Anti-social Behaviour, Crime and Policing Bill

Written evidence from Vera Baird, Police and Crime Commissioner for Northumbria (ASB 46)

Thank you for providing the opportunity to submit evidence to the Public Bill Committee considering the Anti-social Behaviour, Crime and Policing Bill. There are elements of the Bill that I fully support and other elements that in my opinion need further consideration and clarity. To ensure fewer victims of crime, safer and more confident communities it is imperative that we are tough on anti-social behaviour and crime; this Bill should be one of the foundation blocks to help us achieve this.

Rationalisation of the current powers available to tackle anti-social behaviour is pragmatic yet I do not believe that all changes to the anti-social behaviour toolkit are positive, instead of protecting victims, the current plans regarding injunctions and breach of injunctions water down Anti-social Behaviour Orders so that someone who continues with anti-social behaviour and keeps ignoring police warnings, court orders and injunctions to stop terrorising the local area will no longer be guilty of a crime. This seems to weaken police powers to fight anti-social behaviour.

Here in Northumbria I am taking direct action which will make a difference to every person who experiences anti-social behaviour. In my Police and Crime Plan I have given the following commitments:

· Every victim of anti-social behaviour will be contacted personally and their concerns investigated.

· Record every repeat incident of anti-social behaviour and develop a case history so attending officers are fully informed.

· Provide victims of anti-social behaviour who feel targeted and all vulnerable victims with tailor made support and real understanding.

· Neighbourhood Policing Teams and Community Safety Partnerships will engage with the victim in stopping the problem.

· Encourage the Chief Constable to use all powers available to the police to tackle anti-social behaviour and will encourage other partners to do the same.

I believe the police should have the support of the government to tackle anti-social behaviour. Locally we will do everything we can to tackle those who disturb people’s lives by committing such crimes.

The remainder of this response concentrates on my views around specific details in the Bill concerning Crime Prevention Injunctions, Criminal Behaviour Orders, the Community Remedy, commissioning victims services and forced marriage.

1.0 Crime Prevention Injunctions

1.1 This and related parts of the Bill may minimally streamline procedure for taking anti-social behaviour (ASB) to Court but at the cost of losing established Anti-social Behaviour Order (ASBO) case law. The availability of "positive requirements" on injunctions is a laudable attempt to tackle underlying causes of the Defendant’s ASB. However, as drafted, the Bill broadens the range of conduct which may trigger an injunction and reduces the standard of proof required whilst adding onto civil injunctions, powers hitherto only available on conviction in the criminal courts.

1.2 The test that "a person has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person" is a light test. ACPO prefers a more serious test around "harassment, alarm or distress" and I agree. That may also be a less subjective test and thus is, overall a more justifiable basis on which to make a defendant submit to a civil order with potentially a multitude of conditions applied to it. While the only example of "positive requirements" in the original White Paper "Putting Victims First" is to be sent to a dog training class, the pre-condition in Clause 2 of the Bill, that a judge must consult the person to be responsible for supervising such a requirement and the duty to ensure that two such requirements do not conflict, suggest that there can be a wide range of them.

1.3 Clause 1(2) prescribes that the civil standard of proof will apply, which, again, is a light test given the potential consequences to a defendant. If it is more likely than not that someone is, somehow, threatening conduct capable of causing nuisance or annoyance at some time in the future, positive requirements can be imposed which are more usually associated with sentencing for a crime. (Where crime is alleged the Courts will probably take on a quasi-criminal standard of proof, as is usual) but positive requirements may be attached without ANY crime.

