Examination of Witnesses (Questions 282-299)
18 JANUARY 2005
MR ROGER
HOWARD, MR
CHRIS DYER,
MR RICHARD
GARSIDE, MR
WILL MCMAHON,
MR ROGER
SMITH AND
MR JIM
SKELSEY
Q282 David Winnick: Thank
you very much, gentlemen, for coming along today to give evidence
to us in our inquiry into anti-social behaviour. I am not very
keen to have long statements, but perhaps there are some brief
remarks that you would like to make. Obviously your views will
very much come from answering questions. May I apologise, as temporary
Chairman, on behalf of a number of my parliamentary colleagues
who are absent. You can rest assured that it is because of parliamentary
duties, including the Chairman. This does happen from time to
time, I am afraid, and you will forgive us. Perhaps you would
all like to make a brief statement. If you do not wish to do so,
there is no need. Perhaps I could start with you, Mr Howard. Is
there any statement that you would like to make at the beginning?
Mr Howard: A very
short one. Crime Concern works across England and Wales in a huge
number of crime and disorder partnerships. We have a lot of practical
experience on the ground, and so what we will be saying to you
today in our evidence is born out of a huge amount of practical
experience, working with local public services and, importantly,
with local communities and local residents.
Q283 David Winnick: Mr
Dyer, is there anything you wish to say?
Mr Dyer: Not much beyond what
Mr Howard has said. I work for the same organisation.
Q284 David Winnick: Mr
Garside?
Mr Garside: I am happy to wait
until the main session.
Mr McMahon: Me too.
Mr Smith: Could I make three points,
which will put our remarks in context? One, we have no doubt that
behaviour exists which is anti-social and which it is correct
for the State to address. Two, there seems to be a wide measure
of agreement, and we share it, that the way to address it is a
wide variety of non-coercive measures in the shadow of a measure
of coercion which is very sparingly used. Our third point is that
we fear that too much weight is being put on an anti-social behaviour
order in its current form; that it needs reform; and that, without
such reform, it will lose much of its impact within a two or three-year
period.
David Winnick: Your views have of course
been well put and argued in the papers that you have sent us.
As always in these matters, we have a number of questions to put
to you. May I say that there is no need necessarily—you
are all busy, as we are—for every organisation represented
here to answer, but just as you consider appropriate. I will ask
my colleague Claire Curtis-Thomas to ask some questions.
Q285 Mrs Curtis-Thomas:
I will start with a general question, which I would like to go
to a representative of each of the organisations with us today,
and it is specifically this. How useful is the concept of anti-social
behaviour? Mr Howard, would you like to kick this off?
Mr Howard: It covers a huge range
of descriptions of behaviours, from fly-tipping right through
to crack house closure. It is a bit like an elephant, is it not?
You know what it is when you see it. I know that the definition
issue has taxed a lot of people. I do not think that we should
worry too much about definitions, but perhaps we could help clarify
the issue. The London Anti-Social Behaviour Strategy has helped
clarify. Under the Crime and Disorder Act, the definition is somewhat
restrictive. Perhaps I may read to you the London definition.
We can always let you have the definition in detail.[1]
As the London Anti-social Behaviour Strategy define ASB, and I
suppose it is a qualification, the individual components of the
behaviour "are not prohibited by the criminal law, or in
isolation constitute relatively minor offences". The key
distinction is between that which can be dealt with under the
criminal law and other actions and behaviours. I think that it
would be helpful if we could keep that as a broad definition.
Q286 Mrs Curtis-Thomas:
So the definition as it stands now is adequate?
Mr Howard: If it could be fine-tuned,
and I would say along the lines of the London Anti-social Behaviour
Strategy. We can let you have it, without going into the full
detail now.
Q287 Mrs Curtis-Thomas:
So some emphasis on civil measures as opposed to criminal measures?
Mr Howard: Yes.
Q288 Mrs Curtis-Thomas:
Richard Garside?
Mr Garside: Our view is that,
while it is clearly the case that people might do all sorts of
things which may at times be considered anti-social by one or
more people, it does not make much sense to lump so many diverse
and different groups of behaviours under one heading of anti-social
behaviour and think that you can develop a grand strategy for
dealing with it. A couple of years ago, the Home Office made one
of their first attempts to quantify anti-social behaviour. They
came out with a list which was broken down into four categories,
16 sub-categories and more than 60 individual types of behaviour.
