Definition
27. A number of separate definitions of ASB are provided
in statute. Under section 1 of the Crime and Disorder Act 1998,
ASB is defined as behaviour that causes "or is likely to
cause harassment, alarm or distress to one or more persons not
in the same household".[24]
This is the definition that applies when, for instance, an application
is made for an ASBO.
28. Different definitions of ASB are provided by
relevant sections of the Housing Act 1996, which refer to conduct
"capable of causing nuisance or annoyance to any person",[25]
and/or the use of premises for unlawful purposes.[26]
These definitions are used for the purposes of triggering a variety
of housing-related powers and duties: the statutory obligation
on social landlords to prepare and publish policies and procedures
in relation to ASB, applications for injunctions and demotion
orders.[27]
29. The key feature of each of these formulations
(aside from the provisions dealing with illegal use of premises)
is that they focus not so much on the behaviour itself as on its
effects. None of the Acts attempt to provide a list of specific
behaviours. The definitions of ASB are therefore flexible, capable
of being interpreted differently by different people and indeed
in different Home Office statements. For instance, in the 2003
Home Office White Paper, Respect and Responsibility, it
is noted that—
Anti-social behaviour means different things to different
people—noisy neighbours who ruin the lives of people around
them, 'crack houses' run by drug dealers, drunken 'yobs' taking
over town centres, people begging by cash-points, abandoned cars,
litter and graffiti, young people using airguns to threaten and
intimidate or people using fireworks as weapons. [28]
30. In its memorandum to us, the Home Office provided
a different list of what is included in the definition of ASB:
Anti-social behaviour … manifests itself in
a number of ways—nuisance noise, verbal intimidation, criminal
damage or vandalism, abandoned cars, kerb crawling, street drinking
and begging, or groups of people intimidating others.[29]
31. Several organisations have criticised the breadth
of the definitions. There are four main issues, centring around
effectiveness, performance management, jurisprudence and consistency.
First, the breadth of the definitions is seen as hindering
an effective policy response. This was, for instance,
the principal argument of the Crime and Society Foundation:
If the objective is to impact on activities legitimately
concerning the public, it is important to be able to disaggregate
different types of behaviours and to specify and measure what
is of concern in order to design and evaluate effective policy
responses. It is the Foundation's contention that current anti-social
behaviour legislation and policy makes difficult such an approach.
Problems of definition lead to problems of solution.
In the view of the Foundation the combination of a definition
based on subjective criteria and an attempt to encompass a wide
range of behaviours under one term leads to inappropriate, expensive
and sometimes draconian policy responses.[30]
Shelter similarly argued that "it is imperative
that responses draw distinctions between different types of behaviour
and recognise the causes of that behaviour. Measures can then
be taken which are not only proportionate, but also effective
in tackling it".[31]
32. Second, it has been argued that the wide definition
hinders performance management. Hull City Council argued
that "a lack of clarity around the definition and measurement
of ASB does not help" with effective performance management
arrangements, and Salford City Council also highlighted this area
as problematic.[32] The
Home Office acknowledged this problem of measurement; however,
it argued that the benefits of the wide definition were more important
than this.[33]
33. Third, several organisations have focused on
the jurisprudential or human rights implications of using
a broad legal definition. For instance, the Law Society argued
that without "a clear standard for enforcers, policy-makers
and the public to measure behaviour against … it will become
increasingly difficult to justify legally any further interference
with human rights".[34]
Liberty suggested that "in a democracy, if prohibitions and
punitive sanctions are to be employed, a greater degree of clarity
is required".[35]
According to JUSTICE, "the very wide definition of what can
constitute anti-social behaviour is of great concern because perfectly
lawful activities can become criminalised through the use of an
ASBO".[36] In addition,
several organisations criticised the fact that the definition
of ASB was wide enough to include behaviour that is already a
criminal offence, arguing that this could lead to a twin-track
approach by which criminal offences were effectively prosecuted
according to a civil standard of proof, albeit that—as we
will point out at paragraph 192—the standard of proof in
ASBO cases is actually indistinguishable from the criminal standard.[37]
34. Fourth, it has been argued that the wide definition
of ASB has led to inconsistency, with the potential for
discrimination and for the unjustified targeting of particular
groups. The Children's Society argued that "many children
and young people are telling us that they do not understand the
term, but they feel that it is targeted towards them".[38]
It pointed to research indicating that young persons between 9
and 13 were unsure as to what behaviour they should avoid in order
to escape having measures used against them. Several organisations
have, more specifically, objected to the term "anti-social"
being applied to children who are "merely hanging about in
the street".[39]
Crisis objected to the equating of begging as anti-social, arguing
that "although the act of begging may be deemed anti-social,
it is a problem that is best understood and dealt with as a manifestation
of social exclusion".[40]
35. In assessing the strengths and weaknesses of
the current definitions of ASB, we were keen to establish how
they have worked from the perspective of practitioners—those
with direct experience of dealing with ASB and its consequences.
