House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

24. Memorandum submitted by The Law Society

The Law Society regulates and represents solicitors in England and Wales. Solicitors advise and represent both public authorities and alleged perpetrators. An important function of the Law Society is to support law reform in the public interest. It is on that basis that we submit our evidence.

Persistent and low level criminal behaviour has a clear adverse impact on the quality of life of many living in the UK, especially in poor and deprived areas.

Even before the introduction of the Crime and Disorder Act 1998 the legal provisions were in place to deal with low level criminal activity through prosecution for individual offences. However we recognise that practical and resource issues relating to the availability of witnesses and the need to tackle repeated, comparatively low-level crime in an effective way. The powers in the 1998 Act were based on experiences with football banning orders and injunctions against anti-social behaviour under the Housing Act 1996.

However the present system is complex. Those using the powers against anti-social behaviour are not always clear about which powers are proportionate and appropriate in particular circumstances. This can lead to injustice to those subjected to the powers.

Children, mainly the most disadvantaged and vulnerable, have in practice been the main focus of anti-social behaviour powers. The recent debate over the lowering of the age limit of penalty notices to cover children aged 10 years is an illustration.

We have identified the following themes:

— The Necessity for a Clear Definition of Anti-social Behaviour.

— Ensuring Procedural Fairness.

— Prevention, Punishment, and Proportionality.

— Ensuring Co-ordination within Government.

1. THE NEED FOR A CLEAR DEFINITION OF "ANTI-SOCIAL BEHAVIOUR"

The Law Society recognises the real problem that anti-social behaviour can cause for communities and individuals. If such behaviour is to be tackled effectively it is essential for reasons of deterrence, enforcement, and policy-making that such behaviour is clearly defined.

There is no statutory definition of "anti-social behaviour". The definition used is that applied to Anti-social Behaviour Orders (ASBOs) [64]and is based on acts causing harassment, alarm or distress. [65]Anti-social behaviour can range from small groups of children standing on a street corner to prostitution, to serious and persistent harassment and attacks on property. The wide ambit of the term covers a vast degree of low level as well as serious criminal behaviour.

The Home Office describes "anti-social behaviour" as having a "wide legal definition".[66] The difficulty is the lack of a clear standard for enforcers, policy-makers and the public to measure behaviour against. Without such a standard it will become increasingly difficult to justify legally any further interference with human rights, nor will it be possible to assess the effectiveness of anti-social behaviour strategies. The Law Society believes it is in the public interest for codes of behaviour to be clear, public, and explicit.

The importance of clear guidance is magnified when a clear standard is lacking. It is in the public interest for Government to issue consistent and comprehensive guidance. Such guidance would ensure all concerned are able to exercise their discretion in an informed and consistent manner nationally avoiding the disproportionate or inappropriate use of powers to deal with this behaviour. Guidance would also provide the individual with a degree of protection and society with a transparent and accountable system enhancing confidence in the effective use of any powers by State bodies.

Additionally, guidance helps State bodies to efficiently target resources thus limiting unnecessary costs.

2. ENSURING PROCEDURAL FAIRNESS

Remedies such as ASBOs involve a hybrid criminal/civil process: the grant of an order is the outcome of a civil trial, but any finding of a breach of the order, being a criminal offence, is the outcome of a criminal trial. Individuals are denied the full rights under Article 6 when an ASBO is being considered by the court on the basis the application proceedings are civil and not criminal. The reasoning is the court is not determining if the defendant is guilty of an offence, and so a conviction; but whether a preventative order is necessary.

However this approach is increasingly difficult to sustain now that the mere existence of such an order has punitive social and economic consequences for the individual. Such consequences include the denial of access to social housing and employment opportunities as well as a general stigmatisation. One of the reasons for stricter requirements for procedural fairness being applied to criminal matters is not only the punishment but the effect of a conviction upon an individual's future and his or her standing in the community. The House of Lords (in its judicial capacity) acknowledged this, in part, in McCann. [67]It held that ASBOs were preventative rather than punitive. As a consequence they were the result of civil proceedings although Article 6 still applied in part. Therefore, whilst the proceedings were civil, the standard of proof needed to prove allegations of anti-social behaviour should be the stricter criminal standard of "beyond reasonable doubt" rather than merely "the balance of probabilities".

Respect for appropriate due process is a fundamental element of liberal democracy. The weaker procedural protections applied to ASBOs and other similar civil orders marks a significant shift in the relationship between the individual and the state in favour of the state especially when there is no identified victim. The inter-relationship between criminal penalties and civil measures to tackle anti-social behaviour is complex eg how the acceptance of a penalty notice could impact on an acceptable behaviour contract (ABC) and in turn influence the making of an ASBO.

We hope that the Committee's Inquiry will identify the nature and extent of this shift and recommend that any further similar developments be approached with extreme caution.

3. PREVENTION, PUNISHMENT AND PROPORTIONALITY

We oppose the use of blanket provisions such as curfews against children. Such measures discriminate on the grounds of age and are an unjustified interference with childrens human rights. We believe orders restricting freedom of movement are justified only where the individual concerned can be shown to have participated in particular forms of behaviour.

