The Anti-Social Behaviour, Crime and Policing Act 2014 is the law that guides what agencies can do about anti-social behaviour.
It made big changes to the way agencies deal with anti-social behaviour.
They made things simpler and faster.
Victims of anti-social behaviour can now demand a review of their situation where nothing seems to have been done. This is great news. The law sets out the following 6 tools for agencies:
1. Injunction – forbids someone from doing something. There are 2 tests. Causing nuisance and annoyance in residential setting. Causing harassment, alarm or distress elsewhere.
An injunction can be granted against a person aged 10 or over if two conditions are met: (i) the court is satisfied on the balance of probabilities that the person has engaged or threatens to engage in anti-social behaviour; and (ii) the court considers it just and convenient to grant the injunction to prevent the person engaging in anti-social behaviour.
An injunction can be applied for by the police, a local authority, a housing provider, the British Transport Police Force, Transport for London, the Environment Agency or the NHS Business Services Authority. The fact that it can be applied for by a range of agencies should improve the current ASB Injunction, ensuring it can be used in a wider range of circumstances such as anti-social behaviour against hospital staff, shop staff, and nightmare neighbours in the private rented sector.
An injunction is granted for a specific period of time, will name the person responsible for supervising compliance with the injunction and can include a power of arrest if breached. The injunction will require the person who is committing anti-social behaviour either to do a certain thing or prohibit them from doing a certain thing with the aim of stopping the anti-social behaviour and also preventing the individual involved from getting into crime. This is a purely civil order, and does not give the individual a criminal record.
An example given by the Home Office (in “Putting Victims First”) seeks to illustrate how the Injunction will enable agencies to protect victims more quickly and more effectively than the current system:
An individual renting a property in the private rented sector who was regularly using abusive language towards their owner occupier neighbours and threatening them. Under the current system local agencies could take months to apply to the courts for an ASBO (Anti-Social Behaviour Order), during which time the neighbours would continue to suffer as a result of the individual’s increasingly threatening behaviour. Under the new system, local agencies could, in a matter of hours, apply to the civil courts to get an injunction on the individual, providing respite to their neighbours and preventing the behaviour from escalating.
[Note: this would be a ‘without notice injunction’ which can be served by the court where there is a serious risk of harm (physical or pyschological). The agency applying for it does not need to prove the perpetrator has done the ASB – this comes later at the full court hearing usually a couple of weeks later.
The inclusion of positive requirements is new in comparison to the old Injunction to prevent nuisance and annoyance, employed by landlords. To include a positive requirement within the terms of an injunction, eg. Attendance on a drugs rehabilitation course, the agency asking for it must:
- believe it is necessary;
- have the resource to make it happen; and
- have a named individual or organisation who will ensure compliance with this requirement.
in practice, there is a concern that it will be difficult to find people who will take on this management as it means they have a duty to promote compliance with the order and a duty to tell the agency that applied for the injunction if it has been breached.
The Government proposed introducing the Injunction because it is something that agencies can secure quickly (according to Home Office information, in a matter of days or even hours) to stop an individual’s anti-social behaviour and protect victims. As such it would be much faster to use than the previous, infamous ASBO and could be used at an earlier stage and secured using the civil burden of proof (on the balance of probabilities rather than beyond reasonable doubt).
This all sounds promising. What remains to be seen is whether obtaining these injunctions will be as quick and easy as suggested and whether breach of these injunctions will be monitored and further action taken. Since early intervention brings greater success in stopping anti-social behaviour, it would seem likely that for individuals committing anti-social behaviour for the first or second time, this crime prevention injunction might give them the shock they need to stop doing it.
There is also a potential risk with so many agencies able to apply for an Injunction of duplication with two or more different agencies applying for an Injunction against the same individual. Where more than one agency is involved, there may also be delay and confusion as to which agency should take the lead. Effective partnership working and communication will be key.
The injunction is essentially replacing the infamous ASBO (Anti-Social Behaviour Order). One of the reasons the ASBO is infamous is because so many were breached, and also because it gave a lot of the holders of such orders ‘street cred’ amongst their peers.
Gloria de Piero, Shadow Home Office Minister, expressed her concerns in The Independent with respect to the Injunction being a ‘tool without teeth’ since a breach won’t result in a criminal record because it won’t be a crime. She went on to say that the police would have to pay to pursue a breach under contempt of court, a particular challenge given their current financial constraints. She supports the ‘much maligned Asbos’ saying many who received one never offended again.
