27. Memorandum submitted by the Magistrates
Association
The Magistrates Association is well aware of
the destructive effect of anti-social behaviour. We have been
working with the Anti-social Behaviour Unit and have publicised
its work in The Magistrate. Anti-social behaviour has always
existed but varies in its form, intensity and the degree to which
it affects particular communities. It is not restricted to the
UK: many of the specific problems that cause distress and concern
at present are very common across Europe, eg graffiti, flytipping
etc. Action through partnership working is crucial to rebuild
the confidence of communities and to disempower offenders whether
they be targetting vulnerable people or terrorising whole neighbourhoods.
CAUSES
There are many causes including boredom, peer
pressure, lack of parental control (for youths), drink and drugs.
EFFECTIVENESS AND
PROPORTIONALITY OF
CURRENT POWERS
Current powers are very extensive, with changes
that some magistrates have found confusing because (a) they have
been brought in at different times, and (b) so many other changes
are taking place/on the way. As far as ASBOs are concerned, magistrates
can now be asked, or decide themselves, to "bolt-on"
an ASBO after a criminal conviction—in both youth and adult
courts—as well as hearing stand-alone applications for ASBOs
which all take place in the adult court regardless of the age
of the defendant, as they are civil proceedings.
It is important, for the effective use of current
powers, that everyone involved in an application should realise
that there is a two-stage test before an ASBO can be granted.
The court must be satisfied first that there have been past acts
of anti-social behaviour, and then that an order is necessary
for protection against further anti-social acts. These may be
civil orders but we must be satisfied to the criminal standard
of proof at stage one (past acts of anti-social behaviour).
Where serious criminal offences have been committed
then prosecution should follow. Applications for ASBOs should
not be made in such cases as some form of easier alternative.
Care must be taken by the judiciary making the
order that the prohibitions are practical, easily administered
and understood by all parties having taken all points into consideration,
particularly those of the YOT in the youth court.
ASBOs need to be seen as practicable and address
the concerns of the victims and the local communities. They need
to have the confidence of the public.
It is important that reported incidents are
followed up as quickly as possible so that the problem is dealt
with while it is fresh in the perpetrator's mind. Rapid detection
followed by a swift first court appearance is a key factor in
reducing anti-social behaviour. If this became the norm it would
be a strong deterrent.
The Judicial Studies Board has informed MCCs
that an ASBO training session for magistrates should take place
this year. We welcome this in order to consolidate knowledge,
but would warn against further initiatives and further change
on this front. A great deal of essential training, to do with
other criminal justice changes, is taking place at the moment
and an overload of change will have a negative effect.
Greater use of fixed penalty notices is a worry—especially
if against young people. The Association does not support further
extension of fixed penalty notices as these can down-value this
type of aggressive criminal behaviour. Payment rate is likely
to be low—enforcement and collection is costly—coming
back to court for enforcement is not the ideal way to deal with
anti-social behaviour.
It is too early to judge the effectiveness of
Dispersal Orders
It is early stages to judge the effectiveness
of Confiscation Orders but they are useful for dealing with offences
such as persistent driving with no insurance.
ENFORCEMENT
Orders must be quickly but proportionately enforced.
Conditions must be reasonable and focused at
eliminating the behaviour that led to the application—too
many conditions could make the order unworkable.
ASBOs are only effective if the police have
the resources to enforce them.
Overuse will severely dent the effectiveness
of the orders and lead to large numbers of breaches and there
could be a perception by the public or the peer group that they
are not policed.
There is a danger that too many initiatives
will lose impact and unless well implemented and co-ordinated
will not be credible.
