members
of the public”.
— In paragraph 55 of the Explanatory Notes the term used is “public nuisance” when speaking about
closure notices.
— In clause 70 the power to issue a closure order rest when the magistrates’ find there is a “serious
nuisance” and this is reinforced in paragraph 57 of the explanatory note.
It is suggested that there should be consistency of terminology throughout the legislation and guidance. We
recommend that “serious nuisance” is used and not “public nuisance”. Public Nuisance has a specific common
law meaning and would present practical and legal difficulties when exercising these powers.
Wendy Blakekey
Pollution Control Manager
Kirklees Council
Written evidence submitted by Big Brother Watch [ASB 25]
Draft Antisocial Behaviour Bill
Big Brother Watch is a privacy and civil liberties campaign group. As such, we intend to confine our
response to the wider implications of the draft Bill and hope the committee will find such input useful alongside
the other evidence received.
Initial Observations
1. Antisocial behaviour is a widespread problem for many communities. However, legislation in this area
has previously exacerbated community relations problems and failed to address the weaknesses in the legal
system for dealing with perpetrators.
2. As such, the trend of legislation in this area has been to lower the legal threshold for prosecuting individual
cases and this bill continues that trend. We question whether the issue is really one of behaviour that causes
distress not being criminal, requiring re-drafting and broader wording, or a failure of agencies involved to
respond to the problem in a co-ordinated way.
3. Caution must be exercised in criminalising behaviour that in itself is not criminal by means of anti-social
behaviour legislation. Serious instances of harassment, highlighted in some harrowing cases, should be dealt
with as the crimes that they are, not antisocial behaviour.
4. The boundaries between youthful exuberance and antisocial behaviour appear to be growing ever more
blurred, and we are concerned that the Bill does not place any weight on the intent of those concerned. It is
important to avoid a sense that the law is “against” young people and this legislation in its current form lacks
the safeguards to ensure over-zealous enforcement does not become the norm.
5. Furthermore, the lack of any requirement for intent or recklessness on the part of those responsible for
the behaviour alleged to be ASB may lead to serious tensions, particularly where the community trigger is met.
6. We are concerned about the provision to introduce monitoring arrangements where a criminal conviction
has not been secured, and the risks of increasing judicial micro-management of behaviour.
Specific Points
7. Part 1 sets the threshold as behaviour that may cause “annoyance or nuisance to any person”. Sections
1–4 address the test for when an injunction may be granted and do not contain any requirement for intent to
be demonstrated nor
8. We would submit the legislation would be improved with a requirement for either intent or recklessness
be demonstrated prior to the granting of an injunction. Indeed, to some people politicians canvassing would
comfortably meet this threshold, while junk mail or spam text messages would both seem to qualify.
9. Section 4 grants judicial discretion to either prohibit the respondent from “doing anything” contained in
the injunction, or to require the respondent to “do anything” contained in the order. This is clearly a broad
power and is not qualified, save for the limited caveats contained within Section 5. This introduces three
specific areas of flexibility upon the prohibitions and requirements granted, however does not grant judicial
discretion on matters such as childcare arrangements or health needs.
10. We would submit that a better way of protecting the legitimate commitments of those subject to any
order would be for judicial discretion to amend the draft bill to require any probation or requirement to
be necessary and proportionate for the purposes of addressing the behaviour that led to the application for
an injunction.
11. We would also support this provision to be introduced within the scope of Criminal Behaviour Orders
and Section 32 of the draft Bill.
12. Section 2(2) addresses the requirement for the court to receive evidence from the individual or
organisation to be responsible for enforcing any requirement. We submit this duty should also extend to
the respondent.
13. The power of arrest provisions in Section 3 seem to over-complicate matters further, as the conduct
described (“consists of or includes the use or threatened use of violence” and “significant risk of harm to other
persons”) would surely be criminal already.
14. The power of applications being granted without notice power, while clearly useful in limited
circumstances, should however require that the court is satisfied that the absence of notice is a reasonable
course of action. We would submit that the legislation should include a provision that if all reasonable steps to
serve notice have not been pursued prior to an application, the application should be dismissed.
15. The concept of community protection notices weakens judicial oversight of the control of behaviour in
a way we feel is both dangerous and unhelpful.
16. We would submit that s7 of Part 4 Chapter 1 of the draft bill should be strengthened to require that an
order would be granted by a court on application from an authorised person.
17. Furthermore, it is of concern that the draft Bill does not specify a course of redress for those seeking to
challenge the community protection notices prior to them being served.
18. The requirement to notify in s 38 (7) should be strengthened beyond what the individual concerned
deems appropriate to reasonable steps.
19. S40 (2) (b) appears to create a power of entry onto not only the property concerned but “other premises”.
We believe this power should only be exercised subject to a judicial warrant on the property concerned. Any
required access to other property should be the purview of the police.
Public Space Protection Orders
20. Section 53(6) creates the power for blanket provisions covering “all persons, or only to persons in
specified categories or to all persons except those in specified categories”. This does not take into account
intent or conduct, nor require that members of those categories not involved, nor suspected of involvement,
with antisocial behaviour are not guilty of an offence. To use one example, where a city centre has a PSPO for
under 16s between 9pm and 6am in a specific area of the town centre, the Bill is drafted as to create a test of
strict liability that would mean a 15 year old returning home at 10pm would not be able to walk across a town
centre from a train station to a bus station.
21. We believe a requirement to link behaviour with the area specified, or a specific provision to cover
reasonable law abiding behaviour, is essential to safeguard civil liberties.
22. We feel that the option for an order to be issued for three years without a requirement for interim
approval is not appropriate, and that this does not contribute towards an approach of narrow, targeted measures.
23. We would submit that the Orders should be subject to judicial approval and be limited to a maximum of
12 months. The provisions in s58 (2) would be enhanced by the provision of an external oversight on the
exercise of the powers and opportunity to challenge measures by interested parties. We would highlight the
fact that the power to make a closure order contained within s70 is subject to judicial oversight.
24. With regard to challenging an order, It is our opinion an application to the High Court may be a
prohibitively high hurdle and that restricting the grounds to make an application to those contained in 60 (2)
(a) and (b) negates challenges based on an argument that the order is disproportionate, unnecessary or causing
unintended harm to legitimate interests.
25. We also question whether in the regulations published by the Secretary of State there would be the
ability to require data to be collected and published on the effectiveness of Orders.
Community Remedy
26. The community remedy procedure does not have an appropriate safeguard to allow the respondent to
request a judicial process and contest the out-of-court disposals provided for in s90.
Monitoring Requirements
27. We are aware that the cost and accessibility of monitoring has fallen, a
28. Big Brother Watch believes that monitoring can be an appropriate tool in ensuring behaviour meets an
expected standard. However, we believe there should be an appropriate threshold of behaviour before tagging
is met and we believe the criminal law should be that threshold. Lowering the threshold to someone who has
never been convicted of a criminal offence is a significant step.
29. The availability of a technology should not be the driving force in its use. Indeed, tracking technology
does risk creating a false sense of compliance—either through the device being removed, or through tracking
which does not measure certain variables. For example, many GPS trackers do not measure height, an important
aspect of monitoring whether someone is moving around a high-rise block of flats.
30. There is also a risk that as tracking technology becomes more accurate those imposing orders feel able
to impose increasingly granular orders, specifying locations and times with such rigidity that any slightly
unexpected event risks the individual breaching the conditions of the order.
Big Brother Watch
January 2013
Joint written evidence submitted by the British Veterinary Association and the
British Small Animal Veterinary Association [ASB 26]
1. The British Veterinary Association (BVA) and the British Small Animal Veterinary Association (BSAVA)
welcome the opportunity to comment on the Home Office’s Consultation on a New Anti-Social Behaviour
Framework, which we note includes a number of proposals which will impact upon the control of dogs.
2. The BVA is the national representative body for the veterinary profession in the United Kingdom and has
over 13,000 members. Its primary aim is to protect and promote the interests of the veterinary profession in
this country, and it therefore takes a keen interest in all issues affecting the veterinary profession, be they
animal health, animal welfare, public health, regulatory issues or employment concerns.
3. The BSAVA is the largest specialist division of the BVA and of the veterinary profession. It represents
approximately 7,500 members, the majority of whom are in general practice and have an interest in the health
and welfare of small animals, namely dogs and cats.
4. Although in principle we support measures to tackle the social causes of the problems of dog control, we
do not believe that these problems, and the threat to society proposed by dangerous dogs, can be solved simply
through changes to anti-social behaviour legislation.
5. We have a number of comments in relation to particular elements of the Bill.
Public Spaces Protection Orders
6. Dog Control Orders (DCO’s) have been in place since 2006 and are now well recognised and understood.
It is our understanding that these orders are effective where Councils have the resources to enforce them.
7. The introduction of Public Space Protection Orders (PSPO’s) could cause confusion with the general
public. Current DCO’s have no time limit, but the new PSPO’s are limited to a period of three years. It is
therefore unclear as to what will happen to existing DCO’s under the new legislation; this should be considered.
8. DCO’s currently cover only a limited number of circumstances (ie failing to remove dog faeces, not
keeping a dog on a lead, not putting and keeping a dog on a lead when directed, exclusion of dogs from certain
areas, limitations on the number of dogs in a certain area), however with PSPO’s no limits apply. While a lack
of detail as to what can be included could be seen as a positive step in allowing discretion, it could also lead
to inconsistency and failure to consider appropriate measures. We therefore think that it would be necessary to
develop guidelines to inform local authorities of the provisions that could be selected, backed up by supporting
evidence of how likely they are to be effective, and clear information to the public and dog owners in particular.
We would question, in the current climate of austerity, if Government/Local Authorities have either the time
or resources to develop such guidelines and provide adequate and appropriate training.
9. From the perspective of effective dog control, we do not see the need or benefit in repealing these orders
and replace them with PSPO’s.
10. We have repeatedly called for the introduction of Dog Control Notices to tackle irresponsible dog
ownership. These notices are now being used in Scotland and Northern Ireland and are being proposed in
Wales. We believe that these notices, targeted to specific elements of dog control would be more effective in
encouraging responsible dog ownership than a Community Protection Notice. It would also provide a
consistency of approach to the problem throughout the UK and avoid confusion when requirements are likely
to differ in England from the other countries.
11. It is not clear how circumstances where a dog causes nuisance could be dealt with using a Community
Protection Notice, especially given that the action leading to its issue must have a detrimental effect on the
quality of life. Offences such as barking are already effectively dealt with under the Environmental Protection
Act 1990.
Additional Comments
12. We are concerned by the suggestion in paragraph 152 of the Explanatory Notes to the Bill that the person
responsible for supervising compliance with a criminal behaviour order could be a dog trainer. It is unlikely
that any such supervision could extend beyond simply providing evidence that a person had completed a course
of training.
13. We feel that dog specific legislation, some of which is already in place, is much better placed to deal
with dog issues than the general provisions of the draft Anti-Social Behaviour Bill.
British Veterinary Association (BVA) and the British Small Animal Veterinary Association (BSAVA)
January 2013
Written evidence submitted by the Transition to Adulthood Alliance [ASB 27]
The Transition to Adulthood Alliance (T2A) is a coalition of leading voluntary criminal justice, youth and
health organisations.8 It identifies and promotes a more effective approach for young adults throughout the
criminal justice process.
The Alliance welcomes the opportunity to feed into the Committee’s pre-legislative scrutiny of the AntiSocial Behaviour (ASB) Bill. We would be happy to discuss this submission in more detail, give supporting
oral evidence or by facilitating a visit to one of the pilots operating in London, Birmingham or West Mercia
for Members who would like to see for themselves how a distinct approach to working with young adults/
offenders can support desistance, improve life outcomes and reduce anti-social behaviour.
Executive Summary
Young adults are a distinct group based on their developing maturity and potential for change. A radical
shift in thinking, practice and policy responses to anti-social behaviour amongst the 18 to 24-year old age
group is timely and necessary, reflecting changes that are already afoot.
— Young adults are disproportionately represented in the criminal justice system. They account for one
in four of all police contact, a third of those sent to prison each year and a third of the probation
service’s caseload.
— Despite this, young adults are the age group most likely to desist from crime and that the vast
majority will “grow out of crime” with the right support and intervention.
— Youth as a life stage is inadequately determined by the arbitrary notion of age, and is more effectively
determined by an individual’s needs and level of maturity.
— Research indicates that desistance from antisocial activity requires a supporting structure for positive
activities, and this can only exist if a young person has the necessary building blocks—human and
social capital—for its construction.
— Reforming tools and approaches to anti-social behaviour which take into consideration developing
maturity and transitions will help reduce levels of anti-social behavior and reoffending, overall spend
and, importantly, reduce the numbers of victims of crime.
— Commissioners in the criminal justice system, local government and newly elected PCCs must focus
on commissioning what works with young adults rather than “more of the same”.
—
Our submission outlines examples of community interventions that have a supported a reduction in
reoffending and anti-social behavior, and outcomes related to desistance.
Anti-social behaviour tools and legislation must supported by:
8
—
Services that give police more community based options, and support restorative solutions,
specifically tailored for young adults.
—
Local partnership working that supports diversion and both the transition to adulthood and transitions
between children’s and adults services.
—
PPCs taking a lead in tackling young adult reoffending locally.
Although the work of the T2A Alliance reflects the views of its membership, this submission should not be seen to represent
the policy positions of each individual member organisation
—
—
Where community consultations occur, mechanisms in place that support meaningful engagement
with young adults.
Work to improve relationships between young adults and the police.
1. About the Transition to Adulthood Alliance9
Membership encompasses leading criminal justice, youth and health organisations Addaction, Catch22, the
Centre for Crime and Justice Studies, Clinks, the Criminal Justice Alliance, the Howard League for Penal
Reform, Nacro, the Prince’s Trust, the Prison Reform Trust, the Revolving Doors Agency, the Young
Foundation, and YoungMinds.
The Alliance was convened by Barrow Cadbury Trust (BCT) following the publication of Lost in Transition,
in 2005 which illustrated the vulnerability of young adulthood, and the need for interventions to recognise this
as a distinct stage in life. T2A has now amassed an evidence base comprising more than 40 research and policy
reports by a range of organisations.
Further to T2A’s research work, the Barrow Cadbury Trust has established three pilot projects, running since
2009, which are testing different approaches to improving services for young adults in the criminal justice
system. The T2A pilots enable community interventions to be tailored to the needs and maturity of the
individual, with the aim of reducing both the risk of reoffending and social exclusion. Evaluation results below.
Why young adults?
T2A fully recognises the harm that anti-social behaviour can cause to individuals, families, and communities,
as well as its substantial impact on police resources. We welcome the Home Office’s decision to simplify this
legislation and its emphasis on the continuing use of “out-of court” powers such as restorative justice and
Acceptable Behaviour Contracts (ABCs).
However, whilst many agencies within the criminal justice system are increasingly recognising young
adulthood as a distinct life stage and the importance of developmental maturity and the role it plays in relation
to offending behaviour and supporting desistance (NOMS, the Sentencing Council for England and Wales and
the Crown Prosecution Service to name just three), the new anti-social behaviour tools pay no regard to
this issue.
By taking account of maturity in the criminal justice process, practitioners are echoes the findings of the
Independent Riots Panel Report, which argued that “considerable scope for improving the way resources are
utilised to assess and manage the needs of young adults (18 to 24 years old) in order to help reduce reoffending’
(young adults were disproportionately represented in the riots). The Panel went on to state “This need not
involve major institutional change, but does demand awareness of young adults as a distinct group with a
different set of needs from older adult offenders and the ability to tailor approaches accordingly”.
To draw on the Home Affairs Select Committee’s own report “we mention the involvement of young people
and young adults not to demonise them, but to emphasise the importance of engagement between the police
and young people as part of wider crime-prevention measures. 10
Why responses to anti-social behaviour should have regard to young adults
Young adults are disproportionately likely to come into contact with the police. They account for one in four
of all police contact. Recent statistics show that:
— 208,262 young adults aged 18–20 were arrested by the police for notifiable offences in England and
Wales in 2009–10
— 59, 948 18–24 year olds received a Penalty Notice for Disorder in 2010.
— 2,973 18–24 year olds received a conditional caution in 2011
— 27% of the suspects involved in the August 2011disturbances were aged between 18 and 20 years
old. The independent riots panel reported “that the disturbances were—largely—carried out by this
age group”.
Young adults are also significantly disproportionately represented throughout the criminal justice process.
While this cohort constitutes less than ten% of the general population they make up more than one-third of those
commencing a community order or suspended sentence order, one-third of the probation service’s caseload, and
almost one-third of those sentenced to prison each year. Furthermore, the latest proven reoffending statistics
show that the proportion of offenders who re-offend is 31% and 27.6% for the 18–20 and 21–24 cohorts
respectively. This compares unfavourably against the overall reoffending rate of 26.3%.
Yet it is important to note that the evidence indicates that young adults are the age group most likely to
desist from crime and that the vast majority will “grow out of crime” (the majority stopping by their mid-late
20s). This means, therefore, that a wrong intervention at this stage of development can enhance criminogenic
behaviour and slow down the desistance process.
9
10
For more information on the T2A Alliance, see http://www.t2a.org.uk/alliance
Home Affairs Select Committee (2012) Policing Large Scale Disorder: Lessons from the disturbances of August 2011 pg. 24
Maturity, temperance and anti-social behaviour
From neurological, psychological and criminological perspectives, research has shown clearly that young
adults are not fully developmentally mature until their mid-20s. A literature review carried out for T2A11 in
2011 set out the evidence for this. From a neurological perspective, the human brain is not fully developed on
a physical basis until well into the period of young adulthood (with temperance and impulse control the last
elements to develop in an adult brain). From a psychological perspective, evidence shows that psychosocial
capacities and moral reasoning abilities vary considerably between individuals in the young adult age group,
so that some remain immature for longer than others, and many cannot be considered fully mature until well
after the legal age of adulthood. From a criminological perspective, how an individual demonstrates maturity,
for instance in decisions about whether to engage in particular courses of action, is heavily dependent on the
social, economic and cultural context in which the decision is made, and in particular on the “moral rules” that
operate in the particular context.
Research has suggested that desistance from anti-social activity requires a supporting structure for positive
activities, and this can only exist if a young person has the necessary building blocks for its construction. In
other words, the transition to young adulthood and desistance from anti-social activity is made possible by the
accumulation of human and social capital. For the vast majority of young people, role models and a supportive
environment are provided by the family and local community. For young people who do not receive such
support, desistance from antisocial behaviours can be provided by properly designed, responsive services
commissioned from expert providers.
Examples of good practice
For the past three years, T2A has funded three pilot projects, which demonstrate a new approach to working
with young adults. These pilots, which have been extensively evaluated, work alongside and complement
statutory agencies. They employ staff, with support from volunteers and peer mentors, to work intensively with
the young adults who are on community sentences or who have just come out of custody.
While reducing reoffending by service users is a core concern and prime objective of the pilots, it is woven
into the broader purpose of enabling young offenders to “get on” in their lives and to navigate the transitions
they have to make (from post-adolescence to maturity; from the youth justice system to the adult justice system;
and from custody to resettlement). The services are therefore, in effect, welfare-based (based on the needs of
the service user) and, as such, are considerably removed from standard risk-based, offender management
practice in the adult criminal justice system
A break-even analysis by Matrix Evidence found that, using the most conservative estimate, the pilots would
have to reduce offending by only 28% over two years to break even (ie 72% of young people could reoffend
and the pilots would still break even in terms of the amount saved to the public purse by having prevented
reoffending by the remainder).
A summative evaluation by Catch22 published in 2012 found that, based on a random sample of 34 young
adults from across the three T2A pilots tracked over a six month period:
— Only three were reconvicted of a new offence (all non-violent);
— Only three breached the terms of their community order or licence;
— The number in employment trebled; and
— The number classified as NEET halved.
In a comparison with young adults who only received probation support, those from the T2A cohort had
more positive outcomes. The reconviction rates are significantly lower than the national average, strongly
indicating that the pilots are not only breaking even, but providing a significant cost-benefit.
Young adult offenders face a distinct set of difficulties
Young adults in trouble with the law often have particularly high levels of complex need and are from
backgrounds of great disadvantage, frequently with few or no educational qualifications and no experience of
work. Vulnerable young adults often lack positive adult role models and also suffer from high levels of mental
ill-health and alcohol and drug misuse problems. Home Office research has shown that 70% of young adult
offenders reported hazardous or harmful alcohol use in the past year before coming to a Youth Offending
Institute (YOI). Offender Assessment System (OASys) data has revealed that nearly half of young adults had
a drinking problem directly contributing to their anti-social and offending behaviour, and that young adult
offenders were the highest risk group for alcohol problems.5
Drug misuse is more common amongst young adult offenders than it is for young adults in the general
population. Research has shown that three quarters of males and two-thirds of females serious or prolific
offenders had tried drugs in their lifetime, compared with just a quarter of non-offenders.
11
Prior, D (2011) Maturity, young adults and criminal justice: A literature review http://www.t2a.org.uk/wp-content/uploads/2011/
09/Birmingham-University-Maturity-final-literature-review-report.pdf
However, young adults are the least likely group to be in treatment for drug misuse, and are less likely than
older adults to be in treatment for harder drugs such as opiates and/or crack. Offenders aged 18–20 years old
are more likely to report usage of cannabis, cocaine powder, “legal highs” and ecstasy. The nature of young
adults’ drug and alcohol misuse is one reason why adult drug intervention services are often inappropriate for
young adults.
The transition from children’s mental health services to adult services at 18 years is also a problematic issue
as many young people do not make the transition and end up lost in the system, not receiving the support they
need and consequently their offending behaviour increases. Child and Adolescent Mental Health Services
(CAMHS) also need to make themselves more accessible to young people especially those at risk, to ensure
they receive support and appropriate services. For example, young people who are diagnosed with disorders
like ADHD, mild learning difficulties, autism spectrum disorders and personality disorder, even if seen by
CAMHS services, will not be taken on by adult services. Prisons have a high proportion of young people with
these disorders and, therefore, the gap in service provision is manifested in the make up of the young people’s
prison population where mental health problems are rife. T2A will be planning a more detailed piece of
research on this subject later this year and look forward to sharing it with the Committee.
Engaging with young adult victims
Victims and offenders are often the same people. Becoming a victim either of offending or anti-social
behaviour increases the risk of offending or perpetrating anti-social behaviour. We also know that this has a
knock on effect in other areas such as negative education outcomes and the likelihood of gang membership:
—
31.8% of 16–24 year olds were victims of a crime, more than any other age group (Chaplin, 2011).
—
14% of 16–24 year olds were victims of a personal crime, more than any other age group
(Chaplin, 2011).
—
A 2006 survey found that 50% of 18–25 year olds who had offended in the past 12 months had also
been a victim of personal crime in the same period (Roe & Ash, 2008).
Based on likelihood of being a victim of crime, young people would make up the biggest group that local
communities will need consult with on community remedies and strategies around how best to support victims
of crime. It will be important to involve this group in the design of community remedies. However it is worth
noting that currently local mechanisms to do this (engage and consult) are in general under developed.
We hope that the Committee will question the Home Office, Police and Police and Crime Commissioners
on what actions they plan to take to drive up engagement with this group as part of the oral evidence sessions.
Issues relating to efficacy of ASB responses
As stated previously, T2A support greater use restorative justice approaches, out of court disposals and
diversion. In “Pathways from Crime” (2012) T2A makes the case for an expansion of restorative justice for
young adults and its availability post-arrest and pre-court.
While each individual decision is clearly an operational issue to be left to the professionals, Police and
Crime Commissioners will play an important role in supporting solutions to anti-social behaviour and
commissioning services that expand the viable community options open to the police. Interventions and support
should be based on what works with the young adult age group. Commissioners should expect providers to
demonstrate that they have taken into account the distinct needs of young adults and have tailored their
approaches to match maturity and support desistance.
Interventions and projects that have as one of their aims the improvement of relations between the police
and young people are to be encouraged. The police should receive specific training for managing contact with
young adults, particularly in relation to stop and search and, where possible, should seek to divert young adults
into appropriate services away from the criminal justice process. Development of a young adult approach
within Integrated Offender Management (IOM) could provide a useful framework. A T2A commissioned report
on the policing of young adults is to be published shortly. We would welcome the opportunity to discuss its
findings in greater detail.
T2A would also welcome Members’ views on gaps in research and evidence relating to reducing anti-social
behaviour amongst this group. Members’ views would contribute to the design of T2A research programmes
over the next year.
Transition to Adulthood Alliance
January 2013
Written evidence submitted by the Criminal Justice Alliance [ASB 28]
About the Criminal Justice Alliance
The Criminal Justice Alliance (CJA) is a coalition of 70 organisations—including campaigning charities,
voluntary sector service providers, research institutions, staff associations and trade unions—involved in policy
and practice across the criminal justice system.12 The CJA works to establish a fairer and more effective
criminal justice system.
Executive Summary
— Formal measures for addressing anti-social behaviour (ASB) should be used sparingly and only when
other informal alternatives have proven to be unsuccessful.
— Allowing requirements to be part of measures to address anti-social behaviour is a positive
development, however greater emphasis should be placed on more policies that seek to prevent this
behaviour being committed in the first place.
— The threshold for an activity to be potentially classified as anti-social behaviour and therefore within
the scope of a formal measure under the draft legislation is too broad. It risks, along with the
continued use of the civil standard of proof, allowing a disproportionate response to very minor
illicit behaviour and increasing community tensions.
Introduction
1. Anti-social behaviour has a serious impact on the lives of large sections of communities across the country.
The introduction of ASBOs almost 15 years ago achieved little directly in addressing this issue or reducing
the level of ASB. Failing to tackle the needs and vulnerabilities of either victims or those responsible for the
behaviour, they have primarily succeeded in criminalising thousands of individuals for exceptionally minor
illicit activities. A concerted effort that takes a holistic approach to the problem taking in the viewpoints of the
victim, the individual guilty of the behaviour and the community as whole is needed to rectify this.
Whether the Draft Bill would Introduce more Effective Measures to Tackle Antisocial
Behaviour
2. The draft Bill introduces a number of new measures that seek to simplify and reduce the number of
orders that deal with anti-social behaviour, whilst simultaneously reducing the levels of such behaviour within
communities. It is difficult to explicitly state whether the cumulative effects of these changes will lead to more
effective measures. Some of the proposals have the potential to do so, but there are also several that jeopardise
these gains and threaten the overall effectiveness of the changes.
3. One of the amendments that could enhance the effectiveness of measures to tackle ASB is the introduction
of positive requirements under the Crime Prevention Injunction (CPI) and Criminal Behaviour Order (CBO).
This has the potential to address the underlying causes of antisocial behaviour, going beyond the remit of
simple prohibitions. Individuals given the opportunity to deal with specific issues that may have lead them to
act in ways that cause alarm or distress should be in a position where they are better equipped to refrain from
such behaviour in the future. However, in order for these requirements to be truly effective there should be
some element of consent built into the process. Forcing individuals to engage in certain treatment, programmes
or classes can often be unproductive as they may simply be unwilling or not be in a position to fully engage.
4. The explanatory notes that accompany the legislation indicate that the government hopes the inclusion of
positive requirements will reduce breach rates of orders. Unfortunately, this could prove counterproductive and
produce the opposite result if inappropriate and onerous requirements are place on individuals, ones that don’t
match specific needs or address underlying issues. Little detail is provided within the legislation on how the
relevant bodies and officers will determine what requirements will assist in addressing the antisocial behaviour.
In some ways it appears that the scope of requirements could be as broad as those handed down within
community sentences yet there would be far less formal information provided.. There is a risk that both the
CPI and CBO could in some ways intrude upon the place of community sentences (albeit without having to
go through the criminal justice procedure and with it the criminal burden of proof), dealing with more minor
activity than needed to reach the community sentence threshold which in the long term could end up fast
tracking an individual through the criminal justice system. For example, if a sentencer has seen an individual
fail to comply with a CBO requirement in the past they may be less likely to give them a community sentence
in the future. The Ministry of Justice should provide greater clarity on how decisions over requirements will
be made.
5. The draft legislation states that officers will not be able to issue requirements unless the appropriate
services are available within the locality. If there is a desire to truly make mechanisms more effective at dealing
with anti-social behaviour then the commitment to positive requirements should go beyond this. Efforts should
be made to increase the availability of specific services and programmes, especially in areas that anti-social
12
Although the CJA works closely with its members, this submission should not be seen to represent the views or policy positions
of each individual member organisation. For a full list of the CJA’s members, please see http://www.criminaljusticealliance.org/
organisations.htm
behaviour is a serious problem. CJA members report that there is a lack of drug and alcohol and mental health
treatment services available for those referred by criminal justice agencies.
6. The additional test for CBOs that ensure the court must consider that an order will help prevent repeat
offending has the potential to act as a safeguard from overly intrusive requirements, and has the potential for
more tailored orders that reach the cause of the behaviour. However, it remains broad and so does risk allowing
overly burdensome and ineffective requirements being issued. Those making the decision should have the
requisite training and information to determine what is locally available that can truly prevent repeat behaviour.
7. The suggested thresholds for granting a CPI and CBO is worryingly low, especially the former, allowing
an extremely broad range of activities into scope. Inevitably this will lead to both being used, to some extent,
to deal with people committing extremely minor acts which are in no way criminal when often it is more
effective to deal with these individuals through less formal mechanisms. Using the CPI and CBO will lead to
some people being unnecessarily caught up in the beginnings of the criminal justice system. The fact that the
burden of proof will remain set at the civil level, the balance of probabilities, exacerbates this. The percentage
of ASBOs sought that were granted was exceptionally high, over 95%, and led to numerous inappropriate
applications being successful, thereby impacting heavily on the effectiveness of measures. This will more than
likely continue with the retention of the civil standard of proof. Additionally, as a breach of both a CPI and
CBO can lead to a custodial sentence, the position remains that engaging in very minor antisocial but not
criminal behaviour could result in a period of detention in prison. Instead of dealing with the ASB this could
actually escalate the activity and have serious repercussions on the individual’s life without being subject to the
criminal burden of proof. Breaching these orders should not have the potential to lead to a custodial sentence.
8. At present, sanctions for the breach of an ASBO are imposed primarily according to the harassment,
alarm or distress involved in the breach of the order; that a court order has been breached is a secondary
consideration.13 We believe that this is the right approach, and would recommend that it continues following
the implementation of CBOs.
9. Both the minimum and maximum duration periods for the CBO are far longer than necessary. A starting
point of two years and the potential of an indefinite order will do very little to assist the effectiveness of these
orders. If anything the lengths proposed will act as a disincentive to comply with the orders. There is no reason
why anyone should receive a CBO for an indefinite period of time; there should be a reasonable maximum
period that encourages an individual to comply. The proposal to reduce the length of time if approved courses
are completed is however a positive step, so long as there are sufficient number of courses within areas and
trained professionals to supervise compliance with them.
10. The CPI and CBO proposed should only be used when other informal mechanisms and procedures have
proved unsuccessful. There is a concern that this has not been stressed within the legislation and could result
in them being be used as the default position. There is a need to further promote alternatives alongside these
mechanisms so that they can deal with specific targeted cases where they can be most effective. Greater steps
could be taken to ensure that they aren’t used as a first response to dealing with anti-social behaviour, and only
when non-formal approaches are no longer a realistic option.
11. The introduction of a dispersal power for certain officers could alleviate antisocial behaviour from
particular areas quickly with far less administrative bureaucracy than previous. However, if it is not combined
with further measures that put a more substantial plan in place it could risk simply shifting the problem
elsewhere. It is important that this power is not overly or inappropriately used which could worsen relationships
with groups and the police whilst increasing local tensions. The safeguard proposed, publishing data locally
on how much the power is being used, is welcome but not in our view adequate. In order for dispersal orders
to be effective officers will have to be precise with directions or else increase the risk of individuals breaching
the order. The maximum penalty of doing so of three months imprisonment is disproportionate. There should
be no risk of a custodial sentence for failing to comply.
12. The effectiveness of the proposed new mechanisms and orders on those with mental health issues or
learning difficulties is likely to be very questionable. It is a concern, and in our view a serious oversight, that
no specific consideration is laid out for these groups within the legislation, and in particular that no alternatives
are set out for them.
How the Proposals will Benefit Victims of Antisocial Behaviour
13. Elements of the draft Bill appear to provide victims of antisocial behaviour with mechanisms that will
better meet their needs and enable them to feel more confident in criminal justice and local housing agencies
and less anxious about anti-social behaviour.
14. The introduction of the community remedy will allow victims of antisocial behaviour and low level
criminality to play an active part in addressing the behaviour that is distressing them. It provides them with an
opportunity to be involved in the justice process and in a sense enables them to retain a degree of ownership
over the issue. It allows an opportunity to try to understand why the behaviour was happening and produce an
outcome that will rectify this in the future.
13
Sentencing Guidelines Council (2008) Breach of an Antisocial Behaviour Order: Definitive guideline, London: Sentencing
Guidelines Council.
15. Generally, simplifying and streamlining various orders will enable victims to better understand the
processes for dealing with anti-social behaviour which should allow them to better hold their local policing
and housing agencies to account when an incident develops. In particular, the community trigger has the
potential to reduce incidents of repeat victimhood by placing a statutory duty on certain agencies to take
positive action and develop a designated plan to prevent further occurrence when individuals make a certain
number of complaints. However, in the vast majority of cases agencies should be taking action well in advance
of this. There is therefore a slight cause for concern that the trigger could be used to defend inaction or taken
up as a default position in the future whereby agencies only act once the trigger has been activated.
If the Bill Provides Individuals, Communities and Businesses Affected by Antisocial Behaviour
with a more Effective long-term Solution
16. As stated above, introducing positive requirements that help target the underlying causes of anti-social
behaviour could have a long term positive impact within communities. Simplified dispersal powers can provide
a limited reprieve for individuals, communities and businesses.
17. However, a truly long term effective solution to anti-social behaviour must go beyond a purely reactive
response. In order to truly tackle the issue proactive and progressive policy must be put in place. Government
must support projects that have the ability to prevent anti-social behaviour developing within communities in
the first place. Research published several years ago by the Department for Communities and Local
Government on the Intensive Family Support Projects, which ran during 2003 in six local authority areas and
focused on families that had been evicted or were under threat of homelessness due to anti-social behaviour,
showed that for the vast majority of families involved, the projects “had helped them achieve remarkable
changes”. The study found that in 85% of families complaints about anti-social behaviour had either ceased or
had reduced to a level where the tenancy was no longer deemed to be at risk at the point where they exited
the project. Moreover, project workers assessed that in 80% of cases families’ tenancies had been successfully
stabilised with an associated reduction in the risk of homelessness, and that in 92% of cases the risk to local
communities had either reduced or ceased completely by the time families left the project. The study also
found that the projects offered excellent value for money “as they have the potential to reduce considerably
the short-term and longer-term costs of many agencies, including those providing services relating to housing,
criminal justice, policing, education, and health.14 It is programmes such as these that will have a truly long
term effect on levels of antisocial behaviour. Other mechanisms offer periods of respite which no doubt is
welcome by businesses, communities and individuals but do will inevitably achieve little in the long term.
Whether the Community Remedy is a Proportionate Response to Antisocial Behaviour
18. The Criminal Justice Alliance believes that victims and communities should have the opportunity to
become more involved in all levels of the criminal justice system and should be better supported throughout
the process ASB can have a serious impact on the lives of many individuals within communities and, despite
being very low level, it is important they feel both informed and involved in the process of dealing with an
incident of antisocial behaviour. The Community Remedy offers the potential to improve this and with it the
confidence of the public in the fairness of criminal justice agencies whilst reducing apprehension around ASB.
It allows victims to see the proactive steps that are being taken to deal with the behaviour. Despite this,
unfortunately the way the community remedy is currently drafted within the Bill there is a risk it will be
used disproportionately.
19. Whether the community remedy will be a proportionate response to anti-social behaviour will be
determined by the document list of options from which a victim must choose. Police and Crime Commissioner
are given broad discretion about the process of drawing up this document, simply being told to consult with
the public before compiling a suitable list of sanctions. There are minor recommendations about how public
consultation could be achieved but concerns remain that in some jurisdictions only select populations will be
given a voice and hard to reach groups will remain silent. This would immediately bring about questions as
the proportionality of any such list.
20. Inevitably different areas will draw up different lists of remedies/sanctions, allowing for greater local
solutions to local problems. However, in order to guarantee proportionality in sentencing there needs to be
some sort of parameter in terms of seriousness of the sanction within and between policing areas. Individuals
may be involved in antisocial behaviour for very different reasons and so remedies should reflect this, but this
does not allow for one locality having a very serious list of sanctions/remedies for very minor illicit behaviour
when their neighbouring area is the opposite. The safeguard that has been put in place, that the local policing
body and individual officers must ensure that actions in the community remedy document and the individual
sanctions chosen by the victims are appropriate, does not provide a sufficient guarantee that disproportionate
sanctions will not be issued.