An Injunction can only include a power of arrest if breached where the anti-social behaviour includes use or threatened use of violence or there is a significant risk of harm to others. We suggest that this lacks any real deterrent for offenders who are given these injunctions for incidents of ASB that may be non-violent/non-threatening but are nevertheless causing misery to individuals and communities.
2. Criminal Behaviour Order – this is for if someone convicted of a crime if the court thinks they will continue to cause anti-social behaviour. They can give a Criminal Behaviour Order to stop them doing this anti-social behaviour.
The Criminal Behaviour Order is being introduced to give agencies and communities what they need to deal with the hard-core of persistently anti-social individuals who are also engaged in criminal activity. The court may make a criminal behaviour order against the offender if two conditions are met: (i) the person has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons; and (ii) the court considers that making the order will help in preventing the offender from engaging in such behaviour.
The court may make a criminal behaviour order against the offender only if it is made in addition to a) a sentence imposed in respect of the offence, or b) an order discharging the offender conditionally. If the offender is under 18, the prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order.
A criminal behaviour order is granted for a specific period of time and if it includes a requirement, must specify the person who is to be responsible for supervising compliance. It may include provision for the order (or a prohibition or requirement included in the order) to cease to have effect if the offender satisfactorily completes an approved course specified in the order.
Breaching the order would have tough criminal sanctions with a maximum sentence of 5 years in prison.
An example given by the Home Office (in “Putting Victims First”) seeks to illustrate how the Criminal Behaviour Order will enable agencies to deal more effectively with anti-social behaviour:
A young person convicted of criminal damage after having broken the window of an elderly person’s house following an ongoing campaign of harassment. Under the current system, they could be prevented from going near their victim’s house, but under the new system, the same order could also require them to make good the damage to the victim’s window and engage with a mentoring programme to address the reasons why they were harassing the victim.
The criminal behaviour order is essentially replacing the ASBO on conviction (Anti-Social Behaviour Order), which had previously been awarded as an additional preventative measure when someone was already in court on a criminal charge.
The new Criminal Behaviour Order is for people who have both committed a crime and are engaging in anti-social behaviour. The government itself talks about the hard-core offenders. It seems somewhat improbable that attendance on a course will make such a striking difference. Also in the example above, there is a contradiction between keeping away from the victim but also ‘making good the damage’ to the window.
We would suggest that the success of attendance on courses would need to be closely monitored. It is also unclear how long the procedure would take to secure Criminal Behaviour Orders (note: unlike the Crime Prevention Injunction, a judge must be convinced beyond reasonable doubt that the offence was actually committed to issue a Criminal Behaviour Order).
3. Dispersal Powers – allows the police to direct people to leave a public place and not return for a specified time, for example 24 hours.
A constable in uniform may use dispersal powers to direct a person who is in a public place to leave the locality of that place and not to return for a specified period (maximum 48 hours) if two conditions are met: (i) the constable has reasonable grounds to suspect that the presence or behaviour of the person in the locality has contributed to or is likely to contribute to members of the public in the locality being harassed, alarmed or distressed, or the occurrence in the locality of crime of disorder; and (ii) the constable considers that giving a direction to a person under this section is necessary for the purpose of removing or reducing the likelihood of the events mentioned in (i). The constable may also require the surrender of an item being used to harass, alarm or distress members of the public.
The direction must be given in writing (unless not reasonably practicable), specifying the locality to which it relates and imposing requirements as to the time by which the person must leave and the manner in which they must do so (including the route). The constable should tell the person that failing without reasonable excuse to comply with the direction is an offence. If the constable reasonably believes that the offender is under 16, he/she may remove the person to a place where the person lives or a place of safety.
This power is designed to combine the most effective elements of the various current police powers into a single, less bureaucratic police power. A significant limitation in current police powers to disperse individuals causing ASB is that they have to be agreed in advance and can only be used in a pre-arranged area. In a fast moving situation, where groups can quickly convene to cause ASB or disorder and then move to different areas, the current powers are ineffective.
This power to quickly disperse people causing anti-social behaviour sounds a logical measure though concerns have been raised about why it would be needed for up to 48 hours if the purpose is primarily to disperse individuals in a specific incident. We hope constables on the beat will be aware of these powers and have received appropriate training in how to use them so that when they see relevant problems arising, they can have the confidence to disperse in accordance with this new tool and not result in potentially volatile situations.
