23. Memorandum submitted by JUSTICE
INTRODUCTION
1. JUSTICE is a British-based independent
all party, legal and human rights organisation, which aims to
improve British justice through law reform and policy work, publications
and training. It is the British section of the International Commission
of Jurists.
2. In line with our role as a human rights
and law reform organisation, this submission will concentrate
on the legal and human rights aspects of the current powers which
exist to prevent and punish anti-social behaviour, particularly
Anti-social Behaviour Orders ("ASBOs") and the police
powers in the Anti-social Behaviour Act 2003. Our focus will be
on the extent to which these measures comply with human rights
norms, including the right to a fair trial, the appropriateness
of using the police and the criminal justice system to deal with
non-criminal behaviour and the potential that exists for the creation
of unfair discrimination.
3. At the outset, we must make clear that
the although we may be critical of certain aspects of anti-social
behaviour and criminal justice policy, JUSTICE is most certainly
not "in favour" of those who engage in crime or who
thoughtlessly create nuisance and misery for other people. We
acknowledge that crime and anti-social behaviour are of enormous
concern to many people in Britain and that it is entirely right
that the Government has a responsibility to deal with these problems.
We do, however, question whether the correct emphasis is being
applied, and that the causes of anti-social behaviour are being
neglected. We are also very concerned that draconian legal measures
are introduced with little thought as to their cost in terms of
the erosion of fair trial rights, civil liberties and fundamental
legal principles.[59]
HUMAN RIGHTS
AND LEGAL
CONCERNS WITH
ANTI-SOCIAL
BEHAVIOUR ORDERS
4. JUSTICE is concerned that in the McCann
case the House of Lords accepted that proceedings to obtain an
anti-social behaviour order, pursuant to section 1 of the Crime
and Disorder Act 1998, are civil, rather than criminal, proceedings.[60]
This classification is important because it allows a court, when
considering the making of an order, to take into account second-hand
hearsay evidence of the alleged misbehaviour, which may or may
not amount to a criminal offence, and which may result in the
imposition of an order, which if breached may result in a conviction
and loss of liberty.
5. The right to in-court confrontation of
a witness who gives evidence against an accused is an important
part of the right to a fair criminal trial in article 6(2) of
the European Convention on Human Rights, and it is fundamental
to the adversarial tradition of English criminal courts. Although
the European Court of Human Rights has, in certain situations,
allowed the use of anonymous and hearsay evidence this has only
occurred where there was evidence of witness intimidation. The
Court stressed that this unusual procedure must only be used when
necessary, and there must be measures in place to counter-balance
the disadvantage caused to the accused.[61]
6. The classification of ASBO proceedings
as civil means that hearsay evidence can be used in all cases,
even where there is no suggestion of witness intimidation. Although
we understand the Government's motivation when enacting the Crime
and Disorder Act 1998 was a perception that victims of anti-social
behaviour have in the past been to fearful to come forward and
give evidence, the creation of a blanket exception is, in our
view, an unnecessary restriction on the right to a fair trial.
This is particularly so now that the Criminal Justice Act 2003
has relaxed the hearsay rule to allow courts to accept such evidence
in individual cases where there is a demonstrated problem of witness
fear or intimidation.
7. The other perceived difficulty was that
the traditional criminal justice system was too slow in its response
to anti-social behaviour. However, in a country where civil liberties
and human rights are considered to be values that are worthy of
protection, surely it would be preferable to provide more resources
to the police and the courts to enable matters to be dealt with
more speedily, than to create a parallel justice system with watered-down
rights. Often, in the past, the real difficulty in addressing
anti-social behaviour arose from a lack of effective co-operation
amongst the relevant authorities. Police forces have long had
the power to warn, caution, enter property and arrest for public
order offences or breach of the peace; housing managers and noise
abatement departments have long had injunctive and confiscation
powers. Anti-social behaviour practitioners report that one of
the real benefits arising from the Crime and Disorder Act 1998
has been the effect of the duty on local agencies to co-operate.