21. As the seriousness of the offence cannot reach the point of warranting a conditional caution, it is
important that the document list of sanctions does not include measures that pass a certain threshold.
Unfortunately no such threshold is set out. Further guidelines should be issued in the future to policing areas.
14
Department of Communities and Local Government (2006) Antisocial behaviour Intensive Family Support Projects, Housing
research summary 230, London: Department of Communities and Local Government
The community remedy brings with it a general risk of uptarriffing and net widening, individuals receiving
more severe formal sanctions than they would have done in the past and drawing more people into the realm
of criminal justice agencies, without some threshold or guidance the threat of this becomes more certain. It is
important that an appropriate division is retained between community remedies and community sentences.
22. Similar to the CPI and CBO the definition of anti-social behaviour used to pass the threshold to use a
community remedy, behaviour that is capable of causing nuisance or annoyance to any person, is extremely
broad and therefore allows for a disproportionate response to certain activities which could actually escalate
tension between parties and do little to tackle the root cause of the issue.
23. It would appear from the legislation that individuals will be encouraged to admit guilt in order to receive
a community remedy as opposed to going to court. This may well prove to be the case in practice. However,
as the incidents would not have previously have reached court there is an element of misrepresentation. If the
list contains some quite punitive elements then it could lead to people in effect agreeing to something almost
as severe as a community sentence without going to court when in the past they would have been diverted or
received a much less onerous sentence. This is particularly important when the person has a learning difficult,
mental health issue or lacks maturity.
24. There is no detail given on what is proposed if the offender does not fulfil their obligations under the
community remedy. It is important that they are give an appropriate amount of time and that their failure to
comply should not lead to an up-scaling in which they are as a result sent for a more serious sentence in court
where in the past they would not have done so.
25. On the whole the community remedy could be a positive step forward providing an appropriate and
proportionate response to low level offences. Allowing for greater mediation between the parties could lead to
greater integration and creating better connected and less isolated communities. Unfortunately in the present
form the specifics aren’t laid out in sufficient detail.
How the new Measures would Affect Young People in Particular
26. Despite originally being intended to be used for those over the age of 15 ASBOs came to be used heavily
against those under 18. In fact, despite making up only 10% of the population nearly half of all orders handed
out were given to individuals between the ages of 10–17. There is nothing to suggest in the draft legislation
that this disproportionate affect won’t be replicated again.
27. Young people are likely to be heavily affected by the introduction of the dispersal power. There is a
need to think about where these young people are being dispersed to. It is welcome that they can go to places
of safety when necessary, but this is not sufficient.
28. Overall we believe the government has seriously underestimated the impact of these proposals on young
people. The CJA has observer status on the Standing Committee on Youth Justice and we wholly endorse the
views presented in their response to this consultation.
Criminal Justice Alliance
January 2013
Written evidence submitted by Stephen Braund [ASB 30]
Executive Summary
Only the areas in which the author has detailed knowledge and experience have been addressed in this
document which relate to tools and powers.
The draft bill will become a useful piece of legislation to enable more effective measures to tackle antisocial behaviour.
Unfortunately, although the purpose of the bill is clear there is a lack of clarity on what constitutes antisocial behaviour. The concepts of nuisance, annoyance and harassment and distress not teased out and may
become problematic when the Court interprets the clauses. The effectiveness of the community protection
notice may be undermined by legal process. The drafting of regulations and guidance will be essential if this
is to be avoided.
This document represents the views of the author who is a practitioner. It has not been endorsed by the
Council for which the author works. It should be read as an entirely practical and non Political work.
Part 1
Injunctions to Prevent Nuisance and Annoyance.
Comment on clause 1 (2)
The definition of anti-social behaviour is not clear which may give the Court some difficulty when deciding
if an injunction should be granted.
The concept of just and convenient will be difficult to balance.
General comment on Part 1
The intent of the authors of this part of the bill in this is clear and welcomed, however the Court may have
initial difficulty in interpreting the wording. Nuisance law dates from the 18th century and is underpinned by
statute and case law. Aligning this with “annoyance” (see Part 1 Section 1 paragraphs 1 and 2) and implying
that either may constitute “anti-social behaviour” could be over simplifying the concept. Indeed, anti-social
behaviour is currently more closely linked with “harassment, alarm and distress”.
Comment on 19 (1)
See comment on clause 1 (2)
Part 2
Criminal Behaviour Orders.
No comment
Part 3
Dispersal Powers.
Comment on clause 31 (1) (a)
The concept of “locality” may cause enforcement difficulties.
Comment on 31 (10)
This clause is very well drafted.
Part 4
Community Potection
Chapter 1
Community Protection Notices.
General
This part is likely to be of use to practitioners such as environmental health officers, anti-social behaviour
officers, tenancy management officers and police community support officers (and constables). It is understood
from consultations prior to the bill being published that the community protection notice is intended to be a
simple tool to control anti-social behaviour (particularly low level) and improve the collective quality of life
of those communities affected by it. The provision of this power is welcomed.
It is understood that there may be insufficient resources to publish guidance notes (or “circulars”) to
accompany the legislation however it is suggested that detailed guidance should be written to explain the
processes implied by this part. An environmental health officer would know when a statutory nuisance exists
but other practitioners may not. Obtaining evidence for breach of notice offence is not straightforward. The
use of fixed penalty notices as a disposal for an offence has not been widely adopted.
There are only limited powers of entry associated with the community protection order which allow the
posting of a community protection notice. This could be problematic for authorised officers who wish to gather
evidence on privately owned land. It is understood that certain practitioners would have powers of entry under
other statutes such as the Public Health Act 1936.
This would prevent the service of CPNs on juveniles and differs to the powers currently contained in the
Environmental Protection Act 1990 and the Cleaner Neighbourhoods and Environment Act 2005 for community
offences such as littering and graffiti.
Comment on 38 (1)
The legal concept of “body” is not defined. This could cause problems with the proper service of the
community protection notice.
Comment on 38 (1) (a)
This clause is likely to cause confusion because of the need to legally qualify:
(a) detrimental effect;
(b) persistent or continuing;
(c) quality of life; and
(d) those in the locality.
sufficiently well to pass an the evidential test of beyond reasonable doubt required for a successful criminal
prosecution. See also defences under 41 (1) 1.
Comment on 41 (3)
This prevents this power being used in an emergency, or any enforcement action in Court during the twenty
one day appeal period. However assuming the community protection notice is aimed at low level persistent
ant-social behaviour, it could be argued that this is proportionate.
Comment on 42 (2)
This would imply that remedial work can’t be carried out without the “defaulters” consent. This dilutes this
power considerably especially if the power conferred by section 40 has been used.
Comment on 44
Practically this would be a better way of authorising remedial action because it would have the backing of
the court, however should the offender not “defendant” (since by default the offence must have been proved
by this time) refuse access for remedial works in default to be carried out; the only remedy would be a further
prosecution, this time for breach of the order. It is suggested that a Court may find this process unwieldy and
that if access is refused the outcome would be a sentence handed down by the court for breach of the order
and not compliance with the original community protection notice.
Comment on 47
The possibility of offering discharge of any liability to conviction for the offence by paying a fixed penalty
is welcomed; however practical difficulties such as identification of offenders (for example, there is no power
to ask for name and address) and ensuring that all the elements of the offence can be proved may be difficult
(see complex requirements in section 38). This section does not offer a simpler way of implementation than
currently exists.
Chapter 2
Public Spaces Protection Orders
General
The simplification of this process is welcomed, especially the reliance on alcohol related anti-social
behaviour so that, for example, other drug related anti-social behaviour can be controlled.
It is important that the community is made aware of the existence of new public spaces protection orders,
their extent and duration. The bill is not clear on how this will be acheived. It is expected that guidance or
regulations will follow. This would promote confidence in the police and local authorities as well deterring
individuals who may potentially be in breach of the order. 53 (9) may cover this.
No reference to the fate of existing orders such as designated public place orders, dog control orders or
orders made under the Dogs (Fouling of Land Act) 1996 can be found.
The three year limit is welcomed because if the order is successful it should no longer be needed after
that time.
Comment on 53 (3) (c)
This refers to a “notice” presumably this should be “order”.
Stephen Braund
January 2013
Written evidence submitted by Norwich City Council [ASB 31]
General
Overall the bill introduces some useful changes particularly the reduced burden of proof in some
interventions, which will allow the council and its partners to take swifter action particularly through the courts.
In this respect the proposals, if enacted will allow agencies to respond to the needs of victims more
effectively.
With public sector budgets reducing and organisations contracting the ability to respond within the spirit of
the bill are reducing. For example, the approved courses identified for perpetrators through the criminal
behaviour order appears to be a useful proposal, but opportunities and resources to develop these will be
challenging.
The bill indicates that as well as responding to the needs of victims also seeks to develop sustainable
solutions. However, many of the proposals focus on seeking short term solutions rather than these long term
solutions. This is one specific criticism of the draft bill as it stands.
The comments of the council on each section of the bill are below.
Comments by Section of the Bill
1. Crime prevention injunction
This is similar to the current anti-social behaviour injunction (ASBI) which it replaces and which has been
used effectively in Norwich.
This is a useful introduction. There are good arrangements in Norwich to monitor this type of intervention
via a multi-agency anti-social behaviour action group (ASBAG) which oversees high risk ASB cases in
Norwich and through a joint Police/Council operational partnership team.
Section 12 (1)—the extension of the power to exclude persons from their home address should be regardless
of tenure ie not just social housing tenants
Section 14(1) (b)—the notification of when an injunction is applied for should remain as it is with the ASBI
ie the local authority, police and youth offending team if an individual is under 18. The proposal to inform any
other body is too broad unless it is clearly at the discretion of the lead agency.
There is an issue about how positive activity can be resourced as funding for activity that was previously
supporting these types of activity to ensure ASB interventions are effective no longer exists.
2. Criminal behaviour orders
Norwich has sought very few ASBO’s, in part because of the level of burden of proof required, the fact that
the ASBI is more flexible and the burden of proof is less.
The proposal for an order to end if an offender attends an approved offender course is positive. However,
whilst a useful addition these have resource implications and it is unclear how they may be provided given the
continued reduction on public sector budgets.
3. Dispersal powers
These are similar to the current dispersal order except the power rests solely with the police unlike the
current order which requires local authority endorsement and the current order can last for a longer period.
The council does not agree that the Police and crime commissioner is in a position to provide democratic
oversight. It is therefore suggested that oversight is provided at district council level and endorsement is sought
from district council’s to reflect their wider well-being role given that the power is unlikely to be used lightly
and there may be broader community issues that require resolving.
4. Community protection
Community protection notices
This appears to be a flexible and practical intervention that can be used in place of the environmental
protection act where this is not effective.
Public spaces protection orders
On the face of it this is a welcome additional flexible power to tackle ASB in the community. There is still
a requirement to give a written warning to the perpetrator prior to issuing the notice, so may not be as speedy
as may be hoped.
The power to issue community protection notices and public spaces protection orders may allow positive
action to be taken for matters that have previously fallen out of the scope of the EPA, (but which the authority
receives many complaints) ie rowdy residential behaviour, skateboarding in civic spaces etc.
Closure notices and orders
Closure notices could provide a useful and swift intervention but the need to show reasonable effort in
contacting occupiers/owners may restrict its usage.
It is recommended that closure orders should be heard in County Courts, in effect becoming a “one stop
shop” rather than a magistrate’s court.
Part 5 Recovery of possession of dwelling houses—anti-social behaviour grounds
The intervention in itself does not necessarily resolve any ASB issue and should be used proportionately as
it risks displacing an issue.
In addition:
— a serious offence in this section needs to be defined (Norwich City Council uses indictable offence
in its tenancy conditions);
— the locality requirement could include other serious offences, not just rioting eg rape, domestic abuse;
— the council’s use of introductory tenancies is proving useful in managing new tenants who are
perpetrating ASB; and
— the legislation should define how it interacts with homelessness duties (though in Norwich an
individual would become intentionally homeless on this basis).
Part 6 Local involvement and accountability
Community remedy
Local authorities should be formally consulted by the PCC on the community remedy and the PCC required
to take the views of the council into consideration before it is published for consultation.
Community triggers
Specific comments include:
— The bill should define at what council area the trigger should be developed in two tier local
government areas—is it at district or county level?
— Is it anticipated that the PCC will sign off or endorse the community trigger, given that the PCC will
be consulted on the outcome of each review?
— The trigger needs to be flexible enough to recognise that an individual who triggers a review may
be part of a neighbour dispute and equally responsible for the anti-social behaviour.
Norwich City Council
January 2013
Written evidence submitted by the Ramblers and the Open Spaces Society [ASB 32]
Introduction and background
1. We have a particular interest in this draft Bill because, in Chapter 2, it proposes a new approach to the
issue of gating orders, a matter which has caused us a great deal of concern since the measure was introduced
by the Clean Neighbourhoods and Environment Act in 2005. We made a detailed response to the 2011
consultation paper More effective responses to anti-social behaviour in which we raised a number of concerns
relating to the use of the proposed new provision to close public rights of way. We said that we would welcome
the opportunity to discuss those concerns with Home Office officials. We cannot see that in the draft Bill our
concerns have been addressed, and Home Office officials have not contacted us.
2. The Clean Neighbourhoods and Environment 2005 Act amended the Highways Act 1980 so that local
highway authorities are empowered to make gating orders which have the effect of restricting access to any
highway other than a special, trunk, classified, principal or strategic road. The powers permit access to be
restricted, by means of gates across the highway, on grounds of crime reduction and to deal with problems of
anti-social behaviour (defined as meaning behaviour by a person which causes or is likely to cause harassment,
alarm or distress to one or more other persons not of the same household as himself). Practical guidance on
using this procedure has been issued by the Home Office.15 Regulations (SI 2006 No. 537, The Highways
15
http://webarchive.nationalarchives.gov.uk/20100418065544/http://asb.homeoffice.gov.uk/uploadedFiles/Members_site/
Document_Library/step-by-step_guides/GatingGuide_Oct2008.pdf
Act 1980 (Gating Orders) (England) Regulations 2006) prescribe the procedure that authorities must adopt in
proposing and making orders.
Before making an order, an authority must be satisfied that:
(a) premises adjoining or adjacent to the highway are affected by crime or anti-social behaviour;
(b) the existence of the highway is facilitating the persistent commission of criminal offences or antisocial behaviour; and
(c) it is expedient to make the order for the purposes of reducing crime or anti-social behaviour, having
taken into account all the circumstances, including:
(i) the likely effect of making the order on the occupiers of premises adjoining or adjacent to
the highway;
(ii) the likely effect of making the order on other persons in the locality; and
(iii) in a case where the highway constitutes a through route, the availability of a reasonably
convenient alternative route.
3. Many of the major urban authorities in England have seized upon these new powers with enthusiasm and
large numbers of orders are being made. The reason for this is not hard to understand. Authorities were given
the power to close or divert public paths for crime prevention reasons under the Countryside and Rights of
Way Act 2000, but such orders can be made only in areas which have been specifically designated by the
Secretary of State, and the order-making procedure in that instance is the standard one for path orders, which
involves notification of certain prescribed organisations, and the right to have objections and representations
heard before an independent Inspector. In contrast, the gating order Regulations only require representations to
be considered by the council, and although a council may hold an inquiry into a gating order following an
objection from a member of the public, this is a discretionary power, not a requirement. Only representations
from the emergency services, a local NHS trust or another council (but not a parish or community council)
will cause an inquiry to be held, and then only before an Inspector appointed by the council (so not someone
appointed by the Secretary of State from the Planning Inspectorate).
4. Despite the making of a number of highly controversial gating orders, drawing numerous letters of
objection from the local community, to the best of our knowledge an inquiry has yet to be held. If the provision
for an inquiry were operating in the manner envisaged by government—who presumably enacted it to ensure
that all views would be properly taken into account in the event of a contentious order—it would seem
reasonable to expect at least one to have been held. We know that some authorities are continuing to push
through controversial gating orders and we are concerned that the views of those people who regularly use a
soon-to-be-gated route are not always given adequate weight.
5. We have attempted to monitor the number of gating orders which have been made since the provision
was introduced. We did this by writing to every highway authority in England and asking them to send us
notice of any proposal to make a gating order. (The Regulations enable any person to make such a request.) It
is probably the case that not every gating order has been sent to us but we estimate that in the period between
2007 and 2011 over 1700 orders have been made, affecting more than 4,000 routes.) The cost of this is
unknown but we believe that a single gating order can cost in the region of £5,000.
6. It is certainly the case that many of the routes which have been made the subject of gating orders will
not have served a utilitarian purpose, and we do not seek to prevent the closure of such routes. Our concern is
with the routes which are used by the public to go about their everyday business—to get to shops, schools,
doctors’ surgeries and so on. These are ways which provide traffic-free routes and which people use as shortcuts. We have case studies which show very clearly that these routes are being gated by councils in the face
of local opposition, and without recourse to a public inquiry at which the interests of legitimate path users
could be balanced against any likely reduction in anti-social behaviour. There is a clear civil liberties issue
here, with the general public losing their right to use a highway because of the criminal and anti-social
behaviour of the few. The Ramblers, the Open Spaces Society and other organisations have been campaigning
for the amendment of the Regulations so that a public inquiry would have to be held if an objection was made
by a person who made use of the route in question. It was our hope that the Home Office decision to streamline
the toolkit for dealing with anti-social behaviour would provide the opportunity to deal with this issue.
The draft Anti-social Behaviour Bill
7. As is clear from the concerns expressed above, we have been extremely unhappy with the way in which
sections 129A–G of the Highways Act 1980 (as amended) have been operating, and had a different scheme
for their replacement been proposed we would have welcomed their repeal (Schedule 6(2) of the draft Bill).
However, as far as we can see, the replacement scheme offers even less protection for rights of way then the
present scheme for gating orders. We set out our reasoning below.
8. We are concerned that public spaces protection orders could be applied to spaces where the public has
the right of recreation, such as registered common land and registered village greens. There appears to be no
restriction on the size or locality of such land. The Bill makes breach of an order (ie trespass) a criminal
offence.16 This is a very serious matter. We submit that “public places” must be much more narrowly defined,
and should specifically exclude registered common land and village greens (which are used and enjoyed for
recreation) and other areas of land which are held principally for recreation purposes. We submit there should
be a maximum size stipulated also. In fact, in our view this provision is unnecessary since in many cases a
local authority may make byelaws to restrict or prohibit anti-social behaviour.
9. We welcome the fact that under the draft provisions a public spaces protection order would not have
effect for a period of more than three years unless extended, but would have far preferred to see them limited
to three months in the first instance as proposed in the consultation paper. Home Office advice set out in the
publication “Clean Neighbourhoods and Environment Act 2005: Guidance Relating to the Making of Gating
Orders”17 recommended that orders be reviewed after 12 months, although this is not mandatory. We
recommend that clause 54 be amended so that a public spaces protection order would not have effect for a
period of more than 12 months at the very most.
10. We fear that there is opportunity for confusion with the consultation and notification regimes specified
for public spaces protection orders in general, and then specifically for those which will apply to highways.
Under clause 53(6) a local authority making such an order must consult (a) the chief officer of police … and
(b) whatever community representatives the local authority thinks it appropriate to consult. There seems to be
no requirement to consider anything which those parties then say. Where a highway is concerned, we note that
the scheme is slightly more rigorous (clause 58(2)) in that potentially affected persons must be notified of the
proposed order, and that any representations from those people must actually be considered.
11. However, in our view, particularly given our experience with gating orders, these consultation and
notification regimes are inadequate in terms of protecting the interests of the legitimate users of highways
which are to be made the subject of orders. Under present legislation, where a local authority proposes to make
a gating order, it is required by the Regulations to consult with 12 separate parties, including every local access
forum18 through whose area the relevant highway passes, and any person who requires to be notified of any
proposed gating order. Whilst, as previously noted, this consultation is not the same as being giving a right to
make a formal objection, it does mean that organisations representing user groups, such as the Ramblers and
Open Spaces Society, can be made aware of proposals to make gating orders and can make their views known.
When gating orders were first introduced we were able to write to every highway authority in England asking
to be notified of proposals to make gating orders, and this has ensured that in most cases we are made aware
of them. We urge the Home Affairs Committee to recommend to Government that the notification to be carried
out under clause 58(2) be extended so that:
—
organisations which are prescribed to receive notice of public path orders made under the Highways
Act 1980 and the Town and Country Planning Act 199019 are notified when public spaces protection
orders affecting highways are proposed;
—
any person or organisation can ask to be notified when such orders are proposed; and
—
additional persons to be notified can be prescribed in Regulations made by the Secretary of State.
12. In this context it is of particular concern to note that there is no mention in the draft Bill of any
consultation with the emergency services other than the police. For gating orders, the Highways Act 1980
(Gating Orders) (England) Regulations 2006 SI 2006 No 357 provide for consultation with every fire and
rescue authority through whose area the relevant highway passes, and also every NHS trust or NHS foundation
trust through whose area it passes. The Bill does say that a public spaces protection order must be published
in accordance with regulations made by the Secretary of State but there is no suggestion that the list of
consultees is going to be expanded by way of Regulations. What this means is that a public spaces protection
order could be made for a highway and it could be gated without consultation with the relevant fire and rescue
service and ambulance service.
13. The procedures for challenging the validity of orders (clause 60) limit persons who may challenge the
validity of orders to individuals who live in the restricted area or who regularly work or visit that area. That
limitation on who may challenge an order is unreasonably restrictive given that there is no other means of
objecting to the imposition of such an order. With gating orders it has been our experience that persons most
severely affected by the imposition of such orders are unlikely to have the means to attempt High Court action,
and they will look to organisations such as our own, which represent the interests of pedestrians, to challenge
orders in situations where an authority has acted beyond its powers or failed to meet the requirements of the
legislation. The restriction on who can question the validity of an order should be removed from the Bill.
16
17
18
19
It will be recalled that, when the Serious Organised Crime and Police Bill (with a provision to make trespass a criminal offence
on certain designated Crown land) was debated in the House of Lords, the government gave assurances that it would not be
used to restrict access to large areas of open- country but that it was the government’s intention to designate only a very small
number of sites’. The order for the Chequers estate was amended when it was discovered that it included an area of land mapped
as access land under the Countryside and Rights of Way Act 2000.
(originally available at www.together.gov.uk although the link no longer works)
Local Access Forums (LAFs) are established under Part V of the Countryside and Rights of Way Act 2000, and act as statutory
advisers to highway authorities as to the improvement of public access to land, a remit which extends to linear access.
Town and Country Planning (Public Path Orders) Regulations 1993 SI 1993 No 10 and Public Path Orders Regulations 1993
SI 1993 No 11
Summary of Concerns
14. The provisions which allow local authorities to make gating orders (sections 129A–G of the Highways
Act 1980) do not serve the public interest in that they allow for the effective and indefinite closure of public
rights of way by local authorities without the opportunity for the objections of legitimate users of the way in
question to be heard by an independent arbitrator. This contrasts starkly with the situation with other orders
made to close or divert public rights of way when objections are heard by an Inspector acting on behalf of the
Secretary of State.
15. The proposed replacement provisions, as set out in the Anti-social Behaviour Bill, will not improve the
situation. And save that orders can last for three years only in the first instance, they actually reduce the legal
protection afforded to highways most commonly used by pedestrians by making it easier for local authorities
to close them. We therefore urge the Home Affairs Committee to review and amend the following specific
aspects of the draft Bill:
— The application of public spaces protection orders to registered common land and registered village
greens (clause 53).
— The consultation requirements (clause 53(7).
— The duration of such orders (clause 54).
— The pre-notification procedure for orders which will restrict a public right of way over a highway
(clause 58(2).
— The procedures governing challenges to the validity of orders, which are unnecessarily restrictive
(clause 60).
— The lack of any possibility of objections or representations to an order being heard by a party
independent of the order-making authority.
— A tighter definition of “public place” (clause 65).
Ramblers20 and the Open Spaces Society21
January 2013
Written evidence submitted by the London Borough of Hammersmith & Fulham [ASB 33]
Terms of Reference
The inquiry will consider:
— Whether the draft Bill would introduce more effective measures to tackle antisocial behaviour;
— How the proposals will benefit victims of antisocial behaviour;
— If the Bill provides individuals, communities and businesses affected by antisocial behaviour with a
more effective long-term solution;
— Whether the Community Remedy is a proportionate response to antisocial behaviour; and
— How the new measures would affect young people in particular.
1.1 This submission is made by the London Borough of Hammersmith & Fulham. The author of this report
is Alistair Ayres, Anti-Social Behaviour Manager.
1.2 In general the changes proposed under the Draft Anti-Social Behaviour Bill should prove to be more
effective in dealing with ASB and criminal behaviour. However, there are some concerns about the
effectiveness of some of the proposed powers and how they may be used. There are further concerns regarding
whether the courts will have sufficient resources to deal with the new powers in a timely fashion.
1.3 The introduction of positive requirements and approved courses will help to provide long-term solutions
and engage individuals constructively. However, the burden of additional monitoring on already stretched
public services may mitigate against the effectiveness of these tools. Further clarity on what would constitute
an approved course would be useful.
1.4 The Directions Power offers an extremely effective short term tool for police. The possibility of the
inappropriate use of this power and subsequent challenges that may then arise need to be considered more
fully. There is a real concern that removal of the requirement to consult with the local authority greatly weakens
this power.
20
21
The Ramblers is Britain's walking charity, working to safeguard the footpaths, the countryside and other places we go walking,
and to encourage more people to take up walking. We have 112,000 members in England, Scotland and Wales, and we have
been working for walkers for 78 years.
The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. We campaign for common land, town
and village greens, open spaces and public paths throughout England and Wales. We offer technical advice on the law and
protection of open spaces and paths.
1.5 The Community Protection Notice appears to fill a gap between a warning for ASB and the need for
tenancy or injunctive action. However, guidance needs to be clear this would not be a further expected step
taken before injunctive or tenancy action, but an alternative.
1.6 The Public Spaces Protection Orders provide a useful simplification of the various orders they replace.
However, it is unclear why the three year review period has been introduced.
1.7 The Closure of Premises provides a simpler and effective measure for dealing with nuisance properties.
It is believed that for this remedy to be effective, provision should be made to prevent all individuals from
entering the premises. It is also questionable why there is need for specific compensation (section 80 (5)) when
existing remedies remain open to those affected. .
1.8 The absolute and discretionary possession grounds appear to give a far greater scope for action to
landlords. However, absolute grounds for possession will not negate the need for a trial as a judge still needs
to be satisfied that it is proportionate to grant an order for possession. Whilst, they should act as a deterrent to
tenants who may act in an anti-social manner, consideration must be given to how effectively the courts will
deal with these cases in light of their current capacity.
1.9 The Community Remedy is a positive piece of legislation for both victims and the police. However there
is no acknowledgement of the wider partnership influence and involvement that should be addressed.
1.10 We await the outcome of the Community Trigger pilots. We welcome the proposed local control with
a note of caution as residents in one part of the country may have a far different threshold than those of another,
which could lead to challenge.
1.11 The focus on the victim in this Bill should help to ensure they are at the forefront of agencies’ and
individuals’ thoughts when taking action. The requirement to acknowledge the needs of the victim and their
views is a positive change.
1.12 This Bill aims to achieve long-term solutions and a number of the changes will help to achieve these
goals. However, they cannot be achieved in isolation and the measures proposed must be used in tandem with
other positive social remedies, such as the Troubled Families initiatives.
1.13 The Bill should encourage constructive engagement with young people. However, we must be cautious
to not inadvertently create a route to criminalising young people should they fail to engage with the positive
requirements. Further, although the measures proposed should deal effectively with young people and ASB
there is the risk of alienating them from the process, which needs to be managed effectively.
2. Introduction to the Submitter
2.1 The London Borough of Hammersmith & Fulham is a local authority with an estimated population of
182,500 people.
2.2 The borough has a relatively young population compared to London and England as a whole, and very
high localised, concentrations of children and youths in specific areas of the borough.
2.3 According to the Index of Multiple Deprivation (IMD) 2010, Hammersmith & Fulham is within the top
50 most deprived in England (ranked 31st from 326 local authorities and 13th out of the 33 London boroughs
in terms of the average rank).
2.4 Hammersmith & Fulham has one of the highest population densities in the country, the eighth most
densely populated area. It is more than twice densely populated as both West London and London.
2.5 The borough has an ethnically diverse population, but has a lower percentage of its population from
BME groups than London as a whole.
2.6 Crime and ASB are a priority for the administration and the authority make a significant contribution to
the local borough police to pay for enhanced local policing.
2.7 The Home Office Crime and Policing Group come to the authority as part of their induction to see how
crime and ASB are dealt with on a local level.
2.8 Hammersmith & Fulham is one of the few London Boroughs left with a Neighbourhood Warden Service,
which is highly valued by our residents.
2.9 The borough has a strong partnership committed to dealing with ASB and crime and effective practice
to deal with these issues are embedded throughout our policies and procedures.
2.10 The author of this report is the Anti-Social Behaviour Manager who has nine years’ experience working
in the field of ASB and Housing. Comments and views have been taken from officers in Housing and
Regeneration and Legal Services including those of the Director of Housing and Regeneration and Executive
Director of Environment, Leisure and Residents Services as well as from the Cabinet Member for Residents’
Services and Cabinet Member for Housing.
3. More Effective Measures
3.1 Criminal Behaviour Orders and Crime Prevention Injunctions
3.2 The introduction of positive requirements and approved courses within the Crime Prevention Injunction
and the Criminal Behaviour Order to address root causes of ASB and offending behaviour are an effective
addition. If used correctly they should provide long-term solutions to prohibit offending behaviour as well as
a short-term gain when the order is made.
3.3 The ability to use the Crime Prevention Injunction with under 18s is a useful addition for agencies, such
as the local authority, to put in place sanctions for behaviour before a young person reaches a level of
criminality required for a Criminal Behaviour Order. Although the Stand Alone ASBO application currently
achieves this, the inability to use positive requirements at present make the proposed CPI a far more effective
tool to deal with a young person’s behaviour.
3.4 However, with additional responsibilities being placed on an already stretched public sector set to face
more efficiency there should be a note of caution as to how effectively this monitoring will be. It is envisaged
the majority of the monitoring of any positive requirements would fall to Local Authorities through their Youth
Offending Teams or children and adult social work teams. As the court must be satisfied the designated person
or organisation can effectively monitor a positive prohibition before granting the order there is a concern that
the positive requirements may not be applied for or granted if there is concern within these teams they cannot
manage the extra workload. It will be the responsibility of the organisations themselves to manage the process;
however, we do not want orders to fail due to a lack of support.
3.5 The use of “approved courses” need clarification so that it is clear what constitutes an approved course
and who makes the ultimate decision
—
ie Will there be a prescribed list of approved courses? If not, what will be expected of an applicant
in order to assist a judge to decide whether a particular course should be used?
—
Further, there needs to be greater clarification as to who pays the bill for such a course. It is not
expected that the majority of Defendants would have the means to pay for these courses, is the local
authority or other agency making the application expected to pay if the Defendant cannot?
3.6 The following is taken from the Home Office Impact Assessment in relation to the costs of implementing
the Criminal Behaviour Orders and does raise concern for Local Authorities that the burden will be placed
upon them:
(63) The following individuals/sectors are likely to be affected by the proposals….
(ii) Local Authorities: The additional costs for local authorities would be in paying for positive
requirements or in increased monitoring costs as a result of positive requirements where they choose
to do so. However, these costs are not known…
(iv) Youth Offending Teams: Youth Offending Teams would already be working with any young person
being given an order on conviction, as they would have been involved in the criminal part of the
trial. So the proposals are unlikely to cause additional costs for Youth Offending Teams. Any costs
incurred through the provision of positive requirements would be covered by the organisation
proposing those requirements (generally the local authority).
3.7 Recommendation:
(i) Definition of an approved course to be made explicit.
(ii) Responsibility to pay for an approved course or the management of a requirement to be clarified.
3.8 Directions Power
3.8 The Directions Power does provide the police with an immediate and effective tool for dealing with
(possible) ASB and criminal behaviour. However, with the removal of the need for any consultation with
partners as with the current Dispersal Zones, there is a concern over the long-term effectiveness of these powers.
3.9 The safeguards within the guidance that PCCs (or MOPAC in London) will hold forces to account and
that statistics on use of the power are published locally do not prevent possible failings in the original
application of the power by individual officers from the outset.
3.10 There is concern that the short-term gain of the proposed Dispersal Power could lead to long-term
mistrust of the police by local communities as has been seen with the use of the s.60 stop and search powers,
which have a higher level of control.
3.11 There is also concern that the Dispersal Power could be open to challenge should a constable (or PCSO)
fail to complete their comprehensive paperwork correctly or give unclear directions to an individual.
3.12 The 48 hour time-limit for dispersal is insignificant to make a substantial impact on the affected area,
compared to the onus placed on the constable in order to ensure the direction is adhered to without challenge.
3.13 In the experience of this authority, dispersal is generally effective in dealing with lower-level ASB and
often required on local housing estates. So there is real concern that these new proposal remove any requirement
on the constable or police generally to inform any partners of why, when or who they dispersed.
3.11 Recommendation:
(i) The Dispersal Power to include the requirement to consult partners.
3.12 Community Protection Notice
3.13 For a local authority this new tool should provide a much greater scope for dealing with cases of noise
nuisance that are not at a statutory nuisance level and to take more effective action against businesses.
3.14 There are major implications in time and cost for a local authority with this notice. Grounds for appeal
to the magistrates are wide and would necessitate further legal costs to a local authority.
3.15 There is further concern that local authorities may be expected to issue CPNs in the first instance before
the court will grant Injunctions or possessions.
(i) Make explicit in the legislation or guidance that the CPN should be viewed as an alternative rather
than a mandatory step on the road to further action.
(ii) An appeal should be made to a senior officer at the local authority in the first instance, rather than
direct to the magistrate’s court.
3.17 Public Spaces Protection Orders
3.18 The Public Spaces Protection Order simplifies a number of different pieces of legislation and should
be a more effective way of dealing with wide ranging public nuisances.
3.19 There are resource implications for the local authority in reviewing these orders every three years. Yet
there is no limit to how many times an order can be extended.
(i) Three year review of orders to be removed.
3.21 Closure of Premises
3.22 The bringing together of the closure of premises legislation into one coherent set of legislation will be
a more effective tool for dealing with ASB and criminal behaviour.
3.23 The addition that an Inspector for the police or an appropriately designated officer at the local authority
can issue a notice for 24 hours is a useful tool to deal with immediate concerns.
3.24 The inability to prevent a person who habitually lives at the premises or the owner of the premises
from entering once a closure order has been granted is a less effective measure than we have currently. The
legislation should provide for all individuals to be prevented from entering the property along the lines of those
set out in the Criminal Behaviour Injunction. With the legislation as it stands, two applications would have to
be made in different courts, for a Closure Order and for an Injunction. This goes against the general purpose
of the Bill.
3.25 Section 80(5) is too wide and is likely to induce unjustified litigation with additional cost consequences
to the applicant of the closure order. Current legislation already allows for claims to be made in the Small
Claims Court should it be proved that any liability is owed to the person unreasonably affected by a Closure
Order.
3.26 Recommendations:
(i) Include provision under the Closure Order to enable all individuals to be barred from the premises
including those who habitually live there and owners.
(ii) Review the need to make specific provision for claiming compensation for a property closed under
a Premises Closure Order.
3.27 Recovery of Possession of Dwelling Houses
3.28 The new absolute and discretionary grounds for possession introduced in the Bill appear to give far
greater scope for landlords to deal with problem tenants. As they appear to give the landlord more effective
measures for taking possession where warranted, this in turn should ensure tenants are more aware of their
responsibilities and the consequences of their actions.
3.29 The aim of these additional grounds is to speed up the eviction process and ensure victims do not have
to live hand in glove with perpetrators for an inordinate amount of time. However, we do not think in reality
this will make a great deal of difference as the courts process will still take a substantial amount of time to
negotiate. In addition to placing a greater burden upon the landlord to prove that it has followed the correct
process, the courts still have to be satisfied the action is proportionate. This could lead to protracted hearings
at court in order to satisfy the judiciary. Further, we would anticipate a greater number of applications for
possession under these grounds, which would increase the number of cases in court, placing greater burden
upon the courts’ resources which may lead to further delays generally.
3.30 The current average time it takes a defended ASB possession case to go through the County Court
process is 59 weeks. The changes to the legislation under the ASB Bill will affect how a landlord makes a
decision and what process they choose to follow. However, unless there is sufficient resource within the courts
to deal effectively with a likely increase in applications, the effectiveness of this change will be limited.
3.31 Section 83B(7&8) seeks to provide a 4 week notice period when applying to court for possession on
an absolute ground. A landlord is currently able to apply immediately for possession where there are grounds
of ASB. It is unclear why this delay where absolute grounds are to be relied upon is necessary.
