Briefing : Anti-Social Behaviour, Crime and Policing Bill 2013
Author: Juliet Morris, LGiU associate
This briefing can also be viewed as a PDF
- This briefing summarises the Anti-Social Behaviour, Crime and Policing Bill 2013 which is now before the House of Commons.
- The Bill introduces a suite of new powers, rationalising and extending local authorities’ capacity to tackle anti-social behaviour. It also gives victims and local people a greater say in the approaches being taken locally.
- Other measures in the Bill relate to dangerous dogs, forced marriages and firearms, and policing standards in England and Wales.
- The anti-social behaviour powers will be available to unitary, county and district councils. Lead members and officers responsible for social care, children and young people, neighbourhoods/communities, environmental services and housing will all need to keep abreast of the changes.
Briefing in full
The last Government introduced a range of tools for tackling anti-social behaviour. The current government aims to rationalise these and make some significant policy changes including broader powers for public authorities, a change in penalties and a greater involvement of victims and local people.
The reforms follow a period of Home Office policy development and consultation:
- More effective responses to anti-social behaviour (2011) sought views on proposals to replace the current anti-social behaviour tools with a more streamlined suite of powers: the criminal behaviour order; the crime prevention injunction; the community protection order; the direction power; and the community trigger.
- The White Paper, Putting Victims First: More effective responses to anti-social behaviour (2012), set out plans to enable local areas to: focus the response to anti-social behaviour on the needs of victims; empower communities to get involved in tackling anti-social behaviour; ensure professionals are able to protect the public quickly; and, focus on long-term solutions.
- A Draft Anti-Social Behaviour Bill (December 2012) was followed by a Home Affairs Committee Pre-legislative scrutiny report (February 2013). The Committee welcomed the rationalisation of powers but felt some key elements were missing: Inter-agency working, intelligent information sharing and a network of services. It also made detailed recommendations on the new remedies, some of which have been accepted in the Government’s response.
As promised in the Queen’s Speech earlier this month, the Anti-social Behaviour, Crime and Policing Bill 2013 (PDF document) has now been introduced into the House of Commons.
Anti-Social Behaviour, Crime and Policing Bill
The Bill aims to:
- cut crime, creating simpler, more effective powers to tackle anti-social behaviour;
- give victims of anti-social behaviour a voice in local approaches and sanctions;
- enhance professional standards and confidence in the conduct of the police.
There are also specific provisions on issues including forced marriage, dangerous dogs and firearms control.
The Bill is in thirteen parts. Each one is summarised below with attention paid to those affecting local (unitary, county, district and London borough) authorities.
Part 1 : Injunctions to Prevent Nuisance and Annoyance (IPNA)
These new civil orders will apply to a spectrum of anti-social behaviours and replace the Anti-Social Behaviour Order on application (ASBO), Anti-Social Behaviour Injunction (ASBI), Drinking Banning Order on application, Intervention Orders and Individual Support Orders. The Bill details their scope and procedural application.
A High Court, County Court or Youth Court (in relation to under 18’s) may grant an injunction against anyone aged 10 provided that:
- the respondent, on the balance of probabilities, has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person (“anti-social behaviour”); and
- it is just and convenient to grant the injunction.
The terms of the injunction may prohibit behaviour and/or require positive action, under supervision (for example by local authority or youth offending team or other service provider), in order to prevent recurrence. There is no minimum or maximum term for the injunction for adults. A maximum 12 month term will apply to under 18s.
Applications for an injunction may be made by a local authority, housing provider (including a local authority carrying out its housing management function), chief officer of police (including British Transport Police), Transport for London, the Environment Agency, NHS Protect in England and relevant body in Wales. The Bill defines the notice requirements prior to application.
Housing providers may apply for an injunction in relation to breaches or anticipated breaches of tenancy agreements as a result of a tenant committing or threatening to commit anti-social behaviour, or allowing, inciting or encouraging others to do so.
If violence has been used or threatened or there is a risk of significant harm to others, the injunction may include a power of arrest or, when granted to a housing provider, power to exclude the respondent from their home or specific area.
Breach of an IPNA is punishable as contempt of court – up to two years imprisonment or an unlimited fine, or a Youth Court supervision or detention order.
The court will have discretionary powers to restrict publication of information in order to protect the identity of under 18s; there is no automatic entitlement.
Part 2 : Criminal Behaviour Orders (CBOs)
CBOs are designed to prevent behaviour which causes harassment, alarm or distress. They replace the ASBO on conviction and Drinking Banning Order on conviction.