One suspects it is this duty, in combination with the present
emphasis on taking complaints of anti-social behaviour seriously,
that has had the effect of galvanising the various agencies into
action, and that the existence of new powers are less important
than this effect.
8. The very wide definition of what can
constitute anti-social behaviour[62]
is of great concern because perfectly lawful activities can become
criminalised through the use of an ASBO. For example, an overly
sensitive person may object to children playing, as children do,
in the common area of an estate, or on a street. The fact that
the behaviour must cause or "be likely to cause harassment,
alarm or distress" is also of concern, as there is no requirement
that the behaviour did, in fact, cause harassment etc. Such behaviour,
of itself not criminal and not actually causing anyone harm, can
form the basis of an order, the breach of which can result in
five years imprisonment. We believe that the definition of anti-social
behaviour should be tightened, to incorporate an objective element
and a need for actual harassment etc. to be caused.
9. The wide definition of anti-social behaviour
also has the potential to unjustifiably discriminate against those
from ethnic minority populations, travellers, and simply those
with alternative lifestyles. The perception among some older members
of society that "young people these days" are predominantly
anti-social is not only very sad in terms of creating good community
relations, but has the potential to result in unnecessary over-policing
of young people, and perhaps their unnecessary criminalisation.[63]
We would urge that all agencies involved in preventing and prosecuting
anti-social behaviour are subject to a duty to monitor their activities
to enable any discriminatory effects to be identified.
10. The fact that an ASBO may only be imposed
for a minimum two years, and that an application to discharge
an ASBO of more than two years may only be made after two years
has expired, is arbitrary and has the potential to cause injustice.
Surely the purpose of the order is to prevent future anti-social
behaviour. If it can be shown that the behaviour has ceased, the
justification for having made it has also ceased. Two years constitutes
a large proportion of the life of a child, and (as more fortunate
parents will be aware) in that time great improvement in behaviour
can occur. An order which becomes unnecessary may stand in the
way of useful and rehabilitative activities, for example, if a
ban on entering a town centre, imposed 18 months previously on
the tear-away 15-year old, was to prevent the much more mature
17-year old youth from accepting an offer of employment. No matter
how much everyone concerned was in agreement that he had changed,
the ASBO would have to remain in place.
INAPPROPRIATE CONDITIONS
AND PENALTY
FOR BREACH
11. Experienced criminal law practitioners
have reported that there are major problems, firstly in relation
to the scope and practical effects of some orders, and secondly
in relation to a harsh sentencing regime. In relation to the former,
one practitioner encountered an order that prohibited his client
from going within 25 metres of certain tube stations. Of course,
this had the unforeseen effect of limiting his ability to travel
at all, as the main road in the area was within a 25-metre radius
of the stations. Orders can have the effect of cutting family
members off from each other, adversely effecting relationships
which may in fact assist in the rehabilitation of an unruly youth.
We submit that the conditions attached to any ASBO must be carefully
designed to prevent repetition of the behaviour, and, in order
to be a proportionate restriction on freedom of movement and association,
must be specifically related to that behaviour. Those imposing
ASBOs should be reminded that section 1(6) requires that the conditions
are necessary to prevent repetition of the behaviour.
12. Certain local authorities have used
ASBOs as a means for dealing with street-based prostitution, with
the result that a breach of the order could result in a term of
imprisonment. This flies in the face of Parliament's intention
behind the enactment of section 71 of the Criminal Justice Act
1982, which expressly abolished imprisonment for the offence of
soliciting.
13. Practitioners report that there is a
tendency to impose imprisonment whether or not this penalty, which
should be one of last resort, is in fact proportional to the actual
behaviour complained of. The sentence is not imposed so much on
the seriousness of the behaviour constituting the breach, but
rather because of the fact that it involves a breach of a court
order. While we accept that this aspect of the offence is necessarily
aggravating, it should not so increase the seriousness of behaviour
that would not warrant a prison sentence into behaviour attracting
such a sentence. The need for clear sentencing guidelines in relation
to breach offences is urgent to avoid disproportionality. The
fact that the ability to impose a conditional discharge expressly
disallowed is a disproportionate fetter on a court's sentencing
powers.