3.32 The Bill does not appear to provide provision for applications on two grounds, ie. An absolute ground
and a discretionary ground, such as for rent arrears. Clarification is required regarding applications on
multiple grounds.
3.33 Recommendations:
(i) Review of the court process and resources is necessary to sit alongside the changes to the recovery
of dwelling houses. The change in process for the landlord is ineffective without a supporting change
in court resources.
(ii) Review the need to extend the notice period for an absolute ASB ground to four weeks.
(iii) Clarify the process on making an application to court on both absolute and discretionary grounds.
3.34 Community Remedies
3.35 The Community Remedy at present is a requirement only of the police. There is no consultation or
agreement to be made with the wider partnership in a local area. However, some of the remedies suggested in
the explanatory notes, such as mediation, are generally administered by the local authority or Community
Safety Partnership.
3.35 The general premise of the Community Remedy is a welcome addition, especially the need to consult
with and take into account the views of the victim. However, it would be a more effective tool if there was a
requirement for the police to consult with their partners regarding sanctions.
3.36 The Community Remedy does not appear to add much by way of making a positive contribution to
resolving ASB and the lack of consultation with partners may lead to inappropriate options offered to
perpetrators as their wider ASB history may not be known.
(i) Consultation with partners on available remedies and the appropriateness of those remedies on an
individual basis to be made a requirement of the Community Remedy.
3.38 Review of Response to Complaints
3.39 As the current Community Trigger pilots are yet to report their findings it is understood that there may
be significant change to the process depending on the outcomes of those pilots.
3.40 The lack of national guidance on thresholds could lead to vastly different interpretations and thresholds
across the country. This could lead to legal challenge for a local area as to why their threshold is different to
that of another.
4. Benefits to Victims of ASB
4.1 The Draft ASB Bill puts a greater emphasis on the needs and wants of the victims of ASB and crime
where needed. There is far greater responsibility placed on agencies to ensure the actions they take are in
accordance with the wishes of the victim with the introduction of the Community Remedy.
4.2 There is recognition of the need to change and improve the time it takes to reach a legal conclusion. In
theory the proposed changes should have an effect on how long it takes to progress matters, in our experience
and in practice; it is unlikely this will occur due to existing pressures upon the Courts resources.
4.2 As mentioned above the additions of approved courses and positive requirements should achieve longterm benefits to victims by changing the behaviour and thought processes of perpetrators.
4.3 The Community Remedy will give victims a greater say in resolution should they wish to engage and
the Community Trigger will allow victims to question and hold to account agencies they feel have failed in
their duties.
5. Long-Term Solutions
5.1 As the Draft ASB Bill is based heavily on existing legislation, other than those long-term solutions
mentioned previously it is difficult to envisage what other aspects of the Bill will provide further long-term
solutions that do not already exist.
5.2 The ASB Bill cannot be looked at in isolation as a means of providing long-term solutions to crime and
ASB but needs to be considered in conjunction with other initiatives, such as the Troubled Families projects
and how they work together.
5.3 The Bill provides a basis for agencies to use the legislation to the benefit for the community in the longterm but it does not provide the solutions themselves. As mentioned earlier with the increased demand on
public services it remains to be seen how effective these measures will prove to be.
6. The Bill and Young People
6.1 The positive requirements available under Injunctions and Criminal Behaviour Orders provides far more
opportunity to engage young people in a positive and structured way rather than simply through enforcement
and subsequent criminal charges.
6.2 However, at the same time as providing greater scope for positive engagement it also provides for an
increased chance of a young person receiving a criminal conviction should they breach a positive requirement.
Effective management of positive requirements will be paramount to ensure young people engage properly
with the process and they do not come to view these orders with mistrust and suspicion.
6.3 As mentioned previously there is concern the Dispersal Power could be inappropriately directed. This
power can be extremely useful to police if used appropriately. Over use of this power may lead to further
divisions between the police and young people.
London Borough of Hammersmith & Fulham
January 2013
Written evidence submitted by the Hyde Group [ASB 34]
The Hyde Group is a leading provider of affordable housing and makes a significant contribution to meeting
housing needs and improving people’s quality of life. The Hyde Group has close to 49,000 homes and houses
over 95,000 residents. Hyde provides a range of social housing products ranging from general needs,
intermediate housing products and supported housing.
Hyde is one of the largest housing association groups working in England, owning or managing homes in
London, Kent, Surrey, Sussex, Hampshire, the East of England and East Midlands.
1. Whether the Draft Bill would Introduce more Effective Measures to Tackle Antisocial
We welcome the simplification of the tools to tackle ASB, including the reduced list of powers. Our
experience is that many of the current systems are effective and provide us with the tools to tackle anti social
behaviour. We would look to learn from good practice around the use of existing tools and are pleased that
housing associations use of ASBI’s has been recognised.
Generally for the powers to be effective we believe that it is important that agencies work closely together
and share information. We find that one of the barriers to adequately addressing anti social behaviour is the
investment each agency has to commit to ensure information sharing and joint working. We also find that the
knowledge between areas and sectors varies widely, for example the knowledge of the courts and/or the police
in some areas around housing law and criminal law. The draft bill would provide the ideal opportunity to
clarify some of these issues and provide resources to find solutions as the Bill is implemented.
Please find below detailed feedback around the some of the specific powers:
Crime prevention injunction
We welcome the two parts of the crime prevention injunction and the recognition that tackling ASB can be
a combination of positive and negative requirements for the perpetrator.
In order to implement the positive requirements of the crime prevention injunction, such as engaging with
support services it is important that these services are available. We have experiences of working with
perpetrators with vulnerabilities, for example around alcohol misuse, domestic violence, mental health problems
and troubled families. We work with these perpetrators in a number of ways, including help from a small
number of our own tenancy sustainment officers, our community cohesion work and referrals to external
agencies. For these perpetrators, the support agencies provide a second chance to manage their behaviours.
Many of the agencies that we have traditionally worked in partnership with have seen a reduction in resources
or have long waiting periods for assessment and referral; we feel that the injunctions will lack force where
there is a lack of services to provide support. It is important that such issues should be taken into consideration
when applicants apply for injunctions.
We are pleased to see that the injunctions have been extended to include those under 18. However, we
believe that injunctions with young people will only be effective if parents and guardians also support the
process. This however needs to be balanced with child safeguarding and protection. We agree that the youth
offending teams should be involved in any injunction involving those under 18. As with adults we also feel
that there is a need for joint working with support agencies to ensure that young people and their families or
carers are provided with the support needed to comply with the injunction.
We would like clarity around how to manage cases where there may be a number of injunctions sought for
the same household in which there are both adults and those under 18. We would like to explore how this will
be managed between hearings for the adult in the county court and the young person in the youth court. Having
two hearings may lead to a duplication of work and slowing of the injunction process.
The power to arrest attached to the injunction will be crucial to ensuring that this sanction can be
implemented. As noted earlier in order to ensure that the crime prevention injunctions are effective it will be
important that the police are clear around the powers that it relates to and there is sharing of information
between agencies.
The final implementation issue is an ongoing issue for social landlords concerns our right of audience in
court around ASB cases. Currently when applying for an initial order for an ASBI where the defendant is not
present, the skills and knowledge of our staff is sufficient to present the case. However, the right of audience
for these types of cases varies across courts and judges, as not all judges will grant us the right of audience.
This means that the time to grant the ASBI is lengthened due to unclear court procedure. We would appreciate
some guidance and support for judges concerning rights of audience for housing providers seeking a crime
prevention injunction. We would only be seeking a right of audience in regards to the initial hearing made on
an ex-parte basis, where the defendant would not be present. This would be to ensure that court time, housing
association time and the witnesses time is used the most effectively where there is clarity around whether or
not housing associations will have a right of audience in court for applying for crime prevention injunctions.
Mandatory possession
The Hyde Group welcomes the move from a discretionary ground of possession for ASB to mandatory
ground. We feel that this will ensure that victims of ASB are not subject to potentially two appearances in
court via criminal and civil proceedings, relating to behaviour and tenancy. We have experience of seeking
possession via discretionary grounds around ASB which although sometimes successful have proved to be time
consuming and frustrating where there has been a criminal offence attached.
Rioting offences: Where the rioting impacts on our residents, their homes and communities we may consider
these new possession grounds. In general terms we take the view that such behaviour should be dealt with via
the criminal justice system. We work closely with our communities to prevent anti social behaviour. Our
successful projects include youth inclusion programmes and young people’s mentoring projects.
2. How the Proposals will Benefit Victims of Antisocial Behaviour
We feel that the Bill will allow for quicker intervention to tackle anti social behaviour. In our experience
victims are seeking a quick and proportionate response to anti social behaviour. They also recognise that
there is a need for witness statements and work with the relevant organisations to seek an end to the anti
social behaviour.
Frustrations for victims of anti social behaviour involve the time it takes to define and seek an end to the
behaviour, and sometimes lengthy court cases. Further there is often a confusion between which agencies
should be involved and why. For example noise nuisance may be managed by the local authority, while
nuisance and harassment from neighbours could be either the landlord or the police. In order to ensure that
the draft bill provide support for victims it important that these agencies are further encouraged to work jointly
to tackle ASB.
3. If the Bill Provides Individuals, Communities and Businesses Affected by Antisocial
Behaviour with a more Effective long-term Solution
In order for there to be effective long term solutions there is a need for common understanding of the ASB
powers between all agencies involved and those affected by ASB.
We welcome the introduction of the community protection notices and the focus on joint working between
partners. As with the crime prevention injunction we believe that it is important that resources are made
available locally to implement the positive requirements in the notice.
We would like to see some clarity around the relationship between the community protection notice and the
public spaces protection order. It would be useful to understand whether these orders can be used together
or separately?
We do not feel that these powers necessarily need to be given to housing providers, local authorities currently
have these powers and the expertise to manage them. We work in close partnership with our local authority
partners and would look to them to continue to lead on this area of work. However if housing providers are
granted the power, we would seek clarity concerning the collecting and issuing of fines for breach of community
protection notices.
Public space protection orders
The public space protection order will provide the tools to tackle issues which impact on the whole
community. We do not feel however, that these powers necessarily need to be given to housing providers. Local
authorities currently have these powers and the expertise to manage them.
We would like clarity around the three year period for these orders, as we feel that the orders could be for
more flexible periods. We would recommend that these orders could be issued for a longer period and repealed
at anytime if the situation improves. We also wish to ensure that any order that is set is proportionate to the
issue and tackles the root cause of the problems.
4. Whether the Community Remedy is a Proportionate Response to Antisocial Behaviour.
We believe that it is necessary to involve the community in finding solutions to local anti social behaviour.
Therefore we feel that the community remedy should be part of the tool kit to do this. The crux of the
community remedy will be ensuring that the remedies which are developed are proportionate, achievable and
meaningful. It is also important that the remedies have the correct support available to them to ensure that they
are effective. We are interested in how the community remedy would interact with any other community
remedies. We wish to ensure that the community remedy is effective and not merely a tick box exercise.
We agree that the community remedy should be led by the Police and Crime Commissioners in partnership
with local agencies. We believe that the community remedy can provide an opportunity to strengthen the joint
work between agencies, potentially with some more formal tools to ensure that joint work takes place. It is
vital for agencies to communicate with one another around this process to ensure that the most appropriate
community remedy is agreed upon; this is to ensure that there is not duplication of remedies. For example, we
have had experience of the same perpetrator being subject to multiple Acceptable Behaviour Contracts as
agencies are not communicating with one another.
We would also like to see some development around the timescales for the implementation of the community
remedies and what sanctions will be in place for breach of them.
The Hyde Group has had a number of successes in using community based solutions to tackle anti social
behaviour, such as acceptable behaviour contracts, restorative justice and involvement in community projects
a case study is below:
Case study: Restorative justice
We received reports that one of the communal bins in a bin store had been set alight. Residents were unaware
of who the perpetrator/s was and were concerned about the risk of arson on the estate.
It was established that the perpetrators were three young people (aged 14) who lived on the estate. Through
discussions with the young people, their guardians and the other concerned residents a restorative justice
meeting was set up. The meeting was also attended by the local fire service and police. The restorative justice
sessions allowed the residents to explain to the young people the impact that the arson had had on them and
how it made them feel. The police used the sessions as an alternative to further criminal proceedings following
the warning that they received.
We have found that this approach allowed the victims and perpetrators to understand the impact of the arson
and brought together the agencies involved.
5. How the new Measures would Affect Young People in Particular
In order to address anti social behaviour with young people our experience has shown us that there is a need
for joint working with parents, guardians and other agencies. In order for the new measures to be effective for
young people, it is important that there is a balance between intervention and punishment.
The Hyde Group runs a number of successful projects for our young residents; these have had a positive
impact on reducing anti social behaviour.
The Hyde Group
January 2013
Written evidence submitted by Buckinghamshire County Council [ASB 35]
I am writing on behalf of Buckinghamshire County Council to present written evidence to The Home
Affairs Committee on the Government’s draft Anti-Social Behaviour Bill. The detailed comments are in the
Memorandum, however the bullet points below indicate some of the issues which we are concerned about:
— The new proposals will only be effective if they are supported by the court process.
— A single uniform data set for ASB recording across statutory and voluntary sector is required to
provide opportunity for robust analysis and impact assessment.
— The way positive requirements are used within the new tools and powers has limitations which need
to be addressed.
— Whether vulnerable individuals are at risk of greater chances of criminalisation because of these
proposals.
— Practical implications of the community trigger need to be carefully considered.
— Any use of the tools available, including the directions power for those under 16 years old, needs to
be tempered with support, and effective preventative work.
Thank you for the opportunity to inform these developments.
Yours sincerely
Martin Phillips
Cabinet Member for Community Engagement
Memorandum
1. Introduction
1.1 Buckinghamshire County Council is presenting written evidence to this Committee, because we believe
that a number of the responses we made to the Government through the consultation on the reforms to the ASB
Toolkit, should be reconsidered. Our initial consultation response incorporated views from Buckinghamshire
Community Safety Partnership, and therefore included a number of statutory and non-statutory partners who
work on the crime and disorder agenda.
1.2 Overall, the changes the Government has suggested will streamline current tools, which is a sensible
approach. However, there are a number of issues which we raised during the consultation process which will
impact on the efficiency of the planned reforms. A summary of our views are noted below. Further details of
our views on the planned reforms to tools and powers to tackle anti social behaviour are noted in the Appendix.
2.1 The new proposals will only be effective if they are supported by the court process. In Buckinghamshire
the Crown Prosecution Service is stretched, making existing enforcement action on anti social behaviour
difficult to manage. Any new tools and powers must consider implications on services like these and appropriate
provision must be made to enable its implementation. Additionally, the new reforms will only reduce
bureaucracy if they effectively stand up against any legal challenges made. Previous ASB legislation became
more costly and bureaucratic as legal challenges set higher standards of evidence. Another risk is that local
magistrates & the courts service will not be fully informed of new powers and therefore unable to make
effective decisions, when the new powers come into place. Without provision for them to be fully trained and
informed on the new powers it may take a considerable time for any benefits to be realised.
2.2 The consultation includes reference to exploring the possibility of adding partner data to street-level
crime maps. However there is no emphasis on the importance for partners to record this data in the first place.
Without the imperative for partners to record data, and the establishment of a single and coherent data set, and
a uniform recording mechanism, the Government will not be able to progress this action further.
2.3 The way positive requirements are used within the new tools and powers has limitations which need to
be addressed. The Crime Prevention Injunction and Criminal Behaviour Order allow the courts to impose
positive requirements to address underlying behaviour which we see as a positive aspect. However the white
paper does not require these to be put in place, meaning that areas can opt out of including them. It must be
considered how to make this an imperative where individuals have underlying vulnerabilities (eg alcohol
misuse, mental health etc). Additionally the consultation states any positive requirements included within the
Order or Injunction made, must be available in the local area. With current resource restrictions this may result
in cessation of other key community safety interventions and replace one crime type with another. Or it may
result in a limited number of options for positive requirements available to local practitioners.
2.4 Although it is necessary to address vulnerable people’s underlying behaviour in order to protect the
community, you equally don’t want to penalise them for behaviour they cannot control. It is sensible to give
the same penalties for breach of positive and prohibitive requirements, otherwise one will be seen as less
important than the other. However you do not want to criminalise individuals, especially those who are
vulnerable. Positive requirements will therefore need to be carefully considered and extensive support given to
ensure they are adhered to.
2.5 Practical implications of the community trigger need to be carefully considered. The white paper states
that relevant authorities will be required to decide and publish the thresholds, criteria, process and reporting
mechanism they intend to use locally. The initial criteria suggested for the community trigger was five
individuals from differing households, or a report being made three times. These criteria mean that communities
must be well linked or individuals must be motivated to effect the power. For example, a vocal community
may have more impact than a deprived area with less community cohesion and less ability to bring people
together to voice their complaints. There is no focus on vulnerability or risk, and often those most vulnerable
may not have the motivation or ability to report in this way. It is right that communities have power to bring
an issue forward if there are concerns that it is not being addressed by Practitioners, but the method and criteria
set out in the consultation may just lead to those who “shout the loudest” being heard, rather than victims who
are suffering the most. There should be rigorous criteria to assess whether a complaint is frivolous or vexatious,
to prevent individuals being unnecessarily targeted through this process.
2.6 In cases which involve young people, we need to ensure that recognition of the welfare of the child is
paramount in any decisions made. Any use of the tools available, including the directions power for those
under 16 years old, needs to be tempered with support, and effective preventative work. Otherwise its risks
needlessly criminalising groups of young people. If the directions power is used more to tackle incidents of
anti social behaviour with young people (under 18’s), then educational/awareness courses should be offered to
address underlying causes. Additionally the minimum and maximum timeframes for the orders and injunctions
need to be carefully considered. For young people a minimum term of at least a year enables any positive
requirements to be put into place. This timeframe also reflects the review process currently in existence for
Individual Support Orders. However young people change considerably in a relatively short space of time
especially throughout their teenage years (the difference between a 15 and 20 year old is considerable.) Any
maximum term on an order needs to reflect this. The option of an annual review for under 18’s would ensure
unnecessary restrictions are not continued if behaviour has changed, and would be simpler to impose than
requiring an entirely new application to be made, if the order did need to continue.
3. Appendix
3.1 Comments included within the consultation response on each suggested intervention:
3.2 Criminal Behaviour Order and Crime Prevention Injunction
3.2.1 As stated in the consultation paper, the most common Anti Social Behaviour Order used by
Practitioners is an ASBO on conviction. The new tools and powers reflect this and create a more streamlined
approach to tackling anti social behaviour, which should be both sensible and effective.
3.2.2 A report on an under 16 year old’s family circumstances is useful, providing it is done appropriately
and linked into existing frameworks such as Think Family, the Common Assessment Framework and other
projects such as the Family Intervention Project. Consideration of family circumstances is crucial because it is
one of the primary contexts within which young people grow and has a significant impact on existing and
future behaviour. The consultation does not specifically state whether Practitioners must act upon any issues
arising from the family report. This should be considered—if it is a requirement to act upon the report, it could
increase bureaucracy for Practitioners, but also would ensure underlying issues are addressed.
3.2.3 For adults, a minimum term of between two and five years gives enough time for any positive
requirements of the order to have an impact, enough time to provide respite to the local community and to
embed changed behaviour in the perpetrator. This timeframe would also make the effort and resources of
applying for an order worthwhile to the Practitioners and organisations leading the implementation. A minimum
term also guides the courts in making their decisions. Although an order should not have a maximum number
of years defined, it should not be indefinite.
3.2.4 For young people a minimum term of at least a year enables any positive requirements to be put into
place. This timeframe also reflects the review process currently in existence for Individual Support Orders.
However young people change considerably in a relatively short space of time especially throughout their
teenage years (the difference between a 15 and 20 year old is considerable.)Any maximum term on an order
needs to reflect this. The option of an annual review for under 18’s would ensure unnecessary restrictions are
not continued if behaviour has changed, and would be simpler to impose than requiring an entirely new
application to be made, if the order did need to continue.
3.2.5 Although it is necessary to address vulnerable people’s underlying behaviour in order to protect the
community, you equally don’t want to penalise them for behaviour they cannot control. It is sensible to give
the same penalties for breach of positive and prohibitive requirements, otherwise one will be seen as less
important than the other. However you do not want to criminalise individuals, especially those who are
vulnerable. Positive requirements will therefore need to be carefully considered and extensive support given to
ensure they are adhered to.
3.2.6 Practitioners will not be able to rely on the local community to report where positive requirements
have not been adhered to, as they can for prohibitive conditions. It will therefore fall to agencies to monitor,
which could increase cost implications in terms of officer time and resources. Those imposing orders must be
very clear about positive requirements, especially if breach of these imposes the same penalty as a breach of a
prohibition. If positive requirements are not carefully considered it could increase offending rates.
3.2.7 The proposals should reduce the initial time taken in preparing case files. But as the positive elements
of this order are relatively new, it will need careful consideration to ensure it does not increase police and
practitioner time.
3.2.8 If the Injunctions remain similar to the proposals in the consultation it should be more effective in
tackling anti social behaviour than current legislation. However if it is subject to legal challenge (as the anti
social behaviour order was—which then required a civil burden of proof), it will become less effective. In
recent years the existing ASB legislation has become more costly and bureaucratic as legal challenges required
a higher standard of evidence.
3.2.9 For Injunctions, using a County Court would retain a civil focus on the tool . But if you want a speedy
outcome then a Magistrates Court will have more capacity as Practitioners may have to wait some time for
cases to be heard in County Courts, which is not appropriate for the local communities who are suffering
from the anti social behaviour occurring. Magistrates Courts also provide more effective support for victims
and witnesses.
3.2.10 Guidance for positive requirements is useful for the courts, as long as the list is not prescriptive.
Examples include specific support for vulnerable individuals to address their behaviour, such as requiring
alcohol or drug offenders to attend support agencies, or requiring those with mental health to attend regular
appointments. Another suggestion for a positive requirement is to shadow front line officers to see the amount
of work undertaken to try and make an area safer, to hear what the local community is saying, and to realise
the impact an individuals behaviour has on the wider community.
3.2.11 It is sensible that a civil order breach should not result in a criminal offence or record because it is
not a criminal order. However it is confusing that a civil order which doesn’t result in a criminal record, could
still result in a prison sentence if the order is breached. If it is serious enough to warrant detention, it should
be a criminal order.
3.3 Community Protection Order
3.3.1 The proposed order will simplify the current range of tools and powers available, as stated in the
consultation. This will make it easier for practitioners to know which section to use and how to implement it.
3.3.2 Within Buckinghamshire there is currently limited use of fixed penalty notices by a range of
Practitioners. If fixed penalty notices are to be part of the solution within the new community protection
order, clear guidance should be provided to agencies and authorities on how to effectively implement and
monitor usage.
3.3.3 It would be useful to know what the government plans are in respect of drinking banning orders which
are very similar to existing anti social behaviour orders, but are not addressed within this consultation. We
would be supportive of drinking banning orders being incorporated into this consultation.
3.3.4 It is confusing that failure to comply with a level 1 order, (which could be issued by a range of officers)
results in a criminal offence, yet breach of a crime prevention injunction could result in a maximum sentence
of 6 months but no criminal offence.
3.3.5 If a range of Practitioners are able to issue these orders, they will need good training to be confident
in issuing these effectively.
3.3.6 Level 1 orders could reduce costs, because they empower Practitioners to take immediate action rather
than requiring ongoing evidence collection and monitoring. However it may increase the number of orders
issued because they are less bureaucratic and costly to obtain, and because a wide range of Practitioners would
be able to issue them.
3.3.7 Place related orders would probably take the same amount of time to prepare, issue and impose, as the
orders they are intending to replace. This is because Practitioners will still need to provide sufficient evidence
to demonstrate persistent and ongoing anti social behaviour. This will need to be rigorous enough to withstand
any complaints against the imposed order.
3.4 Directions Power
3.4.1 Whilst it is good to have a power which designated officers could use immediately and which will
have a direct impact on anti social behaviour occurring at a specific point in time, the designated officers must
have the correct training to ensure a measured and non prejudiced approach to its implementation.
3.4.2 PCSO’s are usually the patrolling officers who regularly attend local areas and see incidents of anti
social behaviour occurring (they are the “eyes and ears” of local communities)so they would be the officers who
need this power most. However they have less formal training than police officers and often less experience, and
so may be less able to give a measured and professional response.
3.4.3 Dispersal orders and Designated Public Place Order have been used in our local areas to tackle incidents
of street drinking and groups of young people causing ongoing anti social behaviour. These have been
implemented with considerable emphasis on evidence to demonstrate the need for the order. The directions
power will need less evidence (thus being less bureaucratic), but as a result could be detrimental to these
groups of people, because there will not be rigorous evidence required in order to implement the power.
3.4.4 Effective training of designated officers and clear guidance on the required “tests for the issuing officer”
is essential if this power is to be used in a measured and effective way.
3.4.5 In cases which involve young people, we need to ensure that recognition of the welfare of the child is
paramount in any decisions made. Any use of the power for those under 16 years old, needs to be tempered
with support, and effective preventative work should be undertaken. Otherwise its risks needlessly criminalising
groups of young people. If the directions power is used more to tackle incidents of anti social behaviour with
young people (under 18’s), then educational/awareness courses should be offered to address underlying causes.
3.4.6 A considerable amount of time would be saved with the new proposals, because currently Practitioners
have to collate evidence and prepare effective cases to obtain designated public place orders or dispersal orders
before designated officers can enforce.
3.4.7 It could increase the number of directions issued as they will be easier to implement. A good test of
whether they are effectively working would be to monitor how many directions are issued repeatedly in the
same location before the underlying causes of anti social behaviour are addressed.
3.5 Informal Tools
3.5.1 There is good evidence to suggest rehabilitative and restorative approaches provide long term positive
results. Communities also have a responsibility to tackle local issues and through informal tools they could be
empowered to do this effectively.
3.5.2 If specific informal and out of court disposals are cited as good practice and encouraged through the
consultation, it should be a requirement that they are available in all areas. Currently some areas have chosen
not to take forward Restorative Justice approaches or other good practice (such as the use of educational
courses alongside penalty notices for disorder). Although the government focus is on localism and local
decision making, it can cause confusion for communities and Practitioners when informal tools and powers are
not adopted in all local areas.
3.6 Community Trigger
3.6.1 It is right that communities have power to bring an issue forward if there are concerns that it is not
being addressed by Practitioners, but the method and criteria set out in the consultation may just lead to those
who “shout the loudest” being heard, rather than victims who are suffering the most. There should be rigorous
criteria to assess whether a complaint is frivolous of vexatious, to prevent individuals being unnecessarily
targeted through this process.
3.6.2 Local flexibility around implementing the community trigger could also cause inconsistencies between
areas and also individual’s perceptions of what is fair may vary. Unrealistic expectations could threaten
confidence in local services.
3.6.3 The initial criteria suggested was five individuals from differing households, or a report being made
three times. These criteria mean that communities must be well linked or individuals must be motivated. For
example, a vocal local community may have more impact than a deprived area with less community cohesion
and less ability to bring people together to voice their complaints. There is no focus on vulnerability or risk,
and often those most vulnerable may not have the motivation or ability to report in this way. Also there is no
timescale for these reports—would it be three times in six months or two years? It is crucial to know how long
the timescale would be.
3.6.4 If individuals are unhappy with the response received, they are able to go to the Police Crime
Commissioner and also use separate complaint structures, such as the Ombudsman etc. The community trigger
could therefore add to bureaucracy, removing Practitioners from front line service delivery because they are
required to make these responses.
3.6.5 There is only one timescale mentioned (the responses), but what complainants will want to know (and
the focus of the trigger) is when the issue will be resolved. It could be required that Community Safety
Partnerships state in their response, what action they will take to address the issue so that a timescale is not
prescribed centrally, but resolution always remains the focus of the response. If resolution is not possible, clear
reasons must be given in the response.
January 2013
Written evidence submitted by the Wyre Forest Community Housing Group’s Anti social Behaviour
Unit [ASB 36]
Please find attached examples of Cases which have dealt with by the Wyre Forest Community Housing
Group’s Anti social Behaviour Unit.
Office of Mark Garnier MP
Member of Parliament for Wyre Forest
Case 1
A number of young male tenants had been given a tenancy in an area where there were three tower blocks
of flats.
These young men began associating together and were found to be responsible for a number of anti-social
incidents in the area, these included assaults, damage and threatening behaviour.
Because of the reputation of these young men and the fear of intimidation, witnesses were reluctant to
come forward.
Evidence was gathered by CCTV and partnership agencies. As a result positive action was taken against a
number of individuals. This included Notice Of Seeking Possession, undertakings and County Court Injunctions
being applied for.
This had a positive effect on the area and the incidents of anti-social behaviour reduced.
Case 2
A man rented a Company garage in a residential area in 2011, stating he wanted to use it to store property.
However, he soon erected a tent in the garage and started to use it as a dwelling, directly in breach of his
tenancy conditions.
Almost immediately complaints were made by local residents about this man’s behaviour. They confirmed
that not only he was he living and sleeping in the garage, he was also cooking there (with a gas ring),
threatening them and playing loud music which, on occasions, would continue until the early hours of the
morning.
Despite being warned by the police and Company Officers his anti-social behaviour started to escalate with
complaints continuing to be made.
Due to the serious of these incidents and the risk of fire, an injunction was applied for and granted by the
County Court, which excluded him from the area of the garage. A Notice Seeking Possession was also served
on him which led to him being evicted.
Case 3
The tenant moved into her new home in the summer of 2012. The property is a first floor flat in a block of
four. The block itself is in the middle of a residential area, which is a mixture of both privately owned and
rented properties.
Shortly after the tenant moved in, The Company started to receive complaints that youths were visiting the
property at weekends and holding parties. This involved the playing of loud music and general associated antisocial behaviour within the area.
As a result of these incidents, the tenant was contacted whereupon it was established that she visited her
partner weekends, leaving her sons at the property. She was reminded of her tenancy conditions and that she
was responsible for the behaviour of all visitors to the property. However, and despite this warning, the
problems continued and a Notice Seeking Possession was served on the tenant. At this time advised that if the
problem continued, The Company would take further action against her, via the Courts.
Once again, the tenant failed to address the issues and was informed that The Company now had no option
but to apply to the Court for an emergency injunction.
It was at this time, that the tenant acknowledged her responsibilities and decided she no longer wanted the
property and terminated her tenancy.
Case 4
The tenant moved into his flat in early 2010. The property is a second floor flat in a block of four.
Later that year, West Mercia Police executed a warrant under the Misuse of Drugs Act 1971 at the premises.
Once inside, it was found that the bedroom and lounge had been adapted to grow cannabis plants with the
installation of a very sophisticated hydroponics system.
A number of cannabis plants were seized (both young and mature) together with a plastic bin liner containing
a large amount of cannabis leaves.
The tenant was served with a Notice Seeking Possession by the Company, but he elected to end his tenancy
and signed a Notice to Quit.
Case 5
Early in 2012, residents of a small block of flats complained to the Company about the anti-social behaviour
perpetrated by a tenant. This consisted of shouting, screaming, swearing and banging coming from both inside
and outside of his flat and at any time of the day or night.
The tenant was known to have mental health issues and received medication and support from the local
Mental Health team but these were diagnosed to be of a behavioural nature which, in the opinion of his
psychiatrist, he could control.
Despite a number of interventions by both the Company and the Mental Health Team, reports of anti-social
behaviour against the tenant continued to be made and which culminated him assaulting a female tenant in the
same block, who herself was vulnerable. These continued incidents left the Company no other option but to
apply for an Injunction in order to control his behaviour and protect the other tenants of the block.
Eventually and with the full support of his Mental Health Team, an Anti-Social Behaviour Injunction (ASBI)
was applied for and granted by the County Court.
Case 6
In 2010, there was a re-occurring complaint and counter complaint involving two tenants who lived in the
same block of flats. The female tenant complained of harassment, verbally abuse, slamming of doors and
banging from the flat below. The male tenant alleged verbal abuses and loud banging noises coming from the
flat above. Both tenants were reported to suffer from mental health issues.
Both tenants’ complaints were investigated but no evidence was found to support either party.
The complaints and counter complaints made by the two tenants re-occurred and so the Company asked
both tenants to sign a Statement of Undertaking which they did.
There have been no further complaints made by either tenant.
Case 7
Following a family dispute a private resident complained about his brother who lived next door. He alleged
that his brother had CCTV cameras which overlooked his property.
This complaint was investigated in order to ensure that the cameras (and their use) did not breach his tenancy
conditions. It was at this point that our tenant reported that he and his wife had been assaulted by his brother
and his wife. This had been reported to the Police and was due to go to Court.
The dispute escalated and began to involve other tenants. This resulted in a number of written warnings
been issued.
Eventually, our tenant’s brother and his wife were convicted of assault and although the issues (as is often
the case with families) were never fully resolved, our tenant’s brother moved away from the area some six
months later.
Case 8
Early in 2008, the Company gained a Suspended Possession Order against due to the untidy and insanitary
condition of his flat, despite repeated requests for him to rectify the situation. The Order said that he had to
maintain his flat at a reasonable standard and engage with any supporting services offered.
However, the terms of the order were not complied with, forcing the Company to return to Court and apply
for possession of the flat. This was granted and the tenant evicted.
Wyre Forest Community Housing Group’s Anti social Behaviour Unit
January 2013
Written evidence submitted by the Social Landlords Crime and Nuisance Group [ASB 37]
1. Summary of Main Points
1.1 The Government should make provision for applications for Injunctions to Prevent Nuisance and
Annoyance (IPNA) that involve multiple defendants who span the age threshold to be heard together in the
same court to avoid placing added burdens on witnesses and incurring additional costs and resources for the
housing provider (or other applicant).
1.2 With regard to IPNAs it would be helpful for the Bill to set out the tests for without notice applications.
1.3 The power to exclude persons from their home address in appropriate circumstances should be applicable
to all persons regardless of tenure in the interests of preserving the ability of agencies to provide protection
for all victims consistently.
1.4 The criteria for issuing Community Protection Notices (CPN) should be re-examined and amended as
necessary to clarify that that a CPN may be issued in respect of noise nuisance which consistently accounts
for around one third of all complaints of antisocial behaviour to housing providers.
1.5 Applications for Closure Orders should be made available in the County Court in appropriate
circumstances to avoid unnecessary additional burdens on witnesses, applicants and the Courts’ system.
1.6 The onward development of the Bill should be accompanied by a comprehensive implementation plan,
including training and guidance for all relevant bodies to effect a smooth transition from current practice to
that which will be needed in the future.
1.7 Objective criteria to measure and track longitudinally the impact and effectiveness of the new measures
needs also to be developed and implemented.
2. Introduction
2.1 The Social Landlords Crime and Nuisance Group (SLCNG) is a national membership body of around
300 providers of social housing. Formed in 1995, our members manage around 75% of the nation’s social
housing (over three million homes).
2.2 Tackling ASB is core business for our members who have a proven track record of positive achievement
stretching back over 17 years.
2.3 Our members provide a comprehensive range of services that:
— Protect and support victims and witnesses.
— Prevent and provide positive alternatives to ASB.
— Support “offenders” to reform their behaviour.
2.4 We have been privileged to work with government ministers and officials over the last 17 years and have
been involved with the development of much of the major legislative powers and statutory guidance during
that time. Most recently, we have worked closely with and supported Home Office and DCLG colleagues in
the development of the proposals set out in the draft ASB Bill.
2.5 Together with HouseMark we have developed an anti-social behaviour accreditation22 service for
housing providers and, in association with the Chartered Institute of Housing and HouseMark, have established
the voluntary ASB Charter for Housing23 to which over 250 housing providers have already signed up.
3. Importance and Relevance of Housing Providers to Dealing Effectively with ASB24
3.1 Uniquely, housing providers have contractual obligations under the tenancy agreement to look after their
interests and those of their tenants. They also enjoy unique connectivity with local communities and are well
positioned and equipped to play a central role in delivering effective action to tackle ASB.
3.2 Housing providers deal with over 300,000 ASB cases each year—that could amount to around 1.8
million incidents per year or 65% of the police’s ASB workload as reported by the HMIC.
3.3 Housing providers invest around £300 million per year in ASB response and resolution services.
3.4 Housing providers resolve 90% of all ASB cases reported to them—this means they have evidence that
the ASB has stopped and that nine out of ten cases are sorted out without the need to take any legal action.
3.5 80% of complainants to housing providers are satisfied with the way their case is handled; 74% of
complainants are satisfied with the outcome of their case.
22
23
24
Further information and detail is available at
http://www.housemark.co.uk/hm.nsf/0/786766C3E7DF63F2802576D300393F71?opendocument
The ASB Charter for Housing can be downloaded from http://www.cih.co.uk/respectcharter
The data set out in this section are based on HouseMark’s annual ASB benchmarking analysis report. The report is available to
download from http://www.housemark.co.uk/hmresour.nsf/lookup/ASB_BM_report_2012.pdf/$File/ASB_BM_report_2012.pdf
4. General Comments on the Draft ASB Bill
4.1 SLCNG members are generally well disposed towards the draft Bill and see it as an opportunity to reshape their approaches to ASB and to further embed and sustain positive partnerships with partner agencies
(eg environmental health, police and courts).
