Examination of Witnesses (Questions 320-339)
18 JANUARY 2005
MR ROGER
HOWARD, MR
CHRIS DYER,
MR RICHARD
GARSIDE, MR
WILL MCMAHON,
MR ROGER
SMITH AND
MR JIM
SKELSEY
Q320 Bob Russell: Are
you not also guilty of exaggeration? Out of 13½ million reports,
there have been fewer than 8,000 ASBOs and ABCs combined being
issued. Are you not exaggerating the other side of it, and exaggerating
what is really happening on the ground?
Mr Garside: I do not think that
we are saying that ASBOs are being used too much in a numerical
sense, if what we mean by that is, compared with all the anti-social
behaviour the Government claims is there, how many are used. What
we are saying is that they are being used disproportionately and,
very often, targeting very vulnerable people.
Q321 David Winnick: The
country is not being flooded with ASBOs, is it?
Mr Smith: Not yet, but they are
on an upward growth. One has to remember this. The paradox is
that they will get to a number where their effect will diminish,
because part of their value is shock and the shortcut that they
provide. That gives them a built-in half-life, which is why we
would argue that now is the time to start looking beyond ASBOs,
to fix ASBOs, and to deal with the problems which will lead to
their demise. In two or three years' time, I think that there
will be a major reversion against them.
Q322 David Winnick: I
wonder if you would accept that politicians—and not necessarily
confined to any one particular political party—have been
subject to constant complaints by constituents over the last ten
to 15 years about anti-social behaviour. At one time our surgeries
would be dealing, first and foremost, with housing and with various
other matters coming well behind. Increasingly—and I am
sure that my own experience is not somehow unique, either to my
colleagues round the table or to the House as a whole—constituents
come to us, not because they are suffering from some sort of paranoia,
persecution mania, or what-have-you, but because they are finding
life unbearable. That is because, sometimes amounting to the involvement
of only four or five youths, they are causing a constant nuisance,
particularly late at night. They do not see any particular reason
that if politicians, as they see it—and they may be wrong—live
a life free from such harassment they, the constituents, should
not also be able to do so. Would you accept, Mr Garside, that
people who have come to see us in the circumstances I have described
usually have good reasons for complaining?
Mr Garside: It would be churlish
for me to deny that. Given that I am obviously not familiar with
the constituents, I would not want to contradict them. Perhaps
I may ask my colleague Will McMahon to give you a slightly more
detailed answer.
Mr McMahon: It depends, as with
the term "anti-social behaviour", on what you are talking
about. As we have suggested, there is crime and then there are
issues of tolerance and behaviours in between. This is an important
distinction, for the following reason. If you are looking at nuisance
behaviours, where people feel that people are being a nuisance
in their area, and these complaints have been going on for some
time, it may not necessarily be the case that a response that
leads to the criminal justice system is the right kind of response.
It may be the case that government could have looked at mediation
and a campaign around active citizenship and mediation—which
would very much fit in with what it is doing—to respond
to these issues. If you look at the key issue of young people
hanging round on the streets, I think that there is a question
of prejudice here, which is that, as a society, we have a particularly
dim view of what young people are doing when they hang round on
the streets. We think that young people are more involved in crime
than they are. It is not a particularly good answer to say, "Actually,
these are real problems with young people". For example,
about 10% of cautioned or convicted offenders are under 18, but
in recent research 60% of the public think that young people are
responsible for 40% of crime; 25% of the public think that young
people are responsible for 60% of crime.
Q323 David Winnick: I
think that we could all agree that the vast majority of young
people are no more involved in unlawful actions than we are; but
it is the minority. I did stress that sometimes the complaints
are about no more than four or five, usually youths. That is,
after all, only four or five out of the large numbers of young
people who live in a particular area. I was just going to turn
to Mr Smith, and then I have another set of questions before we
end this session.
Mr Smith: Is it a political problem?
Yes. Is it a real problem—which is not quite the same thing?