4. Community Protection Notices and Orders – to stop ongoing environmental anti-social behaviour. This can be used against individuals or organisations.
An authorised person may issue a community protection notice to an individual aged 16 or over, or a body, if satisfied on reasonable grounds that (i) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality; and (ii) the conduct is unreasonable.
A community protection notice may be issued by a constable, the relevant local authority, or a person designated by the relevant local authority for the purposes of this section. A community protection notice imposes any of the following requirements on the individual or body issued with it:
a) A requirement to stop doing specified things
b) A requirement to do specified things
c) A requirement to take reasonable steps to achieve specified results.
They can only be issued if the offender has been given a written warning that the notice will be issued if their conduct doesn’t change and that they have been given enough time to have reasonably made those changes, and yet have chosen not to do so.
A person issued with a community protection notice who fails to comply with it commits an offence.
Examples given by the Home Office (in “Putting Victims First”) to show where the notice could be used include an individual who regularly allows their dog to foul a communal garden and a group regularly taking the same route home late at night whilst drunk, making noise and waking their neighbours (neither of these incidents of persistent ASB are covered by current notices).
This tool will replace the current Litter Clearing notice, Street Litter Control notice, and Defacement Removal Notices and so should make things more streamlined and therefore more effective, especially if it can now be used more widely than previous legislation permitted. If an offender (individual or organisation) has been warned that they will receive a notice if they do not change their conduct and then a notice is issued which states that failure to comply with it is an offence, it should hopefully push forwards a positive change in conduct.
5. Public Spaces Protection Order– deals with a nuisance or problem in a public area. The order applies to everyone.
A Public Spaces Protection Order is made by a Local Authority if satisfied on reasonable grounds that two conditions are met.
Firstly, that (i) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality; and (ii) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.
The second condition is that the effect, or likely effect, of the activities is, or is likely to be of a persistent or continuing nature, such as to make the activities unreasonable, and therefore justifies the restrictions imposed by the notice.
A Public Spaces Protection Order is an order that identifies the public place and prohibits specified things being done in the restricted area and/or requires specified things to be done by persons carrying on specified activities in that area. The order may not have effect for more than 3 years and the Local Authority must consult with the chief officer of the police and the local policing body before issuing the order.
Failure to comply with a public spaces protection order is an offence.
Examples given by the Home Office (in “Putting Victims First”) to show where the order could be used include to prevent groups from using a public square as a skateboard park and to discourage drunken ASB in the same place by making it an offence not to hand over containers of alcohol when asked to do so; and to prevent dogs fouling a public park or being taken into a children’s play area within that park.
This power replaces the Designated Public Place Order, Gating Orders, and Dog Control Orders and so should make things more streamlined and therefore more effective, especially as it can now be used more widely than previous legislation permitted. Previously a Local Authority could not issue an order such as this without having it signed off by the Secretary of State. Now it can be done at a local level, and Local Authorities and Local Police need to work together to achieve improved quality of life in public spaces, not just to issue an order but to ensure compliance with it.
In practice, the issue of PSPOs has often been contentious because Councils have chosen to use it to ban things like rough sleeping, swearing and busking.
There are calls for improved guidance on how the consultations are undertaken before a Public Spaces Protection Order is implemented.
6. Closure of Premises – prevents entry to a building because the use of that place has resulted in anti-social behaviour. This could be a house, a pub, etc.
A Police Officer of at least the rank of Inspector, or the Local Authority, may issue a Closure Notice if satisfied on reasonable grounds that the use of the particular premises has resulted or is likely soon to result in nuisance to members of the public, or that there has been or is likely soon to be disorder near those premises associated with the use of those premises, and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring.
A Closure Notice prohibits access to the premises for a period specified in the notice and may prohibit access by all persons except those specified, at all times and in all circumstances (or those specified).
Whenever a closure notice is issued an application can be made to a magistrates’ court for a closure order. This can be made by a constable or the local authority and must be heard by the magistrates’ court not later than 48 hours after service of the closure notice. A Closure Order can be for up to 3 months.