In this respect—with the exception of the issue of performance
measurement raised by Hull City Council and quoted above—the
response has been overwhelmingly positive.
36. Practitioners have argued that there are three
main benefits of retaining broad effect-based definitions of ASB.
The most important benefit is jurisprudential: they have
proved simple to use in terms of pursuing legal action. For instance,
Mr Neil Pilkington, Principal Solicitor of Salford City Council's
Community Safety Unit, told us that the definitions "have
not caused practical difficulties in terms of the application
of legislation".[41]
Mr Martin Lee, from Manchester City Council, agreed that they
"are a very good umbrella for covering all [the] particular
forms of anti-social behaviour", observing also that the
presence of two definitions has not caused any practical problems:
I think the definition to secure an anti-social behaviour
order, which is that someone has to be acting in a manner "likely
to cause harassment, alarm or distress", will go before the
magistrates who are familiar with that term from public order
offences that come before them every day, and the "conduct
capable of causing nuisance or annoyance" to get an injunction
in the county court, where there is a lesser burden of proof,
is one that county court judges are very familiar with. I think
that umbrella, as I have said, covers everything. I do not think
there is an incompatibility.
Sergeant Paul Dunn, from the Metropolitan Police
Service, added that "the legal definition helps if enforcement
action is necessary, and it has to be looked at from that point
of view".[42]
37. Second, several witnesses have argued—in
direct contrast to claims that the concept of ASB impedes an effective
response to specific problems—that it actually generates
a more strategic response and, indeed, has
often encouraged a response where previously there was none. For
instance, the Local Government Association argued that the "ASB
focus from central government has led to an increase in focus
within many localities" and that the inclusion of ASB as
a national policing priority "has been particularly effective
in gaining police recognition of "low level" crime as
a local priority and provides the impetus for local joint working".[43]
The Northern Housing Consortium argued that "since the Crime
and Disorder Act 1998 all agencies tackling ASB have been working
more effectively together. Most Councils have now appointed an
anti-social behaviour co-ordinator".[44]
And in addition to anti-social behaviour co-ordinators, the emergence
of local authority ASB units are further tangible evidence of
the practical effect of utilising a broad concept of ASB.
38. Other witnesses have stressed the limited impact
that the criminal justice system was having on low-level, persistent
criminal or sub-criminal nuisance behaviours. For instance, Mr
Chris Dyer from Crime Concern, told us:
Anti-social behaviour did not start when the Crime
and Disorder Act was on the statute book and subsequent legislation
since either. Prior to that there has been a ton of legislation
around for donkeys' years which has and has not been used—arguably
probably not, actually—in the vast majority of cases to
deal with the very issues that we are talking about.[45]
39. Third, one theme that emerged strongly during
the course of our inquiry is the benefit of flexibility
offered by the definition of ASB. Thus far from inconsistency
being a problem, many witnesses argued that this was absolutely
necessary and appropriate, as the definition of ASB needs to be
worked out at a local level. For instance, Mr David Copeland,
head of Peterborough Mediation Service, emphasised the extent
to which tolerance of behaviour varies from area to area:
What is acceptable in one street in Peterborough,
if we moved within 200 metres would not be acceptable. It can
change during the hours of the day. It is a variable.[46]
40. Mr Chris Fox, President of the Association of
Chief Police Officers, told us that the current definition of
ASB is "fine as it is because what we need is a local agreement
about what anti-social behaviour is because anti-social behaviour
is exemplified locally in different ways".[47]
He then elaborated as to what this might mean in practice:
It might be to do with alcohol and binge drinking
[…] in a town centre; it might be about motorcycling across
parks or behaviour in children's playgrounds in a public space
in another totally different community. So I think we need to
leave anti-social behaviour with a wide definition but working
together […] and locally agree what are the issues in that
particular part of the world, which will require different people
to be involved in the solution.[48]
41. The Home Office agreed that the definition of
ASB should be worked out locally. It argued that strict definitions
of ASB by reference to particular types of behaviour or action
would "run the risk of excluding some types of behaviour
that are problematic or including others which may not be"
an issue locally. It considered that the current wide definition
allows local partnerships the flexibility to do this.[49]
42. Overall, the concerns about effect-based definitions
of ASB, particularly those related to jurisprudence (noted above
in paragraph 33), appear to overlook a number of important matters.