Yes. I think that all three of the organisations here agree with
that. I think that all of us are a little unhappy about anti-social
behaviour orders as a way of addressing them. It has to be clear.
We are concerned with the method of response. If you said to your
constituents who complain, "Would you like me to send the
police round to lock them up and throw away the key?", on
a 60:40 basis your constituents would probably say yes. That would
not be right either; that would be absurd. So there are some constraints
about how we deal with people.
Q324 David Winnick: Briefly,
Mr Howard?
Mr Howard: What you hear from
your constituents is quite apparent, and they are very real experiences.
However, I think that we need to start with the problem-solving
approach, which is to ask the question why. For economic reasons,
over many years we have stripped away some of the informal guardians.
The bus conductors, the park-keepers, the caretakers, and people
like that—we have stripped these out and, for whatever reason,
right or wrong, they have gone. These informal mechanisms that
we used for social control in one way or another have changed.
Q325 David Winnick: Including
PC Dixon.
Mr Howard: It is not just PC Dixon.
I got a clip round the ear from a copper years ago, and they would
not dare do that now! The point I am making, as Mr Russell said,
is that there is a huge swathe of behaviour that is not subject
to ASBOs. We must not let ASBOs dominate discussion. How we respond
to anti-social behaviour is not just through ASBOs; they are only
the tip of an iceberg. However, I think that there is a critical
point in terms of how we respond to ASB using support mechanisms.
There are clearly a lot of people with some very difficult problems—whether
it is parenting, child behaviour, mental health problems, addiction,
whatever it is—and our experience round the country is that
our responses of the public services have been woefully inadequate
in terms of genuine problem-solving. We have not addressed these
problems, and so we keep getting this recurring behaviour. It
is no wonder that a third of ASBOs are breached: we are not tackling
the root problems and the root causes. Some political parties
have argued for an ASBO-plus. There is a great deal of provision
that could be engineered and brought to bear on tackling these
behaviours. Whether it is done in genuine partnership at the local
level is questionable. Unless we can focus and move this anti-social
behaviour campaign into the next phase, which is sustainable community
involvement, and good problem-solving with support mechanisms
for some of the perpetrators, then we will just be recycling some
of these problems.
David Winnick: As usual, of course, we
will take very much into account when we are preparing our report
the views of many, not least yourselves. You can rest assured
of that. My colleague Mr Singh has been waiting with great patience.
Q326 Mr Singh: Mr Smith,
JUSTICE is sharply critical of the dispersal powers. Why is that?
Mr Smith: We are concerned about
the breadth with which they might be used. It is pretty draconian.
It is basically that: these are draconian powers and we are very
concerned that they would be misused.
Q327 Mr Singh: Do you
accept that sometimes certain groups of young people hanging about,
usually outside shops or whatever, do intimidate people?
Mr Smith: Yes.
Q328 Mr Singh: Do you
think that there should be a power to deal with those people who
are intimidating?
Mr Smith: Yes.
Q329 Mr Singh: What should
that be?
Mr Smith: Threatening behaviour
is an offence, and we have a criminal law for a purpose. If you
have a group of youths who are threatening people, they can be
arrested and charged, and taken off the street in that sort of
way.
Q330 Mr Singh: If the
threat is implicit, not explicit, what do you do then?
Mr Smith: Then what does that
mean? I think that—
Q331 Mr Singh: It means
that the other people are genuinely afraid of those people. They
cannot prove that they are doing anything to them, but they are
genuinely in fear of them.
Mr Skelsey: There is already legislation
that covers the situation, or is likely to. You do not have to
have an event take place; it can be a threat of a situation occurring.
There are offences. There is section 5 and section 4 of the Public
Order Act 1986, as well as more serious offences under the same
Act. The offences are therefore already in existence. The trouble
with dispersal powers is that there is the risk of discrimination.
Effectively, the police will award themselves special powers where
they consider a situation to be an anti-social hot spot, and there
is a risk of discrimination when an offence is not actually being
committed. If an offence is being committed, then they can be
arrested and go through the criminal justice system in the usual
way.
