Tackling anti-social behaviour

The government last month launched a consultation on reform of anti-social behaviour tools and powers. Scott Greenwood looks at the proposals.

For a while during the early stages of the new government, it was very unclear where the topic of anti-social behaviour stood on its agenda.

But the government has now launched a consultation paper, More Effective Responses to ASB, that proposes reform of the present remedies available in dealing with the problem. The government appears to be of the view that there are too many remedies available at present, some not very well used, and that the process in obtaining any given remedy may be lengthy and expensive. The Home Office is responsible for the consultation, which is intended to end on 3 May 2011.

So what is likely to change? We presently have available various remedies including ASBIs, ASBOs, Demotion and Possession (based on grounds for possession contained within the Housing Acts 1985 and 1988.) The proposal is to repeal the ASBI and ASBO and replace these with new orders called the Criminal Behaviour Order that can be attached to a criminal conviction, and a Crime Prevention Injunction.

It is intended that the Criminal Behaviour Order will be a civil order that could be attached to a conviction to protect the public from behaviour that causes, or is likely to cause, harassment, alarm or distress. Conditions may be attached to the order specifying where the defendant is allowed to go and conditions on other issues such as drug and/or alcohol treatment. The consultation paper describes this as a civil order available on conviction but it does not state what the likely burden of proof will be. If the government wants to avoid the delay which has been caused in obtaining an ASBO, they may want it to carry the civil burden of proof.

The Crime Prevention Injunction will be designed to stop anti-social behaviour before it escalates. The injunction would carry a civil burden of proof, making it quicker and easier to obtain than the ASBO. For adults, breach of the injunction would be punished as contempt of court, through a fine or custody. For under 18s, the penalty for breach would be a menu of sanctions, including curfews, supervision, activity requirements and detention.

At a first glance of these proposals one would question what is really new other than the names of the new orders. The repeal of the ASBO with the new Crime Prevention Injunction is probably a good thing. ASBOs can take a while to fully obtain because of adjournments and delays and the burden of proof for the ASBO is the criminal burden. Some political commentators and the media have suggested that ASBOs have almost become a badge of honour, particularly  by some young offenders.

In my experience, the present remedy of the ASBI has been fast, cheap and effective. Therefore I am not totally clear why the government would want to replace these with the new type of injunction. It may well materialise in practice that, although the name has changed, the intention and purpose of the remedy remains the same. Until there is a proper formulated Parliamentary Bill after consultation has ended we will have to wait and see.

The key will be the threshold test as to what will amount to ASB for the purposes of obtaining the Order. The government has left this open as a choice between the current tests which are contained for ASBOs in the CDA 1998 – harassments alarm or distress to a person not of the same household or the test for ASBIs in the HA 1996 – conduct causing or likely to cause nuisance or annoyance to some person (they include in the paper not of the same household). The ASBI test is a wider test and one which the County Court is used to applying when considering applications at present for ASBIs.

The other issue left open for debate in the paper is which court should hear these applications – the Magistrates or the County Court. My view is that is as these are intended to be civil orders the County Court is the better forum as the judges are familiar with such applications and procedure.

Perhaps the more far-reaching part of this proposal is that the Order can be applied for against persons between the ages of 10 to 17. An ASBI will not at present be granted against minors. Again there is a need for debate as to which court is appropriate in dealing with such applications. There will also be a need for a review of the case law in this area as the courts have been very reluctant at common law to grant an injunction against a minor.

There are further orders proposed including:

• A two-tier Community Protection Order, comprising a Level 1 notice issued by practitioners to stop environmental anti-social behaviour (e.g. graffiti, neighbour noise, accumulations of litter) and a Level 2 power for police and local authorities to restrict the use of places, or to close properties associated with persistent anti-social behaviour, with criminal sanctions for breach. This will replace the current Crack Closure and Premised Closure Orders.
• Dispersal orders to be replaced with a simplified police power to direct people away from an area on grounds of anti-social behaviour.

The Community Trigger is described in the paper as a mechanism for victims to complain for action to be taken where members of the Community Safety Partnership have failed to do so. What is not clear in the paper is whether this is intended to be enacted as a statutory duty.

If so, this proposal does need to be thought out very carefully as there is a risk here of opening the floodgates within the law of negligence to challenges in the courts. At present the common law is quite clear that unless a landlord has encouraged or participated in the ASB there can be no liability in negligence. If it is to be statutory, there has to be an argument that the money spent in dealing with such challenges would be better spent in dealing with the ASB complained of. The criteria for this trigger is that five individuals not of the same household need to have complained on three separate occasions with no action having been taken by the partner in the CSP.

The paper also makes reference to the Ministers’ previous proposal that where a perpetrator is found guilty of an indictable offence or in breach of a court order for ASB, this should amount to a mandatory ground for possession. This proposal is interesting as it mirrors to some extent the Labour government’s proposal for a mandatory ground for possession. This is on similar terms to that which was contained in their consultation paper which lead to the enactment of the ASB Act 2003. Their proposal never became law.

As it was then, the issue will probably be as to how such a mandatory order will be compliant with the Human Rights Act. We have recently seen a wave of cases come out of the Court of Appeal and the Supreme Court which I refer to as the Weaver cases where, based on those decisions, it is questionable whether such a mandatory ground for possession would stand up to a challenge relying on Article 8 of the European Convention on Human Rights. I suspect, based on current jurisprudence coming from the ECHR and our Courts, it will not. Some food for thought for the government before they attempt to enact such a proposal.

The general theme which runs through the paper is the concern that the present remedies do not provide for a fast, effective and cost-effective way in dealing with complaints of ASB. Whilst this debate is open, my view is that this would be a good time for the government to explore the need for a specialised Housing/ASB Court or tribunal. Such a system would have judges who are familiar with such applications and who have practised in this area. It would also enable bespoke rules on court procedure and practice to be formulated so as to make such applications run smoothly and efficiently. To have such a forum may assist the government in delivering on their objective within this field of practice.

Scott Greenwood is a specialist in social housing law.