Select Committee on Home Affairs Written Evidence

23.  Memorandum submitted by JUSTICE


  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]


  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.


  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.


  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.


  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.


  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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