Anti-Social Behaviour, Crime and Policing Bill

Written evidence from Criminal Justice Alliance (ASB 10)

About the Criminal Justice Alliance

The Criminal Justice Alliance (CJA) is a coalition of 72 organisations - including campaigning charities, voluntary sector service providers, research institutions, staff associations and trade unions – involved in policy and practice across the criminal justice system. [1] The CJA works to establish a fairer and more effective criminal justice system.

Introduction

1. The CJA welcomes some measures in the Bill, in particular the intention to simplify the current range of orders, and the introduction of more options for restorative justice and reparative approaches through the Community Remedy. We also believe that the introduction of positive requirements could, if implemented carefully, make civil orders more effective in addressing antisocial behaviour (ASB).

2. However, we nevertheless firmly believe that the complex, deeply-rooted problems that lie at the heart of ASB can be often addressed more effectively and earlier by ensuring the availability of support services in local communities, including youth services, family support and health services, as well as through projects that offer intensive support.

3. The CJA has particularly strong concerns regarding the introduction through Clause 1 of the ‘Injunction to prevent nuisance and annoyance’ with its wide application, low burden of proof and definition of ASB as "conduct capable of   causing nuisance or annoyance". Clearly, the list of potential activities that could fall within this definition is limitless; what some may find to be innocent fun can annoy others. These concerns are shared by more than 20 organisations who have signed a joint letter asking the government to rethink these proposals.

4. We also raise concerns regarding the mandatory evictions as introduced through Clause 86 which require courts make an order for eviction in a range of ASB cases. This limits discretion of the court and could have wide ranging negative impacts on vulnerable people and families.

5. This briefing focuses on the impact the Bill will have on adults. We have worked in conjunction with the Standing Committee on Youth Justice around this Bill and fully support the views expressed in their briefing in relation to those aged under 18.

PART 1 – Injunctions to prevent nuisance and annoyance

Clause 1: The power to grant injunctions

Definition of ASB for Injunctions

6. The Government has decided to persist with applying the extremely broad definition for ASB as it applies to granting injunctions where someone has " engaged or threatens to engage in conduct capable of   causing nuisance or annoyance to any person " . This unhelpfully broad definition was criticised by the cross-party Affairs Select Committee.

7. It is our opinion that t he use of this wide definition will sweep up innocent, non-harmful behaviour into the sanctions . The justification put forward by the Government that " case law has developed an understanding amongst practitioners to use it " [1] , is not in our view sufficient and doesn’t account for the more widespread application of IPNAs in comparison to previous injunctions which were only available to housing providers.

8. The potential list of activities that could fall under the definitions of behaviour capable of causing nuisance or annoyance to any person is almost limitless. What is ‘annoying’ to one person may be harmless fun to another. The implications of receiving an injunction are serious: an individual will be required to adhere to positive requirements, prohibitions, or both, and there will be sanctions as a consequence of breach. There is therefore a substantial risk that the injunction as it is set out under the Bill allows disproportionate responses to very minor behaviour.

Inadequate safeguards

9. Unfortunately , the safeguards in place intended to prevent this are ina dequate . The legislation only provides that a court must consider it " just and convenient " to grant   the injunction rather than needing to demonstrate necessity or proportionality. The Government believe s the "court is best placed to decide on the proportionality and necessity of both an injunction and any prohibitions and positive requirements that it includes, and will do so as a matter of course" . The CJA agrees in principle , but this is no barrier to placing an express proportionality safeguard as is the case routinely in other sentencing guidance . [2]

10. The Government should replace "causing nuisance or annoyance to any person" with "likely to cause harassment, alarm or distress" to reduce the risk of unjustified restrictions being placed on individual for innocuous behaviour. In addition, a requirement of intent or at a minimum recklessness would ensure frivolous applications for injunctions aren’t made before a court . T he Government’s justification for failing to introduce such proposals, based on jeopardising clarity and slowing the injunction process down, does not outweigh the need to guarantee proportionality.

Low burden of proof

11. The CJA is also concerned that the test for determining whether an individual has engaged in ASB and is liable to receive an injunction will be based on the balance of probabilities. That a breach of an injunction as a result will be viewed as a civil offence, therefore preventing the individual from being criminalised, is positive. However, that civil breach can still lead to a sanction of imprisonment of up to two years. In such an instance the legal test should be based on the criminal threshold, beyond a reasonable doubt [3] .

12. Of the ASBOs issued 1 June 2000 to 31 December 2011, 57.3% had been breached. Of the ASBOs breached, 52.7% of individuals were given an immediate custodial sentence with an average custodial sentence length of 5.1 months. Therefore 30% of individuals receiving an ASBO ended up with a custodial sentence. We are concerned we could see similar numbers for those receiving an injunction based on the civil balance of probabilities [4] .

Indefinite length of time

13. As the Bill stands, there is no maximum time period for an IPNA for adults. A maximum period of two years for an injunction with the possibility of review within the time period is more than sufficient and the CJA would like to see 2 years as the maximum time limit. The possibility of indefinite injunctions has the potentially of creating disproportionate sentences and acting as a disincentive to individuals to comply, something which we discuss in greater detail below in relation to criminal behaviour orders.

Clause 4: Applications for injunctions

14. Under existing legis lation only housing bodies can apply for an ASB injunction which has such a low threshold under the Housing Act 1996 . The B ill has extended this to seven bodies , further demonstrating the need for tighter implementation and safeguards.