Difficulties arise with breaches being imprisonable,
whereas the order is not. Where breaches are brought there can
be a very severe penalty. The level of seriousness is recognised
in the current Guideline (the starting point is "Is it so
serious that only custody is appropriate?") but we have been
disturbed by reports of adverse comment amounting to pressure
on sentencers when the outcome has not been what prosecutors,
police etc have wanted. Punishment must be justified and proportionate
and there can be many gradations of breach. There has also been
a lack of public understanding over the extent of magistrates'
powers. The overall maximum penalty is five years imprisonment,
but that applies to the Crown Court. If a case is retained in
the magistrates' court our powers of punishment are six months
custody, and in the Youth Court 24 months Detention and Training
Order.
GOVERNMENT INITIATIVES
There has been a great impact as far as publicity
is concerned. This can of course have a negative effect with unrealistic
expectations being raised.
The Government initiative of a Community Justice
Centre dealing with low level crime such as anti-social behaviour
has been publicised. We consider that magistrates' courts are
the obvious and ideal place within local communities to deal with
anti-social behaviour. What is essential is for agencies to have
the resources to support and implement any orders of the court.
ROLE OF
PARENTING SUPPORT,
YOUTH AND
COMMUNITY SERVICES
ETC IN
DIVERTING YOUNG
PEOPLE FROM
ANTI-SOCIAL
BEHAVIOUR
ASBOs prevent, but they don't divert. There
is nothing positive in an ASBO—it only spells out what the
offender shouldn't do or where he shouldn't go. There needs to
be a positive element—ie spelling out what they should be
doing and this is now possible through Individual Support Orders
(ISOs). With young people aged 10-17 we must make an ISO if we
are satisfied that this would help prevent repetition of the behaviour.
This could be of great benefit but we do not know if provision
for these orders will be forthcoming in all areas of the country.
More parental support is required and a greater
sense of accepting parental responsibility. There should be an
effective programme properly resourced for young people and their
families which involves warnings and, if necessary, Acceptable
Behaviour Contracts.
When making an ASBO in respect of young people
under 16, we are required to make a parenting order if satisfied
that this would help prevent repetition of the behaviour. Information
is sought from the YOTs when considering this, and YOTs are very
reluctant to recommend Parenting Orders. Again, resources are
part of the problem.
The multi-disciplinary approach of the YOTs
has unlocked some of the blockages in the system (eg housing,
access to healthcare) but there is more work to be done.
Young people truanting from school are quite
likely to be getting into trouble. Local authorities should look
at the problem of young people having long journeys to school.
Not all authorities subsidise bus fares for children living within
a three mile radius and a long journey on foot provides more opportunity
for truanting.
Local authorities can also help by ensuring
that there are ample opportunities for leisure activities for
young people, particularly sport, that can help channel excess
energy so that it benefits society rather than destroys it.
DISPARITIES IN
LEVELS OF
ANTI-SOCIAL
BEHAVIOUR AND
IN THE
USE OF
POWERS TO
COMBAT IT
ACROSS THE
COUNTRY
Use of ASBOs and levels are not consistent around
the country. Standards of prosecution have varied and some benches
have had more experience than others depending on the local approach
to ASBOs. Face to face training for all magistrates is a positive
step, the Justices Clerks Society has issued useful guidance and
the Judicial Studies Board has produced training materials. This
should increase consistency of approach but the courts can only
deal with what is brought before them and can only take into account
evidence to the required standard of proof.
There needs to be joint training at every level
and clear protocols within each of the 42 areas setting out precise
areas of responsibility and accountability of all agencies—police,
local authority, probation, YOTs, courts, CPS etc—particularly
in the process of bringing offenders to court.
There is disparity both in application and understanding
of what can be achieved. There is a risk that ASBOs are "marketed"
as the ultimate panacea. They are most effective as a last resort.
We have heard that very few ASBOs have been
made in Liverpool where schemes set up in local communities and
very much involving those communities, are working extremely well.
It would be worthwhile looking at those schemes.
RESPONSIBILITIES
OF THE
PRIVATE SECTOR
The private and statutory sectors need to co-operate
to ensure that entrenched and intractable anti-social behaviour
does not become an accepted part of their landscape.
20 September 2004
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