Briefing More Effective Responses To Anti-Social Contact: Team: Andy Tate Campaigns and Neighbourhoods Tel: 020 7067 1081 Email: andy.tate@housing.org.uk Date: February 2011 Ref: NS.PO.2011.BR.05 Registered office address National Housing Federation, Lion Court, 25 Procter Street, London WC1V 6NY Page 1
Briefing from the National Housing Federation The Home Office has published a consultation setting out the results of a Government review of anti-social behaviour powers and a series of proposals for simplifying and improving the toolkit available to police forces, councils and social landlords. This briefing for National Housing Federation members summarises the plans. Executive Summary Home Secretary Theresa May launched a review of anti-social behaviour powers in July 2010, saying it was time to move beyond the ASBO. In February 2011, the Home Office published the results of the review in a consultation paper, More Effective Responses to Anti-social, which sets out plans to consolidate many of Labour s tools into a smaller number of powers to provide faster, more visible justice for victims and communities. The proposals would apply in England and, where relevant, Wales. The consultation is open until 3 May 2011 and responses should be emailed to ASB-consultation@homeoffice.gsi.gov.uk or sent to Home Office, Antisocial Unit, 4 th Floor, Fry Building, 2 Marsham Street, London SW1P 4DF. 1.0 The Government s Critique Announcing the Government s review of anti-social behaviour legislation on 28 July 2010, Home Secretary Theresa May said existing sanctions were too complex and bureaucratic and vowed to give police, councils and social landlords tools that were quick, practical and easy to use. The consultation paper argues that there are too many tools to tackle antisocial behaviour, with practitioners tending to stick to the ones they are most familiar with. The number of tools is said to reflect a reactive, incremental approach, with additional measures added in successive pieces of legislation since 1998 as new issues have arisen. As a result, some powers are very similar, creating significant overlaps. Some of the formal tools, particularly the ASBO, are slow and expensive, while the number of people who breach their ASBO suggests the sanctions for doing so are not providing a sufficient deterrence. In any case, use of the ASBO has fallen by half since 2005 as practitioners have chosen not to use it. The paper criticises the existing system for its top-down approach and says anti-social behaviour is a problem which is fundamentally local. Under separate Government plans, for directly elected Police and Crime Commissioners, police and social landlords will be held accountable at a local level. Page 2
The paper says: Anti-social behaviour differs from place to place, and so do the priorities of the people who live there. In one neighbourhood, people will be concerned about off road motorbikes, in another vandalism and graffiti, and street dealing and drug taking in another. There is no one-size-fits-all solution. Instead, the answers must come from the people who are close enough to understand the issues in each area, who know the victims, and know the perpetrators. That is, from the professionals working together on the ground and from communities themselves. It promises that the process will be made cheaper and quicker and will move away from an approach that has unnecessarily criminalised people, particularly young people. It also says the Government wants to make it easier for practitioners to support people to deal with the underlying causes of their behaviour. The consultation paper recognises that implementing the proposals will take time and advises professionals and the courts to continue to use current legislation to tackle anti-social behaviour in the interim. 2.0 Summary of Main Proposals Replace the ASBO, Interim ASBO, ASB Injunction, Individual Support Order and Intervention Order with a new Crime Prevention Injunction. Replace the ASBO on conviction, otherwise known as a Criminal ASBO or CRASBO, with a new Criminal Order. Replace the Litter Clearing Notice and Graffiti/Defacement Removal Notice with a new Community Protection Order (Level 1). Replace the Crack House Closure Order, Premises Closure Order, Brothel Closure Order, Designated Public Place Order, Special Interim Management Order, Gating Order and Dog Control Order with a new Community Protection Order (Level 2). Replace the Direction to Leave and Dispersal Order with a new Police Direction Power. Introduce a Community Trigger imposing a duty on statutory partners in a Community Safety Partnership to take action where local agencies have failed to respond. Retain the Acceptable Agreement/Contract, Parenting Order and Family Intervention Projects. The consultation says practitioners do not have to start at the bottom, with the lowest level tools, before working up. Indeed, an escalatory approach risks prolonging the length of time a victim or community has to suffer their behaviour. Instead they are advised to choose the approach they consider most appropriate. Page 3
3.0 Main Proposals in Detail Crime Prevention Injunction The Crime Prevention Injunction (CPI), which would replace the ASBO, Interim ASBO, Anti-social Injunction, Individual Support Order and Intervention Order, would be a purely civil court order with sanctions under civil law. It would be quicker and easier to obtain than an ASBO because it would carry a civil burden of proof, requiring the applicant to prove only on the balance of probabilities that an individual was engaged in, or likely to engage in, anti-social behaviour. By contrast, the ASBO has required what is effectively a criminal burden of proof (beyond reasonable doubt). Registered providers of social housing would be able to apply for a CPI in consultation with the relevant Youth Offending Team for any individual under 18. Before applying for an injunction for someone aged under 16, the provider could prepare a report on the family s circumstances. The Home Office is considering two options for the test courts should use to determine whether to impose the injunction. One option is to adopt the legal definition set out in the 1998 Crime and Disorder Act that the individual s behaviour had caused, or was likely to cause, harassment, alarm or distress. The other option is the lower threshold, currently in place for Anti-social Injunctions, of conduct causing or likely to cause nuisance or annoyance. The latter, according to