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A New Approach to Tackling Anti-Social Behaviour

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

Back in 2012, the government published their paper Putting Victims First: New Approaches to tackling Anti-Social Behaviour, in which they stated that ‘[t]his Government is committed to significant reform of how we deal with crime and anti-social behaviour. We need to ensure that the approach to anti-social behaviour [(“ASB”)] is changed, to put victims at the heart of the response; not bureaucratic targets or pointless meetings’. The paper made a commitment to introducing ‘faster, more effective’ formal powers, promoting locally based approaches and speeding up the eviction of housing tenants who commit ASB.

The result of the paper is the Anti-Social Behaviour, Crime and Policing Act 2014 (“the Act”), which received royal assent earlier this year. In addition to a whole range of provisions covering forced marriage, firearms and dangerous dogs, the Act also contains a wide range of provisions for tackling ASB. The “kick-off” date for introduction of this toolkit was originally set for the 20th October, however a last minute announcement by the Home Office has thrown plans into disarray by placing the introduction of Part 1 of the Act on hold until early 2015. Whilst this has caused a notable amount of frustration, particularly among local authorities and housing providers, there will still be a whole range of new powers in place to tackle ASB in a faster and more flexible way from the 20th October.

Re-Defining ASB

It is important to understand when discussing ASB that whilst many behaviours that are typically classed as 'anti-social' such as drug dealing, harassment, racial abuse, theft and vandalism are criminal offences, not all ASB necessarily involves criminal activity, such as noise nuisance, dog fouling and street drinking. In Part 1 Section 2(1) of the Act, ASB is defined as:

  • conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
  • conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
  • conduct capable of causing housing-related nuisance or annoyance to any person.

This is a wider definition than that previously given in Section 1(1)(a) of the Crime and Disorder Act 1998, which defines ASB as behaviour which ‘caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’ (emphasis added).

Cases of ASB between household members are now drawn under the new definition so, for example, domestic violence and intimidation within the home now fall under the Act and may be tackled using its powers. The advantage comes from the very definition given above in that behaviours do not have to be criminal in nature in order to be tackled and options such as injunctions with exclusion orders and powers of arrest could be used. However, as with hate crime, this will need to be used sensitively, taking into account the safeguarding and child protection issues often raised.

A New Toolkit

Along with a new definition, the Act brings in a new toolkit, consolidating and changing many of the existing tools and powers:

  • Civil Injunctions replace the ASBO (Anti-Social Behaviour Order), ASBI (Anti-Social Behaviour Injunction) and other similar orders
  • Criminal Behaviour Orders replace CRASBOs (ASBOs on conviction) (NB I have heard this new power described at a recent conference as the "CRIMBO").
  • Community Protection Notices replace Litter Clearing Notices, Street Litter Clearing Notices and Graffiti/Defacement of Removal Notices
  • Public Spaces Protection Orders replace Designated Public Space Orders, Gating Orders and Dog Control Orders
  • Closure Powers (Notices and Orders) replace Premise Closure Orders, Crack House Closure orders, Noisy Premises Closure Orders and S161 Closure Orders
  • Dispersal Powers replace S30 Dispersal Orders and S27 Directions to Leave
  • A new Mandatory Ground for Possession and Discretionary Ground for Possession has been introduced

One of the aims of this consolidation is to provide greater flexibility by reducing the number of powers and increasing their applicability: for example, rather than having to rely on a power aimed at a very specific activity, a Community Protection Notice can be issued to any person (over 16), business or organisation whose behaviour is having a ‘detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality’ and is unreasonable. In the same vein, dispersal powers can now be used by police without the need for a pre-determined 'dispersal zone', and unlike the old 'zone' regime, local authorities can include a whole range of conditions within a public spaces protection order ("PSPO").

Many of the existing powers have also been significantly altered, with one of the biggest changes lying in the new 'Civil Injunction'. This, which many of those who followed the progression of the bill may recognise as the 'Injunction to Prevent Nuisance and Annoyance', throws out the questionable ASBO with an entirely civil remedy. This may not itself be without controversy as it can now be granted against any person aged 10 and over. The injunction can also be obtained with ‘positive requirements’ (“you wills” as opposed to “you wont's”) aimed at tackling the underlying causes of the ASB, for example an anger management or drugs rehabilitation course. 

There is definitely a strong argument in favour of streamlining the tools and powers available to focus on the effect of the behaviour rather than the type of behaviour itself, as this is what victims care about: what should matter is the impact on the community rather than whether the activity is ‘litter’ or ‘street litter’. The victim-centered approach is also evident in the robustness of the new powers: for example, it makes sense that a mandatory ground for possession is used as the result of a perpetrator’s premises being closed using a closure order, as this can save victims being required to go through the stressful experience of court proceedings twice. Or for a noisy premises to be hit with a fixed penalty notice having on the same night having being given reasonable warning to stop affecting local residents. So too, can the same argument be made regarding positive requirements: with over 50% of ASBOs on average being breached, tackling the underlying causes rather than just the symptoms of the ASB may prevent this figure repeating itself.

However, the flexibility of these tools is not without concern.

A Discretion Too Far?

There are undeniable concerns that the flexibility of these new powers risks being abused against those without the ability to effectively challenge them. 

For example, a PSPO is designed, according to the statutory guidance, to ‘stop individuals or groups committing anti-social behaviour in a public space’. The test is that the behaviour must be ‘having, or is likely to have, a detrimental effect on the quality of life of the locality’, is a ‘persistent or continuing nature’ and is ‘unreasonable’.

However, the threshold of what may have a 'detrimental effect on the quality of life' seems quite low (certainly lower than a requirement that the behaviour should cause 'alarm or distress'). Note also the ‘is likely to have’ provision: it is not even necessary for the ASB to occur for the restrictions to be put in place. For this reason, there are concerns that the new powers would be used inappropriately to penalise rough sleeping, parking outside schools and even ‘inappropriate dress’, such as Newquay’s ban of the ‘mankini’. The issue has been taken up by thinktanks such as the Manifesto Club, which in their briefing on the Act argue:

No doubt some local authorities would use these new powers proportionately, but we can be sure that others would not. Public Spaces Protection Orders urgently need to be subjected to additional checks and limitations, to ensure that they are used proportionately and do not interfere with the rights of those who use public spaces.

These concerns for civil liberties echo those of the House of Lords during the progression of the bill, where they challenged the test of ‘nuisance and annoyance’ for the new injunction. Concerns that were raised included that such powers would infringe fundamental freedoms and risk criminalising ‘noisy children in the street, street preachers, canvassers, carol singers, trick-or-treaters, church bell ringers, clay pigeon shooters, nudists’.

In response to this, the “common-sense” response from Lord Faulks in the same debate is very persuasive. Although the idea of carol singers being hit with an injunction or PSPO is head-line grabbing, it is hardly realistic; Lord Faulk’s stated that he ‘simply cannot see a judge ordering an injunction for any of the sort of trivial matters which have been referred to in the course of the argument’. As identified in the most recent Housemark Benchmarking report, over 80% of ASB cases are resolved by early intervention and non-legal action, with ASBOs/ASBIs accounting for only 1% of successful actions and eviction even less, at 0.8%.

Secondly, it must be remembered that the agencies likely to use these powers, especially local authorities (the only agency able to issue a PSPO) are directly accountable to the public. Even if restricting local freedoms to an intolerable degree does not lead the community to putting in an appeal at the High Court within the prescribed time limit, it will almost certainly damage the chances of the local council retaining power.

With the introduction of such a new approach, we are likely to see some news stories of provisions created by over-excited local authorities, but as with Health and Safety laws, this is likely to be the result of poor interpretation, which can be quickly addressed, rather than a fundamental flaw in the Act.

Local Accountability and the Community Trigger

The Community Trigger is another element of the new toolkit focussed on such local accountability. Distinct from the enforcement powers, it enables a complainant of ASB, or someone acting on their behalf, to trigger a review of their case by a partnership of external agencies based on a threshold set by the local authority. The minimum threshold is three ‘qualifying complaints’ within a period of six months, though other cases may be considered, taking into account particular vulnerabilities or the type of ASB.

The aim is to ‘help deliver a safety net for the most vulnerable’ to prevent harrowing instances of neglect, abuse and even death as a result of a failure of key agencies to intervene and stop ASB. Such cases include that of Fiona Pilkington, who in 2007 killed herself and her disabled child following the failure of agencies to respond to the persistent ASB the family suffered, or that of David Askew, in 2011, who suffered a ‘staggering degree of inertia and complacency’ from authorities who should have protected him from the unlawful death he suffered following 30-years of abuse.

There are some questions as to whether the trigger will be used as the 'whistle-blowing' tool it needs to be for those most vulnerable, or whether it will simply be seized upon by those who already currently make full use of complaints provisions, perhaps for unfounded or trivial matters. While advocates such as MPs do some great work around raising the concerns of their constituents, another concern is that the process will be used excessively in the run up to national and local elections to gain quick wins and publicity. Further, one of the findings of the pilots in Manchester, Brighton and Hove, West Lindsey, Boston and Richmond was that understanding of the use of the trigger was not clear, and that those who triggered it did not have clear expectations: ‘[t]he trigger was another thing to try, but not sure [sic] on specifics of what it could do – it should be clearer’.

However, the feedback from the pilots on their outcomes was overall very positive, including the following comment:

Things really got moving quickly and it made things happen. It took drive from an individual, but gave them the tools and made other people stand up and take notice. I felt that it was falling on deaf ears, but the council were now able to kick the housing association into gear.

On balance, the trigger has the potential, under the caveat of being advertised and supported correctly, of being a real asset in the fight against ASB come the 20th October.

Ready for Launch – Or, Almost

Each of the new powers introduced by the Act could merit an article of their own: here I have given just a flavour of some of the key issues. As mentioned in the introduction, not all of these are ready to commence as planned.

On the 25th September the Home Office released a Commencement Order confirming the introduction of all new provisions on the 20th October save Part 1, covering the new injunction. With only 20 days to go before the introduction of the new powers, the Home Office confirmed that the introduction of the injunction has now been delayed until early next year in order to give time for amendments to be made to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to ensure that children against whom applications for injunctions are sought have the correct access to legal aid and advocacy.

The delay has understandably caused disappointment and frustration among practitioners. Winkworth Sherwood solicitors, have argued that ‘[t]he delay is extremely disappointing for our clients who are keen to use the new powers. We are aware of two cases that were ready to go, and the evidence will now be stale by 2015’.

Conclusion 

Personally, I am cautiously optimistic about the potential of the Act. Remembering that the majority of action preventing and tackling ASB involves community empowerment, diversionary activities and non-legal solutions, when the behaviour is one of the small percentage serious enough to merit the use of legal tools, these should be fast-acting, robust and effective. However, whether this will be achieved in action depends on the appetite of both agencies and courts to fully utilise them: this is will be something to watch out for over the coming months.

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Tagged: Criminal Law

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