4.2 We view the draft Bill as being a good piece of work and one that has the capacity to make a positive
contribution towards improving outcomes for victims and witnesses of ASB. This we consider to be a product
of how long and in how much depth the proposals have been debated and widely consulted upon with
practitioners.
4.3 The centrality of “protecting individuals and communities from harm” to any/all approaches to tackling
ASB is a message that the SLCNG is anxious to stress.
4.4 Legislation will enable, but will not of itself deliver effective responses and the measures within the
draft Bill need to be considered in the operational environment in which they will be used. The new ASB legal
“toolkit” as set out in the draft Bill will have to operate in a new community safety and partnership landscape
into which needs to be factored other influences such as the continuing impacts of localism and austerity
measures.
4.5 Ultimately, it is the consistent delivery of good practice, including effective partnership activity, that
produces effective responses to ASB. Effective legal measures are a crucial component, but as referenced in
section 3 above it is important to recognise that legal interventions are used in a very small minority of cases
only. In 2011–12, for example, eviction accounted for just 0.3% of all actions taken by housing providers and
ASBOs and Injunctions combined accounted for a further 0.6% of the total actions. A more detailed breakdown
of the actions taken by housing providers to tackle ASB is included at Appendix 1.
4.6 Notwithstanding our overall and general support for the draft Bill, we do consider that some specific
proposals are capable of further improvement. Details of those are given below together with our
recommendations for addressing the key structural or systemic issues that in our opinion merit attention in
parallel with the onward development of the Bill.
5. Comments on Specific Measures/Proposals within the Draft Bill
5.1 In this section we provide comment and, where appropriate, recommendations on specific proposals set
out in the draft Bill.
Reference within
draft Bill
1(8)(a)
Comments/recommendations
We have concerns that separate proceedings relating to the same case will be required
(eg tenancy action in County Court against tenant, injunction proceedings against son
to prevent displacement in Youth Court) in some instances. This will impose added
burdens on witnesses and incur additional costs and resources for the housing
provider (or other applicant).
To avoid this circumstance, we suggest that provision is made for “crossgenerational” proceedings relating to the same case (from a victim’s perspective) to
be heard together in the same court.
We include at Appendix 2 a short case study (case study 1) to illustrate this point and
recommendation.
It is considered essential by housing providers that the injunction is accessible by
them in the County Court. The experience of using the Anti Social Behaviour
Injunction (ASBI) on which the IPNA is modelled is that hearings before experienced
District Judges are a significant contributor to the success of that remedy.
With an increased number of agencies expected to access the County Court to obtain
IPNAs (compared to the current experience with ASBIs) reassurances are needed to
ensure that any impact on the capacity of the County Court does not result in any
adverse knock-on effect, such as delays in listing and hearing cases and/or an increase
in the number of unrepresented defendants coming before the Court.
Here and elsewhere as applicable within the draft Bill we strongly recommend that
the right of audience of Housing Officers in the relevant Courts, especially the Youth
Court, is clarified and confirmed. Many housing providers have invested significantly
in equipping officers with the necessary skills and expertise to represent them in
court. This development has both cut costs for litigants and speeded up action for
victims and it is essential that these benefits are retained into the future.
Reference within
draft Bill
2(4) (c)
5 (1) and (2)
7(1)
7(3)
8(2)
8(3) (a)
8(4)
The draft Bill does not indicate when the obligation on the person responsible for
supervising compliance to inform the applicant for the injunction and the Chief
Officer of Police arises. (eg whether at the end of the duration of the requirement or
after each and every appointment is missed).
Furthermore, the person responsible for supervising compliance may not the person/
organisation who applied for the injunction. There needs, therefore, to be a
mechanism for ensuring that the responsible person is notified of their obligation.
It is noted also that that a power of arrest may not be attached to a positive
requirement set out in the injunction. The requirement, therefore, to notify the Chief
Officer of Police of every instance/case where a positive requirement has not been
met may unnecessarily overload the police with additional paperwork.
In light of these observations we would suggest that :
1.
the requirement to inform is more clearly defined.
2.
provision is made to ensure that the person responsible for supervising
compliance is fully aware of their obligation to inform the applicant and
Chief Officer of Police.
3.
consideration is given to removing the requirement to inform the Chief
Officer of Police in all cases in respect of compliance with positive
requirements.
The draft Bill simply states that without notice applications are allowed. We consider
that it would be helpful for the Bill (or attendant guidance) to set out the tests for
without notice applications.
We would wish to examine the potential for amendment whereby a variation could be
applied for by other than the original applicant, if done in consultation with the
original applicant. To do so would overcome issues arising where the original
applicant, who may not now have the problem, has to make the variation: variation
for the new applicant suffering the harm will thereby be quicker, cheaper and more
logical than applying for another order in new terms.
Consideration needs also to be given to circumstances where, for example, the
respondent moves to another area and causes problems—how would this affect any
subsequent breach of the order in terms of who would be classed as the original
applicant for the purpose of informing/which police force would require notification
etc.
Furthermore, since S 4(1) details organisations only that may apply for an injunction,
the reference to “person” in S 7(1)(a) and elsewhere should be amended to read
organisation (or body or applicant or similar).
This section makes no mention also of a variation or discharge in respect of a power
of arrest and we suggest that provision is made to cater for such circumstances.
We suggest also that there is a need to provide for the compulsory transfer of
information and files to the new applicant in relevant cases.
In the interests of clarity we recommend that this sub-section is amended to read ….
“If an application under this section is dismissed, the party which made the
application may make no further application under this section without ……”
This section will result in additional costs being incurred by prospective applicants as
it will require relevant applicants or respondents to obtain the approval of the court
before making a further application under this section.
We suggest that an Applicant should not have to seek the prior consent of the Court
where they are introducing new evidence that was not relied upon in the first
application.
With reference to our earlier comment regarding Sections 7(1) and 4(1) this section
should also be amended to reflect more accurately that it will be organisations or
bodies that will make applications and therefore that it is they rather than persons
who should be informed of an arrest.
The Section should also in our opinion specify the timescale within which the
notification has to be made.
Since the High Court and the County Court may make an injunction in respect of
persons over 18 years, this section requires amendment to reflect the position where a
person arrested for breaching an injunction made by the High Court should be
brought before a judge of the High Court.
This Section should be expanded to include all Bank/Public holidays.
Reference within
draft Bill
12(1)
14(1)(b)
20
21(7)
24(1)
34(1)
38(5)
54(3)(a)
70(1)
83(4)
87(1)
89 and 90
We are concerned that, unlike the current ASBI, the provision is restricted to residents
of social housing only, meaning that people living in owned or privately rented
property will not in future be able to be excluded from their home address. In our
opinion this weakens the legislation and the ability of agencies to provide protection
for all victims consistently
We include at Appendix 2 a short case study (case study 2) to illustrate this point and
recommend that the power to exclude persons from their home address includes
everyone regardless of tenure.
Whilst appreciating that the requirement for an applicant for an injunction to “inform
any other body or individual they think appropriate” is intended to limit bureaucracy,
we think that the requirement as currently drafted risks defendants using it ex post
facto to criticise the procedure and undermine the orders by saying consultation was
ineffective.
We suggest that there is a need for this duty to be clarified, possibly within statutory
guidance, and that there is a need for time limits for replies to notifications and a
power to dispense with the requirement to inform where the need for the protection
afforded by the injunction is sufficiently urgent.
This section proposes that an existing order may not be varied post commencement of
the new Act. The alternative (to variation) being to seek a new order under the new
Act.
We consider that it would be preferable and more efficient if the transitional
provisions were amended to enable applicants to be able to vary an existing order
after the commencement of the new Act.
We consider that extending the power to apply for a CBO to Local Authorities would
useful.
In some circumstances the terms of the CBO will be intended to commence on
release from detention/prison There will be a need to make clear (eg via procedural
guidance) that a CBO can be issued to cater for such circumstances.
In our opinion it would be helpful for the provision(s) to specify where records [of
directions to disperse] are to be kept/located to ensure consistency. On a practice level
also, there needs to be a method of checking that a direction is still valid.
The provision as currently framed suggests that noise nuisance in many instances may
not be treatable by a CPN. Noise nuisance consistently accounts for around one third
of all complaints of antisocial behaviour to housing providers and we consider that it
would be a seriously retrograde step to exclude noise nuisance from the jurisdiction
of the CPN. We recommend that this sub clause is removed.
As there is there is no limit as to how long or how often a Public Space Protection
Order may be extended, we should like to understand the rationale for only permitting
extensions for periods of 3 years at a time. As currently framed, the provision will
have avoidable resource implications for authorities.
The draft measure restricts applications for Closure Orders to the Magistrates Court
alone. We suggest that the Order should also be available in the County Court in
appropriate circumstances to avoid unnecessary additional burdens on witnesses,
applicants and the Courts’ system. By making the Order available in the County
Court it would allow Closure Order proceedings to be combined with Injunction
applications or possession proceedings, for example.
The current drafting suggests that multiple notices will be required if more than one
of the conditions listed are met. We recommend, therefore, that provision is made to
enable a single notice to suffice in such circumstances.
We have reservations as to whether this provision will be practically operable and
anticipate that it will be rarely, if ever, used. For completeness though, we would
suggest that if the provision is to be retained that other, equally or more serious
offences, such as murder and rape should be included
The proposal set out for the Community Remedy document seems to be overly Police
led. We think that the policing body should be required to consult with the local
authority and housing providers.
We should also like to see the term “investigating officer” [at S.90(2)(b)] clearly
defined since to limit the application of this measure to police and authorised officers
alone has serious adverse implications for ASB case management practice and/or the
conduct of legal proceedings that will ultimately impact negatively on victims and
witnesses.
Reference within
draft Bill
Clause 92 and
Schedule 5
Schedule 1
Explanatory Notes
Annex C para 25
(p.146)
The process as set out is overly complex. On the one hand it seems to suggest this
will be totally Local Authority led, but on the other with input from Housing
Providers and the Police. Consideration needs to be given to partners, such as
Housing Providers, that operate across multiple Local Authority areas.
In the interests of consistency also we suggest that the threshold should be set out in
the legislation.
The Community Trigger appears to be a duplication of the housing ombudsman
process—both schemes being designed to deal with maladministration. The Housing
Ombudsman is currently redrafting its scheme and closer attention should be given to
how complaints will be dealt with in practice; eg if a complainant activates the
community trigger, will they be excluded from using the Housing Ombudsman
scheme?
Remand provisions do not prescribe a timescale with a view to preventing
enforcement becoming protracted and potentially ineffective in consequence.
We recommend that the legislation includes a prescribed timescale based upon the
existing Civil Procedure Rules 1998 in respect of ASBI proceedings, including the
specification that the 28 day period is overridden when breach proceedings are
initiated, but adjourned for further trial at the Defendant’s request, or when a breach
hearing is adjourned for lack of court time.
The notes currently state that “The Government also notes that applicants for an
injunction are public bodies and are therefore obliged to act compatibly with the
ECHR ……..” This misrepresents the status of many Housing Providers and may
give rise to unintended outcomes elsewhere. We recommend, therefore, that this
statement is re-examined.
6. Additional Comments and Recommendations
6.1 We recognise the measures set out in the draft ASB Bill as being designed quite understandably and
correctly for a multi-agency environment in which the police will play an increasingly prominent role in
addressing the issues that matter most to local people. As effective partnership working is critical to effective
delivery, in taking forward the reform proposals we would urge government to also address attendant processes
(eg exchanging information between agencies; and delays within the courts’ processes) that facilitate, but all
too often frustrate, timely action. The opportunity should also be taken to ensure that partnerships are more
universally effective and that all agencies involved in delivering relevant services, including preventative and
supportive interventions, engage meaningfully
6.2 We urge government to recognise the unique role of housing providers via tenancy contracts with
individuals and thereby to ensure that the new regime does not diminish the ability of housing providers to
manage their estates and individual tenancies in addition to addressing ASB in the community.
6.3 We support the proposal to combine prohibitive and mandatory terms within single orders but find our
enthusiasm for this welcome innovation tempered by concerns over the reduction in the availability of
supportive interventions that are resulting from expenditure cuts.
6.4 It is essential in our view that a comprehensive implementation plan for the introduction of the new
measures, including training and guidance for all relevant bodies, is drawn up and implemented to effect a
smooth transition from current practice to that which will be needed in the future.
6.5 Objective criteria to measure and track longitudinally the impact and effectiveness of the new measures
needs to be developed and implemented during the implementation period.
6.6 It will be critically important to continue to support and to promote the current suite of tools and powers
that practitioners and communities rely on until the new legislation comes into effect.
7. Conclusion
7.1 Protecting people from harm is central to the purpose of housing providers and ASB Practitioners who
are supportive of the objectives of the draft Bill and of many of the measures it contains. Some further
consideration and/or amendment will be required in a limited number of areas in our opinion and we look
forward to working with Government and others on those issues.
7.2 It is important to recognise that formal legal interventions account for a tiny minority of the successful
actions taken by housing providers to resolve ASB cases and that continued investment in preventive and
resettlement services are equally important to tackling ASB effectively.
7.3 Housing providers play a pivotal role in keeping neighbourhoods safe in partnership with the police and
other partners. Crucially, they are both visible within and accountable to the communities they serve. Uniquely
though, they have personal contracts with their tenants individually via the tenancy agreement and it is
important that the new regime does not diminish their ability to manage their estates and individual tenancies
in addition to addressing ASB in the community.
Social Landlords Crime and Nuisance Group
January 2013
APPENDIX 1
EXTRACT OF ANALYSIS OF HOUSING PROVIDERS ASB CASES FOR 2011–1225
ASB Cases by Type—Types of ASB for New Cases in 2011–12
Incident Type
Proportion of total
Noise
Harassment/threats
Pets/animals
Drugs
Vandalism
Communal areas/loitering
Garden nuisance
Other criminal behaviour
Rubbish
Vehicles
Alcohol related
Other violence
Domestic violence/abuse
Hate-related incidents
Prostitution/Sex
33.8%
18.0%
6.7%
5.3%
4.6%
5.3%
7.2%
3.9%
7.5%
1.9%
2.0%
2.0%
2.5%
2.0%
0.3%
The percentage distribution of cases across the three National Standard for Incident Recording (NSIR)
categories was as follows:
Personal
Nuisance
Environmental
29%
45%
26%
Actions Taken to Tackle ASB—Breakdown of Actions Taken in 2011–12
Type
Other intervention
Perpetrator visit/interview
Warning letter
Referral to police
Notice seeking possession (NSP)
Acceptable behaviour contract/other voluntary arrangement
Referral to other group (eg Youth offending)
Mediation
CCTV/noise monitoring equipment installed
Referral to, or provision of, a family intervention project, tenancy
support service
Other support
ASBOs/ASBIs
Referral to, mental health/care services
Management transfer of complainant or Perpetrator
Surrender
Referral to, drug or alcohol
Eviction
Extension of starter tenancy/demotion
Surrender of property by complainant of ASB
25
No. actions
% of total
38,988
22,413
14,100
3,599
1,805
1,348
1,296
1,191
911
818
43.5%
25.0%
15.7%
4.0%
2.0%
1.5%
1.4%
1.3%
1.0%
0.9%
688
533
472
314
302
239
230
167
111
0.8%
0.6%
0.5%
0.4%
0.3%
0.3%
0.3%
0.2%
0.1%
Based on HouseMark’s annual ASB benchmarking analysis report. The report is available to download from
http://www.housemark.co.uk/hmresour.nsf/lookup/ASB_BM_report_2012.pdf/$File/ASB_BM_report_2012.pdf
APPENDIX 2
CASE STUDY 1—TO ILLUSTRATE THE NEED FOR “CROSS-GENERATIONAL” PROCEEDINGS
RELATING TO THE SAME CASE TO BE HEARD TOGETHER IN THE SAME COURT
Action against a household consisting of a number of individuals was needed to address ASB in the local
area. The main source of the problem was the 17 year old son, with some issues with the younger brothers.
A decision was made to apply for a demotion order on the address and an ASBO against the main offender,
one of the sons. As the son was under 18, the ASBO had to be issued as separate proceedings within the
Magistrates Court.
The initial hearing for the ASBO was listed before the demotion hearing. The witnesses attended and gave
evidence. Whilst fully supported they found the experience traumatic. One of the witnesses felt unable to attend
the subsequent demotion hearing and their evidence had to be given as hearsay. In addition, another of the
witnesses struggled to get the amount of time off work that the two hearings involved and lengthy negotiations
conducted by the housing manager had to take place to allow this to eventually happen.
In addition, a Police Officer had to be available for the two sets of proceedings.
Staff time and witness inconvenience aside, it is estimated that the Court costs associated with these dual
proceedings were around £4,000 higher than if the matters had been combined.
CASE STUDY 2—TO ILLUSTRATE WHY THE EXISTING ABILITY TO EXCLUDE PERSONS FROM
THEIR HOME ADDRESS REGARDLESS OF TENURE SHOULD BE RETAINED UNDER THE IPNA
PROVISIONS IN THE DRAFT ASB BILL
Two adult brothers lived in a privately owned property with their parents. A huge volume of complaints
were received from residents about the alcohol fuelled behaviour of the brothers including, physical fighting,
verbal abuse, damage to property and threats. Police attended regularly and moved them on or, where possible,
arrested them for breach of the peace, neither of which resolved the issues long-term.
The victims were Council tenants, thus fulfilling the housing management function link required. S153a
ASB Injunctions were applied for, with exclusions from their home address. These orders were granted for
two years.
There have been no breaches of the orders; residents are elated and the Police are grateful for the reduction
of pressure on their resources. Away from the household, the brothers have also sought support for their
alcohol use.
Written evidence submitted by the Mayor’s Office for Policing and Crime [ASB 38]
Introduction
1. The Mayor’s Office for Policing and Crime (MOPAC) is led by the Mayor of London, Boris Johnson,
supported by the Deputy Mayor for Policing and Crime (DMPC), Stephen Greenhalgh. MOPAC’s key
responsibilities include setting the strategic direction for policing in London, holding the Metropolitan Police
Service to account, allocating the police and crime budget and working with partners to prevent and tackle
crime and re-offending. MOPAC conducts an annual consultation on policing priorities for the forthcoming
year and ASB, what we prefer to term as “Quality of Life Crime” (QLC), is consistently identified as a key
concern for Londoners.
2. The Mayor of London chairs the London Crime Reduction Board (LCRB), which brings together the
political leadership and agency leads necessary to take a pan-London strategic view on crime reduction
priorities. Anti-social behaviour (ASB) is one of three current priorities of the Board, alongside gangs and
re-offending.
Summary
3. MOPAC supports new approaches to tackle this issue and is supportive of the intention behind the Bill
and the desire to simplify powers and strengthen the toolkit for tackling this type of crime.
4. This type of crime consistently rates as one of the greatest concerns of Londoners and can be extremely
harmful for victims. A failure to deal with it appropriately undermines public confidence in the police and the
criminal justice system; can be interpreted as a sign of neglect of local communities and can act as a forerunner
for more serious crime. A strong partnership approach is vital to the effective tackling of the issue; it is not
just a policing matter.
5. MOPAC would like to recommend the following to the Committee:
— Anti-social behaviour (“ASB”) is given a new term—“Quality of Life Crime” (QLC)—to better
reflect how the public understand the problem and to signal a necessary change in perception
so that agencies treat it with the seriousness it deserves.
—
MOPAC is committed to moving towards a “single pot” of funding for all police and crime
activity in London in recognition of the removal of ring-fences and the establishment of a
common Community Safety Fund. MOPAC propose that funding related to QLC is included in
this pot.
—
It would be helpful if data sharing with locally elected policing bodies (MOPAC in London)
could be facilitated by Government—including where necessary, clarifying any data protection
issues that have arisen. This would allow these bodies to collate data, determine demand levels
across the police area and allocate funding accordingly.
—
Ensure mental health budgets and strategies align with community safety and police budgets
for tackling this issue.
—
Flexibility is built in to the community remedy proposals to allow for a variation in local
delivery of the MOPAC menu of sanctions across London.
—
Only a high-level review of the final community trigger procedures by Police and Crime
Commissioners (PCCs) is required, if at all, to ensure that it meets a minimum criteria.
—
Drafting of the Bill is amended to give greater discretion to officers to dispose of low value
items confiscated under the new dispersal powers, rather than retaining these for 28 days.
Evidence
6. MOPAC supports new approaches to tackle this issue and is supportive of the intention behind the Bill
and the desire to simplify powers and strengthen the toolkit for tackling this type of crime.
7. Quality of Life Crime (QLC) is consistently raised as one of the greatest concerns in MOPAC surveys of
Londoners and is reflected as a priority in local community safety strategies across London. This issue can be
extremely distressing for victims and a failure to deal with it appropriately undermines public confidence in
the police and the criminal justice system and can be interpreted as a sign of neglect of local communities. It
can also act as a forerunner for more serious crime (“broken windows” theory). A strong partnership approach
is vital to the effective tackling of the issue; it is not just a policing matter.
8. The London Crime Reduction Board (LCRB), chaired by the Mayor, has identified ASB as one of its
three current priorities and has agreed the following four pan-London priorities for addressing it:
—
Information sharing—Sharing of information across agencies has been constantly identified as
a key challenge.
—
Mental Health—There is currently a lack of close alignment with mental health agencies and
the need for a greater emphasis on vulnerable persons at risk of committing or becoming victims
of ASB at a strategic level has been identified.
—
Alcohol—There is a clear link between alcohol abuse and ASB, including underage drinking
in groups, drinking in public places (leading to disorder, abusive behaviour and intimidation),
vandalism and graffiti.
—
Noise—The definitions of what constitutes noise nuisance and measures to address it are not
always clear and a lack of consistency in tolerance levels was identified.
9. MOPAC would like to make the following points and recommendations to the Home Affairs Select
Committee regarding the future approach to this type of crime and the draft ASB Bill.
Definition
10. MOPAC’s view is that the term “anti-social behaviour” normalises what is in fact criminal behaviour
that disproportionately affects victims. The term is defined in explanatory notes in the draft ASB Bill as “the
everyday nuisance, disorder and crime that has a huge impact on victims’ quality of life” and the notes highlight
the fact that much of what is described as ASB is criminal. HMIC studies have shown that the public regard
all forms of “anti-social behaviour” as crime, and that it is not helpful to separate the two. In view of this,
MOPAC think that such activity should be given a new term, “Quality of Life Crime” (QLC), and would seek
a single definition for this to be used consistently by all partners.
11. Whilst MOPAC agrees that civil powers are a helpful addition to the toolkit, MOPAC feels that a culture
or perception change is required so that this type of behaviour is treated as criminal and, as such, treated with
the seriousness it deserves by all agencies. It is vital for members of the public whose lives are blighted by
this criminal behaviour to have confidence that it will be treated seriously and so MOPAC proposes that ASB
be given a new term, “Quality of Life Crime” (QLC).
12. MOPAC also feels that the chosen term and definition for this type of crime should be used consistently
in legislation and by all partners. In the new Bill there are various definitions, for example:
—
engagement or threatening to engage in “conduct capable of causing nuisance or annoyance to
any person” in the case of injunctions to prevent nuisance and annoyance;
—
engagement of the offender in “behaviour that caused or was likely to cause harassment, alarm
or distress to one or more persons not of the same household as the offender” for criminal
behaviour orders; and
—
conduct that is “unreasonable” and “having a detrimental effect, of a persistent and continuing
nature, on the quality of life of those in the locality” for community protection notices.
There should be one, clear definition of this type of crime in the legislation that is then used by all agencies,
along with a new catch-all term—“Quality of Life Crime”, in place of “ASB”.
Funding and Demand
13. MOPAC is committed to moving towards a “single pot” of funding for all police and crime activity in
London in recognition of the removal of ring-fences and the establishment of a common Community Safety
Fund. MOPAC proposes that funding related to QLC is included in this pot.
14. MOPAC is currently looking into the feasibility of developing a full data picture for this type of crime
in London, including data from police, housing providers and local authority environment and community
safety teams. Some boroughs already collate local authority and police data locally to show hotspots and we
will look into how this can be extended across London. It would be helpful if data sharing with locally
elected policing bodies (MOPAC in London) could be facilitated by Government—including where necessary,
clarifying any data protection issues that have arisen. This would allow these bodies to collate data, determine
demand levels across the police area and allocate funding accordingly.
15. MOPAC feels that there is a strong case for ensuring that mental health budgets align with community
safety and police budgets for tackling this type of crime, as a significant proportion26 of it is linked to mental
health issues.
Community Remedy
16. MOPAC understands that these proposals mean that we will be required to prepare a menu of community
sanctions for low level QLC, in consultation with the police and public, from which victims would select a
punishment for their offender to receive. MOPAC supports these proposals as they will allow a swift and victim
focused sanction for this type of crime and our role in developing the menu of sanctions will ensure that there
is a level of consistency across London.
17. The ASB Bill material states that Police and Crime Commissioners (PCCs) will be required to “use their
PCC crime commissioning funding to make available sanctions that address particular local needs”. Currently
there is no identified direct funding for this type of crime and so MOPAC suggests that funding for this type
of crime is provided to PCCs for inclusion in their Community Safety Fund.
18. MOPAC propose that flexibility be built in to the community remedy proposals to allow for a variation
in local delivery across London. For example, we suggest that local menus be developed that align with the
high level MOPAC menu, but include detail about local services and programmes. This would be in line
with existing MOPAC proposals to allocate community safety funding to boroughs to commission appropriate
services locally.
Community Trigger
19. MOPAC has experience of the community trigger through the pilot in the London borough of Richmond.
The draft Bill states that when the relevant bodies in each area are setting up their community trigger
procedures, they must consult the PCC (MOPAC). MOPAC suggests that only a high-level review of the final
process by PCCs would be required, if at all, to ensure that it meets a minimum set of criteria. In London,
local boroughs should be trusted to determine their trigger procedures.
20. Rather than waiting until the community trigger has been used, MOPAC feel that more needs to be done
to improve information sharing early on, particularly for cases involving perpetrators or victims of this type of
crime who are vulnerable persons suffering mental illness. MOPAC suggest that organisations, including
relevant health and housing agencies, should cooperate to discuss these cases—if necessary in a secure
environment where privacy can be maintained. MOPAC suggests that the Multi-Agency Risk Assessment
Conference (MARAC) approach that is used for domestic violence victims may have some relevance for
these cases.
Public Space Protection Orders
21. MOPAC welcomes the proposed replacement of Designated Public Place Orders with Public Space
Protection Orders, as the faster process for their introduction and use in pre-empting future problems will be
particularly helpful in tackling alcohol-related crime.
26
Haringey borough report that 30–40% of ASB reported to them is linked to mental health issues
Dispersal Powers
22. MOPAC welcomes the proposed new dispersal power and authority for police to confiscate associated
items; however we suggest it would make sense to give greater discretion to officers to dispose of low value
confiscated items, rather than retaining these for 28 days.
Mayor’s Office for Policing And Crime
January 2013
Written evidence submitted by Mark Dziecielewski [ASB 39]
I have spent a lot of time and effort on scrutinising this Draft Anti-Social behaviour Bill.
I had intended to meet the tight deadline for submission of written evidence, but “real life” intervened.
I hope that you will put a few of my comments to the Home Office Ministers and Civil Servants tomorrow.
I am very annoyed by the fact that this Bill was not originally published and still has not been re-published
in an accessible format, suitable for Copy & Paste, Word Search or the use of Text to Speech software for
people with impaired vision.
I wasted too much of my Christmas holiday in using Optical Character Recognition software to produce
some accessible versions of the text of the Draft Bill. c.f.
http://spyblog.org.uk/ssl/asb/asb.pl
I note that you have had some written evidence from people involved with Guide Dogs for the Blind.
Although I disagree with the blind, disgraced former Home Secretary David Blunkett politically on most things,
it is not inconceivable that he might be interested in what is likely to replace his Anti-Social Behaviour Act
2003 and it seems unfair that it should be made more difficult than necessary for him to read this Draft Bill.
It is plainly illegal for a public body to do this under the Disability Discrimination Act/Equality Act
Please extract a commitment from the Home Office Ministers and Civil Servants to ensure that this is rectified
and never happens again with future legislation.
Below are some of what I thought were going to be a few Notes on the text of this Bill, but, with quotes to
show the context, they seem to have run on to 30 pages or so!
(1) The language of the Bill is far too “catch all” and deliberately imprecise.
“conduct capable of causing nuisance or annoyance to any person” negates the recent Public
Order Act section 5 repeal for “insulting” words.
(2) There is a huge “inequality of arms” with High Court injunctions or Judicial reviews required
to challenge the decisions of Local Authorities or Police Forces, even for minor alleged ASB.
It costs at least £5,000 to lodge an action in the high Court and the legal costs can be ruinous,
unless like a Local Authority you have , effectively, unlimited public money and/or in house
lawyers.
(3) It is not consistent or fair with its various definitions (or lack of definitions) of geographic
Locality, or of the Time period which acts of Anti-Social Behaviour are deemed to besmirch a
person or a particular set of premises.
(4) There is even less “consultation” with local people over say, Dispersal Powers than under the
2003 Act (Local Authorities now seem to have no say, only the Police).
(5) Such Dispersal Powers can and will be abused against political demonstrations (why else is
there an exemption for the very similar, in terms of street policing, Official Trades Union strike
picket lines ?)
(6) Astonishingly, in their attempts to “load the dice” against someone accused of Anti-Social
Behaviour, the Home Office may have opened up a legal loophole regarding the secrecy of
Regulation of Investigatory Powers Act section 1 Intercept Evidence. At the very least this will
cost a lot of public money and court time to clarify.
(7) The sections of this Bill to do with evictions are horribly complicated and, since they apply to
whole families where only one member is guilty of ASB, they are, effectively Communal
Punishment of the innocent.
(8) The section on evicting “rioters” is not only unfair and ill defined geographically but actually
discriminatory against people in England!
Please reject this poorly drafted and ill thought out Draft Bill.
Mark Dziecielewski
ANTI-SOCIAL BEHAVIOUR BILL
CONTENTS
Part 1: Injunctions to Prevent Nuisance and Annoyance
Injunctions to prevent nuisance and annoyance
1 Power to grant injunctions
[Still does not get rid of the unjust NuLabour legalistic trick of inflicting Criminal penalties without using
the Criminal standard of proof “beyond reasonable doubt”]
[evil catch all wording : “conduct capable of causing nuisance or annoyance to any person” is much too
broad a definition]
[The Coalition government is trying to preserve the sneaky legalistic trick introduced by NuLabour, which
is to use the lower threshold of proof used in Civil Court cases “on the balance of probabilities” rather than
the higher Criminal Court “beyond reasonable doubt”, but to still have Criminal penalties of imprisonment
and fines—this lower level of proof should be dropped]
[No! evil catch all wording : “conduct capable of causing nuisance or annoyance to any person” is much
too broad a definition and criminalises pretty well everything, regardless of whether or not it is actually
causing any “nuisance or annoyance” eg could ban playing music, at normal sound levels, simply because it
is “capable” of being played annoyingly loudly]
14 Requirements to consult etc.
[Just because the “local youth offending team” does not mean, under this section, that their views or
opinions must be taken into account, it could be the usual pro forma, box ticking exercise and rubber stamp]
15 Appeals against decisions of youth courts
(1) An appeal lies to the Crown Court against a decision of a youth court made under this Part.
[Inconsistent capitalisation of “Crown Court” here—often lower case “crown court” elsewhere in this text.
“High Court” always seems to be in capitals, but “Magistrates’ Court” never seems to be]
(2) On an appeal under this section the Crown Court may make:
(a) whatever orders are necessary to give effect to its determination of the appeal; and
(b) whatever incidental or consequential orders appear to it to be just.
[too much power to Crown Court: “whatever orders are necessary”?? Life Imprisonment? Unlimited fine??]
(3) An order of the Crown Court made on an appeal under this Section (other than one directing that an
application be re-heard by the youth court) is to be treated for the purposes of section 7 as an order of the
youth court.
16 Special measures for witnesses
(b) any other necessary modifications.
[No! other necessary modifications should be clearly spelled out]
[What about the new UK Protected Persons Service which was announced after this Draft Bill was
published ?]
https://www.justice.gov.uk/news/press-releases/moj/uk-wide-protection-for-witnesses-as-new-nationalscheme-launched
[Why didn’t the Home Office and the Department for Communities and Local Government liaise with the
Ministry of Justice over this?]
published? No liaison with the Ministry of Justice]
20 Saving and transitional provision
(2)
(c) anything done in connection with such an application or order.
[No! “anything done” is much too broad and open to abuse]
(3)
(b) anything done in connection with such an order;
[No! “anything done” is much too broad and open to abuse]
(5) At the end of the period of five years beginning with the commencement day:
[5 years is too long for a “sunset clause” or handover from the old legislation to the new—why not 12
months? Why should any of these ASB orders go for as long as five years without being reviewed by a Judge?]
(6) In deciding whether to grant an injunction under section 1 a court may take account of conduct
occurring up to six months before the commencement day.
[No! There is no excuse for Retrospective Legislation! Why six months?]
(7) In this section “commencement day” means the day on which this Part comes into force.
[All of the Bill should come into force on Royal Assent If bits need to be introduced for some unlikely
reason later than this, then it should be clearly stated in the text of the Bill when exactly that section of the
law will change.
We are fed up with the Executive tinkering indefinitely with no democratic mandate: either a clause in a Bill
is the law as soon as it has been passed by Parliament or the legislation should not have been brought forward
in the first place]
Part 2: Criminal Behaviour Orders
Criminal behaviour orders
21 Power to make orders
(8) The prosecution must find out the views of the local youth offending team before applying for
a criminal behaviour order to be made if the offender will be under the age of 18 when the
application is made.
[The prosecution can simply ignore the views of the local youth offending team, without any penalty,
provided that they have found them out?]
[Does the local youth offending team get a veto on the prosecution or not?]
[The local youth offending team could dither for months or years, through incompetence, under resourcing,
corruption or malice, without any sanctions against them]
[There should be a statutory duty for a response within a time limit]
[“Jurisdiction shopping” by the prosecution must be a outlawed ie using a favoured, prosecution friendly
local youth offending team to rubber stamp their applications, regardless of the detailed merit of an individual
case, eg to help meet bureaucratic targets or private sector performance bonuses]
22 Proceedings on an application for an order
(1) For the purpose of deciding whether to make a criminal behaviour order the court may consider
evidence led by the prosecution and evidence led by the offender.
[No innocent until proven guilty here! “the offender” should be “the defendant” and should not be
automatically presumed to be deserving of the extra punishment of the criminal behaviour order]
(2) It does not matter whether the evidence would have been admissible in the proceedings in
which the offender was convicted.
[Astonishing! Allows the use of RIPA Part 1 Intercept Evidence which was banned in the original
criminal trial!]
[If these words are enacted in 2013, presumably therefore representing the current “will of Parliament” this
would create a loophole in the secrecy of Intercept Evidence under the old and outdated Regulation of
Investigatory Powers Act 2000]
[Is that really the Home Office/DfC&LG intention? This could be abused by the Prosecution, but it could
also be used by the Defence to demand Disclosure of otherwise secret Intercept Evidence from the original
trial, or, perhaps even from seemingly unrelated cases involving a criminal gang. If refused this will surely
lead to expensive Appeals & Judicial Reviews etc,]
[N.B. RIPA Part 1 is mentioned, but only in respect to the ASB case review Schedule 5 Part 3 7 (4)
(b) below]
23 Requirements included in orders
(1) A criminal behaviour order that includes a requirement must specify the person who is to be
responsible for supervising compliance with the requirement.
The person may be an individual or an organisation.
[Presumably this will include Private Sector companies who are sub-contracted to run electronic tagging
schemes etc. like G4S etc.]
(4) It is the duty of a person specified under subsection (1)
(a) to make any necessary arrangements in connection with the requirements for which the
person has responsibility (the “relevant requirements”),
(b) to promote the offender’s compliance with the relevant requirements; and
(c) if the person considers that the offender [Where are the penalties eg fines or imprisonment or sanctions eg disqualification, breaking of commercial
contracts and invoking penalty clauses etc. if the “person specified” fails to do their duty? Since private sector
companies like G4S are not “public bodies”, who will answer any charges of “misfeasance in public office” if
they fail to provide adequate resources or training.
Has everyone forgotten the Olympics Security Guard debacle with G4S or the numerous failings of their
and their rival companies electronic tag monitoring schemes?]
24 Duration of order etc.
(5) In the Case of a Criminal behaviour order made after the offender has reached the age of 18,
the order period must be (a) a fixed period of not less than two years, or
(b) an indefinite period (so that the order has effect until further order).