CAUSES OF
ASB AND NEED
FOR PREVENTION
VIA OTHER
NON-CRIMINAL
JUSTICE MEANS
14. JUSTICE believes that there is great
scope for the use of alternative dispute resolution techniques,
neighbourhood mediation and restorative justice responses to deal
with anti-social behaviour, that would directly involve the communities
affected where appropriate, and which may be so much more effective
in stopping nuisance behaviour than a traditional punitive criminal
justice response. There is a need to try to solve the problems
which lead to the anti-social behaviour, rather than simply punishing
people, excluding them from certain areas or removing them from
their homes, responses which may simply move the problem to another
area.
15. There is a need for there to be imaginative
programmes and projects to attract young people off the streets
and into purposeful activity. Youth work should be encouraged
and properly funded. We commend the Government of the success
of initiatives such as the SPLASH programme in reducing anti-social
behaviour, but would urge it to increase its support. It must
be recognised that money must be spent over a long period in order
to prevent anti-social behaviour in this way.
16. There is anecdotal evidence that some
people see having an ASBO against them as something of a badge
of honour, and the current popularity among the media of certain
towns to "name and shame" recipients gives them a degree
of notoriety, a trend which in many cases could be counterproductive.
In relation to children, particularly, the policy of allowing
publicity goes against principle that the best interests of child
should be paramount, and may do more harm than good by encouraging
problematic behaviour in an effort to live up to their reputation.
DISPERSAL POWERS
AND CURFEWS
ON UNDER-16S
17. The police power to order the dispersal
of groups, even when there has been no bad behaviour, is simply
an unnecessary restriction of civil liberties and will potentially
result in a loss of respect for the police, and the law generally,
amongst the groups singled out for attention. Only where there
is evidence that a group has perpetrated actual anti-social behaviour
should there be the power to order people to leave an area. The
power means that if the police believe there is an anti-social
behaviour problem in a particular locality, they can award themselves
extra police powers, which only apply to that locality. There
is an obvious and enormous potential for unlawful discrimination,
be that on the ground of age, socio-economic status or race. Loading
up the police with unnecessary powers is not sensible, because
it complicates the law unnecessarily, confusing the police and
the public alike.
18. Imposing a blanket curfew on people
less than 16 years of age will likewise create tension between
young people and the police, and result in a general lessening
of respect for the law.
CONCLUSION
19. We acknowledge that anti-social behaviour
and low-level crime is a significant problem that blights the
lives of many communities throughout the UK. However, we are concerned
that by creating a parallel civil system of justice the right
to a fair trial is being circumvented. We would argue that where
the behaviour complained of is a criminal offence it should be
dealt with as such, whether by way of a police caution or a prosecution.
The new rules relating to the admission of hearsay evidence in
criminal proceedings will facilitate prosecutions in situations
where it can be shown that witness intimidation is actual or likely.
We have no objection to the impositions of orders designed to
prevent the repetition of criminal offences following conviction.
However, we are concerned that the extremely wide definition of
anti-social behaviour means that non-criminal activity is, in
effect, being made criminal by the imposition of an order imposed
as a result of non-criminal proceedings. We do not believe that
the de facto criminalisation of behaviour is appropriate
in a country that respects the rule of law.
30 September 2004
59 In this regard see Social Control and "Anti-Social
Behaviour": The Subversion of Human Rights?, Andrew Ashworth,
Law Quarterly Review, April 2004, 263. Back
60
Clingham v Kensington and Chelsea Royal LBC; R (McCann) v
Crown Court at Manchester [2003] 1 AC 787. Back
61
Barbera, Messege and Jabardo v Spain (1989) 11 EHRR 360
and Doorson v the Netherlands (1997) 22 EHRR 330. Back
62
Acting "in a manner that caused or was likely to cause harassment,
alarm or distress to one or more persons not of the same household
as himself". Back
63
Notwithstanding the Times headline of 8 September 2004
"Pensioners from Hell lose homes for teen antics". Back
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