1.4 There are a number of points of concern about "positive requirements" as currently designed:

a) It appears that the scope of requirements could be as broad as those handed down within community sentences although there will have been no criminal process or conviction

b) There will be no pre-sentence report and no duty as in S148 2(a) of the Criminal Justice Act 2003 to ensure that the orders made are "the most suitable for the offender" merely a duty to receive evidence about the suitability and enforceability of what is proposed (clause 2)

c) Neither does there seem to be a duty as in section 148 Criminal Justice Act 2003 that any restrictions on liberty caused by the requirements are "commensurate with the seriousness of the offence " - no offence being necessary for a CPI. Nor is there the Sentencing Guideline Council requirement (SGC Guideline CJA2003) that the requirement should be proportionate.

d) The community sentence threshold is limited to cases where the offence is punishable by imprisonment or where the offender has had 3 fines for offences since being 18.

e) "Positive requirements" will, in the case of an adult, be imposed by a County Court Judge who may have no criminal sentencing experience. As noted above, a court must make any two requirements, it imposes, compatible with each other and under 5c avoid any conflict with any other court order, but it is not clear how s/he would know of any other orders, in particular criminal orders, if the injunction were sought by the local authority.

f) How is a future sentence to deal with a failure to comply with a CBO requirement? Would it mean that s/he may be less likely to impose a community sentence in the future and thus perhaps to fast-track people up the sentencing ladder and have resort to imprisonment too soon.

g) CJA agencies report that there is a lack of drug, alcohol and mental health treatment services available for those referred by criminal justice agencies, yet these are likely to be typical "positive requirements" on CPIs. Who will pay the cost for any positive requirements and the supervision required by clause 2?

h) The Ministry of Justice should provide greater clarity on how decisions over requirements will be made and should narrow the availability of positive requirements.

1.5 The White Paper, Putting Victims First (PVF) suggests that this availability of positive requirements is an improvement on an ASBO/ASBI since they might "address underlying issues that may be driving (the defendant’s) behaviour". Notwithstanding all the above reservations, there is the further concern that if that is the intention it seems to sit badly with the breach of a CPI being only punishable as a contempt of court, that is by a fine or imprisonment. If positive requirements are desirable and can be imposed proportionately and may stop further ASB would it not be preferable to have them available when a defendant has failed on the first order but may still have issues that can be dealt with by a positive requirement after a breach too.

1.6 Widening the range of potential applicants for CPI over those who could get ASBOs/ASBIs may add to flexibility and may reduce police involvement, which may be advantageous but may result in different outcomes for different perpetrators, if some are dealt with by civil order and some by prosecution. Information sharing will be important and perhaps guidance as to with what weight each court should deal with an order from the other jurisdiction. A civil contempt will probably not count as a conviction.

1.7 Unless it would not be outside the Bill’s long title the Government could take the opportunity to apply special measures to Domestic Violence injunctions at the same time as applying them to CPIs by clause 16 of Part 1.

2.0 Criminal Behaviour Orders

2.1 There seems to be no restriction on the kind of crime which may be followed by such an order. There is no indication of the standard of proof required for a CBO.

2.2 If someone is convicted of a minor offence it appears that they may be subjected to a CBO in addition to a sentence for that offence, even if the 2 are unrelated and the evidence in the trial of the offence has no relevance to the CBO. (clause 22 (2).

2.3 Another example would be if the defendant’s offence is against someone in the same household, as long as he has also done something likely to cause harassment alarm or distress to someone who is not in that household, there may a CBO, even if what he did, to the outsider, was not criminal and took place at a different time (Clause 21(3).

2.4 Overall, similar concerns apply to CBOs as to CPIs in respect of the imposition of "positive requirements" in that the test for a CBO is less than criminality - it is expressly not to be a sentence for the conviction but to prevent repeat ASB (Clause 21(6).

2.5 If this is just a quick way to get someone to court, without the need for an injunction application, by using criminal proceedings as a platform, it seems an argument for making the test for a CBO the same as for a CPI. Since this defendant must, at least, be convicted before a CBO can be attached, it is particularly odd that the test (likely to cause harassment alarm or distress) is higher than the requirement of nuisance or annoyance for an injunction on a defendant who may not be criminal at all.

2.6 Additionally, if the conviction and the conduct alleged in the CBO application are similar, options such as ordering him to attend an alcohol course would be available to the judge, either as part of a community order on conviction or under the terms of the CBO. If such an order were a term of the CBO, a breach is a fresh offence (clause 29.1) with a maximum sentence of 5 years. If the same condition were part of his sentence, an identical breach would not be a fresh offence and could be dealt with by a minor change to the community order under schedule 8 of the Criminal Justice Act 2003. This seems both odd and to carry a risk of error.