A court may make a CBO against anyone over the age of 10 following their conviction for any criminal offence provided that:
- the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons (not of the same household as the offender);
- the order will assist in preventing the offender from engaging in such behaviour.
Like the IPNA, the order may prohibit behaviour and/or impose positive requirements under supervision.
The prosecution must apply for an order (normally at the instigation of the police or local authority). It is only available against an offender receiving a sentence or conditional discharge. The court can consider evidence that was inadmissible in the criminal proceedings, including hearsay or bad character evidence. The views of the local youth offending team must be sought in relation to under 18s.
A CBO will be either of a fixed period (two years or more) or for an indefinite duration. There is no maximum length. Where a person is under 18, the CBO can only be for a fixed time, between one and three years, and subject to annual review by the police and the local authority (and any other relevant body). The Bill also provides for interim orders as well as variation and discharge procedures.
Breach is a criminal offence, punishable in the same way as an ASBO currently. As above, the courts will have discretion over reporting restrictions of under 18s.
Part 3 : Dispersal powers
The police will have new powers to disperse people causing harassment, alarm or distress, allowing them to direct a person who has committed, or is likely to commit, anti-social behaviour to leave an area and not return for up to 48 hours.
Failure to comply with the direction is a criminal offence with a maximum penalty of £2,500 and/or three months imprisonment. Officers will also be able to require the handover of items causing, or likely to cause anti-social behaviour.
Part 4, Chapter 1 : Community Protection Notices (CPNs)
New powers will be available to tackle unreasonable, ongoing problems or nuisances that are “detrimental to the local community’s quality of life“ (such as noise, graffiti, littering and dog fouling) and target the person responsible. They will replace Litter Clearing Notices, Street Litter Control Notices and Defacement Removal Notices.
CPNs may be issued to anyone over 16, or a business or organisation, requiring them to stop causing the problem and/or take reasonable steps to ensuring it does not occur again. Remedial works or works in default can be added to the notice.
The power to issue CPNs will be available to local authorities (including designated persons within the authority), the police and registered providers of social housing (if designated by the relevant local authority). The Bill prescribes the abatement notice and prosecution procedures to be followed, including the need to allow the responsible person to rectify the situation.
Breach of a CPN is a criminal offence, subject to a fixed penalty notice (£100 maximum) or prosecution. On conviction, magistrates can impose a fine of up to £2,500 (£20,000 on an organisation), and order the forfeiture and destruction of any item used in the commission of the offence.
CPNs do not replace the existing statutory nuisance regime which will prevail where environmental anti-social behaviour meets the threshold for a statutory nuisance (under the Environmental Protection Act 1990).
Part 4, Chapter 2 : Public Space Protection Orders (PSPOs)
These orders impose conditions on the use of an area in order to address a particular nuisance or problem that is, or might become, detrimental to the local community’s qualify of life. They will replace Designated Public Places Orders, Dog Control Orders and Gating Orders and could be used in lieu of some local byelaws.
PSPOs are exclusive to local authorities which must consult with the police and relevant representatives of the local community (for example, local residents or community group that regularly uses the public place) and be satisfied:
- on reasonable grounds that the activities carried on or likely to be carried on are detrimental to the local community’s quality of life; and
- that the impact justifies the restrictions being put in place in a particular area.
An order will impose conditions on the way in which an area is used and can apply to everyone using the space or to certain groups. The order may prohibit behaviours (for example drinking alcohol) or require specific things to be done (for example, keeping dogs on a lead), or include both so that the requirements of a specific place may be addressed in a single order.
Orders will last for up to 3 years and may be extended following a review. They may be varied or discharged at any time by the local authority. The Bill also sets out additional considerations when an order restricts access to a public right of way.
Breach of the order, without reasonable excuse, is a criminal offence, subject to a fixed penalty notice or prosecution and liability for a fine of up to £1,000. Failure to comply with a request to cease drinking or surrender alcohol in a controlled drinking zone punishable on summary conviction to a maximum fine of £500.
Part 4, Chapter 3 : Closure notices and closure orders
Closure notices and orders replace more specific closure powers relating to licensed and non-licensed premises causing, or are likely to cause, anti-social behaviour.