the Home Office, would allow agencies to intervene earlier and faster to stop anti-social behaviour escalating. It is also considering whether the CPI should be heard in a Magistrates Court or a County Court and whether the same court should be used for both adults and perpetrators aged 10 to 17. The CPI could contain preventative prohibitions on behaviour, such as a ban on returning to a certain area. The power of arrest could be attached to prohibitions where there was a risk of harm to the community - just as they are to Anti-social Injunctions. The CPI could also contain positive requirements to address underlying issues, such as a requirement to undertake an anger management course. Hearsay evidence and the use of professional witnesses would be permitted. How long CPIs should last and whether there should be minimum or maximum terms is under consideration. Breach of the CPI would need to be proved beyond reasonable doubt but in contrast to the ASBO would not be a criminal offence and would not result in a criminal record. For adults, breach of the new injunction may be punishable as contempt of court (a civil offence), through a fine or custody. Page 4
For under-18s, the penalty for breach would include a range of sanctions including detention. Criminal Order The Criminal Order (CBO) would replace the ASBO on conviction, otherwise known as a Criminal ASBO or CRASBO. It would be a civil preventative order attached to a conviction for any criminal offence (eg. drug dealing or harassment) to protect the public from behaviour that causes or is likely to cause harassment, alarm or distress. It would ban an individual from certain activities or places and unlike the CRASBO could require an offender to undertake positive activities such as drug treatment or accept other formal support. It would be additional to the court s sentence for the offence, not a substitute for it, and could be given in any criminal court to anyone over the age of criminal responsibility (10 years old). A prosecutor would be able to apply for a CBO alongside prosecution for a criminal offence. Alternatively, the court could decide to make an order without an application by the prosecution, if it was satisfied that any recommended positive requirements were available. There is no commitment in the consultation paper to allow housing associations to apply for a CBO even though a provider successfully applied for a CRASBO in 2009. The paper does say that relevant authorities including registered providers of social housing could be asked to prepare a report on a family s circumstances before an application is made for a CBO for someone under 16. Providers would be free to publicise the terms of the order unless reporting restrictions were imposed by the court. How long CBOs should last and whether there should be minimum or maximum terms is under consideration. Breach of a CBO would be a criminal offence, punishable by up to five years in custody. Different sanctions for breach of any positive requirements are under consideration. Community Protection Order Community Protection Orders (CPOs) aim to bring together many existing powers into one place a single civil tool for dealing with persistent placerelated anti-social behaviour. There would be two tiers of CPO. Level 1 CPOs would be issued by a practitioner including councils and housing associations in cases of environmental anti-social behaviour. They would replace the Litter Clearing Notice and Graffiti/Defacement Removal Notice, and could be used as an alternative to the Noise Abatement Notice. Noncompliance would be a criminal offence, punishable by a Fixed Penalty Notice, court fine or other sanctions (e.g. the seizure of music equipment). Page 5
The upper tier, Level 2 CPOs, would be a local authority or police power to tackle significant or persistent anti-social behaviour in a particular place by restricting the use of certain areas or closing properties associated with persistent anti-social behaviour. Such properties could be closed for an initial period of three months, regardless of tenure, subject to approval by the Magistrates Court. Orders that merely involved restricting the use of a space could be agreed by the local authority and would not have to be heard in court. The Level 2 CPO would replace the Crack House Closure Order, Premises Closure Order, Brothel Closure Order, Designated Public Place Order, Special Interim Management Order, Gating Order and Dog Control Order. Any breach would be a criminal offence, as is currently the case with most of the tools it would replace, with sanctions ranging from an on-the-spot fine of 50 to six months in prison. No details are given about the potential contribution housing associations might make towards securing a Level 2 CPO. Police Direction Power The Direction power is a simplified police (and PCSO) power to direct people aged 10 or over who are causing, or are likely to cause, crime or antisocial behaviour away from a specific area, for up to 48 hours, with the option of confiscating related items. The power could also include the ability to return home unaccompanied young people aged under 16. As under existing legislation, a criminal offence would be committed only if someone refused to leave an area following an instruction from a police officer or PCSO. The Home Office is asking for views on the most appropriate sanction for a breach, commenting that it is keen to avoid criminalising people, particularly young people, unless absolutely necessary. The Direction power would replace the Direction to Leave and Dispersal Orders. Community Trigger The Government is considering the introduction of a Community Trigger to help the public assert their right to a proper response. The Trigger would impose a duty on a Community Safety Partnership s (CSP) statutory partners which include police, local authorities and primary care trusts, but not registered housing providers to take action in cases where victims or communities have raised the same issue over and over again and where local agencies have failed to respond. The Home Office envisages the duty would be triggered if five individuals, from five different households in the same neighbourhood, complained about the same issue, or if an individual reported anti-social behaviour to the authorities on three occasions, and no action was taken. From 2012, elected Police and Crime Commissioners would hold agencies to account for their response, using their power to call in a CSP if the action taken was deemed inadequate. It is not immediately clear what effect the new duty on CSPs would have on social landlords, many of whom are actively involved with their local CSPs, even if they are not statutory partners. Social landlords would still be expected to respond to complaints made to the Housing Ombudsman. Page 6
