Serious Crime Bill [HL]

Written evidence submitted by Paul West, Jessica de Grazia, David Bethom, and Alistair Richardson (SC 02)

Clause 50 of the Serious Crime Bill: Gang Injunctions

Section 1 Introduction

1.1 On 7th January 2015 the Scrutiny Unit of the House of Commons invited interested parties with relevant expertise and experience to "Have your say" on the Serious Crime Bill by submitting their views in writing to the House of Commons Public Bill Committee, which is scheduled to consider the Bill between 13th – 22nd January.

1.2 This submission has been produced in response to that invitation. It deals with three specific amendments to Gang Injunctions that we suggest should be included within Clause 50 of the Serious Crime Bill. If enacted, we believe these amendments will fine-tune the existing law and make Gang Injunctions more user-friendly and cost-effective, thereby widening their use and driving down the incidence of gang-related serious incidents in communities throughout England and Wales.

1.3 The authors of the submission are Paul West, Jessica de Grazia, David Bethom, and Alistair Richardson. [1] Collectively, we have considerable operational experience in obtaining and enforcing gang injunctions; investigating, prosecuting and defending in gang-related criminal cases; conducting strategic reviews of anti-gang partnership working; and developing and implementing law enforcement policy.

1.4 In 2014 we were jointly commissioned by the Home Office to prepare two documents: (1) a Practitioners’ Guide to Gang Injunctions, and (2) a Legislative Reference Guide explaining the full range of civil powers available to address the harm caused by gangs. [2] This tasking followed the Home Office Review, published in January 2014, which found that take-up of Gang Injunctions had not been as wide-spread as anticipated. [3] The Review cited several explanations for this, including the cost of applying for orders and follow-up enforcement; some police forces and local authorities were reporting that the outcomes of injunctions were not always commensurate with the resources invested in them. [4]

Section 2 The Context of Our Proposals

2.1 From a policy perspective, we believe that the concept of Gang Injunctions is sound. A Gang Injunction enables a police force or a local authority to combine in one application, based on the civil standard of proof and civil rules of evidence, all core members of a gang, and through a programme of rigorous enforcement of prohibitions and proactive monitoring of positive requirements, effectively to destroy the gang and its corrosive influence.

2.2 In one particular community where this was done, there was a dramatic reduction in gang crime, as measured by the number of gang-related serious incidents. [5] In the 18 month period before the injunction was obtained, there had been 58 gang-related serious incidents involving members of the two gangs included in the order whereas in the 18 months following the injunction, no such incidents were linked to the two gangs.

2.3 Up to the present time, three police forces have led the way in obtaining Gang Injunctions – Merseyside, South Yorkshire and West Yorkshire. Together these forces account for 80% of the successful applications made to date. Surprisingly, London, which has the most gang-related violence of any area in the country, has obtained only 14 Gang Injunctions.

2.4 We wholeheartedly support the legislative changes included in the current draft of Clause 50 of the Serious Crime Bill. We also suggest three other amendments to fine-tune the law and make it more effective and efficient.

Section 3 Proposed Amendments

3.1 PROPOSED AMENDMENT 1: Equalise the current maximum length of orders for both adult and youth respondents in Gang Injunctions (currently two years) with the adult order in Anti-Social Behaviour Injunctions (indefinite).

3.2 We believe this to be a priority. There are seven current or proposed civil orders that are designed to prevent or reduce the harm caused by anti-social or criminal behaviour. These are: the Gang Injunction; the current Anti-Social Behaviour Order; the Anti-Social Behaviour Injunction (not yet in force); the Criminal Behaviour Order; the Serious Crime Prevention Order; the Sexual Offender Prevention Order; and the Injunction for Housing Providers. Of these, the Gang Injunction is the only order with a two year maximum term for adult offenders. The maximum adult term for all other orders is either life or an indefinite period (until further order) or five years. Chart 1 in the Appendix to this document lists the orders, what must be proved, and their maximum term for adults and youths.