The Bill provides for a two stage closure procedure:
- A closure notice:
- may be issued by a police officer or local authority if they are satisfied that it is necessary to prevent nuisance or disorder, that the use of the premises has resulted or is likely to result in nuisance to the public or that there has been or is likely to be disorder in the vicinity of, and related to, the premises;
- must follow consultation with any person/agency considered appropriate; the owner, landlord, licensee and any resident must also be informed;
- can prohibit access to particular people at particular times but cannot prohibit access by the owner or people who habitually live on the premises;
- lasts for up to 24 hours, capable of extension for a further 24 hours, during which an application may be made to the magistrate for a closure order.
- A closure order:
- may be made by the magistrate’s court if it is satisfied that a person has engaged or is likely to engage in disorder, anti-social or criminal behaviour on the premises, or the use of the premises is associated or likely to be associated with disorder or serious nuisance to the public; and the order is necessary to preventing such disorder or behaviour;
- can prohibit access to anyone, including the landlord, owner or residents;
- may last for up to three months and be renewed for a further three;
- may be for short-term closure of up to 14 days.
Breach of either notice or order is a criminal offence. On conviction, a person is liable to an unlimited fine and/or up to three months imprisonment in breach of a notice and up to 6 months imprisonment in breach of an order. Organisations/businesses are subject to an unlimited fine. Obstructing an officer closing a property is also an offence, liable to a fine and/or up to three months imprisonment.
Part 5 : Housing – mandatory ground for possession
New provisions are made for possession on anti-social behaviour grounds.
Landlords will have an absolute ground for possession of a dwelling that is the subject of a secure tenancy (clause 86) or assured tenancy (clause 89). The new provisions, and way in which they operate, will be added to the discretionary grounds for possession available to courts in the Housing Act 1985. The court will be required to grant possession to the landlord if any one of five conditions relating to the anti-social behaviour of the tenant, household member or visitor to the property is met.
The Bill makes provision for the notice requirements on the landlord and provides secure tenants of local housing authorities and housing action trusts with a right to request a review of the decision to seek possession on the absolute ground.
Further amendments to the discretionary grounds will allow applications for possession where the antic-social behaviour has taken place outside the dwelling:
- the secure or assured tenant or a person living in or visiting the tenant’s property has been guilty of conduct that is likely to cause nuisance or annoyance to the landlord, or a person employed in connection with the exercise of the landlord’s housing management functions;
- the secure or assured tenant or a person living in or visiting the tenant’s property participates in riot related offences anywhere in the UK.
If proceedings on the new grounds of possession for anti-social behaviour are pending, the landlord has no duty to convey the freehold or grant a ‘right to buy’ lease, and can refuse to allow a tenant to take part in mutual exchange under the 1985 Act or a tenancy transfer under the Localism Act 2011.
Part 6: Local involvement and accountability
This group of provisions allow victims of low level anti-social behaviour and the public to have a say in out-of-court punishment and actions required of offenders.
The local policing body (PCC, London Mayor’s Office for Policing and Crime and the Common Council of the City of London) is required to prepare a list of reasonable and proportionate actions that might be carried out by a perpetrator of anti-social behaviour as a sanction without going to court. For example: paying compensation, making good any damage or dispute mediation.
This ‘community remedy document’ requires consultation with the local chief police officer, community representatives, the public and the victim(s), and final publication. If the victim has a view on the appropriate action, there is a presumption in favour of that prevailing (unless considered inappropriate).
This ‘community remedy’ is only available in cases where there is sufficient evidence to apply for an injunction to prevent nuisance and annoyance (under Part 1 the Bill) or to take other court proceedings when a conditional caution is not appropriate.
Criminal behaviour : conditional cautions.
Provision is made for conditional cautions (and youth conditional cautions) to be available for any offence unless explicitly excluded. (Domestic violence and hate crime are both excluded from this provision.)
Community trigger : review of response to complaints
The community trigger is a mechanism to allow victims of persistent anti-social behaviour to request relevant bodies – including local authorities, the police, health providers and social housing providers – to undertake a review of actions specific to a particular case. It is intended as a ‘backstop safety net’ for victims who consider that the response to their complaints has not been appropriate.
Any individual, community or business can apply and the relevant bodies must carry out a case review if the threshold is met. The Bill defines an optimal threshold – three complaints within six months – but the relevant bodies may chose to set a lower threshold and include factors such as the persistence of the behaviour, the potential for harm to the victim, and the adequacy of response.
The review would involve the relevant bodies sharing information, discussing the action taken and deciding whether and what further action could be taken. Recommendations may be made to a body carrying out public functions, including any of those involved in the review. That body must have regard to the recommendations made.
The Bill provides for the bodies within each local government area to make and publish arrangements for community trigger reviews. It also provides for joint arrangements to be made for larger areas. Schedule 4 provisions address actions to ensure the effectiveness of community trigger arrangements.