First, the definition employed for the purpose of taking out ASBOs
has been in force since 1986 in the context of public order offences,
appearing to have worked successfully. In ASBO cases, the conduct
must be proved to the same, i.e. to the criminal, standard
of proof. Second, the suggested difficulties in understanding,
or agreeing, what may or may not properly be classified as anti-social,
do not seem to be evidenced or supported by any significant numbers
of appeals against ASBOs to the higher courts on the basis that
the behaviour in question was not anti-social. Third, where enforcement
action is being taken, it is the court (county or magistrates')
which will ultimately decide whether the conduct in question is
anti-social and should be restricted. Courts are well used to
balancing the rights of the community against the rights of individuals
and are obviously capable of, and alive to the need to, protect
the rights of alleged perpetrators, especially where they are
young.
43. It is telling that those who criticised the current
definitions of anti-social behaviour did not themselves propose
any alternative definitions, whether by reference of a suggested
list of behaviours which could properly be considered anti-social
or by any other means.[50]
This may well demonstrate the difficulty of adopting a different
approach from that which forms the basis of the current legislation.
Even if a list of behaviour could be prepared, different organisations
and individuals would doubtless disagree about what behaviours
should be included. Most importantly, a list-based approach would
be unable to take account of the context, or the frequency, of
the behaviour. In relation to conduct of the kind which is likely
to fall within the rubric of anti-social behaviour, these factors
are likely to be critical, which goes to the heart of notion that
definitions must be worked out locally (see above, paragraphs
39-41).
44. We have listened carefully to criticisms of
the current legal definitions of ASB as too wide. We are convinced,
however, that it would be a mistake to try to make them more specific.
This is for three main reasons: first, the definitions work well
from an enforcement point of view and no significant practical
problems appear to have been encountered; second, exhaustive lists
of behaviour considered anti-social by central government would
be unworkable and anomalous; third, ASB is inherently a local
problem and falls to be defined at a local level. It is a major
strength of the current statutory definitions of ASB that they
are flexible enough to accommodate this. We would argue also that
the definitions are helpful in backing an approach that stands
with the victims of ASB and their experience rather than narrowly
focusing on the behaviour of the perpetrators.
45. If it is accepted that what is seen and defined
as anti-social will vary from community to community, then the
key question becomes how this can and should be done in practice.
In the next sections, we consider more closely the types of behaviour
that are defined in practice as anti-social, with a particular
focus on ASB by young people, neighbour nuisance and alcohol-related
disorder. In relation to each, we are interested in the extent
to which norms of behaviour are contested and the effect of behaviour
on communities. We then return to address issues surrounding the
definitions of ASB.
Anti-social behaviour by young
people
46. At one end of spectrum, ASB by young people might
include behaviour that is incontrovertibly intolerable and, sometimes,
criminal. This includes joy-riding, drug-using and dealing, vandalism,
racist abuse, bullying and graffiti. Whilst there may be youth-specific
issues regarding the appropriate response to behaviour
of this sort, there are no issues in relation to the definition
of this behaviour as anti-social that do not also apply to adults.
47. None of the organisations that made representations
to us, including those which are primarily welfare-oriented, denied
that such behaviour caused misery in many communities. For instance,
Barnado's wrote:
Barnado's believes that everyone has the right to
live in a safe and decent community and we are aware of the unhappiness,
fear and economic cost that ingrained anti-social behaviour brings
to communities.[51]
County Durham Youth Engagement Service similarly
recognised that "anti-social behaviour is highly significant
for both individuals and communities", arguing that it can
cause "damage, fear, intimidation and paralysis".[52]
NCH, the children's charity, stated that incidents of ASB "can
cause misery to families, estates and communities".[53]
48. The Family Welfare Association drew our attention
to a real case of a family that has made life intolerable for
local residents.[54]
Within this family, the children have been causing as much harm
as the adults:
