House of Commons - Explanatory Note
Anti-Social Behaviour Bill - continued          House of Commons

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Clause 41: Report by local authority in certain cases where person remanded on bail

     102.     This clause inserts a provision into the Children and Young Person Act 1969 following section 23A. Section 23A provides that where a court does not grant bail, remands and committals of a child or young person charged with or convicted of an offence must be to local authority accommodation.

     103.     Section 23(4) of the Children and Young Persons Act 1969 gives the court the power to impose a security requirement when remanding a child to local authority accommodation. However, by section 23(5) of the Children and Young Persons Act 1969 the court may not impose a security requirement in respect of a child who has not reached the age of 12.

104. This provision is designed for serious or persistent 10 and 11 year old young offenders in cases where the court might have considered remanding a child to secure accommodation if they were aged 12 or over. The provision of a report by the local authority will enable the court to be aware where the child would be placed if the court decided to remand the child to local authority accommodation. In particular this would allow the court to see if the local authority would use their discretion to send the child home. If the court was satisfied with the local authority's initial report, it could, either remand the child into local authority accommodation if it thought that this placement would be best for the child's welfare, or continue bail if it was satisfied that there were no difficulties with the child remaining with his parents. If the court was not satisfied with the local authority's initial report, it could then direct the local authority to make investigations under section 9 Children and Young Persons Act 1969. The results of any such investigations would be taken into account at the sentencing stage.

105.     Subsection (6) allows the Secretary of State to extend this provision by order to 12-16 year olds who met the criteria for a secure remand, and whose behaviour was due, to a significant extent, to their home circumstances.

PART 6: FIREARMS

106.     This part of the Bill introduces a number of changes to the Firearms Act 1968 with a view to tackling the misuse of air weapons and imitation firearms, and introducing stricter controls over especially dangerous air weapons.

Clause 42: Possession of air weapon or imitation firearm in public place

107.     This clause amends section 19 of the 1968 Act, which deals with the carrying of firearms in a public place, so as to include air weapons and imitation firearms. These amendments mean it will be an offence to carry an air weapon (whether loaded or not) or an imitation firearm in a public place without lawful authority or reasonable excuse. An "imitation firearm" is defined in section 57(4) of the 1968 Act. It covers anything which has the appearance of being a firearm whether or not it is capable of discharging a shot or bullet. Subsection (3) makes this an arrestable offence by adding the new offence to the list of arrestable offences set out in Schedule 1A to the Police and Criminal Evidence Act 1984. This will be subject to a maximum penalty of 6 months imprisonment.

Clause 43: Air weapons: age limits

108.     This clause makes a number of amendments to section 22, 23 and 24 of the Firearms Act 1968 with a view to changing the age at which a young person may own an air weapon and to tightening up on when it may be used unsupervised. The present limit is raised from fourteen to seventeen and it will also be an offence for anybody to give an air weapon to a person under seventeen.

Clause 44: Prohibition of certain types of weapon

109.     This clause creates an order making power that will enable the Secretary of State to prohibit or introduce other controls in respect of any air weapon which appears to him to be especially dangerous. Particular types of air weapons are vulnerable to conversion in a number of ways so as to fire conventional ammunition and have been increasingly used in gun crime.

PART 7: THE ENVIRONMENT

     Noise

Clauses 45 and 46: Closure of noisy premises

110.     These clauses allow a senior environmental health officer to issue a closure notice to a licensed premises that is causing a public noise nuisance. Subsection (1) of clause 45 sets out the circumstances under which a closure notice can be made. Subsection (3) states that the closure order can apply for a maximum of 24 hours, starting from the time when the notice was issued to the manager. Subsections (4) and (5) provide that a person disobeys a closure order they are committing an offence and can receive a penalty of up to 3 months imprisonment or a fine of up to £20,000. Subsection (1) of clause 46 outlines the circumstances under which an order can be cancelled, and requires the officer issuing the order to inform the relevant licensing authority. Subsection (2) sets out the process by which the chief executive officer of a local authority can authorise environmental health officers to issue closure orders.

Clause 47: Dealing with noise at night

111.     This clause amends The Noise Act 1996 which provides powers for local authorities to issue fixed penalty notices for noise at night. Subsection (2) removes the adoptive nature of the power and makes it apply to every area in England & Wales. Subsection (3) removes the associated duty for England and Wales to supply full 11pm-7am service before adopting this power. Subsection (4) removes a section that refers to another area that has not adopted these powers, as this will no longer apply.

Graffiti and fly-posting

112.     Clauses 48 - 52 give authorised local authority officials the ability to issue fixed penalty notices to offenders who have perpetrated acts of graffiti or fly posting. The intention is that these penalties will be issued only to the person committing the act of graffiti, or the person putting up the poster.

Clause 48: Penalty notices in respect of graffiti or fly-posting

113.     Subsection (1) sets out the power for the local authority official to issue a penalty for the relevant offence (defined at Clause 49). Subsection(2)(a) excludes from the scope of such offences capable of being dealt with by means of a fixed penalty notice any that is racially or religiously targeted or motivated. Subsection (3)(a) provides that offenders have 14 days in which to pay the penalty, after which prosecution for the offence can be initiated. Subsection (3)(b) sets out that no proceedings may be brought where payment of the fixed penalty has been made within the 14 day period. Subsection (4) provides that in issuing a fixed penalty a local authority officer must provide a written statement setting out the particulars of the offence. Subsection (5)(a), (b) and (c) sets out that the notice setting out the particulars of the offence must state that legal proceedings will not be initiated until after 14 days, the amount of the fixed penalty and details of where the penalty should be paid.

114.     Subsection (6) provides that payment of a penalty may be made by pre-paying and posting a letter containing the full amount of the penalty (in cash or otherwise) to the person named on the notice. Subsection (7) provides that where a letter is sent containing payment of the penalty, that payment is deemed as having been made at the time the letter would ordinarily be expected to be delivered. Subsection (8) provides that the penalty notice shall be in such form as the "appropriate person" (i.e. the Secretary of State, in England, or the National Assembly for Wales, in Wales) shall prescribe. Subsection (9) provides that the penalty for these offences is £50. Subsection (10) provides that the appropriate person, may, at some time in the future, change the amount of the fixed penalty.

     Clause 49: Relevant offences

     115.     This clause describes the offences in respect of which fixed penalty notices may be issued, being the graffiti-type offences otherwise prosecutable under the enactments listed at subsection (1)(a)-(d). (It is understood that such offences are almost always prosecuted under the Criminal Damage Act 1971, although the other enactments listed contain provisions which might also equate to the same offence).

Clause 50: Penalty receipts

116.     Subsection (1) provides that penalties issued under clause 48 are paid to the local authority. Subsection (2) sets out that a local authority officer may make a statement/certificate stating the facts about payments which may be used in evidence in any proceedings. Subsection (3) provides that any sums received as fixed penalties shall be delivered to the appropriate person.

Clause 51: Powers of police civilians

117.     Subsection (1) amends Schedule 4 of the Police Reform Act 2002 to include powers for a community support officer to issue penalty notices in respect of graffiti and fly posting (as they currently have for issuing penalties in respect of littering and dog fouling). Subsection (2) amends Schedule 5 of the Police Reform Act 2002 in respect of powers of accredited persons to issue fixed penalty notices to include being able to do so in respect of graffiti and fly-posting.

     Clause 52: Interpretation

118.     Subsection (1) defines "appropriate person", "authorised officer", "local authority", "racial group" and "religious group". Subsection (2) applies a provision of the Crime and Disorder Act 1998. Subsection (3) permits the appropriate person to issue guidance to local authorities in respect of the exercise of their officers' discretion to issue fixed penalty notices under clause 48(1) and about the giving of such notices. The intention is to specify that such notices are appropriate only in the case of "minor" instances of graffiti or fly-posting; where major criminal damage has been done, criminal prosecution will continue to be the appropriate course.