3.3 A two year term for Gang Injunctions could be justified if respondents were minor offenders, and their conduct not significantly harmful. But three years’ experience of the law shows that the police and local authorities (correctly, in our view) are using Gang Injunctions as a weapon of last resort, often when they are unable to bring criminal prosecutions, usually because witnesses refuse to co-operate out of fear, or because they also are involved in criminal activity. Gang Injunctions have proved effective in these situations because the civil burden of proof and rules of evidence permit the applicant to use police reports of serious incidents and, to a lesser extent, police intelligence as the basis for applications. This obviates the need to call witnesses who are vulnerable to intimidation.

3.4 An appellate court has previously ruled that Gang Injunctions are compliant with the Human Rights Act, although further challenge should be anticipated. We urge Parliament to take the opportunity of the debate on Clause 50 to re-iterate the need for the civil burden of proof, which overcomes the very real problems encountered in proving gang-related criminal cases caused by the reluctance of witnesses to engage with the police.

3.5 To that end, we compiled Chart 2 in the Appendix, which lists just six months (out of an 18 month period) of gang-related serious incidents that were used in one successful application that is typical of the Gang Injunctions obtained in Merseyside, West Yorkshire and South Yorkshire. Of the 28 incidents listed in the Chart, only two resulted in criminal convictions (of three men).

3.6 Looking at Chart 2, serious violence leaps off the page – arson using petrol bombs; grievous bodily harm with intent; possession and/or use of offensive weapons (firearms, axes, machetes, metal bars); ramming cars; threats to the families of victims, etc. We think that Parliament would agree that a two year term simply does not do justice to the extent of the criminality demonstrated by this Chart.

3.7 The two year term also raises a fundamental question of fairness. Is it right to restrict a court to imposing a two year order on a member of a gang involved in selling dangerous drugs, causing grievous bodily harm, armed attacks, arson, etc. when a court can impose indefinite restrictions on a compulsive "peeping tom" or a homeless person with Asperger’s Syndrome who has harassed and harangued train conductors who have caught him fare-dodging? [6]

3.8 Moreover, two years is insufficient to embed changes in behaviour, whether achieved through prohibitions or positive requirements, which is a goal of the law; nor does it give judges sufficient scope to distinguish between the conduct of peripheral and core gang members, which fairness and proportionality also requires.

3.9 We propose that an amendment to Section 36(2) of the Policing and Crime Act 2009 should be included in Clause 50 of the Serious Crime Bill, phrased in the following terms:

Section 36 Contents of Injunctions: supplemental

(1) This section applies in relation to an injunction under section 34.

(2) An injunction under this section must-

(a) specify the period for which it has effect, or

(b) state that it has effect until further order.

3.10 PROPOSED AMENDMENT 2: The conditions for giving housing providers absolute grounds to take possession of social housing should include breach of a Gang Injunction.

3.11 This proposed amendment addresses what we suspect is an oversight. Part 5, Section 94(1) of the Anti-Social behaviour, Crime and Policing Act 2014 creates an absolute ground to enable housing providers to take possession of social housing. Five conditions may trigger the application: 1) the respondent was convicted of a serious offence; 2) the respondent is in breach of an Anti-Social Behaviour Injunction under Part 1 of the Act; 3) the respondent is in breach of a Criminal Behaviour Order under Part 2 of the Act; 4) the property has been subject to a closure order for over 48 hours under Section 76 of the Act and; 5) a person residing at the property has been convicted of an offence under Sect 80(4) or 82(8) of the Environmental Protection Act. (All of the breaches must have occurred in, or in the locality of the dwelling house.)

3.12 There is no reason not to include a sixth condition, namely the breach of a Gang Injunction if the breach occurred in or in the locality of the dwelling house. Including this condition would incentivise gang members to comply with their orders lest a breach leads to them or their families being evicted from social housing.