It was ranging from everything from running crack houses, to kids
letting down car tyres, people driving cars too fast, and children
cycling on the pavements. So, for a range of reasons—and
particularly for those reasons—we do not find that trying
to lump so many things together is particularly helpful. We therefore
suggest that, broadly speaking, we need to distinguish three different
types of broad strands of behaviours. There are the kinds of behaviours
that are plainly criminal. For example, if you are running a crack
house, if you are fighting, that is a criminal act. We can debate
the degree to which the criminal justice system plays an effective
role in dealing with those things but they are, broadly speaking,
criminal. At the other end of the scale you have whole areas of
contested behaviours, which some people would consider to be anti-social
and some people would not. In many cases, they are arguably a
case for tolerance and people learning to be tolerant about particular
kinds of behaviours. Classically, for example, young people just
hanging round. If they are just hanging round, it is difficult
to see how that can be deemed to be anti-social. Then there is
lots of stuff in the middle, where again it is a contested matter.
They may be genuine problems. Someone playing their stereo late
at night can be a real nuisance for many, many people. There is
not an obvious criminal justice solution to that, but there are
things that could be done—likewise, fly-tipping, graffiti,
whatever. So we would argue that we need to clarify what we mean
by anti-social behaviour and start to disaggregate all these different
things that we have jumbled together under one category.
Q289 Mrs Curtis-Thomas:
But is that not what the anti-social behaviour strategy is? It
is bringing together that disparate group of activities which
constitute anti-social behaviour, whether it is criminal or civil.
Is not what you are arguing for what we had before? Was not the
problem then that there was not an effective, strategic solution
to that? It was different people in different groups doing different
things, but not focused on this problem in its entirety.
Mr Garside: We agree that it is
important for government, both locally and nationally, to play
a role in ensuring that individuals feel safe and secure in their
neighbourhoods and their communities, and that they feel free
from harassment, distress, alarm, and all those things. We therefore
do not have any disagreement with the general principle that there
is a role for government in this. The question is whether the
strategy that the Government has chosen to adopt has been a particularly
appropriate or right one. In many cases, at one end what you have
is criminal behaviour, where effectively the anti-social behaviour
strategies are arguably being used as an additional entry point
into the criminal justice system. You have "criminal justice
light" through the civil burden of proof, and these kinds
of questions. You are bringing people into the criminal justice
system—if you like, through the back door—in order
better to control them. That is a question about the way the criminal
justice system operates. At the other end of the scale, you have
people who are being criminalised, or quasi-criminalised, just
for doing things that are very contested in terms of whether they
are disruptive at all. And, as I have said, you have this stuff
in the middle. We are not disputing that government has a role
to play in this but, in the way that these strategies are currently
determined, they often have quite punitive impacts on people—which
are not very helpful.
Q290 Mrs Curtis-Thomas:
What do you mean by "not very helpful"? To whom? Society
affected by the nuisance, or the individuals who are causing the
nuisance?
Mr Garside: Arguably both. We
came across a case recently of a ten-year-old autistic boy who
was jumping up and down on a trampoline in his back garden and
making gurgling noises—because he is autistic and he makes
the kinds of noises that mentally able people do not. He ended
up getting an ASBO, because the neighbours found it distressing.
There are many other cases and we can draw in all sorts of cases.
There are cases where people have had mental health problems,
and who are causing a nuisance to their neighbours because they
are mentally ill. What is happening is that they are being ASBO'd
or being subjected to other forms of often very heavy-handed interventions,
rather than having their mental health needs addressed. There
are many cases of this, and we have some case studies which we
are looking at and which we are happy to detail. We do not have
time to go into them in lots of detail, but we are happy to make
you a note after the meeting, if that would be appropriate.[2]
The challenge for any strategy is that it deals with the problems
which are clearly identified—and it is not clear to us that
those problems are being clearly identified—but that it
does not, in the process, draw in others who are being labelled
as anti-social or disruptive, when arguably their problems can
often come from a different direction and a different place, or
where there can be contestation about the degree to which they
are being disruptive at all.
Q291 David Winnick: May
I intervene here? You say there are many examples and you quoted
one of an autistic lad, but do you have any documentation, Mr
Garside, to show that people are being labelled anti-social and
dealt with under the anti-social behaviour orders who are in the
sort of category that you have just mentioned?
Mr Garside: Yes, we do have documented
evidence. I would be happy to do a supplementary on that.
Q292 David Winnick: What
numbers are we talking about?
Mr Garside: The problem, of course,
is that a degree of this is anecdotal and a degree of these are
individual case studies. One of the problems with the role of
the anti-social behaviour strategy, in particular the ASBOs, is
that there is simply not enough information available. It may
be collated but, for example, we are not aware of any nationally
collated information that looks at the mental health needs of
individuals who have been subjected to ASBOs. There is anecdotal
evidence and there are localised studies. We came across a study
in Leeds, where it was suggested that maybe 30% of people who
had been subjected to ASBOs had mental health needs. We are not
aware of any nationally collated information about this. It may
be there but, if it is there, we have not come across it. It certainly
is the kind of information that ought to be collated, because
the reality is that there are people who are being subjected to
inappropriate criminal justice-style responses who are certainly
not criminal, but also their presenting behaviour does not come
from a criminal intent. We came across a case of a woman who was
dialling 999 continuously. She was eventually subjected to an
ASBO, but she was clearly someone who had profound mental disturbance.