Examples given by the Home Office (in “Putting Victims First”) to show where a closure notice could be used include closing a nightclub where the police have intelligence to suggest that disorder is likely in the immediate vicinity on a specific Friday night. A closure order might be sought for a premises used for drug dealing or a premises where the persistent behaviour of the residents (eg. Frequent loud parties, harassment and intimidation of neighbours) is associated with serious anti-social behaviour in the immediate vicinity.
The Closure Notice/Order replaces the Premises Closure Order, Crack House Closure Order, Noisy Premises Closure Order, and Section 161 Closure Order. As such, the ability to close a premises should be more straightforward, without needing to know the different rules for each type of problem occurring in a premises. It is hoped that this will bring much quicker relief and protection for victims of persistent anti-social behaviour linked to a specific property.
In contrast to the Orders that this is replacing the Closure Notice can be applied for before the disturbance has even happened. This will enable the Police to prevent a rave occurring and a place can be closed for 48 hours without needing to go to Court to get permission first. We believe this will assist agencies in being more proactive to prevent disturbance and protect victims.
New law for landlords – the Recovery of Possession of Dwelling Houses – allows them to evict certain anti-social tenants.
This measure is to give absolute ground for possession of secure tenancies in specific cases of anti-social behaviour, as long as the landlord has also complied with its legal obligations.
The court must make an order for the recovery of possession of a dwelling-house let under a secure tenancy, if the landlord requests this, if any of the following conditions is met for a tenant, or a person residing in or visiting the dwelling-house:
1. Conviction for a serious offence – in the locality of the tenant’s property, or outside of the locality where the offence is against a neighbour or a person connected with a landlord’s housing management functions.
2. Breach of an Injunction (in the same circumstances as the serious offence above).
3. Breach of a provision of a Criminal Behaviour Order (in the same circumstances as above).
4. The dwelling-house has been subject to a closure order and access has been prohibited for a continuous period of more than 48 hours.
5. Breaching of a Noise Abatement notice or court order in regard to noise nuisance which emitted from the dwelling-house.
It is our understanding that previous practices made it very difficult, time-consuming and costly for landlords to evict problem tenants. This means that many victims of anti-social behaviour could be suffering for months or even years in spite of the fact that the landlord is in agreement with the victim, recognises the problem, but cannot help any quicker due to current legislative processes.
This measure has been designed to help landlords though it is still a measure seen to be a last resort. Usually, many early intervention tools have been used with an offender, without success, before eviction is sought. It is noteworthy that it does not necessarily have to be the tenant who has committed the anti-social behaviour but it could be another person residing in the property or even just visiting the house.
We support early intervention and work with troubled families to improve situations where anti-social behaviour is occurring by one member of the family rather than just evicting them to continue doing the same elsewhere to new neighbours. The picture is more nuanced and we can see there are definitely occasions where a problem, especially one that has escalated in a community, can be most effectively solved by eviction but this will not always be the case.
For LOCAL INVOLVEMENT and ACCOUNTABILITY, the 2014 Act also includes the following 2 measures:
1. Community Remedy – victims will have a say in the punishment of the offender.
A Community Remedy document is a list of actions which might be appropriate to be carried out by a person who has engaged in anti-social behaviour or has committed an offence and is to be dealt with without court proceedings. The document will be prepared by the local policing body and can be revised at any time.
The Community Remedy document must be prepared or revised in consultation with the Chief Officer of Police for the area, whatever community representatives the local policing body thinks it appropriate to consult and undertake whatever other public consultation it thinks appropriate. All of these viewpoints must be taken into account.
The Community Remedy applies where:
a) A person such as a police officer (P) has evidence that an individual (A) has engaged in ASB of committed an offence
b) A admits to P that he or she has done so
c) P thinks that the evidence is enough for taking proceedings against A for a Community Prevention Injunction or taking other court proceedings, but decides that it would be more appropriate for A to carry out action of some sort instead, and
d) Where the evidence is that A has committed an offence, P thinks that the matter is not so serious that a conditional caution is appropriate.
Before deciding what action to invite A to carry out, P must make reasonable efforts to obtain the views of the victim (if any) of the anti-social behaviour, and in particular the victim’s views as to whether A should carry out any of the actions listed in the community remedy document.
The Community Remedy suggestions will depend on the views of the community in each police force area but could include, for example:
Mediation (for example, to solve a neighbour dispute);
The offender signing an Acceptable Behaviour Contract – where they agree not to behave anti- socially in the future, or face more formal consequences;
Participation in structured activities funded by the Police and Crime Commissioner as part of their efforts to reduce crime; or
Reparation to the community (for example, by doing local unpaid work for up to 10 hours).