Part 7 : Dangerous Dogs
The Dangerous Dogs Act 1991 is extended so that the current offence of having a dog that is dangerously out of control applies to all places including private property. Enforcement officers, including local authority dog wardens, have extended rights to seize dogs that appear dangerously out of control from public and private places.
An exemption is available for ‘householder cases’, in which a dog is dangerously out of control when a trespasser, or someone believed to be a trespasser, enters or is inside another’s home or property that includes their home. Additional provisions apply to protect guide, hearing or other assistance dogs from attacks by other dogs.
In assessing whether a dog is dangerous and should be destroyed, the courts must consider the character of the owner or keeper along with the temperament of the dog, its past behaviour and any other relevant circumstances. A person’s character will also be considered when deciding their entitlement to keep a Section 1 dog.
Part 8 : Firearms
A new offence is introduced of possession of illegal firearms for sale or supply, including during import-/exportation. The maximum penalties for import-/exportation of illegal firearms is life imprisonment. British Transport Police will, like other police force officers, be able to carry firearms without requiring an individual certificate.
Part 9 : Forced Marriage
The breach of a Forced Marriage Protection Order will be a criminal offence with a maximum penalty of 5 years’ imprisonment. A new offence of forced marriage is also created to catch a person who intentionally forces, through violence or otherwise, or deceives someone into going abroad in order to force them into marriage. The maximum penalty is seven years imprisonment.
Part 10 : Policing
Various measures are included in respect of policing, including:
- conferring broad functions on the new College of Policing;
- establishing a Police Remuneration Review Body to replace the current Police Negotiating Board;
- additional powers for the Independent Police Complaints Commission;
- amendments to the financial controls on and powers of chief officers of police;
- amendments to the port and border security broadening powers governing examination, searches and detention.
Part 11 : Extradition
A number of amendments are made to the Extradition Act 2003 affecting hearings and appeals procedures, the position of asylum seekers and refugees, legal proceedings and the processes for extradition.
Part 12: Criminal Justice and Court Fees
A range of measures relate to: eligibility for compensation following a miscarriage of justice; low-value shoplifting; protection arrangements for people whose safety is at risk; imprisonment in default and remission of fines; and court fees.
Part 13: General
Various minor and consequential amendments are made to other enactments affected by the Bill, parliamentary procedures to be applied to the Bill’s orders and regulations, its territorial extent and commencement provisions.
The Bill is expected to have its second reading debate on 10 June including a full debate. Its progress through Parliament can be followed here. It is expected to receive Royal Assent by the end of the session, Spring 2014.
A range of supporting documents were published alongside the Bill and address specific issues:
This Bill has sizeable form. The Government has followed a doggedly determined and coherent path to arrive at the Bill as it is now. Proportionality will, no doubt, define its progress through Parliament and final shape.
The policy agenda is clear: to liberate local responses to anti-social behaviours from the over-micro-managerial detail of the existing tools. The new definition of anti-social behaviour casts a wider net: “conduct capable of causing nuisance or annoyance”. The measures themselves are released from definition by specific behaviour to definition by general impact of (any) behaviour: CPNs go far beyond ‘littering, dog fouling and graffiti’ to include all “unreasonable” behaviour “detrimental to the local community’s quality of life”; the flexibility of coverage in a PSPO makes it like a ‘good rule and government’ byelaw, but easier to make and enforce.
From a council point of view, the rationalisation of measures is helpful and logical. There is also considerable practical and legal advantage to be derived from the simpler, more generic approach to anti-social behaviours and their remedies. But, the new liberties on offer to local authorities (and the other public bodies) almost inevitably come at a cost to others: individuals who may, or may just appear to be, involved in anti-social behaviour denied their homes; children named in court proceedings; a public whose use of the local environment is defined by regulation.
Proportion will dominate the arguments of principle in Parliament progress. And they may result in the kind of practical but significant changes as those made following the pre-legislative scrutiny: limiting the length of injunctions for under 18s; introducing a level of seniority to dispersal orders; setting a maximum threshold for the community trigger.
The real test of the Bill’s final form will be seen in local practice where, arguably, context is all: best use of the new measures will only be possible in a context of sound local leadership, sensitive local working, strong inter-agency collaboration and a network of support services.
The LGiU will be following the Bill’s progress with regular updates in On Your Radar.
For more information about this, or any other LGiU member briefing, please contact Janet Sillett, Briefings Manager, on firstname.lastname@example.org