However, we recognise the anti-social behaviour of a particular identifiable group may justify the making of an ASBO against a member of that group without proof of his or her direct criminal involvement in an individual offence—for example, where a group is involved in harassing a particular family, ASBOs might properly be issued in respect of all members of the group.

We are concerned about the current trend for the courts to sentence those convicted to imprisonment for breach of an ASBO.

Thus this raises concerns of proportionality. In many cases the activity under which it was considered necessary to make an ASBO, if prosecuted and convicted would often result in a non-custodial sentence. But when the conduct is used to justify an ASBO, individuals—especially children—could find themselves entering the criminal justice system at a more punitive level then if their behaviour had been initially dealt with by reprimand, final warning or even prosecution.

In addition it is unclear that any level of breach could justify a five year custodial sentence. If the individual has committed a criminal offence that also breaches the terms of an ASBO this should be prosecuted separately as an offence in its own right. Breach of ASBOs should not be used to punish behaviour where there is insufficient evidence to bring a separate charge.

The Law Society believes that the choice of remedy or "punishment" ought to be proportionate to behaviour. This issue is complex. Where it is perceived that a legal remedy is necessary there is now a more than sufficient array of options: ASBOs, injunctions, demotion orders (removing security of tenure) and possession orders to name a few. Although authorities are being encouraged to use their legal powers there is little consideration as to which remedies might be appropriate in which circumstances.

Eviction, whilst a civil remedy, may have more serious consequences for a family than a term of imprisonment for a family member. Social landlords now have the option of seeking either a demotion order or a possession order. The Law Society believes that these two remedies should be distinguished by legislation requiring landlords to produce to the court, on applications for a demotion order, a plan to support a tenant's rehabilitation; whereas a claim for possession should be seen as an attempt at a final resolution through eviction. The Law Society is concerned at the proliferation of proceedings seeking different remedies in different courts. This is not just because of the dangers of double jeopardy for the individual, but also due to the adverse effect this can have on the administration of justice, and the potential wasted legal costs.

The Law Society supports a holistic approach addressing the underlying social causes of anti-social behaviour. Fines or prosecutions for breach of ASBOs may deal with the symptoms but fail to address the real issues. To its credit the Government's emphasis has not been entirely punitive, but some of the measures raise serious concerns.

In its report on anti-social behaviour the Social Exclusion Unit acknowledges that such behaviour is a result of many complex problems including poverty unemployment and drug dependency. [68]The ODPM in its recent guidance to local authorities supports a three pronged approach of prevention, enforcement and support. [69]The Home Office has, in recent guidance recommended the use of Acceptable Behaviour Contracts in appropriate cases. [70]

We welcome the development of imaginative responses which, whilst they may be less politically visible, are likely to be more socially effective in the long term. The ODPM asks landlords to acknowledge in their anti-social behaviour policies that "Effective intervention by specialist agencies can prevent landlords having to take legal action".[71] Such policies should also consider "the positive impact support might have on perpetrators" who suffer from alcohol/drugs dependency or mental health problems. [72]Landlords should also consider initiatives such as mediation services, diversionary activities such as youth clubs, or supported tenancies. Even where formal legal action is taken attempts should be made to provide opportunities for rehabilitation. In relation to children the non-enforcement work of some Youth Offending Teams has been excellent. The Law Society believes such initiatives should be given equal priority in terms of support and funding to legal action.

4. ENSURING CO -ORDINATION WITHIN GOVERNMENT

We support the Government's adoption of a multi-agency approach to tackling anti-social behaviour. For example before an ASBO application can be made the authority seeking an order must consult with other agencies.

We consider stronger co-operation reflected in guidance can bring significant benefits, especially when a child is involved. When action is being considered, multi-agency co-operation allows the individual's needs to be targeted effectively and any additional support to be provided. For court procedures, although increased involvement of other agencies may cause "delay" in the short term, the benefits are clear. The court can consider the necessity of any order (eg ASBO) and any appropriate conditions in order to be effective and proportionate.

It is essential government departments understand their own and other departments responsibilities. Guidance can sometimes be contradictory and even undermine the discharge of statutory duties. For example in the case of social services assessments of a child's needs under s17 Children Act 1989 the Home Office guidance emphasises the importance of enforcement stating "The assessment of the child's needs should run in parallel with evidence gathering and the [ASBO] application process"[73] and that "Social services need to ensure that they are taking the welfare of the community into account when making their decisions",[74] whereas the ODPM's guidance emphasises the welfare of the child by advising, the "assessment should normally be carried out before any specific enforcement action is taken against the young person"[75] In fact it is the Department of Health that has responsibility for child welfare.

The Law Society believes that anti-social behaviour initiatives should take place within the existing structures of public authorities legal powers and duties. It is concerned to prevent the perceived need for a visible political response to anti-social behaviour overriding the equally important need for individuals to be able to access appropriate services. Such support can and does both benefit the individual and the community in addressing challenging behaviour.

15 September 2004