PART 2 – Criminal Behaviour Orders

Clause 23: Requirements included in orders

15. The Criminal Justice Alliance believes that the inclusion of positive requirements within both the injunctions and Criminal Behaviour Orders (CBOs) has the potential to be a positive development. However, we believe this will only be the case where individuals agree to them voluntarily and the services necessary to get to the root of the problematic behaviour are available locally. Without proper services in place the risk of individuals breaching will increase substantially (which between 2000 and 2011 already stood at 57%) while the chance of beneficial engagement will be greatly reduced. Forcing individuals to engage in certain treatment, programmes or classes can often be unproductive as they may not be in a position in which they can fully engage, for example it may impact too much on caring responsibilities.

16. As the list of potential inclusions within the positive requirement is exceptionally broad, there is a concern that the court could issue requirements that are aspirational, with little possibility of the individuals complying. A safeguard has been put in place that the individual responsible for supervising compliance must give evidence to the court on the suitability and enforceability of a requirement. A more robust safeguard, that better guarantees effectiveness and reducing wasted expenditure on failed requirements, would be that any positive requirement should be proportionate to the behaviour leading to the injunction or CBO. In general, greater clarity on how decisions over requirements will be made should be given.

Clause 24: Duration of order etc

17. The minimum term of a CBO is two years and the maximum period indefinite. The CBO can contain numerous positive requirements and restraints which can substantially impact on the individual’s life. The CJA believes this approach could be disproportionate and that there should be a maximum of five years for a CBO. If anything the lengths proposed could act as a disincentive to comply with the orders. [5] Imposing maximum terms would help to address this problem. The CJA is disappointed that previous proposals to reduce the length of time if approved courses are completed were not implemented as such would have encouraged compliance as well as positive engagement.

18. Additionally, we advocate for changes to the Bill that allows for some degree of periodic review of any requirements to ensure they are still addressing an issue that could lead to anti-social behaviour and not simply disproportionately infringing upon an individual’s life. We believe that the review period as set out under clause 27 for those under the age of 18, every 12 months, should be similarly adopted for adults.

Clause 24: Breach of order

19. At present, sanctions for the breach of an ASBO are primarily imposed according to the harassment, alarm or distress involved in the breach of the order; that a court order has been breached is a secondary consideration. [6] We believe that this is the right approach, and are concerned by its noticeable absence from this Bill.

PART 3 – Dispersal powers

Clause 32: Authorisations to use powers under section 33

20. We are concerned that the proposals relating to a disper sal power have the potential to overly restrict individuals without adequate justification . At present dispersal powers may only be used in defined areas that have been authorised as such by senior police and the local authority, following a consultation process. Areas can be designated if there is believed to be persistent ASB and for a maximum duration of 6 months. Within dispersal areas, police can tell people to leave the area and not return for up to 24 hours.

21. Under this Bill an officer of the rank of inspector will be able to impose the power to a specific area without the need for a consultation process or local authority . As we understand it, t hey will simply need to think that it may be necessary to reduce the likelihood of the public being harassed, alarmed or distressed. Again, this is a much lower threshold than persistent ASB. Once the area has been specified by an Inspector, a police officer or PCSO will be able to direct someone to leave the locality for up to 48 hours (24 hours longer than at present) if they have reasonable grounds to suspect someone is likely to contribute to the public being harassed alarmed or distressed.

22. Research has shown that prior designation of a dispersal area, informed by thorough engagement and consultation with the local community, helps ensure dispersal powers are an appropriate, proportionate and planned response to repeated problems within an area. The authorisation process was found to be a crucial element on which well-considered dispersal orders are founded, affording the opportunity to enhance police–community relations and providing openness and accountability. Many of the benefits that derive from dispersal orders were seen to stem from the process of authorisation and the associated activities that are triggered, rather than the powers per se. [7]

23. We appreciate the safeguards the Government has proposed such as publishing the use of the power locally and using it to help determine where further measures need to be put in place. However, we feel that greater community consultation is important . The CJA realises communities are often blighted by ASB and there is the need to bring in mechanisms that can alleviate the problem swiftly and surely. However, in its present form the dispersal may restrict liberties due to a lack of adequate safeguards.

Clause 37: Offences

24. The sanctions for f ailure to comply with a dispersal notice include a possible penalty of £2,500 and/or three months imprisonment . We believe that there should be no recourse to imprisonment for breach. It seriously runs the risk of allowing disproportionate responses to extremely minor behaviour. It must be remembered that an individual may not have committed any illegal or anti-social behaviour to receive an order, there need only be a reasonable suspicion that an individual is likely to cause harm or distress.

25. As with breach of an injunction, we believe breach of this dispersal power should be dealt with under the civil law, and therefore a breach is not a criminal offence which could have a long lasting impact on individuals’ lives.

PART 5 – Recovery of possession of dwelling-houses: anti-social behaviour grounds

Clause 86: New ground for serious offences or breach of requirements etc

26. Currently if a tenant is subject to a secure tenancy the county court may only make an order for possession if it considers it reasonable to do so and/or suitable alternative accommodation is available.

27. As we understand it, u nder the Bill the court will now be required to grant possession if one of any five c onditions is met. These 5 possible conditions i nclude breach of an injunction in the locality of the dwelling house. Therefore an individual who threatens nuisance or annoyance behavior and receives an injunction must be evicted for breach of such if a landlord seeks such and complies with procedures. A judge will have no say over this as they will have no discretion . This could have huge impact on children and families - either those young people who may be being evicted, or the children of parents who are being evicted where the children have not committed any offence or ASB.

28. The Government has claimed they do not have to put in express requirements for proportionality within the Bill as judges and magistrates will do so as a normal function of their duty. This clause does not even allow for this safeguard. The potential and risk of disproportionate sanctions for exceptionally minor behavior is extremely high given this and the fact that the majority of individuals receiving ASBOs breached their orders . They would almost all be liable to eviction under this Bill.

June 2013