2.7 A dispersal power, which does not require the designation of a specific territory may be a speedy and less bureaucratic way to alleviate anti-social behaviour. However, if it is not merely to move it onto a nearby area with the risk of causing neighbourhood tensions, it needs to be used as part of a strategy for tackling hotspots or as a short-term urgent measure. Reporting on its use is essential and publishing data is something of a safeguard against its abuse. The maximum penalty for a breach is 3 months custody which is substantial. Officers will have to be exceptionally precise with directions to prevent breaches from misunderstanding or lengthy court arguments about precise delineations.

3.0 The Community Remedy

3.1 This is in principle a good idea but there are reservations. At best victims of persistent ASB, who may have a clear understanding of its cause can prescribe a solution to their own problems to be implemented by the police and the justice system, on their behalf. In other cases it might simply give satisfaction to those who have suffered to see their persecutors contributing to the community through a restorative sentence of their own choice.

3.2 However the officer/prosecutor will need to optimise the chances of the victim’s choice being implemented when it has been offered. Currently, clauses 94 onwards require that "reasonable steps" be taken for the victim to be consulted as to whether the perpetrator should carry out an action on the community remedy list, as a standalone or as a condition on a caution. The choice "must" be offered to the perpetrator "unless it seems to the officer/prosecutor to be "inappropriate" It would cause frustration if police often advised that victims’ choices were "inappropriate" having asked for their views. Further the officer should determine in advance that the perpetrator will be prepared to do whatever the victim chooses from the list, or the victim may feel further victimised or disempowered by the perpetrator.

3.3 There is no clarity as to what will happen if the chosen action is rejected by the perpetrator or just not carried out. If that will transfer the matter to court, the magistrates ought to be advised what the choice was and might consider taking the community’s wishes into account on sentencing.

3.4 However, it is vital that the Commissioner who has the duty to draw up by consultation with the public, the list of potential remedies ensures that the remedies are proportionate to the level of ASB likely to be dealt with. There is no level prescribed in the Bill and the trigger level is behaviour capable of causing nuisance or annoyance, a low level.

3.5 If victims are given too wide a choice, they may demand an action that is over-severe. That might lead to the officer/prosecutor disallowing their choice as inappropriate or it may subject a low-level perpetrator to too serious a demand. Either might further inflame social discord, and specifically push a low level offender who refuses into court sentencing more severe than what was an over-severe community remedy.

3.6 The community remedy will need to be managed with care from inception to implementation.

3.7 Community harm statements are similar to Community impact statements, already used by Northumbria Police in support of ASBOs being sought by local authorities. They have been used to show that what might be perceived as a minor matter has had significant impact on the community. However Northumbria Police have found some local courts cool to their use where the impact on the community is not obvious.

3.8 The community trigger is intended to be a backup to compel police and other agencies into action where a community is not getting relief from its ASB. It carries with it the danger that in a time of downward cost pressures police will not react until they have to do, ie until either 3 or more complaints have come from one individual or 3 or more individuals have complained – to take a level of triggering that was piloted in Manchester. Northumbria Police assure me that this will not happen here.

3.9 Great care should be taken to ensure that the most in need victims instigate the process. I am concerned that the most vulnerable people are unlikely to initiate the trigger and that vexatious complainants may try and manipulate the system. Fully understanding the evidence on how successful the trigger has been in the pilot areas is vital before this tool is introduced. It is important not to overlook the issue of capacity of partners to deal with the extent of the ASB reviews and associated actions.

4.0 Commissioning Victims Services

4.1 I support section 123 of the bill that gives powers to local policing bodies to provide or commission services. This provision will help to secure crime and disorder reduction and provide services that are intended to help victims or witnesses of, or other persons affected by, offences and anti-social behaviour.

4.2 Putting victims first is a key priority in my Police and Crime Plan and receives a high level of importance in the work the Chief Constable and I do in Northumbria to keep people safe and feeling safe.