[Given the ECHR ruling on “indeterminate sentences for the protection of the public (IPPs)”, surely those
with “indefinite period” are illegal on exactly the same grounds ie the resource constrained availability or
otherwise of “training courses”?]
[http://www.bbc.co.uk/news/uk-19630617]
25 Approved courses
(4) Provision under subsection (1) may be included in a criminal behaviour order only if—
(a) the court is satisfied that a place on the specified approved course will be available for the
offender, and
[What if the approved course provider refuses to accept the miscreant, eg due to abusive behaviour on a
previous course?]
(b) the offender has agreed to the inclusion of the provision in question in the order.
Before making provision under subsection (1), the court must inform the offender in ordinary language about
[“the court must inform the offender in ordinary language about…”]
[Why can’t all legal proceedings be explained in “ordinary language”?]
(a) the effect of including the provision in the order,
(b) what, in general terms, attendance on the course will involve if the offender undertakes it,
(c) any fees the offender will be required to pay for attending the course, and
(d) when the offender will have to pay those fees.
[Why shouldn’t the criminal justice system be paying these fees, given that they must be cheaper than
prison?]
[What is the difference, to an offender, between the mandatory fees to be paid for an approved course and
a fine?]
[What is to prevent such Approved Training Course fees from actually exceeding the penalty of a fine on
the standard scale? If so, then some people will take the fine (and not bother to pay it) instead of going on
the course]
(6) Where a court makes a criminal behaviour order after the offender has reached the age of 16
and the order does not include provision under subsection (1), the court must gives its reasons
for not including such provision in open court.
[“the court must giveS its reasons” should probably be read as “the court must give its reasons”]
28 Breach of order
(1) A person who without reasonable excuse—
(a) does anything he or she is prohibited from doing by a criminal behaviour order, or
(b) fails to do anything he or she is required to do by a criminal behaviour order, commits
an offence.
[“Anything” without qualification or restraint is too broad and open to abuse]
(4) In proceedings for an offence under this section, a copy of the original criminal behaviour
order, certified by the proper officer of the court which made it, is admissible as evidence of
its having been made and of its contents to the same extent that oral evidence of those things
is admissible in those proceedings.
[Surely in the 21st century, there are not going to be separate paper copies of these orders stored in
individual Court data silos? Why can’t these be Digitally Signed and emailed securely or sent securely via
the Courts System intranet?]
(5) In relation to any proceedings for an offence under this section that are brought against a person
under the age of 18 (a) section 49 of the Children and Young Persons Act 1933 (restrictions on reports of
proceedings in which children and young persons are concerned) does not apply in respect
of the person;
[http://www.legislation.gov.uk/ukpga/Geo5/23–24/12/section/49 ]
(b) section 45 of the Youth Justice and Criminal Evidence Act 1999 (power to restrict
reporting of criminal proceedings involving persons under 18) does so apply.
[http://www.legislation.gov.uk/ukpga/1999/23/section/45]
[Which specifically includes:
(2) This section does not apply in relation to any proceedings to which section 49 of the Children
and Young Persons Act 1933 applies.
Which the wording of this section 28 of this ASB Bill has now nobbled, presumably to allow for the tabloid
newspaper/vigilante website “naming and shaming” of juveniles]
(6) If, in relation to any proceedings mentioned in subsection (5), the court does exercise its power
to give a direction under section 45 of the Youth Justice and Criminal Evidence Act 1999, it
must give its reasons for doing so.
[The effect of this section is for the reporting restrictions on under-18s ie children, to be “dis-applied” by
default, with the Court having to state why it chooses to make an discretionary exception—why pander to
“gang culture” & notoriety?]
29 Special measures for witnesses
published? No liaison with the Ministry of Justice]
[c.f. section 16 above]
(1) The repeal or amendment by this Act of provisions about any of the orders specified in
subsection (2) does not
(c) apply in relation to anything done connection with such an order.
[the wording “anything done connection with” is much too broad and open to abuse]
(5) In deciding whether to make a criminal behaviour order a court may take account of conduct
occurring up to 1 year before the commencement day.
[Why one year rather than the six months in section 20 (6) above?]
[Retrospective legislation is unjust and should not be allowed.]
[If it is allowed, then the time periods in section 20(6) and 30(5) should be the same]
(6) In this section “commencement day” means the day on which this Part comes into force.
[This should come into force immediately on Royal Assent—what is the justification for any arbitrary,
unknown delay?]
Part 3: Dispersal Powers
31 Directions excluding a person from an area
(5) A direction under this section
(a) must be given in writing, unless that is not reasonably practicable;
(b) must specify the locality to which it relates;
[Will Whitehall try to keep this secret even from FOIA requests, like they did with the Terrorism Act 2000
s 44 authorisations ? N.B. there is now no consultation with the Local Authority or the local people (not the
same thing) as there was with Dispersal Zones under the 2003 Act ]
[Low level Policeconstables must not be allowed to be the only people who decide when and where such
Dispersal Powers are exercised]
[Can and will be abused against peaceful political protests, marches, demonstrations & occupations—the
fact that there has to be an exemption for official Trades Union dispute picket lines proves this]
32 Restrictions
(1) A constable may not give a direction under section 31 to a person who appears to the constable
to be under the age of 10.
[Wot no gangs of feral kiddies as reported by NoW or Daily Mail?]
[Will they call in the Child Catcher from Chitty Chitty Bang Bang for the under 10s or just use Tasers to
disperse them?]
[What is the justification for harassing and criminalising 10 to 16 year olds?]
(3) A constable may not give a direction under section 31 that prevents the person to whom it is
given attending at a place which the person is—
(a) required to attend for the purposes of the person’s employment, or a contract of services
to which the person is a party,
[This is unenforceable—ASBoid gang members are going to have fun with this eg getting their associates
to SMS text them an order for takeaway food or drink eg a pizza delivery etc.
This is clearly “a contract of services to which the person is a party”, allowing them to legally ignore such
a section 31 direction.]
(c) expected to attend for the purposes of education or training or for the purposes of receiving
medical treatment, at a time when the person is required or expected (as the case may be)
to attend there.
[So you will have to reveal your confidential, supposedly anonymous medical appointment with eg an
AIDS or abortion clinic to a nosey police constable or PCSO on the street—this must not be allowed]
(4) A constable may not give a direction to a person under section 31 if the person is one of a
group of persons who are engaged in conduct that is lawful under section 220 of the Trade
Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing).
[http://www.legislation.gov.uk/ukpga/1992/52/section/220]
[This is straight out of the now repealed SOCPA 2005 ss 132 Designated Area around Parliament Square
and proves that this Dispersal Powers section can and will be used against peaceful demonstrations,
marches, occupation or sit down protests etc, which is effectively what an official trades union picket line is.]
33 Surrender of property
(1) A constable who gives a person a direction under section 31 may also direct the person to
surrender to the constable any item in the person’s possession or control that the constable
reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or
distresses members of the public.
(2)
[“any item any item in the person’s possession or control” is far too broad, much more so than the tents
and sleeping bags etc. specified in the
Police Reform and Social Responsibility Act 2011 Part 3 Parliament Square Garden and surrounding area
http://www.legislation.gov.uk/ukpga/2011/13/part/3/enacted
These restrictions and property confiscations are now reflected in Greater London Authority Bylaws in
London which now apply to Parliament Square and the Home Office in Marsham Street
https://p10.secure.hostingprod.com/@spyblog.org.uk/ssl/parliamentprotest/2012/01/gla_byelaws_
amended_regarding_parliament_square_and_trafalgar_square.html
]
[“has been used or is likely to be used in” could easily be abused to mean motor vehicles, mobile phones,
credit cards, cash, keys, camera equipment, portable computers or notebooks etc, etc]
[N.B. The Anti-Social Behaviour Act 2013 would apply to all of England and Wales, not just a small area
in London.]
(3) A constable who gives a person a direction under this section must (unless it is not
reasonably practicable)
(a) tell the person that failing without reasonable excuse to comply with the direction is an
offence, and
[where is the “reasonable excuse” judged? On the street by the police constable—this must not be allowed]
(b) give the person information in writing about when and how the person may recover the
surrendered item.
[“Surrendered” is a weasel word which tries to makes it sound “voluntary”, when it actually means private
property seized or confiscated without a Court Order]
(5) If after the end of that period the person asks for the item to be returned, it must be returned
(unless there is power to retain it under another enactment).
[If the items seized are illegal under some other law eg drugs or weapons, then why is there any need for
this 33 (5) at all?]
34 Record-keeping
(1) A constable who gives a direction under Section 31 must make a record of
(a) the individual to whom the direction is given,
[No! This must not be abused as a sneaky way of gathering names, addresses, phone numbers etc. when all
that is required is for the constable to issue a proper receipt for the seized items)
[There are plenty of power for real Constables in Unform to demand your name & address, if they have a
reasonable suspicion that you are involved in an actual crime.
[These Dispersal Powers must not be used to sneakily gather names, addresses, phone numbers etc. where
there is no such reasonable suspicion.]
[These Record Keeping/Snooping powers absolutely must not be delegated to PCSOs or private security
guards or Local Council wardens etc.]
(3) A constable who gives a direction under section 33 must make a record of
(a) the individual to whom the direction is given,
[No! This must not be abused as a sneaky way of gathering names, addresses, phone numbers etc. when all
that is required is for the constable to issue a proper receipt for the seized items]
36 Powers of community support officers
[Why is the Conservative/Liberal Democrat Coalition perpetuating one of stupidest NuLabour policies
brought in by Blunkett? All PCSOs should have the same powers throughout the country and should be
trained properly. How is the public meant to know what local variations in PCSOs powers are in force at a
particular time?]
Part 4: Community Protection
Chapter 1: Community Protection Notices
38 Power to issue notices
(1) An authorised person may issue a community protection notice to an individual aged 16 or
over, or a body, if satisfied on reasonable grounds that
(a) the conduct of the individual or body is having a detrimental effect, of a persistent or
continuing nature, on the quality of life of those in the locality, and
(b) the conduct is unreasonable.
[This is far too broad and could be abused to threaten religious freedom etc. What if there is a repeat, of
say the “Union Flag” debacle which Belfast suffered from recently in England & Wales? What about the rows
about Church Bell Ringing or Muslim Mosque amplified Calls to Prayer?]
(2) subsection (1) “authorised person” means a person on whom section 48 (or an enactment
amended by that section) confers power to issue community protection notices.
[No! an “authorised person” should have to get an independent Court Order, not issue this themselves!]
(6) A person (A) may issue a community protection notice to an individual or body (B) only if—
(a) B has been given a Written Warning that the notice will be issued unless B’s Conduct
ceases to have the detrimental effect referred to in subsection (1), and
(b) A is satisfied that, despite B having had enough time to deal with the matter, conduct is
still having that effect.
[Spell out the time period explicitly eg, 30 days, one month etc.]
(9) A Community protection notice may specify periods within which, or times by which,
requirements within subsection (3) (b) or (c) are to be complied With.
[Why is there no reasonable time to comply, allowing for weekends and public holidays?]
41 Appeals against notices
(1) A person issued with a community protection notice may appeal to a magistrates’ court against
the notice on any of the following grounds.
1. That the Conduct specified in the community protection notice
(a)
(b)
(c)
(d)
did not take place,
has not had a detrimental effect on the quality of life of those in the locality,
has not been of a persistent or continuing nature,
is not unreasonable, or
[No! Why should a defendant have to prove a negative ie that something did not happen? Remove this
Reverse Burden of Proof!]
(e) is conduct that the person cannot reasonably be expected to control or affect.
2. That the matter in respect of which the notice was issued constitutes a statutory nuisance
for the purposes of Part 3 of the Environmental Protection Act 1990 (see section 79 of
that Act).
3. That any of the requirements in the notice, or any of the periods within which or times by
which they are to be complied with are, unreasonable.
4. That there is a material defect or error in, or in connection with, the notice.
5. That the notice was issued to the wrong person.
[Where are the criminal sanctions against the “authorised person” who negligently or maliciously caused
any of these grounds for appeal?]
43 Offence of failing to comply with notice
(3) A person does not commit an offence under this section if the conduct specified in the
community protection notice (a) did not take place,
[if it didn’t take place, why is Court time being wasted by the bureaucracy. Why was this not determined
when the notice was applied for??]
(b) has not had a detrimental effect on the quality of life of those in the locality,
(c) has not been of a persistent or continuing nature,
(d) is not unreasonable, or
(e) is conduct that the person could not reasonably be expected to control or affect.
[Insane Kafkaesque Reverse Burden of Proof—completely disproportionate and indefensible as a principle
of English justice]
(4) A person also does not commit an offence under this section if
(a) the matter in respect of which the notice was issued constitutes a statutory nuisance for the
purposes of Part 3 of the Environmental Protection Act 1990 (see section 79 of that Act),
[Make it illegal to apply for or to issue such a notice which attempts to duplicate the existing statutory
nuisance offence]
(b) the alleged offence Consists in a failure to Comply with a requirement that was
unreasonable, or in a failure to Comply within a period or by a time that was
unreasonable, or
(c) the notice was issued to the wrong person.
[You should not have to prove your identity in court, the prosecution should be proving, beyond reasonable
doubt that you are the intended recipient of the notice]
(5) A person also does not commit an offence under this section if
(a) the person took all reasonable steps to comply with the notice, or
(b) there is some other reasonable excuse for the failure to comply with it.
[That is a clear as mud—how can this ever be properly and justly enforced to the same standard throughout
the UK—every locality will interpret this “reasonableness” differently]
(6) Subsections (3) to (5 ) in relation to matters on which the defendant puts the prosecution
to proof.
[How does this ever apply? The improbable or impossible burden of proof is on the defendant to prove
a negative!]
44 Remedial orders
(1) A court before which a person is convicted of an offence under section 43 in respect of a
community protection notice may make whatever order the court thinks appropriate for ensuring
that what the notice requires to be done is done.
[That language seems familiar!
Dec. 3, 1627 It is by my order and for the good of the state that the bearer of this has done what
he has done. Richelieu
The fictional carte blanche signed by Cardinal Richelieu in Alexandre Dumas, père’s The Three Musketeers]
45 Forfeiture of item used in commission of offence
46 Seizure of item used in commission of offence
[confiscation of otherwise legal private property “on the street” without a Court Order]
48 Authorised persons
(1) A Community protection notice or a fixed penalty notice may be issued by—
(a) a constable;
(b) the relevant local authority (see subsections (2) and (3)); and
(c) a person designated by the relevant local authority for the purposes of this section.
[We should not allow “Heritage Wardens” and other inconsistent Local Authority private police/“security”
forces to have such a power, as it will not be applied equally and fairly throughout the UK]
49 Exemption from liability
[No! There is no excuse for this “exemption from liability”! the Local Authority/Private Sector bureaucracy
are already being given far too much discretionary power by this Bill.
There is no “equality of arms” here—this will require expensive High Court appeals, for which they have
unlimited public funds and the defendant has to risk bankruptcy to take forward]
(4) Subsections (l) and (2) do not apply so as to prevent an award of damages made in respect of
an act or omission on the ground that the act or omission was unlawful by virtue of section
6(1) of the Human Rights Act 1998.
[Why is this not triable in say the Small Claims Court?—this is denial of justice through expensive High
Court legal system tactics]
50 Issuing of notices
(1) A notice under this Chapter may be issued t0 a person by
(a) handing it to the person,
(b) leaving it at the person’s proper address, or
(c) sending it by post to the person at that address.
[More than 12 years after the Electronic Communications Act 2000 and Whitehall still can’t get the hang of
digitally signed electronic legal documents or notices
http://www.legislation.gov.uk/ukpga/2000/7/contents]
(1) The repeal or amendment by this Act of provisions about any of the notices specified in
subsection (2) does not apply in relation to (a) a notice specified in that subsection served before the commencement day;
(b) anything done in connection with such a notice.
[“anything done in connection with” = much too broad language]
(4) Subsection (3) applies only during the period of 3 months beginning with the commencement
day.
[Why three months?]
Chapter 2: Public Spaces Protection Orders
53 Power to make orders
(2) The first condition is that
(a) activities carried on in a public place within the authority’s area have had a detrimental
effect on the quality of life of those in the locality, or
(b) it is likely that activities will be on in a public place within that area and that they will
have such an effect
(3) The second condition is, that the effect, or likely effect, of the activities (a) is, or is likely to be, of a persistent or continuing nature,
(b) is, or is likely to be, such as to make the activities unreasonable, and
(c) justifies the restrictions imposed by the notice.
[Will this be used as a tactic to stop or delay say, land based Wind Farms or Fracking or other NIMBY?
Will it be used against Parliament Square or other protest camps?]
(5) The only prohibitions or requirements that may be imposed are ones that are reasonable to
impose in order (a) to prevent the detrimental effect referred to in subsection (2) from continuing, occurring
or recurring, or
(b) to reduce that detrimental effect or reduce the risk of its continuance, occurrence or
recurrence.
[Oh what a witty bit of legal draughting alliteration—NOT!]
(6) A prohibition or requirement may be framed(a) so as to apply to all persons, or only to persons in specified categories, or to all persons
except those in specified categories;
(b) so as to apply at all times, or only at specified times, or at all times except those specified;
(c) so as to apply in all circumstances, or only in specified circumstances, or in circumstances
except those specified.
{More legalistic abuse of the word “all” without any limit or caveat—what does it achieve except unlimited
power without responsibility?]
(7) A local authority making a public spaces protection order must before doing so consult
(a) the chief officer of police, and the local policing body, for the police area that includes
the restricted area;
(b) whatever community representatives the local authority thinks it appropriate to consult.
[But there is no duty to actually listen to what the consultees say and no penalty for failing to consult
properly]
(8) A public spaces protection order must
(a) identify the activities referred to in subsection (2);
(b) explain the effect of Section 57 (where it applies) and section 61;
(c) specify the period for which the order has effect.
(9) A public spaces protection order must be published in accordance with regulations made by the
Secretary of State.
[No! Publish the proposed Regulations now, on the face of the Bill!]
54 Duration of orders
(5) A local authority extending the period for which a public spaces protection order has effect
must before doing so consult (a)
the
chief
officer of police, and the local policing body, for the police area that includes the restricted area;
[Still no duty to actually listen to what the consultees say and no penalty for failing to consult properly]
55 Variation and discharge of orders
(5) A local authority varying or discharging a public spaces protection order must before doing
so consult
(a) the chief officer of police, and the local policing body, for the police area that includes
the restricted area; and
[Still no duty to actually listen to and take action on what the consultees say and no penalty for failing to
consult properly]
(8) Where an order is discharged, a notice identifying the order and stating the date when it ceases
to have effect must be published in accordance with regulations made by the Secretary of State.
[No! Publish the proposed Regulations now, on the face of the Bill!]
56 Premises etc. to which alcohol prohibition does not apply
(1)
(d) premises which by virtue of Part 5 of the Licensing Act 2003 may at the relevant time be
used for the supply of alcohol or Which, by virtue of that Part, could have been so used
within the 30 minutes before that time;
[30 minutes? Why?]
(2)
(b) within 30 minutes after the end of a period during which the premises have been used for
the supply of alcohol.
[30 minutes? Why?]
58 Orders restricting public right of way over highway
[It should be made clear that “a public spaces protection order” must not be allowed to restrict
— the airspace overhead (aircraft, drones, model aircraft, parachutes, balloons, kites, spy
satellites etc];
— nor the mining/mineral extraction rights etc;
— nor any railway tunnels passing underneath eg London Tube lines under Parliament Square/
Whitehall etc;
— nor any sewers, water, gas, utility pipes nor electricity cables nor telecommunications copper
cables nor fibre-optic cables etc, underneath;
— nor any bridges, flyovers or canals or aqueducts which pass over the “public space”;
— nor attempt to censor any radio or other electromagnetic communications eg TV, Radio, WiFi
etc, passing through the “public space”;
— nor any audio sounds eg Christian church bells, Muslim call to prayer etc. crowd chants or
music noises which are not covered by already being a “statutory nuisance” passing through
the “public space”].
(7) A local authority may install, operate and maintain barriers authorised under section (6).
[No! This is exactly the powers that the Nazi or Apartheid regimes have used to create Ghettos to enforce
religious or racial discrimination!
Permission for a “barrier” should be defined so as not to automatically permit the installation of new or the
use of existing CCTV/ANPR cameras and networks—there needs to be separate planning and consultation
about such surveillance infrastructures.
Any data collected from the comings and goings through such barriers must not be handed over to the police
or intelligence agencies for other purposes apart from the minimum that is required for the enforcement of the
“protection order”. c.f. the supposedly “anti-street crime” CCTV/ANPR tracking systems installed around
predominantly Muslim areas of Birmingham for terrorism data trawling & profiling
https://p10.secure.hostingprod.com/@spyblog.org.uk/ssl/spyblog/2010/10/02/project-champion-review—
cctv-and-anpr-mass-surveillance-ghettos-in-birmingham.html]
59 Categories of highway over which public right of way may be restricted
(1) A public spaces protection order may not restrict the public right of way over a highway
that is—
(a) a special road;
(b) a trunk road;
(c) a classified or principal road;
(d) a strategic road; and
(e) a highway in England of a description prescribed by regulations made by the Secretary
of State;
[No! Spell out the exact list of categories on the face of the Bill. At the very least refer to the exact
Regulatory power under which a description of a highway may be prescribed!]
60 Challenging the validity of orders
(1) An interested person may apply to the High Court to question the validity of a public spaces
protection order. “Interested person” means an individual who lives in the restricted area or
who regularly works in or visits that area.
[No! Why should the expensive High Court have to be involved? There is no legal aid available for this sort
of action and the an individual could be bankrupted by the legal costs, even if they win their case against a
Local Authority etc, which can abuse an unlimited amount of taxpayers’ money on legal fees or in-house
lawyers]
62 Fixed penalty notices
(5) A fixed penalty notice must
(a) give reasonably detailed particulars of the circumstances alleged to which (because of
subsection (4)(a))
[what exactly is “reasonably detailed”—why not publish an official Fixed Penalty Notice template in a
Schedule to this Bill?]
Chapter 3: Closure of Premises Associated with Nuisance or Disorder etc
Closure notices
66 Power to issue closure notices
(1) A police officer of at least the rank of inspector, or the local authority, may issue a closure
notice if satisfied on reasonable grounds
(a) that the use of particular premises has resulted, or (if the notice is not issued) is likely
soon to result, in nuisance to members of the public, or
[N.B. this only mentions “nuisance” but 73 (7)(b) below mentions “serious nuisance”]
(b) that there has been, or (if the notice is not issued) is likely soon to be, disorder near those
premises associated with the use of those premises, and that the notice is necessary to
prevent the nuisance or disorder from continuing, recurring or occurring.
[No! This language is far too imprecise]
[How far back in time does “has been” mean? Every major football stadium that has ever had trouble with
hooligans, even if no new incidents have happened for 10 or 30 years or any time in history, could be caught
by this wording]
[http://en.wikipedia.org/wiki/Peterloo_Massacre—Peterloo Massacre Manchester 1819]
[http://en.wikipedia.org/wiki/Peasants%27_Revolt—Peasant’s Revolt London 1381]
[N.B. the badly worded section 82 (6) below appears to limit similar consideration by the Court to only the
previous three months]
[There is no definition of how “near “ to the premises the “disorder”—can any premises in London,
Birmingham or Manchester etc, be closed because of previous riots in the same street, the same borough or
the same city or country ?]
68 Cancellation or variation of closure notices
(6) In this section “the relevant officer or authority” means (a) in the case of a closure notice issued by a police officer and not extended under section
67(3)(a), that officer (or, if that officer is not available, another officer of the same or
higher rank);
(b) in the case of a closure notice issued by a police officer and extended under section
67(3)(a), the officer who issued the extension notice (or, if that officer is not available,
another officer of the same or higher rank);
[Why can’t these two sub-clauses, which differ by just the word “not” be just merged into one eg
(a) in the case of a closure notice issued by a police officer under section 67(3)(a), that officer (or,
if that officer is not available, another officer of the same or higher rank);]
(c) in the case of a closure notice issued by a local authority, that authority.
[Similarly, if the previous two sub clauses refer to 68(3)(a), why doesn’t this one refer to the
corresponding 68(3)(b)?]
69 Service of notices
[Again—More than 12 years after the Electronic Communications Act 2000 and Whitehall still can’t get the
hang of digitally signed electronic legal documents or notices
http://www.legislation.gov.uk/ukpga/2000/7/contents]
72 Extension of closure orders
(6) If a summons is issued under subsection (5), a notice stating the date, time and place of the
hearing of the application must be served on the persons to whom the summons is directed.
[If the Police or Local Authority have failed to serve a closure notice on someone eg who is in another
country, they will probably also fail to serve a summons]
73 Discharge of closure orders
(3) Where a person other than a constable makes an application under this section for the discharge
of an order that was made on the application of a constable, the justice may issue a summons
directed to a constable considered appropriate by the justice requiring him or her to appear
before the magistrates’ court to respond to the application.
[No! The original “constable” who made the application should be one who has to appear in court, or at
least someone from the same police force]
(7) The magistrates’ court may not make an order discharging the closure order unless satisfied that
the closure order is no longer necessary to prevent the occurrence, recurrence or continuance of
(a) disorderly, offensive or criminal behaviour on the premises,
(b) serious nuisance to members of the public resulting from the use of the premises, or
[N.B. 66 (1)(a) above only mentions “nuisance” not “serious nuisance”, therefore a closure order on the
grounds of non-serious nuisance can never be legally discharged—this sloppy wording is going to waste lots
of public money and Court time in Appeals etc.]
(c) disorder near the premises associated with the use of the premises.
[Exactly how “near” or far from these premises? This must be made clear in the legislation, so as to be
fairly and equally applied throughout the country]
74 Appeals
(6) On an appeal under this section the Crown Court may make whatever order it thinks
appropriate.
[No! “whatever order” is unlimited power and should be restrained]
75 Enforcement of closure orders
(2) In this section “authorised person”—
(a) in relation to a closure order made on the application of a constable, means a constable or
a person authorised by the chief officer of police for the area in which the premises
are situated;
[No! that should only be proper full constables]
(b) in relation to a closure order made on the application of a local authority, means a person
authorised by that authority.
[They should not be allowed to authorise just anybody to do this—It should be licensed Bailiffs or at least
Security Industry Association licensed people so that criminals are not employed to do this work]
76 Offences
(7) In subsections and “the relevant amount” is
(a) level 5 on the standard Scale, where the premises to which the closure notice or closure
order relates, or any part of them, are premises where a person habitually lives;
(b) £20,000 in any other case.
[What is the justification for the jump between a level 5 fine of £5,000 and £20,000 fine? Why is it more
serious ie higher fine for premises where no person “habitually lives”?]
(8) In relation to an offence committed before the commencement of section 281(5) of the Criminal
Justice Act 2003, the reference in subsection (5)(a) to 51 Weeks is to be read as a reference to
six months.
[http://www.legislation.gov.uk/ukpga/2003/44/section/281
If this section of the 2003 Act has not yet been commenced for over nine years, it should be repealed
If it has been commenced, then why not refer to the date of commencement in the text of this Bill?]
77 Access to other premises
(3) Notice of an application under this section must be given to
(a) Whatever constable the court thinks appropriate;
[No! This must be the local Police Force only, the same ones who applied for the closure order in the
first place]
(4) On an application under this section the court may make whatever order it thinks appropriate
in relation to access to any part of the building or structure mentioned in subsection (1).
It does not matter whether provision has been made under section 70(7) (b).
[“make whatever order it thinks appropriate” is too broad]
78 Reimbursement of costs
(1) A local policing body or a local authority that incurs expenditure for the purpose of clearing,
securing or maintaining premises in respect of which a closure order is in force may apply to
the court that made the order for an order under this section
[Who pays if the court has decided that the “appropriate constable” is actually from a different, non-local
policing body?]
79 Exemption from liability
[No! There should be no exemption from liability whatsover!]
81 Interpretation of Chapter 3
(1) In this Chapter “offensive behaviour” means behaviour by a person that causes or is likely to cause harassment,
alarm or distress to one or more other persons not of the same household as that person;
[So domestic abuse or violence does not count, somehow, as anti-social behaviour?]
(6) Subsections (4) and (5) apply only during the period of three months beginning with the
commencement day.
[Is this “the period of three months” really “the preceding period of three months”?]
[Contrast with section 66 (1) above, where there is no time limit for the “past” whatsoever]
Part 5: Recovery of Possession Of Dwelling-Houses: Anti-Social Behaviour Grounds
[This Part is extraordinarily verbose and over complicated.
It will probably almost never be applied in practice]
[Has this stupid complexity been deliberately added so as to distract any proper Parliamentary scrutiny from
the several repressive and controversial sections of this Bill, in the hope that they can be guillotined through
Parliament without proper debate ie just like NuLabour?]
83 New ground for serious offences or breach of requirements etc
(1) After section 84 of the Housing Act 1985 (secure tenancies: grounds and orders for possession)
there is inserted
“84A Absolute ground for possession for anti-social behaviour”
(4) Condition 2 is that a court has found in relevant proceedings that the tenant, or a person residing
in or visiting the dwelling-house, has breached a provision of an injunction under section 1 of
the Anti-social Behaviour Act 2013, other than a provision requiring a person to participate in
a particular activity, and
(b) the breach occurred elsewhere and the provision breached was a provision intended to
(ii) conduct that is capable of causing nuisance or annoyance to the landlord of the
dwelling-house or a person employed (whether or not by the landlord) in connection
with the exercise of the landlord̀s housing management functions, and that is directly
or indirectly related to or affects those functions.
[No! “conduct capable of causing a nuisance or annoyance” is far too broad—it is triggered even if there
is no actual nuisance or annoyance whatsoever!]
(10) The Secretary of State may by order amend Schedule 2A as it applies in relation to dwellinghouses in England by (a) adding an indictable offence;
(b) removing an offence.
[No! the range of offences must not be made by Order, only by properly debated and amendable Primary
Legislation—why is the Conservative/Liberal Democrat coalition government acting exactly like NuLabour?]
(11) The Welsh Ministers may by order amend Schedule 2A as it applies in relation to dwellinghouses in Wales by (a) adding an indictable offence;
(b) removing an offence.
[No! the range of offences must not be made by Order, only by properly debated and amendable Primary
Legislation—why is the Conservative/Liberal Democrat coalition government acting exactly like NuLabour?]
(12) An order under subsection (10) or (11)—
(a) is to be made by statutory instrument which
[Statutory Instruments cannot be amended, only accepted or rejected. They are never debated properly and
almost never rejected, regardless of whether they are “positive” or “negative” resolutions of one or both Houses
of Parliament—this is a scandalous failure of democracy by Parliament]
84 Notice requirements for new ground
After section 83A of the Housing Act 1985 (additional requirements in relation to certain proceedings for
possession) there is inserted “83B Notice requirements in relation to proceedings for possession on absolute ground for antisocial behaviour”
(6) A notice under this section must also inform the tenant that, if the tenant needs help or advice
about the notice and what to do about it, the tenant should take it immediately to a Citizens’
Advice Bureau, a housing aid centre, a law centre or a solicitor.
[Where is the Government money for this extra workload being imposed on the voluntary sector? Where is
the legal aid? No mention of this in the alleged Impact Assessment]
(8) The Welsh Ministers may by regulations make provision about the procedure to be followed in
connection with a review under this section that relates to an order for possession of a dwellinghouse in Wales.
[Why hasn’t the Home Office published Draft Regulations so that they can be subjected to pre-legislative
scrutiny?]
86 Corresponding new ground and notice requirements for assured tenancies
(1) In Part 1 of Schedule 2 to the Housing Act 1988 (assured tenancies: grounds on which court
must order possession), after ground 7 there is inserted “Ground 7A
Condition 2 is that a court has found in relevant proceedings that the tenant, or a person residing in
or visiting the has breached a provision of an injunction under section 1 of the Antisocial Behaviour
Act 2013, other than a provision requiring a person to participate in a particular activity, and (a) the breach occurred in, or in the locality of, the dwelling-house, or
[what is the exact geographic definition of “in the locality of”?]
(b) the breach occurred elsewhere and the provision breached was a provision intended to
prevent
(i) conduct that is capable of causing nuisance or annoyance to a person with a right (of
whatever description) to reside in or occupy housing accommodation in the locality
of the dwelling-house, or
(ii) conduct that is capable of causing nuisance or annoyance to the landlord of the
dwelling-house or a person employed (whether or not by the landlord) in connection
with the exercise of the landlord’s housing management functions, and that is directly
or indirectly related to or affects those functions.
[No! “conduct capable of causing nuisance or annoyance” is far too broad—it is triggered even if there is
no actual nuisance or annoyance whatsoever!]
Discretionary grounds: secure and assured tenancies
87 Addition of offences connected with riot to existing possession grounds
[Although this is a knee jerk reaction to the “riots” of the summer of 2011, most of the offenders were not
convicted of actual Riot—this is pathetic “Must Pretend To Be Seen To Be Doing Something” politics, it
should be removed from the Bill]
(1) In Part 1 of Schedule 2 to the Housing Act 1985 (grounds on which court may order possession
in relation to secure tenancies if it considers it reasonable), after Ground 2 there is inserted “Ground 2ZA
The tenant or a person residing in the dwelling-house has been convicted of an offence which took
place during, and at the scene of, a riot in the United Kingdom.
[No! There is no data as to exactly define when and where “during, and at the scene” actually happened in,
for example, the summer of 2011 “riots”. Are the offences of theft and arson etc. which happened before the
Police decided that things had now got out of hand and moved in with riot gear, to be caught by this Ground?
Many Police forces never admitted that they actually had an official Riot on their hands and many crimes or
anti-social incidents were too petty to be “riots” in themselves.]
In this Ground, “riot” is to be construed in accordance with section l of the Public Order Act 1986.
This Ground applies only in relation to dwelling-houses in England.”
[Anti-English discrimination? Why does this cover the entire United Kingdom when it only applies dwellinghouses in England? Why are Welsh “rioters” living in Wales immune?
Surely this is a Devolved Matter for Scotland and Northern Ireland?]
(2) In Part 2 of Schedule 2 to the Housing Act 1988 (grounds on which Court may order possession
in relation to assured tenancies if it considers it reasonable), after Ground 14 there is inserted -
“Ground 14ZA
The tenant or a person residing in the dwelling-house has been convicted of an offence which took
place during, and at the scene of, a riot in the United Kingdom,
[No! There is no data as to exactly define when and where “during, and at the scene” actually happened in,
for example, the summer of 2011 “riots”. Are the offences of theft and arson etc, which happened before the
Police decided that things had now got out of hand and moved in with riot gear, to be caught by this Ground?
Many Police forces never admitted that they actually had an official Riot on their hands and many crimes or
anti-social incidents were too petty to be “riots” in themselves.]
In this Ground, is to be construed in accordance with section 1 of the Public Order Act 1986.
This Ground applies only in relation to dwelling-houses in England.”
[Anti-English discrimination? Why does this cover the entire United Kingdom when it only applies dwellinghouses in England? Why are Welsh “rioters” living in Wales immune? Surely this is a Devolved Matter for
Scotland and Northern Ireland?]
Community remedies
89 The community remedy document
(3) In preparing or revising the community remedy document for its area a local policing body must
(a) consult the chief officer of police for the area,
(b) consult whatever community representatives the local policing body thinks it appropriate
to consult, and
(c) undertake Whatever other public consultation the local policing body thinks appropriate,
and must take account of all views expressed by those consulted.
[None of the other “consultations” in the previous Parts of this Bill specify that “must take account of all
views expressed by those consulted”]
[What if the Local Community insists on say, Sharia law or various forms of “naming & shaming” & public
humilition and indiscriminate community punishment via “guilt by association”?]
(6) In this section
“anti-social behaviour” means behaviour capable of causing nuisance or annoyance to any
person;
[No! Talking or playing music at a normal volume is potentially “capable” of causing nuisance or annoyance
to “any” person. What about Northern Ireland style marches through sectarian split community areas?—This
language is much too broad and should (eventually and expensively) fail any challenge under the Human
Rights Act/ECHR in Strasbourg]
[NB, section 93(4) below does not use the words “capable of causing” in that definition of anti-social
behaviour]
“community representative”, in relation to a police area, means any individual or body
appearing to the local policing body to represent the views of people who live in, work in or
visit the area.
[“or visit the area” = potentially anybody else in the United Kingdom or the European Union]
Response of Complaints about anti-social behaviour
92 Review of response to complaints
(2) The relevant bodies in each local government area must (a) make arrangements about the carrying out of ASB case reviews by those bodies (“review
procedures”); and
(b) ensure that the current review procedures are published.
[These “review procedures” must be primarily made in an accessible format online—not like this horrible
locked (.pdf) of the Bill!]
(5) After the relevant bodies have decided whether or not the threshold for a review is met, they
must inform the applicant of their decision.
