Behavioural Control Orders are being inappropriately used, report warns

Organisations imposing Behavioural Control Orders (BCOs) are failing to consider their punitive nature and whether they pose problems for legal clarity, the rule of law and human rights, new research from JUSTICE has claimed.

In its report, the law reform and human rights organisation warned that BCOs should not be seen as a "magic bullet" in addressing matters of public safety and security, noting that BCOs are being inappropriately used in response to innocuous behaviour such as swearing, closing the door too loudly, or even advertising a charity bake sale.

The report noted that the usage of BCOs is rapidly growing, with over 30 types of order, seeking to tackle a range of issues such as anti-social behaviour, football violence, organised crime, trafficking, domestic abuse, stalking, sex-offending, and protest, amongst others.

But the report concluded that successive Governments have "failed to provide robust evidence proving that Orders are an effective way of dealing with these complex issues".

"Even where certain orders have the potential to serve the needs of victims, we have seen that the police and local councils neglect to use them to their full advantage," the report said.

"Moreover, they do not account for the punitive nature of these Orders and whether they pose problems for legal clarity, the rule of law, and human rights in respect of individuals who are subject to them.

"As a result, the significant variation across the country in terms of the number of Orders imposed, the behaviours targeted and the conditions they include has created 'personalised penal codes'."

The report highlighted a number of concerns, which included a fear that systemic issues, including ambiguities in legislation, lack of training, lack of funding for enforcement and a lack of sufficient monitoring, "have led to inconsistent and inappropriate enforcement practices across the country".

It also stated that the practical effect of orders means they are "unduly punitive". On this point, the report noted that the use of orders against children as young as 10 in some instances risks drawing them further into the criminal justice system, as they are considerably more likely to breach conditions than adults.

In addition, assessing the effectiveness of orders is difficult due to a lack of data on their usage and mechanisms for data sharing, the report suggested.

JUSTICE made a series of recommendations based on the report's findings, which included:

• The Government must conduct an urgent review into the function, efficacy and impact of existing Behavioural Control Orders.
• The creation of new Orders must be based on a solid and transparent evidence base and be subject to pre-legislative and post-legislative scrutiny, and be monitored on an ongoing basis.
• The Home Office must work with HM Courts and Tribunals Service, the Office of National Statistics and enforcement bodies to rapidly improve data capture.
• Gaps in existing statutory guidance must be immediately addressed in consultation with experts, and procedural safeguards strengthened.
• Mechanisms should be put in place to embed multi-agency working, and enforcement bodies should create specialised, accredited roles for single points of contacts or leads for types of order.
• Legal Aid arrangements must be urgently reviewed to ensure that recipients of Behavioural Control Orders, as well as victims who bear the burden of applying for Behavioural Control Orders, have access to challenge the imposition of an Order, given that breach of an Order leads to a criminal offence.

Commenting on the findings, the chair of the Working Party which carried out the research, George Lubega, said: "The sheer scale of this report illustrates the size of this issue. Behavioural Control Orders impact diverse areas and affect individuals across the country, and it is clear that they often do not achieve their intended purposes.

“Our recommendations give a route map for a thorough assessment of the system, with evidence and data at the heart of future decision-making."

Adam Carey