4.0 Related Reforms While use of the ASBO has declined since 2005, the consultation paper states that use of Notices Seeking Possession has increased substantially over the same period. With this in mind, a new additional mandatory ground for possession is to be introduced so that being found guilty of housing-related anti-social behaviour in one court (whether for a breach of a court order or a conviction for an indictable offence) will provide automatic grounds for eviction in the county court, removing the need to prove the incidents of anti-social behaviour for a second time. According to the Department for Communities and Local Government, this will mean tenants with a track record of anti-social behaviour can be evicted from their council or housing association property much more quickly. The Housing Minister has announced plans to clarify the rules so that housing associations have the same rights as local authorities to impose probationary tenancies on new tenants for up to 18 months rather than the normal period of one year. This will give social landlords extra time to be certain that new residents treat their home, and their neighbours, with respect. Informal and out-of-court disposals offer a proportionate response to first-time or low-level incidents, according to the consultation paper. They include Acceptable Agreements/Contracts, written agreements that can be made between the individual and registered landlords, housing departments, schools, police or parents. Breaching a contract may lead to the imposition of an ASBO or legal action involving the tenancy of the individual. There are no plans to alter these tools. More than half of the 171,000 Penalty Notices for Disorder issued by police in 2009 were for offences linked to anti-social behaviour. The Ministry of Justice has outlined plans, in a Green Paper (Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing for Offenders), to make Penalty Notices more rehabilitative, involving for example attendance at appropriate educational courses. The Home Office wants to ensure out-of-court disposals for under-18s include swift, restorative sanctions with real consequences for noncompliance, with discretion returned to front-line professionals to help prevent young people being escalated into court and custody more quickly than necessary. The Government is also working on the development of Neighbourhood Justice Panels, which would see community members and practitioners working together to decide how to deal with perpetrators of anti-social behaviour and low level crime. It has also taken steps to improve street-level crime information, and backs regular neighbourhood beat meetings. Page 7
The Home Office and Ministry of Justice are working together to make existing informal measures for dealing with anti-social behaviour more rehabilitative and restorative. They plan to do this by removing any disincentives for police officers to use restorative justice measures to deal with community incidents outside of the formal criminal justice system, giving victims a more immediate response, and saving time and money. Eight police forces have volunteered to trial a new approach to handling reports of anti-social behaviour, using local judgement to implement five key principles, with the findings to be assessed later in 2011. The Association of Chief Police Officers is proposing to simplify the way anti-social behaviour is recorded from April 2011, by reducing the 14 existing categories of behaviour to three environmental, nuisance and personal and identifying the appropriate response based on the risk of harm to the victim. The Home Office is seeking a cost-effective way to introduce the 101 number as a national non-emergency number. Police data on anti-social behaviour incidents will be published quarterly, alongside official crime statistics. Helen Newlove, the Government s Champion for Active, Safer Communities, will be producing a report in the next few months detailing what more government and local agencies can do to help communities tackle anti-social behaviour, with a particular focus on developing community activism. 5.0 Initial Observations The Government s proposals, if enacted, would tidy up and simplify existing legislation. The consultation paper suggests that 17 specific powers will be reorganised into just five new ones. The majority of powers currently available to social landlords will still be at their disposal under the planned changes albeit with different names. Some of the proposals, however, demand further scrutiny. Significantly, obtaining a Crime Prevention Injunction (CPI) under the new system would require a lower burden of proof than that required to secure an ASBO currently. The Home Office is also considering adopting a lower legal test for a CPI than that required for an ASBO potentially replacing harassment, alarm or distress with the less serious nuisance or annoyance. Such a move, aligning the hurdle required to obtain a CPI with that for the existing Anti-social Injunction, which it also replaces, would very likely increase the use of such injunctions significantly. Page 8
As mentioned above, the consultation paper is not clear on whether housing associations will be permitted to seek a new Criminal Order. Neither is it clear what implications any Community Trigger would have for social landlords. More generally, the paper states that breach of the new orders [will be made] grounds for eviction from social housing. This follows the Housing Minister s announcement in January 2011 of a new mandatory ground for possession for anyone found guilty of housing-related anti-social behaviour. The new ground, when combined with the planned new anti-social behaviour powers, could provide faster justice and help landlords protect law-abiding tenants. In her foreword to the consultation paper, Home Secretary Theresa May acknowledges that many social landlords are already working hard with police and councils to tackle anti-social behaviour. The National Housing Federation, in its forthcoming formal response to the consultation, will assess the extent to which the Government s proposals would make this task easier or harder. Page 9