[The Bill should specify a deadline eg no longer than a month after the decision, by which time they should
inform the applicant of their decision/and or publish it generally]
93 ASB case reviews: interpretation
(c) each clinical commissioning group established under section 14V of the National Health
Service Act 2006 whose area is wholly or partly within that local government area, and
[Whoah! There has been no mention of “NHS clinical commissioning groups” in any of the previous
sections—why only now?]
(4) These expressions have the meanings given “anti-social behaviour” means behaviour causing harassment, alarm or distress to members or
any member of the public;
[N.B. this is not the same as the definition in 89 (6) which stupidly uses the words “capable of causing”]
[The use of “any member of the public” is too broad—it covers people who are too far away to be affected
by or even cognisant of the alleged behaviour]
Part 7: General
94 Amendments
(1) Schedule 6 (minor and consequential amendments) has effect.
(2) The Secretary of State may by order make consequential amendments to provisions contained
in or made under any Act.
[No! The Home Office cannot be trusted to make such orders—put it clearly in the text of primary legislation]
“Consequential amendments” here means amendments that are consequential on any provision
of this Act, other than the provisions listed in subsection (3) as they apply in Wales.
(3) The Welsh Ministers may by order make consequential amendments to provisions contained in
or made under any Act or any Measure or Act of the National Assembly for Wales.
[No! Welsh Ministers are no more trustworthy than the Home Office and also cannot be trusted to make
such orders—put it clearly in the text of primary legislation]
“Consequential amendments” here means amendments that are consequential on any of the
following provisions as they apply in Wales (a) sections 83 to 86;
(b) section 88;
(c) paragraphs 5 to 9, 34 and 35 of Schedule 6.
95 Orders and regulations
(1) A power under this Act to make an order or regulations is exercisable by statutory instrument.
[No! The Home Office cannot be trusted to make such orders—put it clearly in the text of primary legislation]
(2) A statutory instrument containing an order under section 94(2) that amends an Act may not be
made unless a draft of the instrument has been laid before both Houses of Parliament and
approved by a resolution of each House.
[Statutory Instruments cannot be amended, only accepted or rejected. They are never debated properly and
almost never rejected, regardless of whether they are “positive” or “negative” resolutions of one or both Houses
of Parliament—this is a scandalous failure of democracy by Parliament]
96 Extent
This Act extends only to England and Wales.
[so why does 87 (1) try to punish behaviour “at the scene of, a riot in the United Kingdom” ie also in
Scotland & Northern Ireland?]
97 Commencement
(1) This Act comes into force on whatever day or days the Secretary of State appoints by order.
{No! All of it should come into force on Royal Assent—this Bill is much too long and complicated. The
Government bureaucrats must not be allowed to confuse the public (and the police and the local authorities)
about which bits are or are not in force at any time in the future]
SCHEDULE 2 Section 11
BREACH OF INJUNCTIONS: POWERS OF COURT IN RESPECT OF UNDER-18s
Part 1: Introductory
Power to make supervision order or detention order
(5) A detention order may not be made under sub-paragraph (1) in respect of a person aged under
14.
[Why 14 rather than 16 or 18 ?]
Part 2: Supervision Orders
Supervision orders
“Supervision requirements”
3 (1) In this Schedule “supervision requirement”, in relation to a supervision order, means a requirement
that the defaulter attend appointments with
(a) the responsible officer (see paragraph 7), or
(b) another person decided by the responsible officer, at whatever times and places the responsible
officer instructs.
[No! There must be reasonable geographical limits as to how far and when someone is forced to pay to
travel especially at peak rush hour times eg being forced to cross from one side of London to another is a
major financial burden.—it must not be inflicted for bureaucratic convenience or private sector profit]
Copies of supervision order etc.
13 (1) A court that makes a supervision order must straight away provide a copy of the order to
(a) the defaulter;
(b) the youth offending team for the time being specified in the order.
[What about copies of these ASBOs and the Criminal Records Bureau or the Police National Computer or
other Police intelligence databases?]
[These database records should be expunged after say, five years of good behaviour, they should not be used
to stigmatise you for the rest of your adult life]
Part 3: Detention Orders
SCHEDULE 3 section 25(7)
APPROVAL OF COURSES AND CERTIFICATES OF COMPLETION
Approval of courses
(4) In reaching a decision as to whether to approve a course for the purposes of section 25 a local
authority must have regard to
(a) the aims of the course and its likely effectiveness in preventing persons engaging in
behaviour of the sort mentioned in section 21 (3),
(b) whether the person providing the course is an appropriate person both to provide it and
efficiently and effectively to administer its provision,
(c) the likelihood that places will be available on the course for persons who are the subject
of criminal behaviour orders, and
(d) Whether the course is good value for money.
[Who are the private sector Approved Course Providers? What exactly is the curriculum of these courses
and activities? Are we back to the failed old ideas of a “short sharp shock”? or of para-military conscript style
physical & psychological “obey!” training?]
SCHEDULE 4 section 83(2)
SCHEDULE TO BE INSERTED As SCHEDULE 2A TO THE HOUSING ACT 1985
“SCHEDULE 2A
ABSOLUTE GROUNDS FOR POSSESSION FOR ANTI-SOCIAL BEHAVIOUR: SERIOUS OFFENCB
[Note the lack of any Terrorism or Espionage or Arson offences!]
Part 3: ASB Case Reviews
Consultation and co-operation: local providers of social housing
(4) This paragraph does not require or authorise
(a) a disclosure, in contravention of any provisions of the Data Protection Act 1998, of
personal data which are not exempt from those provisions, or
(b) a disclosure which is prohibited by Part 1 of the Regulation of Investigatory Powers
Act 2000.
[This only applies to ASB Case reviews, not to the badly written 22 (2) above, which does allow the use of
otherwise secret RIPA Part1 Intercept evidence in court]
(5) Subject to that, a disclosure under this paragraph does not breach
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
Written evidence submitted by South Yorkshire Police [ASB 40]
South Yorkshire Police recognise that ASB can blight the lives of its victims and can damage communities’
and public confidence in police and partners. The Bill promises to focus the response to ASB on the needs of
the victim, empower communities to get involved in tackling ASB and to protect the public through faster,
more effective powers. We welcome these proposals.
In order to achieve these opportunities promised by this Bill, we also recognise that consideration needs to
be given to some aspects of the Bill.
Crime Prevention Injunctions and Criminal Behaviour Orders
—
The ability to impose positive requirements on the recipient, as well as the current negative
requirements, is welcomed.
—
The addition of power of arrest will also bring obvious benefits and greater enforcement
opportunities.
—
Despite the civil burden of proof, experience of applying for current ASBOs highlights the weight
of evidence required. Most of the BCUs within South Yorkshire established units for this function.
The time taken for an ABSO to be granted threatens confidence and exposes victims to further
problems. We would welcome further detail or assurances as to how the proposed legislation will
achieve and maintain the commitment for a less bureaucratic and more timely process.
—
We would also be interested in proposals that ensure or monitor the consistent approach and are
willing to accept CBO/CPI applications across Judicial Authorities.
Dispersal Powers
—
The amalgamation of existing dispersal powers eg. S30 and S27 powers are welcomed.
—
The removal of a need for “alcohol related” ASB under S27 and pre-authorisation requirement of
S30, bring increased flexibility for tactical responses to any issue. It is easy to see the beneficial
application of the new powers across all aspects of ASB from neighbourhood youth based issues, to
the policing of football and events.
—
A current legal requirement of S30 applications is the need to consult partners and the community.
Even if not a legal requirement, we would be reluctant to lose this accountability link to our partners
and public.
—
Common to all existing powers, their use and alleged abuse, have been subject to legal challenge,
with caselaw shaping our current application. With new powers comes new opportunity and risks in
terms of litigation and organisational learning.
Community Remedy
—
We support the concept that offenders for low level crime , being dealt with by an out of court
disposal, such as Restorative Justice or conditional caution, should undertake some form of activity
that makes good the harm they have caused.
—
The Bill requires PCCs to consult with the public about a range of sanctions to be used for low level
crime. Having arrived at a list of such sanctions, will the resources then be made available to fund
the various schemes and initiatives that the public have suggested to the PCC?
—
Currently Local Authority YOT teams, and also third sector organisations deliver “crime and
consequences” or “victim awareness” style programmes with good results. These are tailored to the
victim’s wishes, and to the type of offending behaviour. All this occurs by referral from the police
and involves little use of police time and resources, something we would not want to lose. It may
be better to simply have all such schemes described as “PCC accredited” for meeting the PCC’s
priorities, rather than the current proposal for approved sanctions.
Community Triggers
—
As currently proposed, the Community Triggers seem to require activation by the ASB victim or
victims. Should there not be a reactive and proactive responsibility of the CSPs in self activation of
a trigger? Our contact with forces trialing the Community Trigger reveals mixed results. This might
be attributable to the fact that the lack of national media and marketing has limited public knowledge
of the power. We would need to be confident that leaving the individual victims to activate Triggers,
does not assume they have knowledge of it which.
—
—
—
—
It also raises practical issues about how a Trigger is activated. How would neighbouring victims
know that the threshold had been met? Might there be a risk of increased reporting of ASB just so
that the Trigger could be activated? Do we need a filter before a Community Trigger, which could
enable communication that highlights the work that has been done?
Does the Community Trigger risk overlooking those that have reported a single instance of ASB,
but do so when at their “wits end”?
We know that there are some that are vexatious in their reporting to police and partners. Could some
of those that activate the Community Trigger divert time and resources away from those less
motivated or more vulnerable?
The principles behind the Community Trigger are supported, but it is felt that further consideration
and evaluation of the pilot schemes would offer opportunity for greater success of the proposal.
I hope the above provides a useful insight. Please let me know if further information is required.
South Yorkshire Police
January 2013
Written evidence submitted by JUSTICE [ASB 41]
Introduction
1. JUSTICE is an independent all-party legal and human rights organisation which aims to improve British
justice through law reform and policy work, publications and training. Its mission is to advance access to
justice, human rights and the rule of law. It is the UK section of the International Commission of Jurists.
2. JUSTICE welcomes the Home Affairs Committee’s pre-legislative scrutiny of the draft Anti-Social
Behaviour Bill and is pleased to have the opportunity to respond to its call for evidence. We previously
responded to the Home Office consultation: More Effective Responses to Anti-Social Behaviour27 and, as in
that response, this briefing focuses upon the creation of the Injunction to Prevent Nuisance and Annoyance
(Part 1), the Criminal Behaviour Order (Part 2), and the Dispersal Power (Part 3) since these are the proposals
with which we have most serious concern.
3. While not the focus of this briefing, we note that the proposals in Part 4 to create powers to issue
Community Protection Notices (Chapter 1), Public Spaces Protection Orders (Chapter 2) and Closure Notices
for premises associated with nuisance or disorder (Chapter 3) raise important issues and have attracted the
concern of other organisations that have submitted evidence to the Committee, namely Catch 22 and Big
Brother Watch. Given the tight timetable of the Committee’s inquiry and the short amount of time in which
this submission has been completed we have not responded at this stage to the new powers in Part 4. However
we will continue to work on them and retain an interest in their progression.
4. We welcome the recognition by government in the White Paper28 that anti-social behaviour is a local
issue which needs local responses and where possible this should avoid the criminal or civil justice systems.
We also welcome the intention to tackle the drivers of anti-social behaviour which in our view cannot be
solved by imposing draconian, restrictive orders, but need to be resolved through treatment and support.
Summary
5. JUSTICE has longstanding concerns about the breadth of anti-social behaviour orders, and other similar
civil orders, and the scope for them to be used inappropriately.
6. We believe that it is appropriate and indeed desirable for public authorities to apply for civil orders to
restrain illegal acts causing injury to the community and/or vulnerable individuals. However, these should only
be available to restrain unlawful behaviour, rather than acts that are merely, or likely to be, distressing or
irritating. Furthermore, any such order should be limited in scope. In particular, in the context of criminal
orders, they should not become equivalent to community sentences available upon conviction. They should
contain only prohibitions and (perhaps rarely) positive injunctions closely linked to the unlawful behaviour
itself and necessary to prevent it. The overall restriction of a person’s liberty should be proportionate to the
seriousness of the illegality that the order seeks to restrain and to the status of the order as a civil preventative
measure. The orders should be time-limited and regularly reviewed. Finally, the powers available upon breach
of an order should reflect the nature of the breach and the context in which it occurred. The most concerning
development over the last decade with regard to attempts to curb anti-social behaviour has been the
consequential imprisonment of people who have not committed a criminal offence upon breach of an injunctive
order they were almost certainly going to fail to keep.
7. We support the use of informal and out of court disposals in tackling anti-social behaviour that keep
people from being drawn into the criminal justice system and believe that restorative approaches should be
27
28
Available at: http://www.justice.org.uk/resources.php/268/home-office-consultation-more-effective-responses-to-anti-socialbehaviour
Home Office, Putting Victims First: More Effective Responses to Anti-Social Behaviour, Cm 8367 (May 2012)
used in reducing anti-social behaviour for both children and adults. We recommend that Acceptable Behaviour
Agreements, neighbourhood mediation and support for families is used in preference to coercive orders.
JUSTICE has long argued for such an approach, most recently in our report Time for a New Hearing which
details how restorative justice could be fully incorporated into the youth justice system of England and
Wales.29 We therefore welcome the focus in Part 6 of the draft Bill on restorative justice and out of court
disposals. In particular the Community Remedy has the potential to provide a positive means of addressing
anti-social behaviour outside of the court system. We await further detail as to how the government envisages
this being used in practice and look forward to commenting further.
8. We are disappointed that the government has not taken the opportunity in this draft Bill to conduct a
comprehensive reform of the anti-social behaviour regime. There is a lack of imagination and innovation in
the reforms and for the most part what has been proposed simply tinkers with labels, while framing the
proposed orders to cover even wider categories of behaviour than the existing measures. “Criminal Behaviour
Orders” and “Injunctions to Prevent Nuisance and Annoyance” risk creating individual community sentences
for people who have not committed any crime. “Dispersal Powers” will allow people to be dismissed from
public places without sufficient safeguards for people to express views and hold demonstrations, and could be
used inappropriately against protestors and young people.
9. All of the proposed powers are, we believe, likely to be used disproportionately against children and
young people and particular care is needed to avoid locking children into the criminal justice system as a
result. Evidence for this can be found in the current regime where 38% of anti-social behaviour orders have
been issued to 10–17 year olds, despite them comprising only around 13% of the population.30
Part 1: Injunctions to Prevent Nuisance and Annoyance
10. Part 1 of the draft Bill creates a new civil order to replace, inter alia, the Anti-Social Behaviour Order
on application (ASBO) issued under s1 Crime and Disorder Act 1998 (CDA), and the currently limited AntiSocial Behaviour Injunction (ASBI) pursuant to the Anti-social Behaviour Act 2003.
General concerns
11. We do not support the use of ASBO’s for under 18s and are therefore concerned at the proposed
continued application of the replacement Injunction to Prevent Nuisance and Annoyance (IPNA) to children
aged 10 to 17.
12. In their proposed form, the criminal standard of proof should apply to IPNAs, as should the guarantees
of a fair trial. This is because the injunctions are ASBOs in all but name but attract much milder behaviour,
without the safeguards that are currently available before the criminal courts and applying criminal evidential
standards. Unless our suggested amendments below were to be considered, in our view, the civil standard is
not appropriate and applications should continue to be dealt with before the criminal courts. Irrespective, the
defence of reasonable conduct available to defendants in response to an ASBO application should remain,31
to ensure an opportunity to explain any behaviour or conduct. Legal aid should also be available for
representation at the hearing, for both adults and children.
Applicants
13. We do not consider it appropriate for the police to be able to apply for a civil injunction.32 Police
officers have a unique responsibility to fight crime and should only engage these powers in the criminal context
and in relation to criminal conduct. If the government seeks to reduce anti-social behaviour by dealing with it
at a community level, it is not appropriate to involve police forces unless there is a breach. Moreover, the
inclusion of the police as applicants risks criminal conduct being included in an application for causing nuisance
and annoyance rather than being properly prosecuted through the criminal courts because the standard of proof
is lower and the evidential rules are not as restrictive. Where clear criminal conduct is alleged, this should be
properly investigated and prosecuted in accordance with fair trial standards.
Threshold Test
14. We welcome the move away from criminalising conduct which the IPNA provides, and that the
“detention” periods for breach would be shorter than those available in ASBO breach proceedings. However,
we are concerned that the IPNA would be available in circumstances where no pre-existing civil wrong has
been committed and that the scope of the order could result in wide-ranging restrictions upon a person’s
liberty which are both disproportionate to and insufficiently closely connected with the wrong giving rise to
the injunction.
29
30
31
32
JUSTICE and The Police Foundation, Time for a New Hearing (Independent Commission on Youth Crime and Antisocial
Behaviour, 2010) available at: http://www.justice.org.uk/data/files/resources/22/Time-for-a-New-Hearing.pdf
Ministry of Justice, Anti-Social Behaviour Order Statistics—England and Wales 2011 (2012), Table 1.
Pursuant to section 1(5) CDA.
Clause 4(1)(c) draft Bill.
15. We are concerned that the “nuisance or annoyance” test is far too low a threshold for their application.
Whilst this currently test applies in ASBIs,33 these are only available to social landlords and must relate to
housing management functions and behaviour against persons within that neighbourhood. Further, ASBIs only
allow prevention of engagement in conduct causing nuisance and annoyance. The proposed IPNAs would
afford wide ranging terms to be imposed for very broad types of behaviour occurring anywhere. The test of
“behaviour causing or likely to cause harassment, alarm or distress” which is currently applied for ASBOs
should continue to be applied for the proposed injunctions to ensure that minor problems are not brought into
the courts. Whilst nuisance and annoyance may be considered the appropriate test in housing related disputes
because people are in close proximity and affecting each other’s enjoyment of their private lives and property
rights, this is not the case for wide ranging anti-social behaviour.
16. Equally, a test of “necessity” as required for ASBOs34 should continue to be applied, to ensure that
courts assess whether the impact upon the Article 8 ECHR rights of the respondent is required in the
circumstances.
Duration
17. We are concerned that the Bill does not provide maximum durations for the IPNA implying that an
injunction can be effective indefinitely. Because these orders are more wide ranging and likely to be more
restrictive than other civil injunctions, in our view IPNA’s should last for a maximum of two years and should
be reviewable during that period. If they are created for under 18s (which we oppose) then they should be
available for a maximum of 12 months and should only be available in circumstances where informal support
and an acceptable behaviour agreement has been tried and failed.
Injunctive Terms
18. Clause 1(4)(b) of the draft Bill introduces positive requirements into the IPNA. It is our view that if
positive requirements are to be included in an order as non-specific and easily available as an IPNA, it is
essential that some limitations are placed upon the types of requirements that can be imposed and the degree
to which they can occupy the injunctee’s time and place restrictions upon his liberty, in order that individual
rights are protected, that they remain proportionate to the behaviour that they seek to prevent and that breach
does not become almost inevitable.
19. We note that clause 1(5) of the draft Bill places only limited restrictions on the range of positive
requirements that may be imposed. This list must be extended to include any caring obligations towards
children or dependants. We believe that legislation should specify the maximum number of hours per week
that positive requirements can take up and that positive requirements should last a maximum of two years for
adults and one year for children. We also consider that the types of requirements to be included should be
exhaustively identified in legislation.
20. Clause 2 sets out conditions for the imposition of a requirement, but in fact only seeks evidence about
suitability and enforceability to be given by the person or organisation responsible for supervising the
requirement, and other demands upon how they must carry out that function. We consider that the legislation
must expressly require the imposing court to be satisfied that a requirement is suitable and enforceable, bearing
in mind that positive requirements are always more intrusive than prohibitive ones, and more difficult to
formulate. Indeed, in order to comply with Article 8 ECHR, we consider a proportionality check must be
carried out by the court for the imposition of any term on the injunction, be it preventive or mandatory. The
current proposal does not require the court to do anything but assess whether the injunction is “just and
convenient” (clause 1(3)). The court must also be required to assess whether the terms of the injunction
are proportionate.
21. Although we support measures that may assist an injunctee to resolve underlying problems such as drug
dependency or anger management, we are concerned that positive requirements may be difficult for people to
comply with and that imposing such requirements may be setting people up to fail. We propose that, while
prohibitive elements should take into account the complainant, society and the injunctee, positive requirements
should be focussed on rehabilitation. Sufficient resources must be made available to ensure that the injunctee
can comply with the requirements that are imposed.
Sanctions for Breach
22. Whist we welcome the acknowledgment that children should be dealt with differently to adults in relation
to breach, we do not consider that detention should be available in any circumstances where children breach
an injunction. Equally we consider that the referral order is the most appropriate response to a breach rather
than moving immediately to a supervision order. Children in breach of an order need additional support, not a
draconian and criminal response.
33
34
Section 153A Housing Act 1996
Section 1(1)(b) CDA: “that such an order is necessary to protect relevant persons from further anti-social acts by him”.
Reporting restrictions
23. We share the concerns of the Standing Committee for Youth Justice (SCYJ) regarding the continued
presumption in favour of naming children subject to anti-social behaviour proceedings.35 The draft Bill states
that section 49 Children and Young Persons Act 1933, which restricts reports on proceedings in which young
people are concerned, does not apply to proceedings involving IPNAs or CBOs.36 Where there are proceedings
for breach of a CBO, the court is permitted to use its discretion to restrict reporting, but if it does, it must
provide reasons for doing so.37
24. Not only is this contrary to the approach in the youth justice system where young people are given
anonymity, it is our view that reporting is unnecessary and that the presumed justification that naming young
people would help members of the community spot and report anti-social behaviour is outweighed by the
detrimental impact upon young people and their rehabilitation. We support the SCYJ recommendation of a
total bar on the reporting of court proceedings involving persons under 18.
Part 2: Criminal Behaviour Orders
25. Part 2 of the draft Bill creates the Criminal Behaviour Order which a court can impose upon a person
convicted of any offence. This replaces the current post-conviction ASBO issued under s1C CDA.
General concerns
26. We are opposed to the creation of a Criminal Behaviour Order (CBO), and fail to see how the order is
necessary or appropriate in the criminal context. The use of post-conviction ASBOs has fallen in recent years
by almost two thirds from 2,271 in 2004 to 863 in 201138 and it can therefore be assumed to be of limited
effectiveness in comparison to the many community sentencing options available to the courts. The CBO would
become available because a person has been convicted of an offence; however it will not comprise the sentence
for the offence but rather an additional injunctive measure to the community sentence that will be imposed. In
our view, if the behaviour being targeted by the CBO forms the subject of the conviction, the existing
sentencing options available to a court are sufficient. If the behaviour is unconnected to the offence, then this
should be dealt with separately using an IPNA.
27. The CBO has, we believe, an undesirable mixture of criminal and civil aspects. Its name, the fact that it
becomes available because of a criminal conviction and the breadth of obligations and prohibitions that can be
imposed suggest that it is criminal in character; however, it is available on the civil standard of proof. We
believe that if the order is to be available in this form, the criminal standard of proof should apply as should
the guarantees of a fair trial in criminal proceedings pursuant to Article 6 ECHR.
Applicants
28. Although clause 21(7) provides that a court may make a CBO only on the application of the prosecution,
we are concerned that there is a risk that CBOs would be used by the police and local authorities as a means
of placing additional restrictions on individuals by the back door rather than following the application procedure
for an IPNA.
Threshold Test
29. The threshold for making a CBO is that the court a) is satisfied that the offender has engaged in behaviour
that caused or was likely to cause harassment, alarm or distress to a person, and b) considers that making the
order “will help in preventing the offender from engaging in such behaviour”. This test is broader than the
current power in which the court considers whether the order is “necessary to protect persons from further
anti-social acts by the offender”.39
30. We are concerned that the second limb of the test is much lower than the current threshold and is far
too vague to be a meaningful restriction on the making of such orders. The test of “necessity to protect persons”
is the appropriate test to ensure legal certainty and justification for the restriction, and should continue to apply
if CBOs are introduced.
Injunctive Terms
31. Clause 21(5)(b) of the draft Bill introduces positive requirements into the CBO. This again marks a
change from the current regime. We repeat our concerns outlined above with regard to positive requirements
in relation to IPNAs.
35
36
37
38
39
SCYJ, Written evidence on the draft Anti-Social Behaviour Bill, (2013), p.5 para.12, available at http://www.scyj.org.uk/files/
SCYJ_written_submission_on_ASB_Bill.pdf
Clauses 17 and 22(8)(a), draft Bill
Clause 28(6), draft Bill
Section 1C(2)(b) CDA 1998
32. Further, there should be no “double sentencing”—the CBO should be taken into account when calculating
the overall restriction on liberty imposed by a community sentence (which could encompass a curfew,
restraining or exclusion order and requirements to attend at a specific location), and CBO in total to ensure
proportionality. Moreover, its relationship with licence conditions if imposed in conjunction with a custodial
sentence should be considered so as to avoid duplication.
Children
33. We do not support the use of CBOs for children and young people under 18. They act as an accelerator
into the criminal justice system and therefore into custody. Recent data provided by the Ministry of Justice for
the period 1999 to 2011 reveals that the overall breach rate by children and young people subject to ASBOs is
68% compared to 52% of adults.40 Custody has been used as a sanction for breach by 10–17 year olds in
38% of cases.41 Moreover research published by the Prison Reform Trust highlights specific problems faced
by children and young people in complying with orders and the negative effects that breach has (including
accelerating them into custody).42 This is likely to occur with CBOs more than with post-conviction ASBOs
due to the inclusion of positive requirements which are likely to be more easily breached.
34. We believe that instead, informal measures such as Acceptable Behaviour Agreements and support for
children and families should be offered to prevent genuine anti-social behaviour. However, if CBOs are to be
used against defendants of this age then it is essential that their personal circumstances and care arrangements
are assessed before the order is imposed. The assessment should cover factors including (but not limited to)
mental health, learning and communication difficulties (all of which can affect ability to participate in the
proceedings, understanding of the order and ability to comply with its terms), parental supervision and home
environment.
Part 3: Dispersal Powers
35. The removal of the requirement in the Anti-Social Behaviour Act 2003 that a dispersal area should be
subject to a prior authorisation on the grounds of persistent anti-social behaviour and the link to alcohol in the
Violent Crime Reduction Act 2006 (both in themselves overbroad powers) means that this power could be
very widely and inappropriately used in violation of Article 11 ECHR (protecting freedom of assembly, and
requiring safeguards against arbitrary interferences with that right).
36. The new dispersal power enables a constable to direct a person to leave an area, in contrast to the current
prior authorisation requirement. The current regime requires the dispersal to be in the context of anti-social
behaviour that is a significant and persistent problem in the locality, whereas the proposed power would be
available simply in relation to members of the public being harassed, alarmed or distressed, or the occurrence
of crime and disorder. Without the existing parameters, the power available in the proposed amendments could
have wide ranging effect. Furthermore, inappropriate use of the power will be difficult to restrain because
subsequent litigation will depend upon funding arrangements and willingness of individuals to bring
proceedings. In any event, inappropriate use of the power will be difficult to prove because of the breadth of
the provision.
37. We do not consider that the power should be available to disperse the commission of general “crime”.
If a criminal offence has been committed for which the person is suspected, they should either be arrested and
conveyed to a police station for investigation, or summarily dealt with by an out of court disposal as
appropriate. The power should be limited to causing harassment, alarm or distress, or disorder in the locality.
Restrictions
38. In addition, the proposals would remove three safeguards available in the current regime which we
believe should be maintained:
40
41
42
—
A dispersal may not exceed 24 hours. There is no justification for extending a direction to 48
hours. Twenty-four hours is a sufficient period without evidence to demonstrate otherwise;
—
A public procession in accordance with s11 Public Order Act 1986 is exempt. Public
processions should be able to take place free from encumbrance to ensure that members of the
public can exercise their rights of freedom of expression and freedom of assembly, pursuant to
Articles 10 and 11 ECHR respectively;
—
Community Support Officers have powers of dispersal limited by the authorisation. Community
Support Officers should not be able to carry out law enforcement powers which require the
exercise of a broad discretion. This is a role for qualified police officers. If PCSOs are to
conduct this role, in our view it should continue to be under the current conditions.
Ibid, Table 12.
D. Hart, Into the Breach: the enforcement of statutory orders in the youth justice system, (Prison Reform Trust, 2011), available
at:
http://www.prisonreformtrust.org.uk/Portals/0/Documents/Into%20the%20Breach.pdf
39. Whilst the proposal includes a number of important restrictions in clause 32, which we welcome, we
would include a further restriction that the constable must not give a direction for a person or group to disperse
where a reasonable excuse has been put forward for their conduct. This would reduce the danger of arbitrary
use of the power, and ensure that the requirement of necessity43 is properly engaged.
Breach
40. We are particularly concerned that non-compliance with the new direction will constitute a criminal
offence and carry a maximum penalty of three months’ imprisonment. Given that the dispersal is an alternative
to pursuing a conventional response to offending, where a person returns and continues to commit the same
type of behaviour in spite of the dispersal power, they should then be processed or investigated for the offence.
If disorder is engaged, a penalty notice could be administered, pursuant to section 1 Criminal Justice and Police
Act 2001. This encompasses a wide range of disorderly conduct. For children and young people for whom
penalty notices are not appropriate; an out-of-court youth restorative disposal should be used. Anything more
serious should be properly investigated and charged if sufficient evidence of a crime is made out. We do not
consider it appropriate or necessary to create a new offence in this context with a custodial term attached.
JUSTICE
February 2013
Written evidence submitted by Bridget Phillipson MP [ASB 44]
Introduction
Anti-social behaviour can blight a community, making it difficult for residents to feel safe in their homes.
Around 3.3 million incidents of anti-social behaviour were recorded by the police in England and Wales in
2010–11.i During the same timeframe, there were 116,852 incidents alone in my own force area of
Northumbria.ii It’s vital that the police and other agencies have the powers at their disposal to act and prevent
these incidents from escalating.
The Conservative-led government has proposed changing the law for anti-social behaviour. The draft AntiSocial Behaviour Bill includes a number of wide ranging measures. For example it proposes to replace AntiSocial Behaviour Orders (ASBOs) with Crime Prevention Injunctions and introduce Community Protection
Orders.
As a member of the Home Affairs Select Committee conducting the pre-legislative scrutiny of the Bill, I’m
keen for the Committee to hear the experiences of those in my community who have been victims of antisocial behaviour. That’s why my office created www.antisocialbehaviourbill.com to provide local residents with
the means to respond directly to the committee’s inquiry.
The Home Office gave the Committee little over a month to conduct its inquiry. To fit into this tight deadline
this consultation was open for only seven days. However, the responses I received were very constructive and
are broken down in this document. I hope the real life experiences and opinions of those who are affected by
anti-social behaviour will help the Committee in its deliberations.
Note on the Consultation
The Home Office gave the Home Affairs Select Committee a very tight deadline to conduct the prelegislative scrutiny on the government’s draft Anti-Social Behaviour Bill. The Committee’s staff should be
commended for their hard work during this busy period.
The consultation on antisocialbehavourbill.com ran from Wednesday 23 January 2013 to Wednesday 30
January 2013. Participants were asked to comment on two aspects of the Committee’s terms of reference.
Specifically:
—
Whether the draft Bill would introduce more effective measures to tackle anti-social
behaviour; and
—
How the proposals will help victims of anti-social behaviour.
In addition, the consultation focused on the personal experiences of anti-social behaviour and what action
was taken to remedy the situation. In total 10 people took part and shared their personal experiences.
All submissions published in this report have been anonymised.
43
Clause 31(3), draft Bill.
Summary of Results
Experience of anti-social behaviour
Sixty per cent of people who responded to the survey experienced anti-social behaviour on a regular basis.
Here is a selection of their stories:
“Fly tipping is common in our vicinity- around and on Tunstall Hill.”
Mr Z
“Youths drinking lager/cider/cheap wine in the surrounding countryside (land between Hastings Hill
and Herrington). They smash bottles and litter the area with cans creating a no-go area for dog
walkers and the local residents. The same areas are regularly used by fly tippers. The majority of
the destruction and vandalism is carried away from view, so damage only becomes visible when we
pass through the area or when children and pets are injured.”
Ms L
“I feel I’ve lost everything as we had a home that would have been paid for. The costs with selling
at this time and having to me twice has wiped out everything we had worked hard for. I could sit
around and cry and everything I have lost, however I have gained two very happy boys. So not all
bad. It’s a real serious issue. As that tenant still lives very comfortable in her home and my children
have been moved all over just for the quiet life.”
Mrs A
“Since April 2010 we have had anti-social neighbours this involved loud shouting from adult and
children day and night very bad language all the swear words. Verbal abuse in street from children.
Vandalism to house, car, garage and garden.”
Mr M
“Daily problems of football outside of my house.on going for approx two years.young lad of about
13 yrs old + from 1 to 20 of his mates.constant noise of football being kicked,blasting ball off my
boundary wall,ball constantly hitting my windows and car.kids in and out of my gardens.rubbish
thrown into garden.this goes on from 10am-10pm weekends and holidays and from 3;30–10pm school
days. Police are not interested,stating unless they cause damage there not doing anything wrong.
Forced to leave my own house to escape it.”
Mr P
“My harrasment started simply because I got a new car in 2011 within two weeks the whole car
was covered in paintstripper we were devestated my partner at the time currenty had been in full
time employment and a unpaid carer, so all we wanted was reliability what it comes to when you.
Can’t get a new vehicle without your life being turned upside down we informed the police asap and
after a a wait we got a crime number that was it.”
Ms K
Types of incidents
The majority of anti-social behaviour suffered by those participating was visual eg an unacceptable levels
of rubbish in gardens or green area or graffiti. However, many had also suffered verbal abuse or damage to
home or property.
Reporting & confidence in results
Participants reported incidences to the police and/or Sunderland Council in 50% of cases. However, 40% of
incidents were not reported to either the police or local council.
Will the new laws have an effect
Eighty per cent of participants believe that either the government’s proposed changes to anti-social behaviour
laws “will not have an effect” or “did not know”. Fifty per cent said that victims would not feel that the new
measures would be an “appropriate response” or “would have a positive effect”.
Increased powers to evict those in private rented accommodation
All participants supported more controls on the private rented sector to allow problem tenants to be evicted.
Overall Answers in Detail
Q1: In the last 12 months have you suffered from anti-social behaviour?
Personal stories of those who have suffered from anti-social behaviour:
“Gangs of young teenagers congregating on corners and on parking areas opposite my home which
is particularly worrying when members of my family have their cars parked there.”
Ms S
“Fly tipping is common in our vicinity- around and on Tunstall Hill. Also I recently saw 2 men
acting suspiciously near our house, then saw that licence plates had been stolen from our neighbour’s
car, and contacted police (so I didn’t suffer myself).”
Mr Z
“Youths drinking lager/cider/cheap wine in the surrounding countryside (land between Hastings Hill
and Herrington). They smash bottles and litter the area with cans creating a no-go area for dog
walkers and the local residents. The same areas are regularly used by fly tippers. The majority of
the destruction and vandalism is carried away from view, so damage only becomes visible when we
pass through the area or when children and pets are injured.”
Ms L
“Hi Bridget I contacted you a while ago about my neighbour she harrassed my family for 10years.
It came to the point where she was targeting my children to the point they were prisoners. The
housing association that provided her accommodation were not helping at all. Finally after a lengthy
fight we sold our home to be re housed by a housing association so our children could be safe and
have the freedom they deserved. I feel I’ve lost everything as we had a home that would have been
paid for. The costs with selling at this time and having to me twice has wiped out everything we had
worked hard for. I could sit around and cry and everything I have lost, however I have gained two
very happy boys. So not all bad. It’s a real serious issue. As that tenant still lives very comfortable
in her home and my children have been moved all over just for the quiet life. Never mind the fact
there uni funds have now gone too.”
Mrs A
“The problem in our area, Washington, Tyne and Wear is general anti-social behaviour. Playing
football and car parks and using the bus shelters as goals! Display standard and ordinary fireworks
let off dangerously and inappropriately at all hours, often in daylight, between mid October and end
of January. Underage drinking in local parks resulting in broken glass, vandalism and littering of
the entire area from fast food containers, plastic bottles and cans. The same ‘gangs’ gathering in
subways and, not infrequently, lighting fires to keep warm. They also make ‘picnic areas’ for their
little parties with supermarket trolleys and wheelie bin boxes for seats! Small drug packets left
discarded and other drug taking paraphanalia such as home made glue sniffing equipment (or
whatever else they inhale). As dogwalkers we are repelled by the increasing amount of unpicked up
dog waste that the dog owner should pick up. Singly these are all low levels of crime but combined
and perpetrated on a daily basis lead to a general depreciation in the quality of local life. Add to
this that you are made to feel that when you report these incidences to the council or police, spending
a long time giving your own personal details before talking about the incident, that you are a
nuisance and making a fuss, you wonder why you bothered.”
