MPs and peers call for greater clarity on anti-social behaviour measures

The legislative tests contained in the Anti-Social Behaviour, Crime and Policing Bill and to be applied by the courts when imposing anti-social behaviour measures must be made clearer, MPs and peers have said.

In a report on the Bill, the Joint Committee on Human Rights looked in particular at the human rights compatibility of the new civil injunction to prevent nuisance and annoyance ("IPNA"). Under the Bill an IPNA may be imposed if the court considers it "just and convenient" to prevent anti-social behaviour.

The JCHR said: “This is a lower test than the test of ‘necessity’, as required by human rights law. We also consider that the new IPNA definition of anti-social behaviour is broad and unclear.

“In addition, the current drafting of the Bill in relation to the prohibitions and requirements that can be attached to an injunction is far too broad.”

The committee said it was “not persuaded as to why it was necessary to expressly provide that prohibitions and requirements in an IPNA must, ‘so far as practicable’, avoid any conflict with religious beliefs because the freedom to hold religious beliefs is an absolute right that cannot be interfered with”.

The report also described the power to exclude a person from his or her home through the use of an IPNA as “a severe measure”. Further provision was required to ensure that this power is only used when necessary, it argued.

The JCHR said that in order to reduce the potential negative impact on children of the IPNA measures (children as young as ten can be affected), it recommended that the courts must take into account the best interests of the child as a primary consideration in any IPNA legal proceedings.

In other comments on the ASB measures in the Bill, the report said:

• On Criminal Behaviour Orders (Part 2 of the Bill): the appropriate standard of proof required to establish anti-social behaviour for the purposes of a CBO should be made clear on the face of the Bill. The Bill provides that a CBO may be imposed if the court considers it ‘will help in preventing’ anti-social behaviour. “We do not consider this to be an appropriate or clear legislative test, and recommend that it is amended,” the JCHR said. “As with IPNAs, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a CBO do not satisfy the requirement of legal certainty, and recommend that the Bill is amended to achieve greater certainty.”
• On police dispersal powers (Part 3 creates a new police dispersal power to direct people away from an area in order to prevent anti-social behaviour): The JCHR welcomed the Government's amendment to make clear that the authorising police officer's belief must be ‘reasonable’ in order to use the dispersal power. The committee said it was essential that the dispersal power was only used when necessary and proportionate and not used for any purpose other than to address the ASB defined in the Bill. “For example, it must not be used in a way that targets peaceful assemblies. We also note that this power is likely to affect children disproportionately, and impact particularly on their rights to freedom of movement and assembly.”
• Recovery of possession on riot-related ASB grounds (Part 5): “While we recognise the seriousness of riot-related offences, we are not persuaded by the Government's justification for the new discretionary ground of possession for riot-related anti-social behaviour.” The committee said it was concerned about its potential serious implications for family members, and considered that it might disproportionately affect women and children. “We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”

In other findings, the JCHR said it cautiously welcomed the Bill’s provision to criminalise forced marriage.

But the committee added that is was “important that the new law is implemented and monitored carefully to ensure that it is not counter-productive for victims”. It suggested that the Government should report annually to Parliament on the effectiveness of the new law.

The report said the Crown Prosecution Service should develop a strategy for the prosecution of forced marriage.

The JCHR also made a number of recommendations in relation to the provisions in the Bill covering terrorism powers.