She was very disturbed by the activities of her neighbours upstairs.
Her neighbours were arguably not doing anything which could be
considered anti-social, but who is anti-social in this? Is it
the neighbours who are causing her distress? Is it she who is
causing problems for the police because she keeps dialling them
and clogging up their switchboard? Arguably everybody and no one
is anti-social under the current definition.
Q293 David Winnick: Against
which, of course, there is the number of people who have been
subject to anti-social behaviour orders, who have made a sheer
misery in their neighbourhoods. You will know about the gang connected
with Neasden, or whatever they called themselves, which went to
the High Court. You would not dispute, would you, Mr Garside,
that the large majority of those who have been subject to these
orders have been creating very great trouble for law-abiding citizens,
which neither you nor I would like to face?
Mr Garside: I would not necessarily
endorse the view that most of the people subjected to these orders
are creating major havoc. It is clearly the case that what is
happening is that there are people who are involved in criminal
activity, who are causing real problems in neighbourhoods, who
are being dealt with through the anti-social behaviour legislation
and the anti-social behaviour powers. It is worth bearing in mind
that that was not the original intention of these powers when
they were first brought in. We have seen significant mission creep
in that sense, in terms of how the anti-social behaviour powers
are being implemented. I do not dispute that there are individuals
who are causing real problems, who are being dealt with through
anti-social behaviour legislation.
Q294 David Winnick: You
accept that?
Mr Garside: Of course I do. It
would be ludicrous to suggest that anti-social behaviour does
not exist and there are not real problems that people are encountering
on a daily basis which need to be dealt with. The question is
whether the anti-social behaviour strategies, as they are currently
constructed, are a way of doing it.
Q295 Mrs Curtis-Thomas:
I found that contribution very interesting and thought-provoking,
Mr Garside. However, in the interests of expediency, I would now
like to turn to Mr Smith. Mr Smith, my original question was whether
you are comfortable with the concept of anti-social behaviour,
or do you have sympathies with the views that have been expressed
by your colleagues on the panel today?
Mr Smith: I certainly have sympathies
with it. I think that there is a paradox about the notion of anti-social
behaviour: that its flexibility is incredibly useful. It is the
core of it. It does allow you to address problems that otherwise
you would find it difficult to address. However, the problem is
that the breadth that it can accommodate raises issues. Oddly
enough, the whole concept, and particularly orders at the end
of it, is only useful if it is used with restraint. There are
a number of issues about that in particular. First, there is the
issue that Mr Garside raised: where ASBOs or anti-social behaviour
is being used as a mechanism to deal with activity which is already
criminalised and where Parliament has already decided on both
a criminal procedure and a criminal sentence. There are a number
of areas in relation to that where it is a problem, but one is
prostitution. Parliament has decided about the circumstances in
which you can charge someone with the offence of soliciting and
they can be found guilty, and the consequences of that. Anti-social
behaviour orders and the anti-social behaviour programme are being
used to address prostitution and to bypass Parliament's restrictions
that would otherwise apply on the prosecution of that kind of
behaviour. There are two ways forward. If Parliament wishes to
change how prostitution is dealt with, it is perfectly within
Parliament's right and, as parliamentarians, you should change
the law. The danger is that ASBOs and the anti-social behaviour
notion are being used as a shortcut to do that. I think that is
problematic. I would love to go as far as Mr Garside and say that
ASBOs should only be used where the criminal law is not applicable.
I think that there are problems about that. In particular, there
are some types of threatening behaviour where you get into a frontier
problem of behaviour which is both anti-social and which might
otherwise be criminalised. I think that there are therefore some
difficulties about going as firmly to the position which he identified.
I like it in theory, but in practice I think that there are some
problems with it. There is a problem in terms of too imaginative
a use of anti-social behaviour.
Q296 Mrs Curtis-Thomas:
Perhaps I could interrupt you for a moment. Are you saying that
ASBOs should only be applicable to criminal behaviour?
Mr Smith: No, I am saying that,
reluctantly, I go along with the definition of anti-social behaviour
that we have; but, in practice, I think that there have to be
some constraints about how it is operating.
Q297 Mrs Curtis-Thomas:
For instance, Mr Smith, if an individual is prosecuted for prostitution,
do you have a problem with an ASBO also being attached to that
criminal conviction which precludes an individual from going back
to a particular position to peddle their wares?
