25. Memorandum submitted by Liberty
1. The scourge of "anti-social behaviour"
is a major preoccupation of politicians and it resonates widely
with a population understandably concerned with living in relative
safety, peace and harmony. Liberty supports this concern and has
represented and supported many families and individuals seeking
protection from crime and harassment.
2. Despite the very many key note speeches
and column inches devoted to this subject, we as a society are
often far from clear about what we mean by "anti-social behaviour".
This lack of precision may be unimportant in ordinary social or
family life. Here the concept of behaving in an anti-social manner
might well be used to describe the unpleasant guest who begins
by dominating the conversation, proceeds to light his cigar during
dinner and ends by taking a drunken swing at the host. However,
it is our view that in a democracy, if prohibitions and punitive
sanctions are to be employed—a greater degree of clarity
is required.
For the purposes of this response, we assume
that there are essentially two categories of conduct that "anti-social
behaviour" policy may legitimately seek to address:
— Criminality (as traditionally covered
by eg offences against the person, public order offences and criminal
damage).
— The kinds of nuisances which the
civil law has always been prepared to address (eg by the grant
of injunctions protecting us from excessive noise or harassment
from neighbours, ex-partners etc).
3. It is not legitimate however, to use
an ill-defined idea of anti-social behaviour to attack mere difference
in society—even if such difference causes irritation or
indeed some anxiety to others. A group of young people congregated
around the same street corner every afternoon may cause annoyance
or fear to local residents. However it is important to address
whether they are actually doing anyone harm (ie the rational basis
for annoyance and fear) as well as the question of why they are
there before seeking to remove them by way of police compulsion.
4. The legislative approaches of recent
years may be crudely placed in three categories:
— Amendments to the traditional criminal
law (new offences, powers of arrest, fixed penalty procedures
etc).
— Anti-social behaviour orders.
— Broader and blanket powers under
which Parliament effectively delegates legislative decision-making
to the Police so that whole areas may be "designated"
for a regime of far greater compulsory police powers than is allowed
under the ordinary law of the land.
We intend to focus on the second two areas for
the purposes of the present exercise.
ANTI-SOCIAL
BEHAVIOUR ORDERS
5. These civil orders (ASBOs) may it seems
be aimed at both low-level criminality and the types of nuisance
traditionally left to be resolved by citizens themselves—if
necessary by recourse to the civil courts. Government crime statistics
indicate that approximately three quarters of crime goes undetected.
Much of this offending relates to low-level crime such as criminal
damage arising from vandalism or graffiti. An inability to prosecute
will frequently be a consequence of a lack of policing resource
or an inability to gather sufficient evidence to prosecute. There
will inevitably be pressure upon the police to use non-criminal
measures such as an ASBO as an easy alternative to prosecution.
ASBOs should not be used as a solution to a situation where the
police "think he may be up to no good but can't prove anything".
6. There are particular concerns about the
use of ASBOs when the police do not intend to instigate criminal
proceedings. As breaching the terms of an ASBO[76]
is a criminal offence punishable by up to five years imprisonment,
it is possible to end up with a criminal record without having
committed any recognisable offence. As the evidential burden is
lower to obtain an ASBO, there is a blurring of the traditional
distinctions between the criminal and civil law and a corresponding
dilution of the presumption of innocence. That said, we appreciate
that the courts have always granted civil injunctions to protect
individuals from nuisance and harm and that the sparing use of
tightly defined and time limited Orders may compliment the criminal
law in protecting specific vulnerable and intimidated people who
would not otherwise gain access to such protection.
7. It is tempting for local authorities
to see ASBOs as a magic bullet solution. We do not accept that
using orders to move prostitutes from a particular location will
have any impact other than displacement[77].
Similarly we believe that introducing a city wide ASBO[78]
will inevitably result in a breach. The effectiveness of ASBOs
are increasingly being scrutinised in the press[79].
Making ASBOs effective and limiting them to appropriate restrictions
necessary not only helps to satisfy human rights requirements
but will also deflect such criticism.
BLANKET POWERS
8. The Anti-social Behaviour Act 2003 (ASBA)
extended notions of how anti-social behaviour can be defined.
It removed the need for those who face legal sanction to have
been involved in any "wrongdoing". ASBA restricts freedom
of movement and action. However, there is no need for any anti-social
act. Two main areas of concerns are in part 4 of the act. This
introduces curfews for under 16s and creates dispersal powers.
What makes these powers distinct from existing law is that there
is no need to link an individual to an action for powers to be
used. Dispersal powers allow the police to move on[80]
groups if they believe that a group (or any single individual
in a group) are likely to intimidate people. In order for an area
to be subject to dispersal powers a Police Superintendent needs
to believe there is a problem with anti-social behaviour and that
groups are intimidating people in the locality. There is no need
for any particular group to have acted improperly and no individual
needs to be "doing" anything. While people might find
the presence of a group of young men with hoods partly covering
their faces intimidating, this does not necessarily justify the
police taking action. Curfews for under 16s allow the police to
pick up anyone under that age unaccompanied by an adult and return
them to their homes. Again there is no need for them to be acting
in an anti-social manner.
9. These powers are a consequence of the
Government's "blank cheque" policy on policing. The
Prime Minister makes no attempt to pretend otherwise as demonstrated
when he said, "We asked the police what powers they wanted
and gave them to them"[81].