Q332 Mr Singh: Surely
the trouble is that the other piece of legislation you mention
did not work. This is why the problem is getting bigger and bigger.
Mr Skelsey: That is possibly the
case, but that is putting more resources perhaps into enforcing
the legislation that is already in existence.
Mr Smith: What is the problem
that is getting bigger and bigger? If people are committing an
offence, they should be arrested and taken off the street. If
they are not committing an offence—and we are talking about
offences which, as Mr Skelsey is saying, include both action and
prospective action—if there are still people legitimately
falling through the gaps, then change the definition of the offence.
The problem about draconian powers of dispersal—and someone
has already used the phrase "mission creep"—is
that they have enormous dangers in terms of being used arbitrarily;
of police officers being put into situations where they are forced
to use them. There is the potentially explosive nature of the
discriminatory aspect. We have not come across this yet, but this
legislation in relation to anti-social behaviour is so flexible
that it could reflect prejudice in how it is used. It is so subjective
that you would almost predict that it will. If you start to get
the suggestion that these types of powers, including dispersal,
are being used in a discriminatory way, would you be in the first
rank with me, objecting to that? The looser they are, the more
draconian they are, and the less the power is based upon the cause,
the more dangerous they are.
Q333 Mr Singh: A senior
officer has to designate an area where those powers can be used.
Secondly, that senior officer will presumably be accountable to
his line management, to the Police Committee, and questions can
be asked if those powers are used prejudicially—by MPs,
by the local authority, and other people. So it is not as draconian
and—
Mr Smith: I would want to make
a simple point about the police. The police are often put into
very difficult situations. I believe that the police should have
powers to stop and search in relation to terrorism. I am surprised
that that happens to allow them to designate areas where they
can stop and search outside an arms fair. There is pressure on
officers in difficult situations, and legislation which is brought
in for one purpose is often escalated up. The looser that legislation
is, the more likely that it is open to that.
Q334 Mr Singh: So you
would scrap this measure?
Mr Smith: I have seen no evidence
to suggest that existing powers are not enough.
Q335 Mr Singh: Turning
to you, Mr Howard, obviously that early clip round the ear has
led to a very successful life! You are working in the field. Have
you come across these dispersal powers being used? If so, how
have they been used?
Mr Howard: Perhaps I could quote
you the comment from one north London borough commander, who shall
remain nameless, but who we work closely with. The point is about
ASBOs generally but also refers to dispersal and exclusion powers.
He told us that initially he had used these quite liberally. He
is now thinking about backtracking. I cannot think of any other
situation since the Second World War where there have been such
severe powers, particularly for exclusion, in a time of non-emergency.
The value of anything, as Mr Smith mentioned earlier, is in its
scarcity value. If they are used liberally, they become devalued.
I will not say that they may never be appropriate or necessary;
but, outside of a major civil emergency and wartime situation,
I cannot think of any other period when there has been such a
powerful piece of legislation at the disposal of police.
Q336 Mr Singh: I presume
that you agree with those views, Mr Garside.
Mr Garside: Yes. It is worth bearing
in mind that the dispersal powers are there to give police powers
to manage the risk of minor disorder. They already have the powers,
as Roger Smith has pointed out, to deal with genuine disorder.
It seems to me that one of the questions is should the police
have powers to disperse people simply because they are perceived
to be threatening? I think the answer to that must be no. In their
thirteenth report in the 2002-03 session, your colleagues on the
Joint Human Rights Committee also said that they had profound
concerns about these powers. I therefore think that they got it
right. I think that JUSTICE is right on this. In that sense, I
do not think that it is only JUSTICE. There is a broad range of
opinion concerned about these powers.
Q337 Mr Singh: Mr Smith,
you talked earlier about some objective measures around ASBOs.
Are there any legal safeguards which you think should be introduced
into the legislation to satisfy your concerns about this?