At first glance, these all seem to be sensible measures which could help to deal quickly with some anti-social behaviour and empower both the victim and the local community.
However, the Magistrates Association takes a different view which we believe is worth summarising here:
The Magistrates Association believes the courts are the proper place for anti-social behaviour to be dealt with so as to ensure transparency and consistency of sentencing and sanction monitoring. They wholly oppose the proposal to invite individual victims to choose an appropriate sanction from a community remedy list which could lead to an offender who offends against a sensitive victim being treated very differently to one who offends against a less bothered one.
They believe that the removal of judicial supervision combined with the informality of the application and execution of an ever-widening scope of the use of out of court disposals will lead to more, not less offending as well as de-criminalise such behaviour in the mind of the offender and the public at large.
They believe it will result in wide-spread inconsistencies of practice throughout England and Wales and are concerned that a lack of recording of these out of court disposals will put victims at risk of repeat victimisation of the kind that lead to the deaths of Fiona Pilkington and her daughter in 2007.
They also express concern about the lack of clarity about who will arrange and supervise the different possible sanctions and measures, whether it be attendance on courses, treatment programmes, reparation of damage or the payment of compensation.
ASB Help is open minded to the new proposals but we hope that the Government takes the Magistrates Association’s points into account as much as possible before rolling out the Community Remedy, especially to ensure that victims are properly protected and feel the problem they are experiencing has been taken seriously enough and an appropriate resolution found.
2. Response to Complaints (Community Trigger) – known as the Community Trigger. It has the potential to be very useful and powerful to victims who are not getting anywhere with their local agencies.
The Community Trigger is the term generally applied to the Response to Complaints section of the 2014 Act and enables victims to require agencies to carry out a review of their response to the anti-social behaviour they reported where they feel they did not get a satisfactory response.
If a person has made a complaint about anti-social behaviour in a particular local government area the relevant bodies in that area must carry out an ASB case review if
a) that person, or any other person, makes an application for such a review (activates the Community Trigger); and
b) the relevant bodies decide that the threshold for a review is met.
Each Local Authority area sets its own threshold but the most common threshold is likely to be if someone has complained 3 times in a 6 month period and feels nothing has been done. The review will focus either on the ongoing anti-social behaviour about which the original complaint was made or on the adequacy of the response to that behaviour. Either way, victims should see a full, independent review of their complaint.
The relevant bodies who carry out an ASB case review must inform the applicant of the outcome of the review and any recommendations made. They must also publish each year how many triggers have been activated and how many case reviews have been carried out.
Each Local Authority must specify the point of contact for activating the Community Trigger and ensure that applications made to that point of contact are passed on to all the relevant bodies in the local government area. The statutory guidelines advise that this information is made clear and that there be a number of ways of activating the trigger.
By mid-October all Local Authorities in England and Wales should publish this information. We are compiling a list of all Community Triggers currently live here.
We are very positive about this new tool as it is a real opportunity for victims to be heard. It sounds great on paper but we hope that this will translate into results. We will be watching it carefully – to see how well it is publicised, how easy organisations make it to activate, and whether they will be as transparent as suggested in the legislation and statutory guidelines.
We suspect some areas may go on the defensive and see it as another complaints process but we hope that it will have a positive impact on problem situations, bringing together all relevant parties to discuss issues and get results. We hope victims feel heard, understand more about what is being done to help them, and as a result gain greater confidence in the agencies involved.
We are concerned that the most vulnerable will not be reached and hope that publicity will focus on getting the word out to those who most need it, who may have been suffering from the effects of anti-social behaviour for years and yet feel ignored as nothing seems to change in spite of them reporting the problems.
In both the above measures, the Police, Local Authority, or other relevant agencies will try and stop a problem quickly when they can. They can use:
- verbal warnings
- written warnings
- Acceptable Behaviour Contracts
These are called early intervention techniques. They can be very effective. Acceptable Behaviour Contracts are agreements in writing between an offender who is under 18 years old and the local authority and police. The young person agrees not to be involved with certain anti-social acts (this is also witnessed by their parents).
Usually agencies must try early intervention before they can take a case to court. This is one of the reasons it can take so long to resolve problems involving anti-social behaviour.
Agencies need to follow procedures. Be patient with this. Persevere – results are achievable.