Mr Smith: No. If the order is
effectively part of the sentence and it is a proportionate response
to the crime, I do not have the same problem as I have with freestanding
anti-social behaviour orders, which I think are being used as
a shortcut.
Q298 Mrs Curtis-Thomas:
In your submission you mentioned the word "objective".
You said that the anti-social behaviour definition should have
an objective measure. What do you mean by that objectivity, and
could you compare it with what you consider to be subjective measures?
Mr Smith: I can answer that now,
but may I just finish my earlier answer? First, I have problems
where there is an overlap in the criminal law in relation to a
substantive offence which should be prosecuted under that criminal
law. Second, I think that there is a problem of spreading the
definition too wide. So I think that there is a problem as the
number of Norfolk farmers caring for errant pigs is brought within
the system. I think that brings it into disrepute, and there has
to be constraint about how this is used. Third, there is also
sometimes a practical problem: that there is a tendency for the
authorities concerned too easily to move to orders, rather than
to non-coercive measures. That would be my answer to your first
question. Your second question was based on what we said about
an objective test. Mr Skelsey is a practitioner in Camden, a solicitor
who has done a number of these, and we have discussed this at
length, trying to identify what is the test that we think would
work. The difficulty comes with the definition at the moment of
it being behaviour that has caused or is likely to cause harassment,
alarm and distress. I think that the test has to be an objective
one of "has caused", which probably has implied with
it, "has reasonably caused", and in a reasonably foreseeable
way. There has to be an objective measure of behaviour. We are
dealing with something which ultimately may be an offence. It
is a prime principle that we, as citizens, know in advance what
an offence may be. The easy answer is to say, "If you break
an ASBO, that is an offence. You know that"; but it seems
to me that you have also to apply those criteria to the behaviour
antecedent to that.
Q299 Mrs Curtis-Thomas:
Finally, I have this brief question. You have all referred, either
directly or obliquely, to the variation throughout the country
in terms of pursuing anti-social behaviour orders. Do you think
that this huge discrepancy in pursuit of ASBOs across the region
is either a strength or a weakness? A strength in that it provides
flexibility for authorities and it is responsive to local conditions,
or maybe a weakness because it is perpetuating an unfairness—a
different sort of response to similar conditions. Mr Howard, I
would be grateful for your view on that.
Mr Howard: Could I first make
the point that we are drifting from talking about anti-social
behaviour to anti-social behaviour orders? We need to be very
careful, in that there is a mass of legislation which can contain
and cope with a vast range of behaviours—whether it is noisy
parties, dog pollution, or whatever. We need to be clear that
anti-social behaviour includes a vast range of behaviours, which
we have always responded to, whether adequately or not, in many
localities and in different ways. At one level, it is not surprising
that there are variations across the country. Problems are different
in different localities. The existing infrastructure of support
facilities that Richard Garside and others have commented on—whether
there is adequate drug treatment and counselling, whether there
are other services there to cope with problems—all those
factors will influence whether anti-social behaviour orders are
used in abundance or not. I guess the size of the local authority
and the resources that it has at its disposal will also influence
how often they are used. It is not surprising, therefore, that
if we believe in local solutions to local problems, we need to
recognise that we need to use what is appropriate for each particular
locality. It may very well be that there are local citizens who
are causing mayhem, and the use of an ASBO is absolutely appropriate
as an amelioration measure. In other areas, it may be appropriate
to use ABCs and other measures. I think that there is no blueprint
which will be appropriate for every area. That is why I make the
caveat that the ASBO is not the only solution to anti-social behaviour:
there is a huge range of other measures.
Mr Dyer: Perhaps I could pick
up on some of the points which have not been made today regarding
the application of the definition in real terms, on the ground—if
you want to put it that way. There is the issue of victims. Certainly,
in relation to my own work over the past several years of managing
programmes to deal with these very issues in the most deprived
areas of the country, what I hear and have witnessed repeatedly
is the fact that anti-social behaviour legislation—with
all the flaws that my colleagues have identified, and this is
not a vote for some sort of clear-cut legislation—in the
vast majority of cases has been used effectively and also appropriately.
I am not aware of a vast number of the appalling cases mentioned
earlier by Mr Garside. The quick response would be that cases
like that should never go near a court. There is also the fact
that the immediate response is a civil and not a criminal one.
The ASBO is a civil order in the first instance. It is one which,
if breached, has to be proved. To date, the figures swing slightly
more in favour of non-breach than breach.
1 Note by Witness: See Page 9 The London
Anti-Social Behaviour Strategy: Proposals for Consultation with
Stakeholders, Greater London Authority publication, April
2004. Back
2
See Ev 124, HC80-III. Back
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