Clause 53: Sale of aerosol paint to children

119.     The clause makes it an offence to sell aerosol spray paints to persons aged under 18. The objective is to reduce the incidence of criminal damage caused by acts of graffiti. Subsection (2) contains a definition of aerosol spray paints. Subsection (3) sets out the maximum penalty for the offence which is a fine of £2,500. Subsection (4) provides a defence for those who took all reasonable steps to determine the purchaser's age and reasonably believed he was 18 or over. Subsection (5) provides a defence for someone who is charged with an offence but did not carry out the sale themselves (such as a shopkeeper) if they took all reasonable steps to avoid the commission of an offence.

     Waste and litter

Clause 54: Unlawfully deposited waste etc

120.     This clause gives waste collection authorities in England and Wales a strategic role for dealing with the illegal dumping of waste (or "fly tipping"), facilitates the definition of this role further to the receipt of statutory directions and extends the range of powers available to them. This should lead to better enforcement of current legislation, a significant increase in investigation activity, better detection of the perpetrators of the crime and, eventually, a reduction in levels of unlawfully deposited waste.

121.     Subsection (2) corrects an error in the Control of Pollution (Amendment) Act 1989 (c. 14). Subsection (3) amends the Control of Pollution (Amendment) Act 1989 (c.14) to give waste collection authorities in England and Wales the powers to stop, search and seize a vehicle they suspect of being used for the unlawful deposit of waste. Subsection (4), by means of an amendment to the Environmental Protection Act 1990, gives the Secretary of State the power to issue statutory directions to clarify the roles and responsibilities in the exercise of their powers under s.59 of that Act of the waste regulation authority (Environment Agency) and waste collection authorities when dealing with illegally deposited waste, and provides that each of them shall provide the Secretary of State annually with such information as he shall specify in relation to the categories and quantities of waste that they have dealt with under those powers. This power is exercisable by the National Assembly for Wales in Wales by virtue of subsection (9). Subsections (5) to (8) amend section 108 of the Environment Act 1995 to give waste collection authorities the power to investigate incidents of unlawfully deposited waste. Subsection (9) makes a consequential amendment in relation to Wales.

Clause 55: Extension of litter authority powers to take remedial action

122.     This clause amends section 92(10) of the Environmental Protection Act 1990 to remove the barrier which currently prevents local authorities from entering relevant land (Crown and or land owned by a Statutory Undertaker), clearing that land of litter, and recovering its costs through the courts, though certain exceptions will still apply.

PART 8: GENERAL

Clause 60: Extent

123.     This clause provides that in general the Bill extends to England and Wales only. The only exceptions are Part 6 (firearms) and Part 8 (general), both of which also extend to Scotland.

SCHEDULES

Schedule 1: Demoted Tenancies

     124.     Schedule 1 makes amendments to the Housing Acts 1985 and 1996 relating to demoted tenancies.

125.     Paragraph 1 inserts new Chapter 1A into Part 5 of the Housing Act 1996. New section 143A of the Housing Act 1996 sets out the conditions for a demoted tenancy to which new Chapter 1A applies:

?     the landlord must be a local housing authority or housing action trust;

?     the tenant must occupy the dwelling-house as his only or principal home, or, where there are joint tenants, that each is an individual and at least one of them occupies the dwelling-house as his only or principal home; and

?     the tenancy must have been created by a demotion order.

New section 143B sets out the duration of a demoted tenancy. A demoted tenancy will normally remain a demoted tenancy for one year, at which point it will become a secure tenancy. However, if the landlord issues a notice of proceedings for possession during the first 12 months of the demoted tenancy, the tenancy will remain a demoted tenancy beyond the initial 12-month period until one of the events in subsection 143B(4) occurs. Specific provisions also apply if either of the first and second conditions in section 143A is no longer satisfied or the tenant dies. For example, if the tenant no longer occupies the property as his only or principal home, it will cease to be a demoted tenancy and will become a non-secure public sector tenancy which may be ended by a notice to quit.

126.     New section 143C makes provision for a change in the status of a demoted tenancy if, during the demotion period, the landlord's interest in the housing stock of which the dwelling-house forms part is transferred and the new landlord is neither a local housing authority nor a housing action trust (HATs). New sections 143D to F describe the process by which a demoted tenancy can be ended. The court must award possession, unless the landlord has failed properly to follow the procedure set out in sections 143E to F. The procedure is similar to that for ending introductory tenancies as set out in the Housing Act 1996.