We appreciate the police will request all possible tools that
they believe may assist them in fighting crime. However, we believe
that Parliament should legislate according to principles of proportionality
and necessity. The United Kingdom has a tradition of consent based
policing. Citizens accept the state is entitled to exercise control
through policing. In return the state does not use those powers
to excess or when unjustified. Our concern is that this consensus
is being undermined by empowering the police to take action against
those who are not acting in an anti-social or criminal manner.
10. The Governments response to criticism
that policing powers are being too widely drawn is that the public
should trust an appropriate use of discretion. This is also part
of the justification behind proposals to make all offences arrestable[82].
Allowing unfettered discretion presents problems. Recent figures
show that use of stop and search powers without reasonable suspicion
(permitted under S.44 Terrorism Act 2000) have been unfairly and
disproportionately used against Muslims. These powers, which the
Home Secretary told Parliament would only be used where there
is a terrorist threat, have also been used against anti war and
arms fair protestors. The Metropolitan Police Authority has admitted
excessive use of S.44 powers. Wide discretion places too much
emphasis on an individual officer's assessment as to whether he
is using the powers available to him proportionately. This is
impractical, as it effectively requires the officer to make constant
high level policy assessments (as opposed to more immediate practical
judgements) of proportionality under the Human Rights Act 1998.
Statute should limit powers so that those who exercise them retain
discretion only within tightly defined parameters.
11. The Codes of Practice to the Police
and Criminal Evidence Act 1984 demonstrate awareness that consent
based policing requires there can be no presumptions as to criminality[83].
What was apparent 20 years ago no longer holds true. The PACE
Codes still apply. However, they are now more easily bypassed
through the use of section 44, the application of Part 4 ASBA
powers and by proposed extensions of arrest powers. The consequence
of recent developments will be a further blurring of the line
between "anti-social behaviour" and criminality.
EFFICACY
12. Our concerns over Government policy
on anti-social behaviour would be more difficult to justify if
there were demonstrable societal benefits. It is likely that individual
uses of ASBOs are indeed effective and we believe there is justification
for the use of these within defined parameters. However, there
are underlying efficacy issues that need to be addressed.
13. We have previously touched upon the
problems arising from excessive use of ASBOs. Displacement of
aggressive youths from one estate to a neighbouring estate does
not address the cause of their behaviour. ASBOs and indeed the
many other legislative responses may have their place, but they
are not a panacea for all of society's ills.
14. We are aware of anecdotal evidence of
ASBOs being treated as a badge of honour. If this is so then what
must be the principle purpose of ASBOs, deterrence from anti-social
behaviour, is undermined. Their effect will be limited to punishment
for breach. This may provide a short term "solution"
through the likely imprisonment of the person who has committed
the breach. Bearing in mind the cost of maintaining someone in
prison and links between imprisonment and re-offending rates,
wholesale imprisonment for breach will not result in any real
benefit to society.
15. ASBOs are expensive. Home Office figures
of an average of £5,300 each may be conservative. Certainly
some orders have cost far more[84].
Before the government commits itself to increased use of ASBOs
there should be a cost and effectiveness analysis. The allocation
of resources to policing must be the most effective way of combating
crime. Sufficient police resources are also required to investigate
alleged breaches of the ASBOs that are in place. ASBOs can only
be effective if they are seen as ancillary to policing, not an
alternative to policing.
16. There is no lack of criminal law that
can be used to prosecute anti-social behaviour. The Public Order
Act 1986 criminalises the use of "threatening, abusive or
insulting words or behaviour, or disorderly behaviour"[85]
and there are a wide range of other low level offences against
person, property or relating to protest. Prosecuting the existing
criminal law should be at the heart of government policy. The
creation of new offences, criminalising the breach of civil orders
and the continuous increase of police powers simply casts the
net wider without addressing cause. If more and more people are
labelled as "yobs" then they are likely to react as
such. Treating all under 16s as potential criminals by allowing
the police to pick them up after 9pm will not have any significant
impact on crime rates but will undermine respect for the rule
of law.
CONCLUSION
16. The primary focus of what defines "anti-social
behaviour" should be acts that breach the criminal law. At
the heart of the criminal law is the presumption of innocence.
The Government has an understandable desire to address societal
concerns about low-level criminality. However, we are concerned
that increasing reliance on ASBOs does not provide a realistic
solution. Indiscriminate and excessive use of ASBOs is undermining
any benefit they might bring.
17. It is telling that the Anti-social Behaviour
Act 2003 covered many acts not normally associated with criminality.
As well as curfews and group dispersal, there are increased powers
that can be used against protestors and travellers. We are concerned
that what is described as "anti-social" is increasingly
becoming "what is not the norm". A desire to reduce
anti-social behaviour should not result in state penalisation
of non-conformity.
20 September 2004
76 Often an action not an offence in itself such as
"not entering street X" or "associating with person
Y". Back
77
Stoke City Council among others has introduced ASBOs on prostitutes
operating in particular locations. Back
78
For example the order in 2002 banning Gordon Shepherd from entering
Manchester City Centre for an indefinite period. Back
79
See for example the Daily Mail article "Two fingers
to your ASBOs" Tom Rawstorne, 10 September 2004. Back
80
And makes it an offence punishable by three months imprisonment
if they fail to do so or return. Back
81
Speech 19 July 2004. Back
82
See current Home Office consultation "Policing: Modernising
Police powers to Meet Community Needs" para 2.7. Back
83
For example Code A at para 2.2 Reasonable suspicion (allowing
stop and search) cannot be based on generalisations or stereotypical
images of certain groups or categories of people as more likely
to be involved in criminal activity. Back
84
Metropolitan Police estimates go up to £100,000. Back
85
Section 5 PAO. Back
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