3.13 We propose that an amendment to Part 5, Section 94 of the Anti-Social Behaviour, Crime and Policing Act 2014 (New ground for serious offences or breach of prohibitions, etc.) should be included in Clause 50 of the Serious Crime Bill, phrased in the following terms:

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

Absolute ground for possession: secure tenancies

94 New ground for serious offences or breach of prohibitions etc….

…. (8) Condition 6 is that a court has found in relevant proceedings that the tenant, or a person residing in or visiting the dwelling-house, has breached a provision of an injunction under Section 34 of the Policing and Crime Act 2009, other than a provision requiring a person to participate in a particular activity, and-

(a) the breach occurred in, or in the locality of, the dwelling-house, or

(b) the breach occurred elsewhere and the provision breached was a provision intended to prevent-

(i) conduct that is capable of causing nuisance or annoyance to a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or

(ii) conduct that is capable of causing nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions.

(9)Condition 1, 2, 3, 4, 5 or 6 is not met if-

(a)there is an appeal against the conviction, finding or order concerned which has not been finally determined, abandoned or withdrawn, or

(b)the final determination of the appeal results in the conviction, finding or order being overturned.

3.14 PROPOSED AMENDMENT 3: The right to a 12 month review should not be automatic if a respondent has breached the order or been convicted of another offence.

3.15 To support positive changes in behaviour, the current law requires an automatic review of a Gang Injunction at the end of its first year. This means that the police or local authority must prepare an in-depth file in advance of the review date and attend court even if a person has been convicted of another offence or of a breach whilst under the order, in which event judges invariably decide to continue the order. In these situations, it would save police, local authority and court time if the law were amended to permit the applicant, in advance of the one year review date, to notify the court of the conviction (copied to the respondent), unless there is a specific request by either the court or the respondent for a full review hearing. This will prevent unnecessary file preparation, court attendance, and court listings.

3.16 We propose that an amendment to the Police and Crime Act 2009, Section 36 Contents of Injunctions: supplemental be included in Clause 50 of the Serious Crime Bill, phrased in the following terms:

Section 36 Contents of Injunctions: supplemental

(4) (a) The court must order the applicant and respondent to attend a review hearing on a specified date within the last 4 weeks of the 1 year period (whether or not the court orders them to attend any other review hearings) commencing from the date the order is imposed.

(b) The 1 year review hearing may be deferred upon written application by the applicant to the court, with written notice to the respondent, if the respondent has been convicted of a breach of the injunction or a criminal offence committed during the term of the injunction.

(c) If the court decides to defer the review, it should set a new review to take place before the expiration of 1 year from the date when the first review would have been held had the respondent not committed a criminal offence or breached the order.

Section 4 Conclusion

4.1 By making the changes we suggest, which are all a matter of fine-tuning based on experience, we firmly believe that Parliament will make Gang Injunctions a more user-friendly and cost-effective legal tool. This, in conjunction with a continuing programme of peer reviews, mentoring and training, and publication of materials, should achieve the wider take-up of the law that the Home Office is seeking to encourage and thereby protect communities from serious gang-related violence and other offending.

January 2015

Appendix

Biographical note on the authors

Paul West, former Chief Constable West Mercia (2003-11), led nationally for the police service in relation to the management of violent offenders (2008-11) and is the only former Chief Constable to have qualified as a Peer Assessor for the Home Office Ending Gang and Youth Violence Team (EGYV). He participated in EGYV Peer Reviews in two London boroughs during 2012. Paul holds the distinction of being the longest serving Chief Constable in West Mercia’s history and for much of his time in post he also led nationally for the police service on all strategy and policy concerning police misconduct, discipline, complaints against the police, counter-corruption and professional standards. He was awarded the Queen’s Police Medal for distinguished police service in 2005.

Jessica de Grazia, a barrister (6 KBW College Hill) and U.S. lawyer, has international expertise in developing and implementing law enforcement policy relating to the investigation and prosecution of serious and organised crime. In addition to investigating and trying gang-related murders, she set up the first intelligence driven proactive police-prosecutor gang unit in New York City, which was a precursor of Operation Trident. Her previous UK projects include co-developing and co-delivering a two year change management programme for the Crown Prosecution Service to develop its capacity to deliver charging and conducting a review of the Serious Fraud Office. In 2013, she was the only non-Canadian appointed by Canada’s Minister of Public Safety to serve on a four person expert panel to review the effectiveness of the federal system for investigating and prosecuting crimes against capital markets.