127.     The landlord must first serve a notice of proceedings on the tenant. The notice must contain the information prescribed in subsections 143E (2) and (5). The court will not hear proceedings begun on or before the date specified in the notice.

128.     New section 143F requires the landlord to review a decision to seek possession if asked to do so by the tenant within 14 days from the date when the notice of proceedings for possession was served. The Secretary of State is given the power to make regulations with regard to the review procedure to be followed. After the review has taken place, the landlord must inform the tenant of its decision (giving reasons) before the date stated by the landlord's notice on which possession proceedings may be begun.

129.     New section 143G allows possession proceedings to be continued if, for example, there is a change of landlord. It also provides that a demoted tenant will not have the right to buy unless the proceedings are determined and the tenant is not required to give up possession. In this case the tenant would become a secure tenant and so the right to buy would apply.

130.     New sections 143H to J set out what happens to the tenancy if a demoted tenant dies during the demotion period. If the tenant was a successor in relation to the secure tenancy which preceded the demoted tenancy (or to the demoted tenancy itself) there is no further right of succession. If the tenant was not a successor then there may be one succession to a person qualified to succeed under new section 143H(3). New section 143J defines "successor" for these purposes.

131.     New section 143K provides that a demoted tenancy cannot be assigned apart from by an order of the court in specified matrimonial or family proceedings. New section 143L ensures that demoted tenants may benefit from the right to repair as set out in section 96 of the Housing Act 1985.

132.     New section 143M gives demoted tenants the same rights to information published by the landlord as secure tenants. New section 143N provides that the county court has jurisdiction to determine proceedings brought before it regarding demoted tenancies. If a person decides to take proceedings in the High Court that could have been heard in the county court under new section 143N, that person is not entitled to recover any costs related to that action.

133.     New section 143P describes who counts as a member of a person's family for the purpose of succession to a demoted tenancy. The concept of an enduring family relationship includes established heterosexual, lesbian or gay unmarried couples.

134.     Paragraph 2 of Schedule 1 makes consequential amendments to the Housing Act 1985.

135.     Paragraph 2(2) amends section 105 of the Housing Act 1985 to give demoted tenants the same rights as secure tenants to consultation on matters relating to housing management.

136.     Paragraph 2(3) amends Schedule 1 of the Housing Act 1985 to add demoted tenancies to the list of tenancies that are not secure tenancies.

137.     Paragraph 2(4) amends Schedule 4 of the Housing Act 1985 to ensure that if a demoted tenant subsequently becomes a secure tenant and thereby entitled to the right to buy, time spent as a demoted tenant will not count towards the qualifying period for the right to buy or towards the level of discount to which he is entitled under the right to buy provisions.

Schedule 2: Curfew orders and supervision orders

138.     Paragraph 2 of this Schedule makes the necessary amendment to Section 37 of the Powers of Criminal Courts (Sentencing) Act 2000 to increase the period for which an offender aged 10-15 may be made the subject of a curfew order from up to 3 months to up to 6 months. It also specifies that the supervisor of a young person subject to a supervision order should also act as the responsible officer for the curfew requirement.

139.     Paragraph 3 allows a court to make a separate curfew order in respect of an offender even if it is also making a supervision order in respect of him.

140.     Paragraph 4 (1) to (3) amends Schedule 6 of the Powers of Criminal Courts (Sentencing) Act 2000 to increase the length of time for which the offender may be required to comply with specified directions of the supervisor or with requirements of the court from up to 90 days to up to 180 days. The activities require the offender to live at a specified place and report to specified people at specified places and times. They also require the offender to participate in activities identified by the supervision officer, such as offending behaviour programmes. The court requirements can also include one to make reparation.

141.     Paragraph 4 (4) creates new paragraph 5A after paragraph 5 of the Powers of Criminal Courts (Sentencing) Act 2000. New paragraph 5A creates a new requirement which may be imposed by the court in respect of a supervision order. The new requirement allows the court to specify that the offender must live for a period of up to 12 months with a local authority foster parent, subject to certain conditions being specified. Paragraphs 5A (2) sets out these conditions. They are that the offence must be one which is imprisonable in the case of an adult, and that the offence or combination of offences were so serious that the court would normally have imposed a custodial sentence, or a custodial sentence would have been appropriate in the case of a 10 and 11 year old persistent offenders had they been aged 12 or over. In addition the court must be satisfied that the offending was due in large part to the home circumstances, and that the fostering requirement would be help with the offender's rehabilitation.