“Since April 2010 we have had anti-social neighbours this involved loud shouting from adult and
children day and night very bad language all the swear words. Verbal abuse in street from children.
Vandalism to house, car, garage and garden.”
Mr M
“Daily problems of football outside of my house on going for approx 2 years. Young lad of about 13
yrs old + from 1 to 20 of his mates. Constant noise of football being kicked, blasting ball off my
boundary wall, ball constantly hitting my windows and car. Kids in and out of my gardens. Rubbish
thrown into garden. This goes on from 10am-10pm weekends and holidays and from 3:30–10pm
school days. Police are not interested, stating unless they cause damage there not doing anything
wrong. Forced to leave my own house to escape it. Turned to Sunderland council anti social team
who didn’t do anything until I told them I had health problems. Council eventually had a word with
kid’s mother and things have been better, so far. If his mother had refused to co operate with the
council I was informed there was little they could do. So basically a 13 year old kid has more rights
than me and can make my life a living hell.”
Mr P
“My harrasment started simply because I got a new car in 2011 within two weeks the whole car
was covered in paintstripper we were devestated my partner at the time currenty had been in full
time employment and a unpaid carer, so all we wanted was reliability what it comes to when you.
Can’t get a new vehicle without your life being turned upside down we informed the police asap and
after a a wait we got a crime number that was it. Also from this incident the things that have
happened have had a dramatic effect on my life nusiance from children , people coming to your
house deliveries phonecalls etc dead birds people throwing stuff and damaging car nails were put
in also numerous reports to benefit fraud hotline and housing saying I’m commiting fraud and
malicious activity the list goes on. I’m a disabaled person to look at me people may assume theres
nothing wrong but I have a number of compex issues this anti-social behaviour at first affected my
sleep relationships with people then it’s had a massive effect on mental health which has caused
physical problems to flare up I felt ashamed frightened to go out because of people staring, shouting
etc frightened to get help then I was made to feel as if I was a benefit cheat where the current benefit
system woud not listen to me the stress from believing nasty malicious people and not giving me a
chance led me to have a nervous breakdown I am still trying to get rehoused and live in fear everyday
it’s not fair. Also I know of some people who have used mediation to look like they are cooperating
with housing etc then attack the person more caused they have used this route, some things can be
sorted out but other things really need to be thought about as the person suffering is at risk and it
does not stop when the anti-social behaviour stops for a while we have to live with it every day .
However I must thank my local MP who I went to as I felt a if I was backed into a corner and
nobody would listen never mind having to prove my innocence this helped me explore diffrent options
that I did not some where avaliable also if peope see police at your house a lot of people think you
are complaining and you get more anti-social behaviour it’s just not fair I still think the people who
do this get away with far to much but is the system at fault as well. I understand peope do things
underhand and should not be on benefits but the system in place have a think about how the criminal
uses this to attack the victim as when this was happening I had no where to go not everyone will
contact police, MP etc and there’s far too many people suffering in silence.”
Ms K
Q2: If you have suffered an incident of anti-social behaviour did you involve the police or local council in
try to resolve the matter?
Q3: If you did involve the police or council how satisfied were you with the way it was dealt with?
Q4: In the last 12 months have you seen any of the following in your neighbourhood?
Q5: What impact do you think the government’s draft proposals for anti-social behaviour would be enough of
a deterrent if made law in its current form?
Q6: Would victims of anti-social behaviour feel these new proposals would be an appropriate punishment for
offenders if made law in its current form?
Q7: Those who commit anti-social behaviour and live in housing provided by a housing association or the
local council can be evicted if they persist in their behaviour. Should there be more controls in the private
rented sector?
Endnotes
i
Home Office, Statistical Bulletin, Crime in England and Wales 2010–11, p.21 http://www.homeoffice.gov.uk/
publications/science-research-statistics/research-statistics/crime-research/hosb1011/hosb1011?view=Binary
ii
Home Office, Crime Research, Table 15 Anti-social behaviour incidents (non-National Statistics)1, by police
force area, English regions and Wales, http://www.homeoffice.gov.uk/publications/science-research-statistics/
research-statistics/crime-research/hosb1011/
Bridget Phillipson MP
Labour Member of Parliament for Houghton and Sunderland South
Member, Home Affairs Select Committee
Written evidence submitted by the Office of the Children’s Commissioner [ASB 45]
Office of the Children’s Commissioner
The Office of the Children’s Commissioner is a national organisation led by the Children’s Commissioner
for England, Dr Maggie Atkinson. The post of Children’s Commissioner for England was established by the
Children Act 2004. The United Nations Convention on the Rights of the Child (UNCRC) underpins and frames
all of our work.
The Children’s Commissioner has a duty to promote the views and interests of all children in England, in
particular those whose voices are least likely to be heard, to the people who make decisions about their lives.
She also has a duty to speak on behalf of all children in the UK on non-devolved issues which include
immigration, for the whole of the UK, and youth justice, for England and Wales. One of the Children’s
Commissioner’s key functions is encouraging organisations that provide services for children always to operate
from the child’s perspective.
Under the Children Act 2004 the Children’s Commissioner is required both to publish what she finds from
talking and listening to children and young people, and to draw national policymakers’ and agencies’ attention
to the particular circumstances of a child or small group of children which should inform both policy and
practice.
The Office of the Children’s Commissioner has a statutory duty to highlight where we believe vulnerable
children are not being treated appropriately in accordance with duties established under international and
domestic legislation.
The United Nations Convention on the Rights of the Child
The UK Government ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991.44
This is the most widely ratified international human rights treaty, setting out what all children and young people
need to be happy and healthy. While the Convention is not incorporated into national law, it still has the status
of a binding international treaty. By agreeing to the UNCRC the Government has committed itself to promoting
and protecting children’s rights by all means available to it.
The legislation governing the operation of the Office of the Children’s Commissioner requires us to have
regard to the Convention in all our activities. Following an independent review of our office in 2010 we are
working to promote and protect children’s rights in the spirit of the recommendations made in the Dunford
report and accepted by the Secretary of State.
In relation to the current consultation, the articles of the Convention which are most relevant to this area of
policy are:
Article 3: The best interests of the child shall be a primary consideration.
Article 12: Right to express an opinion and be taken seriously.
Article 16: Right to privacy.
Article 19: Right to be properly cared for and protected from violence, abuse and neglect.
Article 28: Right to education.
Article 24: Right to health and health services.
Article 37: Right not to be treated cruelly if they break the law. Loss of liberty should be a measure
of last resort and for the shortest possible time.
Article 39: Children who are abused or neglected should receive special help to promote and assist
their recovery.
Article 40: Children should only be imprisoned for the most serious offences and be treated in a
manner which promotes their dignity and self-worth. A variety of dispositions should be used to
avoid institutional care.
Specifically, Article 40 states as follows: States Parties recognise the right of every child alleged as, accused
of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of
the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental
freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s
reintegration and the child’s assuming a constructive role in society.
Furthermore Article 40 specifies that the child must “have his or her privacy fully respected at all stages of
the proceedings”.
The response below has therefore been drafted with these articles in mind. We do not propose to respond
separately to every consultation question. Rather, we will respond where we feel the UNCRC gives us a locus
to do so, and where our existing evidence base gives us a perspective.
The OCC notes that the UNCRC requires that “the child, by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal protection, before as well as after birth” and is
concerned that the provisions in this Bill are not compliant with these standards.
The profile
—
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of children in custody is as follows:
60% have suffered maltreatment.
50% have problems with peer & family relationships.
66% come from broken families.
33% have been in care.
75% have a history of school exclusion.
33% have severe and complex mental health problems.
25% have learning disabilities.
30% have a physical disability.
More than 50% have communication and literacy problems.
A high proportion have a history of drug and/or alcohol abuse.
There have high levels of other health problems.
The Office of the Children’s Commissioner (OCC) recognises that antisocial behaviour causes serious harm
to individuals and communities and that, for the good of individuals and society, such behaviour must be
addressed through robust and effective measures. However these must be proportionate and recognise the
unique vulnerabilities inherent to children. Most particularly, measures to address antisocial behaviour (ASB)
44
You can view the full text of the United Nations Convention on the Rights of the Child on the Office of the United Nations
High Commissioner for Human Rights website at: http://www2.ohchr.org/english/law/crc.htm. A summary version, produced by
UNICEF, is available at: http://www.unicef.org/crc/files/Rights_overview.pdf
by children need to recognise that children who engage in ASB have typically suffered significant disadvantage
including serious maltreatment and/or neglect in their early life experiences.
Research conducted for the OCC into the incidence of neurological disorders amongst children in trouble
with the law provided evidence that 20–40% had Attention Deficit Hyperactivity Disorder (ADHD).45
The OCC therefore does not believe that the measures proposed in the Bill are useful tools for responding
to children’s ASB as they fail to adequately recognise the specific needs of children and to properly differentiate
between children and adults in terms of the proposed arrangements and legislation.
The OCC is therefore concerned that the new powers—principally the injunction and Criminal Behaviour
Order (CBO)—will have a disproportionate and counterproductive impact on children. Similar such tools have
been used excessively on children, for example 40% of ASBOs are issued to 10–17 year olds, despite them
comprising only about 13% of the population.46
These formal powers have been shown to be ineffective by the very high breach rate (68% compared to
50% of adults47) by children subject to ASBOs. The consequent use of custodial sentences as a sanction for
juvenile ASBO breach in 40% of cases—a method widely shown to be counterproductive and particularly
harmful for young offenders48—points to such orders facilitating entry into the youth justice system rather
than addressing problem behaviour.
How the New Measures would affect Young People in Particular
The new orders should not apply to under-18s. Children’s ASB would be most effectively addressed using
the methods of restorative justice, welfare measures and out-of-court disposals. An out-of-court approach
comprising informal remedies and provision of early help, as well as formal measures, such as warning letters
and non-binding Antisocial Behaviour Contracts (ABCs) accompanied by support to address the underlying
causes of the behaviour would render civil orders unnecessary. More serious (ie criminal) behaviour could and
should be dealt with by means of youth justice court disposals.
We note that the new powers are proposed in the context of reductions in youth service provision making
the successful attachment of positive requirements more challenging. Furthermore, the inconsistent provision
of positive activities across England and Wales means there is likely to be a postcode lottery in the use of
positive requirements attached to orders. If ASB is to be dealt with effectively, suitable provision to support
positive requirements must be made available universally.
There remains a real risk, given that children who get involved in ASB suffer disproportionately from
neurological disorders and difficulties, that the likelihood of breaches will be exacerbated the more requirements
that are attached. The more complex the demands, the greater the risk of failure. There also remains little
information about how agencies will identify which requirements are appropriate. Positive requirements must
be carefully matched to need and every effort should be made to support the child in complying.
If the new orders do apply to children, the OCC recommends that there are separate guidelines on the
inclusion of prohibitions for under-18s. Given the high breach rates of ASB orders by this age group and the
consequent implication that prohibition-focussed elements are ineffective at addressing their behaviour, such
options should only be included as a last resort and for the most serious antisocial behaviour.
It is our view that custody cannot be justified as a sanction for breaching orders that are imposed for noncriminal behaviour. We note that all three of the key orders—the injunction, the CBO and the dispersal power—
carry a (maximum) penalty of imprisonment for non-compliance (three months, five years and three months,
respectively). This applies equally to both children and adults and as such is unacceptable. For the reasons set
out above, this is likely to be disproportionately punitive to children who are at greater risk of being targeted
by such measures and suffering disproportionately as a result. We are particularly troubled by the proposal that
breach of a CBO should carry a (maximum) penalty of imprisonment for five years. Only the most serious and
dangerous young offenders receive custodial sentences of over two years in the youth court. The sanction
proposed here is therefore totally disproportionate and in violation of Article 40 UNCRC.
The OCC considers it to be wholly unacceptable that children should be subject to injunctions of indefinite
duration. Neither do we support—in relation to the CBO—the minimum duration of one year and maximum
length of three years for under-18s. No minimum duration should be specified and an order should last no
more than one year. Long-lasting ASBOs have been criticised for making breach “almost inevitable” as young
people cannot see the end in sight and thus have little incentive to comply.
UNCRC Article 37 states: The arrest, detention or imprisonment of a child shall be in conformity with the
law and shall be used only as a measure of last resort and for the shortest appropriate period of time. We
consider the proposals to represent a potential violation of Article 37.
45
46
47
48
Dunn D W, Austin J K, Harezlak J, Ambrosius W T (2003). ADHD and epilepsy in childhood. Developmental Medicine and
Child Neurology. 45:50–54 (cited in Nobody made the connection (2012), OCC).
Ministry of Justice (2011). Statistical Notice: Anti-Social Behaviour Order (ASBO) Statistics England and Wales 2010, p2
Ibid, p2
See for example, Smith D (2010). A New Response to Youth Crime, Devon: Willan Publishing, pp12–13; and Nagin D et al
(2009), “Imprisonment and Reoffending” in M Tonry (ed) Crime and Justice: A Review of Research, vol 29, p145
We are concerned that the draft Bill provides for the “naming and shaming” of children subject to
proceedings. In so doing, an opportunity has been missed to address this harmful and counterproductive trend.
In the case of both the injunction and the CBO, the restrictions on reporting proceedings in which children are
involved do not apply. This proposal represents potential violations of Articles 16, 37 and 39 UNCRC.
“Naming and shaming” contravenes the anonymity that is usually granted to children in criminal proceedings
which is unacceptable and can be further damaging to the child by preventing or hindering successful
rehabilitation. We strongly recommend that that there is a total bar on the reporting of court proceedings
involving persons under 18. This should apply to mainstream and social media.
With regards to breach proceedings for a CBO, the court is afforded the power to restrict reporting of
proceedings involving under-18s. However, worryingly, if the court chooses to do this (ie restricts reporting) it
is required to explain its reasons for doing so.
Should the inclusion of under-18s in the new orders go ahead, we are pleased to see that the Bill requires
the prosecutor to find out the views of the local Youth Offending Team (YOT) prior to applying for the order.
The OCC also supports the decision that ASB proceedings involving children will be heard in the youth court.
The OCC believes there is a real risk that the new orders may be used as a more easily obtainable alternative
to criminal justice orders. This is because, as detailed below, the new orders do not have the same protections
(ie they are issued on the basis of a lower standard of proof) as are available in criminal law, yet they comprise
equally, if not more, demanding requirements.
This is particularly worrying given the severe custodial penalties for noncompliance attached to the new
orders. This could be mitigated against by ensuring that the processes for granting the new civil orders are
subject to the same procedural safeguards bestowed on criminal law.
The Injunction
The OCC believes that the adoption of the lower threshold of “causing nuisance and annoyance” as the test
for the injunction to be granted will have a particularly detrimental effect on children. The existing test—
”harassment, alarm and distress”—is already low and has the scope to encompass a wide range of behaviour.
Lowering the threshold risks widening the net of individuals subject to ASB orders. There is evidence to
suggest that this might disproportionately affect children. For example, the British Crime Survey has shown
that “teenagers hanging around” has been the issue that generates the most continuous concern amongst the
public.49
Similarly, the Children’s Society reported that there are “many cases in which complaints about ASB have
turned out to be general intolerance for young people…playing football in the park and spending time with
friends”.50
We remain seriously concerned that granting an injunction will only require the civil standard of proof—
balance of probabilities—to be met, rather than the Provided for Section 49 of the Children and Young Persons
Act 1933 more rigorous, currently-used criminal standard test, “beyond reasonable doubt”. We view this as all
the more problematic given that imprisonment is available as a sanction for breach by children.
The reform also contravenes the principle of the 2002 House of Lords judgement (see R on behalf of
McCann v Crown Court at Manchester) that the criminal standard of proof should be used in ASBO cases,
even though they are civil proceedings.51
We oppose the provision under s18 (2) to allow the transfer of cases from the youth court to the high court
if the young person turns 18 after the commencement of proceedings. Children are tried under youth court law
if they have committed the offence as child; the arrangements for ASB proceedings should be no different.
The Criminal Behaviour Order (CBO)
18. We question the use of CBOs at all; the criminal order of the court to which they are added and the
associated powers of the court should be sufficient to address the problematic behaviour. Furthermore, imposing
two orders simultaneously arguably comprises disproportionate sanctioning and risks setting children up to fail.
A child who has both a CBO and a youth court order or a conditional caution could feasibly be subject to
different demands or conditions potentially of a conflicting nature.
We note that breach of an injunction does not comprise a criminal offence, whereas breach of a CBO does.
49
50
51
Moon et al (2009) cited in Pople L (2010), “Responding to antisocial behaviour” in D Smith (ed), A New Response to Youth
Crime, Devon: Willan Publishing pp150151
Children’s Society (2011), The Children’s Society’s response to the Home Office consultation “More Effective Responses to
Anti-Social Behaviour”, p5
McCann (2002) cited in Pople L (2010), “Responding to antisocial behaviour” in D Smith (ed) A New Response to Youth
Crime, Devon: Willan Publishing, p158
The Community Remedy
The OCC believes that wherever possible, children exhibiting ASB should be dealt with outside of the
formal court system. They need targeted help to address their ASB in addition to the other challenges they
face such as illiteracy, innumeracy and psychological assessment and support for mental health needs. However
the informal approach offered by the community remedy has the potential to result in unduly punitive sanctions
being imposed. Although the Bill requires that the constable must be satisfied that any action chosen by the
victim is reasonable and proportionate to the behaviour committed, we do not consider this to be a sufficient
safeguard.
The New Police Dispersal Power
The current dispersal powers have been most commonly used in relation to young people. Although such
tools can provide respite from problematic behaviour, the research evidence indicates that the powers often
only serve to displace the activity to nearby areas.52
We are therefore concerned that the new single directions power, despite being designed to be quicker and
easier to use, remains an ineffective response. The new power is all the more worrying in that non-compliance,
unlike the current dispersal order, carries a maximum penalty of three months’ imprisonment. As young people
are most frequently the target of such powers, this is likely to impact disproportionately on this group. If this
power is made available for under-18s, there should be rigorous monitoring of their use, their rate of breach
by under-18s and the resulting use of custody for this age group. This information should be made publically
available.
We are supportive in principle of affording officers the power to return children under the age of 16 home
or to a place of safety. However, we are concerned that such powers could result in children being returned to
abusive or unsafe environments, thus placing them in greater danger. We do not consider this risk to have been
sufficiently addressed either by this Bill or the preceding White Paper. Without proper safeguards in place, this
is unacceptable.
The Office of the Children’s Commissioner
February 2013
Written evidence submitted by the Norfolk County Community Safety Partnership [ASB 46]
ANTI-SOCIAL BEHAVIOUR BILL, DEC 2012, CM 8495
COMMENTS FOR PRE-LEGISLATIVE SCRUTINY BY HOME AFFAIRS SELECT COMMITTEE
General
Overall the bill introduces some useful changes particularly the reduced burden of proof in some
interventions, which will allow agencies to take swifter action particularly through the courts.
In this respect the proposals, if enacted will allow agencies to respond to the needs of victims more
effectively.
With public sector budgets reducing and organisations contracting the ability to respond within the spirit of
the bill are reducing. For example, the approved courses identified for perpetrators through the criminal
behaviour order appears to be a useful proposal, but opportunities and resources to develop these will be
challenging.
The bill indicates that as well as responding to the needs of victims it also seeks to develop sustainable
solutions. However, many of the proposals focus on seeking short term fixes rather than longer term solutions.
This is one specific criticism of the draft bill as it stands.
The comments of Norfolk CCSP on each section of the bill are described below.
Comments by Section of the Bill
1. Crime prevention injunction (CPI)
This is similar to the current anti-social behaviour injunction (ASBI) which it replaces and which has been
used effectively across Norfolk.
This is a useful introduction. There are good arrangements across Norfolk to monitor this type of intervention
via a multi-agency anti-social behaviour action group (ASBAG) which oversees high risk ASB cases in each
district, with local working through a joint Police/Council operational partnership team.
Section 12 (1)—the extension of the power to exclude persons from their home address should be regardless
of tenure ie not just social housing tenants.
52
Crawford and Lister (2007), cited in Pople L (2010), “Responding to antisocial behaviour” in D Smith
Section 14(1) (b)—the notification of when an injunction is applied for should remain as it is with the ASBI,
ie the local authority, police and youth offending team if an individual is under 18. The proposal to inform any
other body is too broad unless it is clearly at the discretion of the lead agency.
There is an issue about how positive activity can be resourced as funding that was previously supporting
these types of activity is reducing.
Consideration needs to be given to the practical arrangements for dealing with breaches of an injunction
with the power of arrest (POA). Current experience with ASBIs indicate that the District Judge expects to hear
the breach as soon as the offender is presented. This presents a whole host of problems from availability of
legal services to prosecute, through to availability of arresting officers and witnesses. This situation can result
in not seeking a POA on ASBIs, but instead seeking a stand-alone ASBO if it is thought that there is a high
likelihood of breach (arresting for breach of ASBO/CRASBO enables bailing to a later court date, providing
time to prepare the evidence file and schedule witnesses etc). Once the new legislation comes into effect this
could make the CPI unworkable very quickly or reduce their scope as the POA option is not used. This will
reduce the effectiveness of preventing repeat victimisation.
2. Criminal behaviour orders
Few ASBOs have been sought in Norfolk, in part because of the level of burden of proof required. The
ASBI is more flexible and the burden of proof is less.
The criminal Behaviour Order proposed is similar to the existing ASBO available on conviction. There is a
new element for the upper tier authority—the County Council in Norfolk—to approve courses for offenders to
complete. The proposal for an order to end if an offender attends an approved offender course is positive.
However, this is a new requirement that is financed by the ability under the bill for councils to charge fees
for approving courses. It is unclear whether the fees chargeable will be sufficient to cover the costs involved.
The inclusion of positive conditions in orders should help in getting people with mental health issues that
are driving offending to engage with services. Currently, securing a diagnosis in the first place seems to be an
enormous hurdle and perhaps the positive conditions of the new orders to engage in services will help, but
equally magistrates courts are: a) inhibited when adjourning for assessment because of cost and b) when finance
has been secured are not allowing for that to take place and then sentencing without it.
Breaches of orders must be dealt with robustly—this should not use informal measures or out-of-court
disposals. These approaches are already likely to have been used in reaching the point where an order has been
necessary. Revisiting these approaches is entirely inappropriate, particularly where there is repeat victimisation.
Courts and CPS need to full account of victim impact statements and revisit why the order was made in the
first place.
There is no mention in the draft legislation of Victim Impact/Community Harm Statements. These are already
used in Norfolk, but our experience is that they are not regularly considered and decisions may be based on
convictions only. In some cases the CPS is unwilling to ask for an order when a guilty plea has been made
because of the adjournment necessary if an order is contested.
3. Dispersal powers
These are similar to the current dispersal order except the power rests solely with the police unlike the
current order which requires local authority endorsement and the current order can last for a longer period.
The contention that the Police & Crime Commissioner (PCC) is in a position to provide democratic oversight
is not accepted. It is suggested that endorsement is sought from district councils to reflect their wider wellbeing role given that the power is unlikely to be used lightly and there may be wider community issues that
need resolving.
4. Community protection
This appears to be a flexible and practical intervention that can be used in place of the Environmental
Protection Act (EPA) where this is not effective. The potential new powers are relatively unrestricted and
unspecific, giving councils flexibility to decide how to use them.
Because the potential new powers create an arrestable offence, it extends current powers and could help
speed up the time taken to deal with offences.
On the face of it this is a welcome additional flexible power to tackle ASB in the community. There is still
a requirement to give a written warning to the perpetrator prior to issuing the notice, so this may not be as
speedy as hoped.
The power to issue community protection notices and public spaces protection orders may allow positive
action to be taken for matters that have previously fallen out of the scope of the EPA, but generate many
complaints, ie rowdy residential behaviour, skateboarding in civic spaces etc.
Closure notices and orders
Closure notices could provide a useful and swift intervention but the need to show reasonable effort in
contacting occupiers/owners may restrict its usage. Sometimes premises need to be shut down immediately
for the protection of the public, so the process should not be delayed and this should be clarified in any
subsequent guidance.
It is recommended that closure orders should be heard in County Courts, in effect becoming a “one stop
shop” rather than the magistrates court.
5. Recovery of possession of dwelling houses—anti-social behaviour grounds
The intervention in itself does not necessarily resolve any ASB issue and should be used proportionately as
it risks displacing an issue.
In addition:
— a serious offence in this section needs to be defined;
— the locality requirement could include other serious offences, not just rioting, eg rape,
domestic abuse;
— the use of introductory tenancies is proving useful in managing new tenants who are
perpetrating ASB; and
— the legislation should define how it interacts with homelessness duties.
6. Local involvement and accountability
Community Remedy
Local authorities should be formally consulted by the PCC on the community remedy. The PCC should take
the views of local authorities into consideration before the Community Remedy is published for consultation.
Community triggers
Specific comments include:
— the bill should define at what council area the trigger should be developed in two tier local
government areas—is it at district or county level?
— Is it anticipated that the PCC will sign off or endorse the community trigger, given that the
PCC will be consulted on the outcome of each review?
— The trigger needs to be flexible enough to recognise that an individual who triggers a review
may be part of a neighbour dispute and equally responsible for the anti-social behaviour.
Norfolk County Community Safety Partnership
February 2013
Written evidence submitted by Liberty [ASB 47]
Introduction
1. The Draft Anti-Social Behaviour Bill was published in December 2012 for pre-legislative scrutiny by the
Home Affairs Select Committee following a Home Office consultation53 and White Paper54 on reforming the
framework for dealing with anti-social behaviour. The Draft Bill broadly incorporates the proposals in the
preceding consultation and White Paper as well as proposals to extend eviction powers contained in a
Department of Communities and Local Government consultation in 2011.55 The Draft Bill also contains
proposals on a new “community remedy” which, confusingly, the Home Office is still consulting on.56
2. Created under the Crime and Disorder Act 1998, Anti-Social Behaviour Orders (ASBOs) have now been
in force for well over a decade. Over that time, many other civil orders—intended to catch activity as diverse
53
54
55
56
More effective responses to Anti Social Behaviour, Home Office, February 2011 available at: http://www.homeoffice.gov.uk/
publications/consultations/cons-2010-antisocial-behaviour/asb-consultation-document?view=Binary.
Putting Victims First—More Effective Responses to Anti-Social Behaviour, White Paper, Home Office, May 2012, available at:
http://www.official-documents.gov.uk/document/cm83/8367/8367.pdf.
A New Mandatory Power of Possession for Anti Social Behvaiour, Department for Communities & Local Government, August
2011, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/8460/1959275.pdf.
Community Remedy Consultation, Home Office, December 2012 available at: http://www.homeoffice.gov.uk/publications/aboutus/consultations/community-remedy-consultation/?view=Standard&pubID=1143402
as suspected terrorism to bad parenting—have been created and legislated for. These include among other
things, control orders; terrorism prevention and investigation measures orders; intervention orders; crack house
closure orders, premise closure orders, brothel closure orders; gang-related violence injunctions; designated
public place orders; special interim management orders; gating orders; dog control orders; letter clearing
notices; noise abatement orders; graffiti/defacement removal notices; directions to leave; dispersal orders etc.
3. We had hoped, following the Home Secretary’s announcement of a review in July 2010, that the
Government would undertake a comprehensive evaluation of the ASBO and other civil orders; reviewing the
practical experience to date, the underlying principles of the legislation and producing reasoned conclusions
about what has and hasn’t been effective. In our view, a review of the ways in which these orders operate,
their effectiveness and potential replacement is long overdue. Sadly, while the Home Office consultation
document presented some alarming statistics about the failures of the current regime; its assumptions,
conclusions and stated objectives lacked any kind of genuine new thinking in this area. The greatest
preoccupations of the document were the perceived bureaucracy of the current system; the complications
inherent in the sheer number of civil orders now available to public bodies; the desire to create a less centralised
system; and the belief that the current penalties for breach are not tough enough.
4. The proposed remedy is a simplified system containing fewer specific orders which will be framed to
cover even wider categories of behaviour and activity. The new framework will contain fewer “bureaucratic”
safeguards that have previously protected against the most unfair, arbitrary and perverse aspects of the policy;
will impose more onerous positive activity requirements on those affected and will attract tougher sanctions
for breach.
5. Liberty’s concerns over the use of ASBOs and other similar orders are well-documented. We believe that
many of them dangerously blur the distinction between serious criminal activity and nuisance; create
personalised penal codes that set the young, vulnerable or mentally ill up to fail; and are open to inappropriate
use and contrary to their original policy intention, have the effect of fast-tracking individuals into the criminal
justice system rather than diverting them away. Indeed, the experience of the past 13 years and the statistics
presented in the consultation document, and gathered since, support our concerns which we elaborate on
further below.
6. While reform of the current regime is badly needed, Liberty urges the Government not to press ahead
with the ill-thought through reforms outlined in the Draft Bill. The proposed system contains most of the
faults and weaknesses of the current regime and, by removing certain safeguards, will likely lead to even
greater unfairness.
ASBOs: The Story so far
7. When the Crime and Disorder Act 1998 was passed, the ASBO was intended to be the targeted response
to a specific problem. It would be used to address difficulties faced by individuals in using traditional civil law
remedies to deal with social problems, such as an injunction to prevent anti-social behaviour. Instead the State
would take action on the individual’s behalf through a specific civil order—the ASBO—breach of which would
be a criminal offence. Since then the creation of new types of civil order seems to have been the Government’s
answer to nearly every social disorder problem. There has been a persistent blurring of what constitutes criminal
activity and a move away from the criminal justice system as the mechanism for imposing increasingly
punitive sanctions.
8. As the Home Office consultation fleetingly recognised, the breach rate for ASBOs is incredibly high and
particularly high in relation to children. Of the 21 645 ASBOS issued between 1 June 2000 and 31 December
2011, 57.3% were breached at least once with 42.9% breached more than once.57 By the end of 2011, juveniles
accounted for 37.7% of all ASBOs issued and for 44.9% of all ASBOs breached.58 Of the ASBOs breached,
52.7% of individuals were given an immediate custodial sentence with an average custodial length of 5.1
months.59 Juveniles on average received 6.3 months in custody for breach of an ASBO compared with 4.8
months for adults.60 The disturbingly high and consistent breach rates for ASBOs, and the custodial
repercussions for children, amount to an ongoing failure of public policy.
9. In addition to unsettling Government statistics on breach and custodial consequences, examples abound
of unrealistic and at times farcical restrictions being imposed via the ASBO. While this is unfortunate, it is not
unsurprising. As the consultation identified, the term “anti-social” behaviour “describes a range of every day
nuisance, disorder and crime, from graffiti and noisy neighbours to harassment and street drug dealing” and
the range of restrictions that can be imposed under an ASBO are limitless. This lack of statutory guidance has
inevitably led to the overuse and misuse of the tool. Indeed there are frequent reports in the media of bizarre
orders being imposed for behaviour that has been deemed to fall within the statutory definition such as bans
on “sarcasm” or answering the door while wearing only underwear. By way of example, in 2010 a man from
57
58
59
60
Statistical Notice: Anti Social Behaviour Orders Statistics England and Wales 2011, Ministry of Justice, October 2012, available
at
http://www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/crime-research/asbo-stats-englandwales-2011/asbo11snr?view=Binary.
Ibid.
Ibid.
Ibid.
Loch Ness, appeared in court in breach of an ASBO that banned him from laughing, staring or slow-clapping61
and in 2008, a 99-year ASBO was given to a 49 year old homeless alcoholic who suffered from mental health
problems.62 In 2004 an ASBO was given to a profoundly deaf 17 year old girl for spitting in the street. She
subsequently breached her ASBO and was given a custodial sentence.63 Also in 2004, a 13-year-old was
banned from using the word “grass” anywhere in England or Wales.64
10. The breadth of restrictions that can be imposed has meant that onerous and unhelpful requirements have
been placed on individuals who would arguably be better suited to a different type of intervention. For instance,
in 2009 a 16-year old was given an ASBO which banned him from every street in the area in which he lives,
except his own. This meant that he was unable to leave his road on foot and could only travel by bus or car.65
Also in 2009, another teenager was given an ASBO that prevented him from entering or trying to enter any
privately owned property including industrial yards, car parks, schools grounds and private homes including
gardens in the entirety of England and Wales unless invited.66 The overly broad conditions are often impossible
to comply with and fail to tackle the causes of the behaviour in question, resulting in individuals—and
frequently young people—being alienated from their community and funnelled into the criminal justice system.
11. One of the key problems with the regime is the frighteningly low trigger for an ASBO to be imposed.
The test for imposition is that a person has acted in anti social manner “that is to say in a manner which has
caused, or is likely to cause, harassment, alarm or distress to one or more persons” and that such an order is
considered “necessary to prevent relevant persons from further anti-social acts”.67 Examples of behaviour
that could be deemed as “anti-social” are listed on the (now archived) Home Office anti-social behaviour
website and include a wide spectrum of activity including, rowdy, noisy behaviour, “yobbish” behaviour;
vandalism, graffiti and fly-posting; dealing and buying drugs on the street; fly-tipping rubbish, aggressive
begging; street drinking; and setting off fireworks late at night.68 At one end then is activity which is deemed
to be serious criminal activity (such as drug dealing) and at the other end of the spectrum is behaviour that
might be disturbed or dysfunctional but which in itself is clearly not serious, threatening or criminal such as
being a drunk in a public space. In the middle of the spectrum is a range of minor criminal or borderline
criminal activity such as “yobbish” behaviour, graffiti, flyposting. It is this grey area of “criminality” that has
most-commonly been the focus of enforcement powers. Despite the obvious differences in culpability for the
behaviour described and the way in which the past conflation of behaviours has caused grave problems in
practice, it is clear from the Draft Bill that the Government believes that the concept of “anti-social behaviour”
is a useful one.
12. The ASBO was intended to address the misery and distress caused by harassment and intimidation in
local communities. While tackling this social ill is clearly important and while the highly selective use of
appropriately tailored civil orders may well help reduce this type of distressing behaviour, their widespread use
in inappropriate circumstances has laid bare the weaknesses inherent in the policy. Further there is evidence
that excessive use of ASBOs has proved counterproductive. The Youth Justice Board have previously reported
that ASBOs were being actively sought as a “badge of honour”.
13. Until there is a significant policy reverse so that civil orders are used sparingly in a specific and targeted
manner this trend will continue. Sadly however, the impression given by the consultation paper that preceded
the present Draft Bill is that, putting aside their lack of uptake in recent years, ASBOs have been a success
and could benefit from becoming easier to obtain and available in a wider range of circumstances.
Clauses 1–20: Injunctions to Prevent Nuisance and Annoyance
14. Injunctions to prevent nuisance and annoyance will replace a number of civil orders and injunctions,
namely the ASBO, the Anti-Social Behaviour Injunction, the Individual Support Order and the Intervention
Order. Put simply the mechanism will operate in a way similar to ASBOs save for the fact that breach of an
injunction will not be criminal offence but rather a breach of a civil injunction dealt with by way of contempt
of court for adults and by a new scheme of punitive criminal-type sanctions for children.
Test for imposition
15. A chief constable, local authority, provider of social housing, the Environment Agency, the Special
Health Authority and other bodies69 will be able to apply for an injunction. A court may grant an injunction
against anyone aged 10 and over if (a) “the court is satisfied … that the respondent has engaged or threatens
to engage in conduct capable of causing nuisance or annoyance to any person”70 and (b) the court considers
61
62
63
64
65
66
67
68
69
70
http://www.guardian.co.uk/society/2011/jan/04/asbos-antisocial-behaviour-orders
http://www.heraldscotland.com/homeless-alcoholic-s-99-year-asbo-absurd-1.896970#
See http://www.independent.co.uk/news/uk/crime/a-generation-of-troubled-youngsters-criminalised-535533.html
See http://business.timesonline.co.uk/tol/business/law/article702494.ece.
See http://www.statewatch.org/asbo/ASBOwatch.html
See http://www.southwalesargus.co.uk/news/4575939.Chepstow_teen_banned_from_gardens_an
d_roofs/
Section 1 of the Crime and Disorder Act 1998.
See
http://webarchive.nationalarchives.gov.uk/20100418065544/http://www.homeoffice.gov.uk/anti-social-behaviour/what-isasb/
Clause 4.
Clause 1(2).
it “just and convenient to grant the injunction for the purpose of preventing the respondent for engaging in
anti-social behaviour”.71 The Bill sets out that the required standard of proof will be the civil standard, the
“balance of probabilities”.
16. The test for the imposition of an injunction is much weaker than the present test for imposing an ASBO.
First, the lower burden of proof, means that an applicant authority will have to provide much less evidence
that an individual had engaged or threatened to engage in anti-social behaviour than is currently the case for
an application for an ASBO. The ASBO was originally intended to be able to be imposed when anti-social
behaviour was evidenced to the civil burden of proof. However, the case of McCann72 in the House of Lords
determined that although ASBOs are made in civil courts where the burden of proof is the “balance of
probability” the court must be satisfied to the criminal standard of “beyond reasonable doubt” that anti-social
behaviour took place due to the “seriousness of the matters involved.”73 The Law Lords inserted this modest
safeguard into the regime in recognition of impact of an ASBO on fundamental rights and freedoms. Clearly
unhappy with this test, the Government is now seeking to lower the burden of proof to allow an injunction to
be imposed where there is relatively little evidence of past or threatened anti social behaviour. The inclusion
of hearsay evidence raises the possibility that the test could be met merely by the reported testimony of an
absent individual.