David Bethom is a former Merseyside Police Force Detective Sergeant, who was one of the first operational officers in the UK to make effective use of gang injunctions to reduce gang violence. He is responsible for the making of 46 successful applications and has provided advice and guidance on the making of a further 36 successful applications by other forces. David is a Peer Assessor for the Home Office EGYV Violence Team and recently participated in an EGYV Peer Review in a police force area in the east of England.

Alastair Richardson is a barrister (6 KBW College Hill) with experience in criminal law, gang-related crime and the use of civil remedies in a criminal context. He represented defendants and prosecuted cases arising out of the London riots in 2011, including appearing in specially convened night courts. Alistair has appeared in the British and international media to give expert opinion on the causes of and responses to these riots.

Chart 1 Comparison of Length of Maximum Orders for Civil Law Enforcement Orders

Civil Power

What must be proved

Length of Order Adult

Length of Order Youth

Current Gang Injunction

Member of a gang and involved in specified acts of gang-related violence. Civil burden of proof

Maximum two years

Maximum two years

Current ASBO (stand alone or post- conviction)

Harassment, alarm and distress to people not of the same household and that the order is necessary. Criminal burden of proof. [1]

Two years to life

Two years to life

Proposed ASB Injunction (Anti-Social Behaviour and Policing Act of 2014)

Harassment, alarm or distress and that the order is just and convenient to grant. Civil burden of proof.

Indefinite period

Maximum 12 months

Criminal Behaviour Order (Anti-Social Behaviour and Policing Act, 2014)

Harassment, alarm or distress and that the order will help in preventing the offender. Post-conviction order based on civil burden of proof.

Two years to indefinite period

Not less than 1 year, not more than 3 years

Injunctions for Housing Providers (Anti-Social Behaviour and Policing Act, 2014)

Similar to above. Only available to social landlords.

Indefinite period

Maximum 12 months

Serious Crime Prevention Order

(stand alone or post- conviction)

The person is involved in serious crime and that the order would protect the public by preventing the involvement by the person in serious crime". Criminal burden of proof.

Maximum five years

Not applicable

Sexual Offender Prevention Order (post-conviction by sentencing court or after conviction by Chief Constable)

On conviction of a sexual offence or if there has been a past historical offence and the respondent is now dangerous to the public. Criminal burden of proof.

Five years to indefinite period

Chart 2 Gang-Related Serious Incidents Used to Obtain an Injunction, with legal outcomes

Incident

Legal Outcome

Car chase through estate, car rammed, man driven over, sustains two broken ankles and head injuries.

Two names provided via intelligence. Victim refused to cooperate. No other witnesses. No further action (NFA).

Gang fight involving ten people outside pub. One male stabbed twice in the upper back.

Five names provided via intelligence. No person willing to provide witness statement. Victim refused to cooperate. NFA.

Planned police search recovered drugs, loaded firearm and ten blank passports, two men arrested.

The loaded firearm or the passports could not be forensically linked to an individual as numerous people in property. NFA re firearm and passports. One male convicted of drug possession.

Gang fights with doormen in city centre, threats to doorman.

Police attended, offenders no longer at scene, doormen reluctant to cooperate. NFA

Windows smashed at the house of the mother of a doorman involved in the above incident.

Three men arrested for threats to commit criminal damage. Statements retracted. NFA.

Planned police search recovered drugs valued at £76,000, £14k cash, loaded firearm and two CS gas canisters.

NFA on firearm because no forensic links. Two brothers convicted re the drugs and cash.

Car chase through estate, car rammed off road and firearm discharged.

Numerous witnesses to various stages of incident. Intelligence named 5 people. No one prepared to make statements. NFA.

Intelligence that a man had been attacked with an axe and machete.

Police attempt to locate scene and victim, no trace. Intelligence received later about incident.

Car rammed and overturned, all run off prior to police arrival.