142.     Paragraph 5A (3) of the new Schedule allows the court to designate the local authority in whose area the offender resides as the one with the responsibility for placing the offender with foster carers, in line with their obligations under the Children Act 1989.

143.     Paragraphs 5A(6) and (7) of the new Schedule set out the circumstances in which the court may make a fostering requirement if the offender is not legally represented. Paragraph 5A (8) allows the court to impose other requirements available with a supervision order as set out in Paragraphs 2, 3, 6 and 7 of Schedule 6 of the Powers of Criminal Courts (Sentencing) Act when imposing a fostering requirement.

FINANCIAL EFFECTS OF THE BILL

144.     The financial effects of the Bill will be subject to a number of variables, particularly related to the extent to which agencies utilise their new powers. Many of the powers are designed to enable local authorities and the police to carry out their existing responsibilities for anti-social behaviour in a more efficient and effective way. On current assumptions, which are not final, the Government estimates that gross costs will be in the order of £67m in 2004-05 and £60m in 2005-06. All of these costs should reduce over time as future offending is deterred. In addition, there are significant probable savings in terms of reducing disruption to communities caused by anti-social behaviour, preventing anti-social behaviour and reducing criminal offending although these are yet to be fully quantified. The departments responsible for the measures in the Bill are committed to their spending settlements; and the costs of the Bill will be met from within them. None of the Bill's provisions have tax implications.

Part 1: Premises where drugs are used unlawfully

145.     The total cost for these measures is expected to be £2.5 million a year based on an estimated 300 cases a year. This includes costs to the Lord Chancellor's Department related to court time and legal aid of approximately £0.8m, costs to local authorities of housing those made homeless of approximately £0.6m and the costs of the police in sealing the property at an estimated £1.3 million. The non-realisable benefits gained from the use of these new powers are expected to include, enhanced community safety, community well-being, reduction in crime, increase in value of properties and increase in trade for local businesses.

Part 2: Housing

Publishing policies and procedures on anti-social behaviour

146.     There is expected to be an approximate overall cost of £319k in 2004-05 for local authorities to publish policies and procedures on anti-social behaviour.

Discretion in possession proceedings

147.     There is expected to be a one-off cost of £5k in updating judicial training material in 2004-05.

Injunctions

148.     There is expected to be costs to the courts of hearing these new applications for injunctions, and of breach of injunctions hearings. These are estimated at £48k in 2004/5 and £139k in 2005/6. There will also be associated legal aid costs. These are estimated at £62k in 2004/5 and £150k in 2005/6. There will also be benefits to the courts from this measure. There are likely to be fewer possession cases brought as anti-social behaviour is more successfully controlled and the community protected through injunctions. However, the Government estimates that there will be a net cost to the courts.

149.     There are costs to local authorities and Housing Action Trusts (HATs) in obtaining injunctions and pursuing breaches of injunctions. These are estimated at £75k in 2004/5 and £233k in 2005/6. There are expected to be benefits to local authorities. Injunctions are seen as likely to reduce the number of possession actions which are necessary, as well as reducing the amount of housing officer time spent dealing with anti-social behaviour. The Government estimates that the overall financial impact on local authorities and HATs of this measure will be neutral.

150.     There will be costs to the police in increased enforcement as there is likely to be a rise in the number of injunctions with power of arrest attached. The Government estimates that the costs to the police of this will be £3k in 2004/5 and £10k in 2005/6. There are also likely to be benefits to the police of the overall package of housing and anti-social behaviour measures. With more effective powers available to social landlords, there are expected to be fewer police call-outs to incidents of anti-social behaviour, and less escalation of anti-social behaviour into crime. The Government estimates that the overall impact on the police is likely to be a net benefit.

 
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Prepared: 27 March 2003