17. Not happy with just relaxing the level of proof that anti-social behaviour has, or is likely to, take place,
the new injunction also significantly broadens the (already broad) definition of targeted behaviour and further
weakens the test. The current test for imposition of an ASBO is that that the individual’s behaviour “had
caused, or was likely to cause, harassment, alarm or distress” and that the imposition of an order was
“necessary to prevent relevant persons from further anti-social acts”.74 The new definition embraces any
“conduct capable of causing nuisance or annoyance to any person” and switches the requirement that an order
is deemed “necessary” to “just and convenient”. This new power is breathtakingly wide. How many times a
day do we cause nuisance and annoyance to others. Irritatingly noisy passersby? The excessively opinionated
dinner party guest? The test as it currently stands has allowed for a frighteningly broad range of behaviour to
be brought within the scope of the ASBO regime. Indeed, the already wide definition of “behaviour likely to
cause, harassment, alarm or distress” is arguably one of the reasons that the orders have to date been so
inappropriately and over used. Widening the definition yet further is only going to make grossly inappropriate
use even more likely. At the very least, the test for imposition should remain the same as the (still) flawed
ASBO test and the requirement for intention should also be included.
Positive Obligations
18. It is proposed that an injunction will impose requirements as well as prohibitions. Under the ASBO
regime, individuals can be required to desist from certain actions or activities ie from engaging in particular
behaviour, or being present in particular areas. However, the new proposed injunction may, for the purpose of
preventing the respondent from engaging in anti-social behaviour “require the respondent to do anything
described in the injunction”.75 The consultation that preceded the draft Bill explained that the CPI could
include “positive requirements to address underlying issues”. No further detail of the type of requirements has
been offered, save for an example in the Explanatory Notes that “the requirements in an injunction may
include, for example, attendance at a course to educate offenders on alcohol and its effects and to reduced reoffending”.76 The Explanatory Notes also meekly acknowledge that injunction requirements “do not conflict
with the European Convention on Human Rights”.77
19. Positive obligations will necessarily engage a number of rights protected by the European Convention
on Human Rights as incorporated into domestic law by the Human Rights Act 1998, in particular the right to
liberty, the right to private and family life, the right to free expression and assembly. While ASBO-type
restrictions already engage (and sometimes infringe) those rights, positive obligations will necessarily have the
potential for greater engagement and possible infringement. Without any guidance in statute about the type of
restrictions and obligations that may be imposed, the courts will have to judge on a case by case basis whether
or not the terms of an injunction unjustifiably infringe a person’s rights, and as with control orders78 and rebranded Terrorism Prevention and Investigation Measures (TPIMs)79 the extended powers and discretion
proposed will undoubtedly lead to human rights infringements. In addition to the damaging impact on
individuals whose rights may be breached there will likely be a significant cost to the public purse as restrictions
and obligations are challenged in the courts.
71
72
73
74
75
76
77
78
79
Clause 1(3).
House of Lords—Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea (on Appeal from a Divisional
Court of the Queen’s Bench Division); Regina v Crown Court at Manchester Ex p McCann (FC) and Others (FC).
Per Lord Steyn in McCann [2002] UKHL 39 at para 37.
Ibid at footnote 67.
Clause 1(4).
Page 111, para 73.
Page 100, para 24.
Prevention from Terrorism Act 2005.
Terrorism Prevention & Investigation Measure Act 2011.
20. Allowing positive obligations to be imposed under the new injunction will make the regime, in practice,
a lot more aligned to recently enacted “GANGBO”80 or TPIM regime and much more akin to a community
sentence imposed post-conviction. This represents a significant shift from the original model where the stated
emphasis was on injuncting or restricting someone from doing “anti social” things, not prescribing positive
sanction and punishment. Justification for the imposition of punitive obligations under the control orders/TPIMs
and GANGBO schemes has in the past been based on the supposed threat and danger posed by those who will
be subjected to the requirements. It is difficult to see how any such justification can be made for anti social
behaviour injunctions.
21. Under the current regime, the restrictions imposed through the ASBO system can be intrusive, in some
instances making breach almost inevitable. Reform which would require (as yet unspecified) positive
obligations to be placed on individuals will inevitably create greater burdens making compliance even less
likely.
Duration
22. Clause 1(6) allows an injunction to have a specified duration or to be indefinite in nature. As we have
rehearsed here a number of times already—civil orders and injunctions can become unhelpfully counterproductive when they are overly ambitious and unrealistic. Long-running injunctions will make breach even
more likely increasing the likelihood of fines, imprisonment etc for failing to comply with what may be onerous
and unjustified obligations.
Breach—Adults
23. Clause 3 permits a power of arrest to be attached to any prohibition or requirement contained in the
injunction. Clause 10 and Schedule 1 make provision for remand following arrest for breach. The maximum
period that a person may be remanded is 8 days and a person may be remanded on bail or in custody. For
adults, breach of an injunction, beyond reasonable doubt, will be punished as a contempt of court through a
fine or custody. The Contempt of Court Act 1981 (CCA) sets out the penalties that a court can impose when it
has the power to punish for contempt of court. Section 14 of that Act provides that when a superior court has
the power to commit a person to prison for contempt, the maximum period of imprisonment is two years and
there is no limit on the amount the court can fine a person.81
24. These sanctions are severe. It is worth remembering that such detentions will be imposed on individuals
who have not been prosecuted or convicted of criminal activity, all that is required is that the court is satisfied
beyond reasonable doubt that an injunction requirement has been breached. This could include, for example,
walking along a road from which the person has been banned, using certain prohibited words, or not attending
a particular activity required in the injunction.
25. While the preceding consultation was at pains to explain that breach of an injunction would not be a
criminal offence, the type of sanctions which could be applied under the Draft Bill appear just as punitive (if
not more) than the range of sentencing options post conviction for a summary offence.
Breach—Children
26. Powers of a youth court in dealing with breach of an injunction by a child are provided for in clause 11
and Schedule 2. Part 2 of Schedule 2 governs supervision orders. Specifically a youth court may make a
supervision order to a detention order if satisfied beyond reasonable doubt that the child is in breach.82 A
supervision order imposes one or more of the following requirements—a supervision requirement, an activity
requirement and/or a curfew requirement. These requirements range from specified activities over a number of
days; attending appointments; and curfews for a maximum of 8 hours a day. Supervision orders can last for up
to 6 months but if satisfied that a child has failed to comply with a requirement of the supervision order, the
court may revoke it and make a new one. Paragraph 1(6) provides that a youth court may also make a detention
order if satisfied by the severity or extent of the breach that no other power is appropriate. This means that a
child may be detained at a secure training centre, youth offender institution or secure accommodation under a
detention order for a period of 3 months.
27. The preceding consultation observed that for children “breach could not be dealt with through contempt
of court, as there are no powers to detain anyone under 18 for contempt and fines are difficult to enforce.”
Indeed, as the power of a court is to commit a person to prison for contempt, and as legislation provides that
children cannot be committed to prison for any reason,83 breach of an injunction by a child cannot lead to
imprisonment. Rather than recognising that this problem highlights just one of the many problems with using
the civil law to impose punishment by the backdoor, the Government is seeking to create a menu of draconian
new sanctions for breach of a civil injunction that can be imposed only on children.
80
81
82
83
Gang-related Violence Injunctions as enacted in the Policing and Crime Act 2009.
Currently a Magistrates Court can impose a custodial sentence of no longer than six months on conviction for a single offence.
Although Paragraph 1(5) prevents a detention order being made against a person under 14.
See section 89 of the Powers of Criminal Courts (Sentencing) Act 2000 as amended by the Criminal Justice and Court Services
Act 2000.
28. The lineage of Home Office policy in this area is particularly controversial. When GANGBOs were first
introduced through the Policing and Crime Act 2009, they were intended only for adults. Despite this,
concerned Parliamentarians questioned whether they would eventually be sought to apply to children. In
response, the then Minister for Security, Counter-Terrorism, Crime and Policing, Mr Vernon Coaker MP,
recognised that “Changing the law to enable the courts to use injunctions for under-18s would involve a major
change in how civil law interacts with minors”.84 And the Labour Government made clear on several occasions
that they would not seek to apply gang injunctions to children. However, almost before the ink was dry on the
Policing and Crime Act 2009, the Government introduced the Crime and Security Bill (now Act 2010) which
amended the gang injunction provisions so that they can apply to anyone aged over 14 and granted civil courts
the power to impose a supervision order or detention order on anyone under 18 who breaches an injunction.
Breach of a gang injunction by a child can lead to a host of punitive sanctions almost identical to those now
proposed in the Draft Bill.
29. Any arguments that these powers are to be used for the child’s own benefit are spurious. These are
punitive powers designed to impose coercive sanctions on a child who has not been found guilty of any offence.
Child protection laws exist to protect children from harm, and criminal laws exist to prosecute law-breakers.
There is no need for additional bespoke powers such as these.
30. Liberty does not believe it is appropriate to grant ever more coercive powers to courts in relation to
children—powers that do not exist with respect to adults. If an adult breaches an injunction he or she can be
asked by the court to apologise, be fined, or imprisoned. Yet, under these proposals, a child will be subject to
additional sanctions such as being required to undertake unspecified activities, subjected to lengthy curfew and
electronic tagging, and still potentially be liable to imprisonment in a young offenders institution. “Civil
detention” will still arguably fast track children into the criminal justice system. While it may not give them a
criminal record, it will do little to divert them away from the criminal justice system; separating them from
their parents and interring them with offenders who have committed crimes.
31. Article 37(b) of the United Nations Convention on the Rights of the Child, which the UK is a signatory
to, provides:
The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be
used only as a measure of last resort and for the shortest appropriate period of time.
However, as the UN Committee on the Rights of the Child said in its last report on the UK, the number of
children deprived of liberty in the UK is high, indicating that detention is not always applied as a measure of
last resort.85 The UN Committee also considered the use of ASBOs against children, noting that they did not
appear to be in the best interests of children and recommended that there be “an independent review of ASBOs,
with a view to abolishing their application to children”.86 It is disappointing that instead of considering this
recommendation, the Government has instead chosen to internally review the ASBO regime and has concluded
to expand the range of coercive powers available and give civil courts new powers to imprison children.
32. Far from demonstrating any new thinking in this area, the new proposed framework mirrors identically
the model adopted for the GANGBO regime at the very end of the New Labour Administration. While, unlike
the ASBO, breach of an injunction will not be a criminal offence, it is highly likely that the existence of an
injunction and any breach will be held on police records and potentially disclosed to future employers. Whether
or not it is a formal criminal record, the imposition and breach of an injunction will likely still have an impact
on a child’s ability to gain future employment.
What will change?
33. Confusingly, while the Government has acknowledged the stunningly high breach rates for ASBOs, it
has provided no explanation as to why or how the replacement injunction will fare any differently. Based on
current statistics then we can assume that approximately 56% of those issued with an injunction will find
themselves in breach, leading to adults being fined and imprisoned for contempt and children made subject to
activity requirements, curfews and detention. Indeed, given the more onerous nature of the obligations that will
be imposed it is probably safer to assume that breach rates are going to be even higher. While individuals will
no longer receive criminal convictions for breach, they will be subjected to community sentence style
punishments such as curfews, fines, supervision, and custodial penalties including detention for up to two
years. Records will also likely be kept by police and shared and disclosed with other public bodies and potential
employers. This will have the same damaging effects on future life chances as formal criminal convictions.
34. ASBOs and other non prosecution alternatives are more effective if targeted such as being used as a
“last chance saloon”. The problem with ill-defined powers of this sort is that they invariably lead to over use
and over reliance so that rather than providing an alternative to prosecution, they become a fast track to
criminal style sanction and all the repercussions that flow. The CPI is effectively going to be a super-punitive
ASBO which will be easier to obtain for even more broadly defined “behaviour”. It is likely therefore that it
84
85
86
Hansard, 26 February 2009, column number: 566, available at: http://www.publications.parliament.uk/pa/cm200809/cmpublic/
policing/090226/am/90226s01.htm.
Committee on the Rights of the Child, Concluding Observations on the United Kingdom and Northern Ireland (2008) available
at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf at Paragraph 77.
Ibid at Paragraphs 79–80.
will be used even more than the current ASBO and the damaging ramifications of this policy even more
widely felt.
Part 2—Criminal Behaviour Orders
35. Clause 21 creates a new Criminal Behaviour Order (CBO) intended to replace the current ASBO-onconviction (CRASBO). A CBO can be made against someone convicted of a criminal offence if two conditions
are met—first that the court is “satisfied that the offender has engaged in behaviour that caused or was likely
to cause harassment, alarm or distress to one or more persons not of the same household as the offender” and
second, “that the court considers that making the order will help in preventing the offender from engaging in
such behaviour.”87 A CBO will be more punitive than as CRASBO as it will permit the imposition of positive
requirements designed to address the underlying causes of the recipient’s anti-social behaviour (such as drug
treatment and anger management courses).88 For children, the duration of a CBO must be between 1–3 years
and for adults an order must last for at least two years but could be indefinite.89
36. Clause 26 allows for interim orders to be made and clause 27 governs variation and discharge. Variation
and discharge can be ordered on application by either the offender or the prosecution. The power to vary an
order includes the power to include an additional prohibition or requirement or extend the period for which
the CBO has effect. Breach of a CBO is a criminal offence attracting a period of six months imprisonment (on
summary conviction) and five years imprisonment (on conviction on indictment).90 A child could be detained
for a period of up to two years for breach of a CBO.
37. The Government has stressed that the CBO would be “additional to the court’s sentence for the offence,
not a substitute for it”. While this is useful clarification, there has been no further explanation as to why CBOs
are required in addition to a court’s current sentencing powers. Options such as drug treatment and anger
management courses are already available as sentences through community orders or by way of conditions
imposed when a prisoner is released “on licence” or “on probation”. Bringing such requirements under the
umbrella of the CBO appears to us to be unnecessary duplication and in practice will easily lead to double
punishment for the same activity. CBO restrictions and the sanctions available for breach could result in gravely
disproportionate outcomes for a one- off, minor, criminal conviction. If the current range of positive
requirements available through the community sentencing or licence regime are not being utilised to address
the underlying causes of criminal behaviour, then the reasons for that should be investigated and addressed.
Duplicating such powers under a different banner will not, of itself, result in their increased effectiveness.
Part 3—Dispersal Powers
38. Clause 31 creates a general dispersal power which will be made available to police constables and
PCSOs. It is intended to replace a number of dispersal powers that are already on the statute book, combining
elements of the current general dispersal power under section 30 of the Anti-Social Behaviour Act 2003 (ASBA)
with elements of the alcohol related dispersal powers available under section 27 of the Violent Crime Reduction
Act 2006 (VCRA) and the DPPO. Under clause 31 police and PCSOs will be given a general power to direct
a person away from an area for a 48 hour period where the officer or PCSO suspects that the behaviour of the
person has contributed to, or is likely to contribute, to members of the public being harassed, alarmed or
distressed or to the occurrence of crime or disorder. The constable or PCSO must also consider the direction
necessary for the purpose of removing or reducing the likelihood of harassment, alarm or distress, crime or
disorder. The direction must be given in writing unless this is not reasonably practicable in the circumstances.91
The constable or PCSO must specify the area from which the person is excluded and may specify when and
by which route they must leave the area.92 If a person appears under the age of 16 the constable or PCSO can
take them home or to a place of safety.93 Clause 33 contains a secondary power which permits the constable
or PCSO to require the person being given the direction to surrender any items being used in the anti-social
behaviour. Under clause 35 a person who fails to comply with a direction to leave commits an offence and is
liable on summary conviction to imprisonment for up to 3 months and/or a fine not exceeding level four on
the standard scale.
39. The various direction powers currently on the statute book have often proven disastrous in practice. This
Draft Bill proposes removing some of the few safeguards that presently exist, widening the availability of
dispersal and creating the power to require the surrender of property. In broad terms, section 27 VCRA gives
the police power to direct individuals to leave a “locality” (undefined) for up to 48 hours if they are considered
to be “likely to cause or contribute to the occurrence of” alcohol-related crime or disorder. Under the ASBA
the police currently have similar powers to disperse children. Specifically, a senior police officer is able to
issue an authorisation for a locality where he believes that members of the public have been intimidated,
87
88
89
90
91
92
93
Clause
Clause
Clause
Clause
Clause
Clause
Clause
21(3) and (4)
21(5).
24.
28.
31(5).
31(5).
31(7).
harassed, alarmed or distressed by the presence of groups of two or more and where he believes that antisocial behaviour is a persistent problem. The authorisation can remain in place for a period of six months and
during that time, police officers and PCSOs are authorised to disperse children in groups of two or more and
require them not to return to the locality for a 24 hour period if they have reasonable grounds to believe that
the presence or behaviour of the children has resulted in or is likely to result in intimidation, harassment, alarm
or distress.
40. With regard to present powers, Liberty has found that “locality” which is not defined in the statute, has
been interpreted by police to include a very wide area, so that people have been excluded from areas as large
as “Greater Manchester” (an area of 493 square miles) or from whole counties like “South Yorkshire” or “West
Yorkshire”. It appears that this will continue to be the case under the Draft Bill. While exclusion from a small
area may assist to diffuse a problem, exclusion from a whole county raises a whole different set of issues. Can
it really have been intended that someone be banned from an area of almost 500 square miles for up to 48
hours merely because a police officer considers them “likely to contribute to” members of the public feeling
harassed, alarmed or distressed? Such a large exclusion zone also raises practical problems of enforcement.
How is the individual to leave the county? What if they travelled there with someone who does not present
any risk of alcohol related disorder, such as a designated driver? How are the police to monitor the individual’s
departure from such a large exclusion zone, short of escorting them (which in many cases will amount to
detaining them)?
Section 27—South Yorkshire (2008)
On 6 December 2008, South Yorkshire Police issued section 27 directions to a large group of
Plymouth Argyle fans, most of whom had visited the same public house in Doncaster. These fans
had driven in cars and minibuses right across the country from the Plymouth area to Doncaster, but
before the match commenced, they were directed by police to return home, wasting the entire day
and a very lengthy journey. Again, there was no disorder in the public house and it is assumed that
the police’s actions were motivated by unspecified intelligence. No arrests were made.
On this occasion, at least one supporter (who had not even been to the pub) was ordered to leave
the football ground in order to drive his friends back to Plymouth. Another supporter, an 11 year old
boy, was compelled to leave with his father. Not all those forced to leave were given a written
direction, but a selection of people, apparently at random, were issued with directions to leave “South
Yorkshire”. Some of the supporters were subject to a high profile, expensive and humiliating escort
down the motorway by several police vans, cars and motorbikes, right across South Yorkshire and
into Derbyshire and Leicestershire.
Again, the South Yorkshire Police have accepted that their actions on 6 December 2008 were
unnecessary and disproportionate and have agreed to pay compensation to those affected.
Section 27—Greater Manchester (2008)
On 15 November 2008, Greater Manchester Police used the section 27 power against 90 Stoke City
fans who were peacefully enjoying a pre-match drink at a public house in Irlam, Greater Manchester.
The landlord of the pub had no concerns about the supporters’ behaviour, and has said he would
welcome them back to his pub. The supporters were not one single group, but rather a collection of
small groups who had chosen the pub following discussion on internet message boards, for ease of
access to Old Trafford. Apparently as a result of intelligence received about planned disorder, all 90
supporters were detained by the police for approximately two hours in the public house, before being
made to board coaches arranged by the police, and driven back to Stoke on Trent, missing the most
eagerly anticipated match of the season, against Manchester United. One of the coaches had no toilet
facilities, and the supporters were instructed to urinate in cups and bottles placed on the floor, which
spilled when the coach moved making conditions very unpleasant.
No attempt was made by the police to identify anyone about whom intelligence was held, although
they had every opportunity to do so. Each person present was individually given a written section
27 direction to leave, but without any attempt by the police to weed out any who might have
presented a risk of disorder, from those who clearly did not.
The “locality” from which supporters were excluded on this occasion was specified as the whole of
“Greater Manchester”—an area of some 493 square miles.
The Greater Manchester Police have subsequently admitted that the power was misused, and have
paid compensation to many of those involved. However, retrospective compensation is no real answer
to abuse of power. Fans’ ability to secure damages depends on their being able to obtain legal
representation, which will not always be possible.
41. The current section 27 VCRA power requires that specific areas are designated by a police officer of the
rank of superintendent or above before a constable or PCSO has the power to disperse and section 30 of ASBA
has a similar authorisation requirement. However under clause 31 of the Draft BiIl, any police officer or PCSO
would have dispersal powers which could be used at any time. Add to this the power to confiscate items
contributing to the anti-social behaviour, including the power to confiscate mobile phones and other personal
items and it is clear that the new power will be much more widely used with much greater impact. This
indiscriminate power has significant potential to impact on peoples’ right to property, private and family life,
liberty, and freedom of assembly and association.
42. In seeking to harmonise the various regimes it appears that the upper limit of 48 hours as permitted
under section 27 VCRA has been chosen, rather than the 24 hours under the Anti-Social Behaviour Act 2003.
Liberty believes that an order not to return to the area within 48 hours is particularly excessive. If the purpose
of the power is to disperse a group of individuals with immediate effect, it is difficult to justify why an
individual should be prevented from returning to the area the next day.
43. It is also proposed that community support officers also be permitted to exercise the dispersal power. If
such powers are to be re-legislated and extended, we believe that they should only be exercised by fully trained
police officers. Draconian, summary powers of dispersal and confiscation will inevitably lead to resistance
from those against whom they are applied and will conceivably result in potentially volatile situations. Liberty
does not believe that community support officers have the training or expertise to satisfactorily deal with
such situations.
44. Current dispersal powers are already defined incredibly broadly and the Draft Bill proposes replicating
their flaws and removing some of the minimal safeguards in place. Liberty is unconvinced that it will be
possible to give such discretionary powers to frontline officers in way that will preserve an individual’s rights
under Article 11 of the HRA (the right to free assembly).
Part 4—Community Protection
45. Part 4 of the Draft Bill creates Community Protection Notices (CPNs), Public Space Protection Orders
(PSPOs) and creates powers for Closure of Premises Associated with Nuisance or Disorder.
46. Clause 38 creates the power for an authorised person (constable, local authority, designated person)94
to issue a CPN if satisfied on reasonable grounds that (a) the conduct of the individual or body is having a
detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality and (b) the
conduct is unreasonable. A CPN can impose a requirement to stop doing specified things; to do specified things
or to take reasonable steps to achieve specified results.95 A CPN may be issued only if the subject of the CPN
has been given written warning that the notice will be issued unless his or her conduct ceases and the person
issuing the notice is satisfied that the person to whom the CPN relates has had enough time to deal with the
matter and his or her conduct is still having the effect. An appeal against the CPN is granted to the Magistrates
Court.96 It is an offence not to comply with a CPN liable to a fine not exceeding level 4 in the case of an
individual. Upon conviction of an offence under clause 43, a court may make “whatever order the court thinks
appropriate for ensuring that what the notice requires to be done is done”97 which can include requirements
to carry out specific work or allow work to be carried out by the local authority (LA). A further appeal is
granted to the Magistrates Court.98 Forfeiture powers also flow from a CPN: upon conviction under clause 43
a court may order the forfeiture of any item that was used in the commission of the offence and may require
destruction. Search and seizure may be ordered by a justice of the peace to recover such an item99 and a
Fixed Penalty Notice may be issued by the police or LA to allow the convicted person to discharge liability.100
47. Clause 53 grants a power for a LA to make a PSPO where: activities carried on or likely to be carried
on in a public place will have or have had a detrimental effect on the quality of life of those in the locality;
and the effect of the activities is persistent, makes the activities unreasonable, and justifies the restrictions
imposed. The order can prohibit certain activities in that area or require people carrying out a particular activity
to do certain things. The order can affect everyone or specified categories. The order can have effect for up to
3 years and may be extended by a further three years.101 Failure to comply with the order is a criminal offence
liable to a level three fine on the standard scale.
48. As is the case elsewhere in the Bill, highly intrusive powers are granted under these clauses on the basis
of extremely vaguely defined behaviours. Instead of defining the behaviours that the powers are targeting, the
powers instead flow from being deemed to lower the “quality of life” of the community. The fact that there is
no requirement for pre-judicial authorisation before a CPN or PSPO is ordered only exacerbates the potential
for unfairness and abuse. CPNs and PSPOs significantly broaden the powers available to police and LAs to
impose notices and orders on residents and individuals in the locality. Given the severe consequences and
financial liabilities that flow from breach of these orders and notices, we would expect, at the very least, tighter
definitions of the type of activities that are to be prohibited and pre-judicial authorisation.
49. Chapter 3 is intended to consolidate and extend existing premises closure powers. The powers it provides
will be granted to police (rank of inspector and above) and LAs. The test for issuing the notice will be that the
police or LA reasonably believes that there is, or is likely soon to be, a public nuisance or there is or is likely
94
Clause
Clause
96
Clause
97
Clause
98
Clause
99
Clause
100
Clause
101
Clause
95
48.
38(3).
41.
44(1).
44(7).
46.
47.
54.
imminently to be, disorder in the vicinity of and related to the premises and that the notice is necessary in the
interest of preventing such disorder.102 A closure notice may prohibit access to a premises by all persons except
those specified; at all times or at specified times. But it may not prohibit access to those who habitually live
on the premises or the owner of the premises.103 When a notice has been issued, an application must be made
to a Magistrates Court for a closure order which must be heard no later than 48 hours after service of the
closure notice. The court may make a closure order if it is satisfied (a) that a person has engaged is likely to
engage in disorderly, offensive or criminal behaviour on the premises or (b) that the use of the premises has
resulted in or is likely to result in serious nuisance to members of the public or (c) that there has been, or is
likely to be disorder near those premises associated with the use of those premises and that the order is
necessary to prevent the behaviour, nuisance or disorder from continuing.104 A closure order may prohibit
access to a premises for a maximum of 3 months and may prohibit access by all persons, all except those
specified and either at all times or those specified. Closure orders can be extended by a justice of the peace for
a closure period not exceeding six months.
50. As with all other proposals in this Draft Bill, the threshold for imposition of closure notices and orders
is remarkably low. While the current overlap in powers is certainly unnecessary and unhelpful, purpose-specific
orders are undoubtedly preferable to the catch-all powers now being proposed. The grave consequences of a
closure order—which could result in homelessness including for family members who have nothing to do with
anti-social behaviour—make the need for specificity all the greater. Placing such a general power into the
hands of police and LAs, without clarification as to the behaviour that is being targeted is a highly risky
approach to legislating.
51. Disappointingly, the proposals will do nothing to address the problems with the current closure order
regime, such as cuckooing.In November 2006 The Guardian newspaper ran a story saying that crack-house
closure orders were resulting in displaced drug dealers taking over properties of the vulnerable, a practice
called “cuckooing”: “They [drug dealers] are now targeting older people, vulnerable young people or people
with mental health problems on housing estates, befriending them, giving them drugs and then taking over
their homes.”105 Cuckooing demonstrates that premises closure does not necessarily end a problem but can
merely displace it and make its consequences worse. Sadly, the Draft Bill makes no attempt to address this
recognized consequence of premises closure.
Chapter 5—Recovery of Possession of Dwelling Houses
52. Clause 83 introduces a new mandatory ground for possession of a dwelling that is subject to a secure
tenancy. This proposal—to give courts a mandatory power to evict tenants from social housing—was consulted
on by the Department of Communities and Local Government in August 2011.106
53. Ground 2, Schedule 2 of the Housing Act 1985 and Ground 14, Schedule 2 of the Housing Act 1988
contain current powers for landlords to evict tenants who are behaving anti-socially.107 Ground 2 of Schedule
2 to the Act provides for a power of eviction if a person residing, or even simply visiting, the house in question
is found guilty of causing, or is deemed likely to cause, a nuisance or annoyance to a person living, visiting or
doing anything lawful in the locality. An eviction order may also be granted if a person has been convicted of
using the house (or allowing the house to be used) for illegal or immoral purposes or where he has been
convicted of an indictable offence committed at, or in the locality of, the house.108 Further, Ground 1 of
Schedule 2 to the Act provides for a power of eviction where “Rent lawfully due from the tenant has not been
paid or an obligation of the tenancy has been broken or not performed”. This ground can be used to evict
tenants who have breached tenancy agreements that forbid them engaging in criminal or anti-social behaviour.
By way of example, Wandsworth Council in London has a tenancy agreement which on its face prevents
tenants or members of their household engaging in “anything which causes or is likely to cause a nuisance to
anyone living in the borough of Wandsworth”.109
54. A number of reforms over the past decade have increased landlord powers in relation to tenants suspected
anti social behaviour. Section 12 of the Anti Social Behaviour Act 2003 (ASBA) amended the Housing Act
1996 to require local housing authorities, housing action trusts and registered social landlords prepare policies
and procedures in respect of anti social behaviour. Sections 13–15 ASBA allow social landlords to apply for
injunctions to prohibit anti social behaviour and to apply to the county court to for a demotion order which
102
Clause 66.
Clause 66(4).
104
Clause 70(4).
105
Dens of iniquity, Guardian, 15 November 2006 available at: http://www.guardian.co.uk/society/2006/nov/15/
drugsandalcohol.guardiansocietysupplement.
106
A new mandatory power of possession for anti social behaviour, Department of Communities & Local Government Consultation
Paper, August 2011, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/8460/
1959275.pdf.
107
The former for secure tenants and the latter for assured tenants (tenants of housing associations and landlords in the private
rented sector).
108
Ground 2, Schedule 2 of the Housing Act 1985 (for secure council tenants) and Ground 14, Schedule 2 of the Housing Act
1988 (for assured housing association tenants).
109
See Tenancy Conditions for Wandsworth Council (from 5 January 2009), available at www.wandsworth.gov.uk/download/197/
tenancy_conditions. At page 6.
103
replaces a secure tenure with a less secure tenancy on grounds of anti social behaviour.110 Section 16 ASBA
expanded the scope for the making of a possession order on nuisance grounds to specifically include the impact
that anti-social behaviour has had or might have on the local area.111
55. Accordingly there are already a number of grounds on which a social landlord can apply for a possession
orders and/or the police or the local authority can apply for premises to be entirely shut down. The courts have
discretion to grant eviction if it is satisfied that anti-social behaviour has occurred and that it would be
reasonable to grant possession and/or suitable alternative accommodation is available. Any application for
possession must be proportionate, as the courts have confirmed that tenants have a right to challenge eviction
proceedings under the Human Rights Act 1998.112
56. Clause 83(1) inserts a new section 84A into the Housing Act 1985 which makes it mandatory for a court
to grant possession if any of the conditions in new section 84A are made out; the notice requirements have
been met and the new review procedures followed. The conditions will be met if the tenant, a member of the
tenants household or a person visiting the property has been:
(a) convicted for a serious offence;
(b) found by a court to have breached an injunction to prevent nuisance and annoyance obtained
under clause 1 of the Bill; or
(c) convicted for a breach of a CBO obtained under clause 21 of the Bill.
The offence or anti social behaviour must have been committed in the dwelling house or in the locality of
the dwelling house.
57. The preceding consultation described the new route to possession in cases of proven “serious, housing
related anti-social behaviour.” Yet of the three triggers for mandatory possession, only one relates to conviction
for serious violence. The other triggers attach to the breach of an injunction or CBO provided for elsewhere in
the Draft Bill. This could mean that eviction (including of an entire family) could be triggered merely by
breach of an injunction restriction (such as being present in a prohibited place, not attending a required course
etc). As previously discussed breach rates for ASBOs are notoriously high and breaches of injunctions and
CBOs are likely to continue in this trend. These clauses would therefore create a mandatory eviction power
applicable to the many thousands who will breach their conditions and could lead to homelessness for them
and their families.
58. By removing the requirement of reasonableness/alternative available accommodation, the Government
is creating an automatic and blunt eviction tool, triggered by the lowest possible threshold and constrained
only by a requirement that the landlord meets certain procedural requirements. In the Explanatory Notes the
Government states “Tenants of public authorities may raise the issue of proportionality as a defence to
possession proceedings: see Manchester City Council v Pinnock [2011] 2 AC 104.”113 In Manchester City v
Pinnock114 the Supreme Court held:
“If our law is to be compatible with Article 8, where a court is asked to make an order for possession
of a person’s home at the suit of a local authority, the court must have the power to assess the
proportionality of making the order.”115
While this precedent is now binding on lower courts, the Government’s reliance on it here is disingenuous.
It will always be open for defendants to argue that eviction will violate their Article 8 right to a private and
family life, a judicial requirement to consider (at the very least) Article 8 considerations should be written on
the face of the Bill to prevent disproportionate cases from falling through the cracks, where the relevant
arguments are not put forward by the defendant.
59. The Government’s stated intention in introducing the proposed wider power is to speed up evictions,
reduce costs for landlords, and reduce pressure on court resources.116 While faster disposal of cases may be
beneficial to Government budgets, those facing eviction will have insufficient time or means to challenge an
eviction and judges will be unable to grant appropriately tailored remedies. Liberty does not believe that a
mandatory eviction power makes practical sense. It also allows for double punishment for social tenants which
will not apply to those living in private housing with criminal convictions/injunction breaches.
60. Continuing the trend of automatic sanction and double punishment for the poor, clause 87 adds a new
ground for possession under Schedule 2 of the Housing Act 1985 and Part 2, Schedule 2 of the Housing Act
1988 so that a landlord can apply for possession where someone living in the tenant’s property is convicted of
an offence committed at the scene of a riot which took place anywhere in the UK.
110
See sections 153 of the Housing Act 1996; section 82 of the Housing Act 1985; and section 20B of the Housing Act 1988.
Amending section 85A of the Housing Act 1985.
112
The Supreme Court in Manchester City v Pinnock [2010] UKSC 45 held that tenants have a right to challenge eviction
proceedings under Article 8 (right to respect for a private and family life). The Court held that public (though not private)
landlords should consider the proportionality of applying for possession orders.
113
Explanatory Notes to the Draft Bill, page 134, paragraph 258.
114
[2010] UKSC 45
115
Per Lord Neuberger, ibid, at paragraph 29.
116
See the Consultation Paper, at pages 9 and 10.
111
61. Liberty has first hand experience of the unfairness and suffering that is caused when eviction powers are
applied in a blunt and knee-jerk way. In 2011 Wandsworth Council threatened to evict Liberty client, Maite de
la Calva, and her young daughter if her son was convicted of a crime committed during the riots in August
2011. Ms de la Calva’s son was arrested and charged following the disorder. He had moved out of his mother’s
property earlier in the year but she was still served with a Notice of Seeking Possession by Wandsworth
Council shortly after, stating she was likely to have breached her tenancy agreement as a result. The authority
vowed to apply for an order of possession, evicting the innocent Ms de la Calva and her daughter, if her son
was convicted. The threat came despite Ms de la Calva’s contribution to her local area over the last five years.
She has been described as a credit to her housing estate by neighbours and spends her limited spare time
volunteering with a youth charity and working with domestic violence victims. Ms de la Calva has committed
no crime herself and would not have faced such a threat had she lived in a mortgaged house. Liberty agreed
to represent her and fight Wandsworth Council’s attempt to punish her and her daughter for her son’s conviction.
While we ultimately succeeding in persuading Wandsworth Council to back down, this was not before
considerable anxiety and suffering had been inflicted. If the eviction powers set out in the Draft Bill are
enacted, there will be many more cases such as this, and it is unlikely that that outcomes will be as positive.
62. It is difficult to see how removing a person and their family from social housing will lead to less rather
than more crime and anti-social behaviour. Dispossession will rather shift the problem elsewhere while creating
new and greater problems (for the individuals concerned and their families). Private housing may be unavailable
o unaffordable for many families. Criminal conduct may well proliferate with the disruption and homelessness
that ensues. These unintended consequences appeared to receive little consideration in the heated post-riot
atmosphere of 2011. We urge the Government to pause and seriously reconsider this new and highly punitive
powers.
Part 6—Local Involvement and Accountability
63. Liberty will be responding to the Home Office consultation on these proposals.
About Liberty
Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights
organisations. Liberty works to promote human rights and protect civil liberties through a combination of test
case litigation, lobbying, campaigning and research.
Liberty Policy
Liberty provides policy responses to Government consultations on all issues which have implications for human
rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and
undertake independent, funded research.
Liberty’s policy papers are available at
http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
Liberty
February 2013
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The draft Anti–social Behaviour Bill: pre–legislative scrutiny

Transcription

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