4.3 With the introduction of commissioning responsibilities in 2014-15 I feel Police and Crime Commissioners are perfectly well placed to play a key role in holding local criminal justice agencies to account for delivery of the new reformed Victims Code and commissioning victim’s services. There is a role for PCCs in assessing the standard of the service, identifying gaps and improvement opportunities and commissioning providers. This said, I feel there is a need for an urgent review of the victim journey and I would hope for support and input for this from Government before commissioning responsibilities pass to PCC’s.

5.0 Forced Marriage

5.1 Part 9 of the Bill introduces two new offences of forced marriage and breaching a Forced Marriage Protection Order (FMPO). Many organisations were consulted by the Home Office in 2005 and the result was overwhelmingly in favour of not criminalising the offence but dealing with it through a civil route. Many individuals, victims and survivors have more recently expressed their support for this view. I do not feel criminalisation is the solution.

5.2 In my opinion the problem is that people might be deterred from coming forward if they fear that they will criminalise their families. If they can take a gentler route and just seek help, thereby stopping the situation before it really starts, there might be possibilities for reconciliation and healing that would not arise if the police were called in.

5.3 We should seek to give young people in danger the tools to prevent the danger from emerging, but if criminal offences are committed and if appropriate, the people involved should be prosecuted.

5.4 We should not put the onus on the young person by saying that the only way they can get out of the situation is to go to the police and compel their family to become involved in criminal proceedings. If they can have recourse to someone else, a civil conclusion can be reached that might head the problem off at the pass.

5.5 In relation to the initial application for a FMPO, there are potential concerns with allowing a relevant third party to make an application without the victim’s knowledge or consent. The worry is for the victim’s welfare within the family home, since serving a FMPO on the individual forcing the marriage may put the victim at risk of both mental and physical harm. Perhaps making it a requirement for the third party to make a substantial effort to obtain the consent of the victim and to show evidence of that attempt would help to mitigate this. to water down Asbos so that someone who keeps ignoring police warnings, court orders and injunctions to stop terrorising the local area will no longer be guilty of a crime.

The Tory-led Government plans to introduce the Community Trigger, which gives people the right to demand that police deal with anti-social behaviour if an incident is reported by at least five people or any three complaints by the same person.

But victims who complain three times will only have the right to a review, and this is just the minimum requirement with the authorities able to wait much longer before taking further action if they choose to. The statistics from the Government’s own pilot scheme in Manchester, Brighton and Richmond show that of 44,011 antisocial behaviour incidents, the Trigger was only successfully activated 13 times.

They are also making it harder to use CCTV cameras by introducing more red tape at a cost of £14 million – money that could have been used to pay for more officers.

Vera Baird QC said: "On top of big cuts to Northumbria Police budget by the Government, the Tories now want to weaken police powers to fight anti-social behaviour. They need to rethink their policies. Here in Northumbria I am taking direct action which will make a difference to every person who experiences anti-social behavior""

In her Police & Crime Plan, Vera Baird has given a commitment that –

· Every victim of anti-social behaviour will be contacted personally and their concerns investigated.

· Record every repeat incident of anti-social behaviour and develop a case history so attending officers are fully informed.

· Provide victims of anti-social behaviour who feel targeted and all vulnerable victims with tailor made support and real understanding.

· Neighbourhood Policing Teams and Community Safety Partnerships will engage with the victim in stopping the problem.

· The Commissioner intends the Chief Constable to use all powers available to the police to tackle anti-social behaviour and will encourage other partners to do the same.

Vera Baird’s plan is one of action, which local residents in Northumbria have asked for and the Police and Crime Commissioner is delivering. This is in direct contrast to the Tories whose plans do not offer support for victims of repeated harassment. It has taken Northumbria’s Police & Crime Commissioner, Vera Baird, to tackle anti-social behaviour in a way that will see direct action.

Mrs Baird added "I want the police to have the support of the government as they tackle anti-social behaviour. Locally we will do everything we can to tackle those who disturb people’s lives by committing such crimes – Now is the opportunity for the Government to go further and support the work of Northumbria Police and implement further reforms"

July 2013

Prepared 17th July 2013