Mr Smith: I think that the definition
should be tightened up. It is "caused" and I think that
should be "reasonably caused"; I think that it should
be reasonably foreseeable. You should, as you walk down the street,
have some notion about whether your behaviour is likely to be
regarded as anti-social: some advance way of saying, "How
can I check?" in relation to that. There are issues about
the order itself. It is a mandatory two-year order. I think that
they should be much more flexible than that. There should be sentencing
guidelines in relation to breach. There are a variety of safeguards
which I think should be built in.
Q338 Mr Singh: Turning
to breaches, Mr Howard, you mentioned a figure of 33%, which is
the accurate figure at the moment. What is causing these breaches?
Is it the two-year aspect and, if there was more flexibility,
would there be fewer breaches, and what can we do about it?
Mr Howard: I would suggest that
there are probably some complex reasons, which we could perhaps
try to categorise. There will no doubt be some woeful and wilful
disregard and breaches. There is no doubt that there will be some
of those. A second reason may be that some of the conditions that
are put on are inappropriate and unenforceable. I know that the
National Association of Probation Officers has given you evidence
of certain instances where this is the case, and I will not go
into those. The third thing—and I reiterate the point that
I made earlier—is that there are unrealistic expectations
about people being able to comply with a particular ASBO without
appropriate backup and support. Let me just say that a lot of
people have drug problems and they can be dealt with through the
criminal law and DTTOs and other measures. But I just make the
point—and I always make this point to people—that
the World Health Organisation defines drug dependency and addiction
as mental health problems. We have decided to criminalize them,
whereas an internationally recognised body defines them as major
health problems. Unless we provide support, for people with alcohol
problems, for people with mental health problems and other problems,
then we must expect breaches to be made. With young people particularly;
who can have major problems with literacy, numeracy and other
basic skills, unless things are put in place—and again the
Youth Justice Board has a number of interventions that are very,
very successful, but there are not enough of them, simple as that—to
back up action and even pre-empt an ASBO, then we will be recycling
problems.
David Winnick: My colleague has one or
two other questions but we have another set of witnesses.
Q339 Mr Singh: We will
not have time for everybody to answer this, but to Mr Garside:
is naming and shaming an appropriate aspect of ASBOs, or is it
gratuitous?
Mr Garside: I think that naming
and shaming is an illustration of the problem of ASBOs because
those who argue for it will say that if you do not name and shame
how are people to know who has been given ASBOs and how should
we be able to make sure that they are properly enforced? The degree
to which that is genuinely about enforcement and the degree to
which that is more about PR for ASBOs is a moot point actually.
Our starting point for the naming and shaming of young people
who are ASBO'd is not with the anti-social behaviour legislation,
it is with a question about juvenile justice, and I think there
are many concerns about the way that young people who come to
the attention of the law on a range of issues, whether it is age
of criminal responsibility, whether it is detention, whether it
is the way that the court processes operate, there are a lot of
concerns about that and naming and shaming is part of that. The
question really is whether we consider young people to be different
from adults and therefore afforded particular protections, and
naming and shaming falls into that category, both because of the
nature of ASBOs and what they are and also because of the broader
principles about juvenile justice.
Mrs Curtis-Thomas: I would seek some
clarification because I think you were dodging and weaving in
response to a question from my colleague, Mr Marsha Singh. It
is a reality for us, as Members of Parliament, that we are dealing
with constituents who are facing problems every day which are
not criminal in nature but cause them serious concern and undermine
the quality of their life. Your response to that, Mr Skelsey was
that there are criminal acts that could be enforced to deal with
this problem but the problem is that we have individuals who understand
that only too well and operate just below the point where they
could be subject to a prosecution. Indeed, that is the argument
that is perpetuated by local authorities and the police for not
taking action against these individuals. Are ASBOs then not the
perfect opportunity to tackle such invidious behaviour which has
systematically evaded prosecution by any other means? Is that
not what it is here for?
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