Car unregistered, intelligence identified 4 people. No witnesses. Forensics could not place people in the car at time of incident. NFA.

Three cars chasing man up a road, police attend, no trace.

Incident confirmed by members of the public- no one prepared to provide statements. Intelligence named one person. NFA

Windows smashed at sister of gang member’s house

The sister refused to provide any information or make any statement. NFA

Gang members gain access to opposing gang member’s property, and smash up cars using weapons.

All people in the house at the time refused to assist the police or make statements. People responsible identified via intelligence. No direct evidence. NFA

Car belonging to gang member rammed off road into tree and set alight.

Gang member refused to cooperate. Men responsible subsequently named via intelligence. No direct evidence. NFA.

Firearm discharged at gang member’s property.

No witnesses identified. Insufficient forensic evidence. Lack of cooperation from victims. NFA.

Father of gang member reports nearly being run over. Names offender.

One person arrested. Statement retracted. No further evidence. NFA.

Same father reports land rover has just been driven through the front window into his house

One man subsequently arrested. Statement retracted after incident described immediately below. NFA.

A car was deliberately driven into a house; this was a revenge attack in response to the above crime.

All witnesses at scene refused to cooperate. Incident caused the retraction described immediately above. NFA.

Residents report hearing five to ten gun shots, gang members confronted each other, gun residue was found on floor.

Numerous calls from the public. No one prepared to give statements. 5 people arrested. All gave no comment interviews. No forensic links. NFA.

Car reverses into garden wall of gang member

No witnesses. NFA.

Car belonging to another gang member set on fire.

No witnesses. NFA.

Car rammed on supermarket car park, one overturned.

Two men subsequently arrested. No one prepared to give statements. No comment interviews. NFA.

Arson by petrol bomb thrown at house- no forensics.

No witnesses. No forensics. Persons named via intelligence as responsible. NFA.

Arson by petrol bomb. Tenants’ son linked to gang member. Two elderly people and five year old child rescued.

No witnesses, no forensics, no intelligence, but believed revenge attack for incident above. NFA.

Car rammed off road. One man hospitalised.

No person prepared to make statements including victim. 4 people named via intelligence. NFA.

Car rams another car, men get out and hit the other driver with a metal bar, then steal his car.

No forensic evidence, and victim refused to cooperate. NFA.

Gang members threatened to kill opposing gang member’s mother and son.

Two people named and arrested. No comment interviews. Statement retracted. No other evidence. NFA.

Mother reported that her son had been beaten up by gang members (broken arm).

Victim refused to cooperate. Intelligence developed, named two people responsible for attacking victim with hammers. NFA

Three gang members stopped in car smelling of drugs. Axe found, one man arrested

On interview stated that he used the axe for gardening. Case discontinued at court as prosecution could not disprove defence that axe was being carried for an innocent purpose.


[1] The Appendix contains a brief biographical note on the authors.

[1]

[2] In the Ending Gang and Youth Violence (EGYV) Annual Report, 2013, the Home Office committed to producing a legislative reference guide.

[2]

[3] "Review of the operation of injunctions to prevent gang-related violence", Home Office, January 2014. Section 50(3) of the Policing and Crime Act 2009 (which created Gang Injunctions) required the Secretary of State to conduct this review and to submit its conclusions to Parliament within three years of the Act’s commencement.

[3]

[4] Whilst Gang Injunctions are resource intensive, in our view, costs could be reduced by making the process of application for orders and enforcement more efficient. In any event, they are significantly less expensive than many large-scale criminal investigations and prosecutions and arguably more effective in preventing gang-related harm.

[4]

[5] For the purpose of this document, we have defined a gang-related serious incident as one that has potential life threatening consequences and requires a priority response.

[5]

[6] These are real cases. In the former, the respondent was subject an indefinite Sexual Offender Prevention Order; in the latter, the court imposed a two year ASBO.

[1] Although described as the civil burden in the statute, by case law, it is the equivalent of the criminal burden of proof. The same is true for Serious Crime Prevention Orders and Sexual Offender Prevention Orders.

Prepared 13th January 2015