Anti-Social Behaviour, Crime and Policing Bill 2013-14

Mary Martil

Batchelors Solicitors

(Why) Do We Need a New Law?• Existing remedies – for social landlords ASBIs, possession, ASBOs and

demotion orders – for local authorities the same plus a range of environmental and public spaces measures – for the police ASBOs, CrASBOs, dispersal powers

• Coalition commitment to “introduce effective new measures to tackle ASB and low level crime”

• Home Office consultation February 2011 – proposal to simplify powers and radically streamline the ASB toolkit, sweeping away existing remedies and replacing them with new ones, and introducing a “community trigger” to give people affected a say in when powers should be exercised

• DCLG consultation August 2011 – a new mandatory power for anti-social behaviour

• Riots August 2011 – new discretionary riot ground added• White Paper May 2012, Bill December 2012

4 Strands – My View

1) Simplification – ASB identified as a separate area of law; police local authority and social landlord powers brought together; disparate pieces of legislation discarded and replaced with one Act

2) Lowering of thresholds – remedies made more available by: broadening the circumstances in which they apply; applying less stringent tests; lowering the burden of proof; reducing the procedural steps; removing judicial discretion

3) Knee jerk reaction – introducing a ground for possession specifically in relation to the summer 2011 riots

4) Big society ideas – localism, community involvement, empowerment of victims

6 Parts

• Part 1 – Injunction to Prevent of Nuisance and Annoyance• Part 2 – Criminal Behaviour Order• Part 3 – Dispersal Powers• Part 4 – Community Protection

– Chapter 1, Community Protection Notice– Chapter 2, Public Spaces Protection Orders– Chapter 3, Closure Orders

• Part 5 – Recovery of Possession: Anti-Social Behaviour Grounds• Part 6 – Local Involvement and Accountability

Part 1 – Injunction to Prevent Nuisance and Annoyance

• ASBIs version 1 – Housing Act 1996 – local authorities only – engaging in conduct causing or likely to cause nuisance and annoyance, where conduct included violence or threats of violence and there was a significant risk of harm – there had to be a nexus between the victim and the local authority via residential premises provided by the authority – Manchester CC v Lewis Lee, 2003

• ASBIs version 2 – Anti-Social Behaviour Act 2003 – social landlords generally – engaging in conduct capable of causing nuisance and annoyance – to a victim in one of the specified categories - where affecting housing management functions – no need for violence/threats/risk of harm but, where they exist, powers of arrest and exclusion orders make ASBIs powerful tools

• To be replaced by an injunction to prevent nuisance and annoyance, but new features to be added in line with ASBOs, which are to be discarded

Part 1 – Injunction to Prevent Nuisance and Annoyance

• ASBOs – Crime and Disorder Act 1998 – may be made against any person aged 10 or over found to have acted in an anti-social manner – a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself – where such an order is necessary to protect relevant persons from further anti-social acts

• Complaint can be laid in the Magistrates’ Court by police, local authority or social landlord

• Preceded by consultation process – Certificate of Consultation required• Prohibitions only, and for a minimum of 2 years, but can be indefinite i.e.

until further order• Breach is a criminal offence which only the police (or local authority) can

prosecute• Heavily criticised – discredited?

Part 1 – Injunction to Prevent Nuisance and Annoyance

The proposed new injunction apes the ASBI in many respects, but bolts on features of the ASBO, such as:

• The police can apply as well as landlords and it is not confined to a housing-related context

• Orders can be made against children as young as 10 (cases against minors will be dealt with in the Youth Courts and the youth offending team will have to be consulted beforehand)

• Current statutory provisions in relation to Criminal and rules of the criminal courts will apply to make it easier for vulnerable or intimidated witnesses to give evidence

Part 1 – Injunction to Prevent Nuisance and Annoyance

The conditions which must be met before a Court may grant the new injunction are that:• The Court is satisfied, on the balance of probabilities, that the

Respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person, and that the Court considers it just and convenient to grant the injunction for the purpose of preventing the Respondent from engaging in anti-social behaviour

• Lowering of the bar – standard of proof (as compared to the ASBO where the standard is equivalent to beyond a reasonable doubt)

• Lowering of the bar – circumstances in which an order will be made (as compared to both the current ASBI (no wider than necessary and proportionate as a means of avoiding any apprehended harm) and ASBO (necessary to protect relevant persons from further anti-social acts)) – Moat Housing Group (South) Ltd v (1) Harris & (2) Hartless [2005] EWCA Civ 287; Crime and Disorder Act 1998, Section 1(b)

Part 1 – Injunction to Prevent Nuisance and Annoyance

Other features of the proposed new injunction are:• Orders will be able to include both prohibitions and requirements (like

the current ASBIs, but unlike ASBOs) • An order which includes a requirement will have to specify a person or

organisation responsible for supervising compliance with the requirements (a new concept)

• Exclusion orders, including orders excluding Defendants from their home, are to remain available – but only to local authorities and housing providers who make an application in a housing-related context in the same circumstances as currently

• Enforcement is by application, by the Claimant, back to the County Court for committal to prison, other than to the extent that a power of arrest is enforced by the police (as with ASBIs) and other than in the cases of minors – Schedule 2 supervision orders

Part 2 – Criminal Behaviour Orders• Will replace the anti-social behaviour order on conviction in criminal

proceedings, known as the CrASBO• Since Police Reform Act 2002, where someone convicted of an offence,

and that person has been known to have been involved in anti-social behaviour, an Anti-Social Behaviour Order can be made to address that behaviour

• The CrASBO is made in addition to the sentence being imposed, or in addition to a conditional discharge

• The existing CrASBO principles will largely apply to the new criminal behaviour order and the behaviour which the criminal behaviour order is to address is the same as under the ASBO/CrASBO regime i.e. conduct likely to cause harassment alarm or distress to someone not of the same household

• Similarly, breach of criminal behaviour order, without reasonable excuse, criminal offence – up to 6 months/5 years imprisonment

Part 2 – Criminal Behaviour OrdersSome substantive changes:

• The criminal behaviour order can include prohibitions and requirements, like the new injunction to prevent nuisance and annoyance

• As with the new injunctions, where requirements are included in the order, it must identify a person or organisation who will be responsible for supervising compliance

• Potential duration of the Order has been reduced in the case of young offenders – rather than the 2 year minimum period and potentially indefinite orders, which apply to adults, orders against under 18s are to be for a fixed period of 1 to 3 years

Part 2 – Criminal Behaviour Orders

Lowering of the threshold?

• Once satisfied that the behaviour has taken place, the Court will be able to (“may”) make the order where it “considers that making the order will help in preventing the offender from engaging in such behaviour”

• In the case of a CrASBO, an order can only be made where the Court “considers…that an order…is necessary to protect persons in any place in England and Wales from further anti-social acts” by the offender

Part 3 – Dispersal Powers• Current police powers to give directions to a group to disperse• Subject to bureaucratic procedure/checks and balances?• Authorisation by senior police officer – superintendent or above – where

has grounds for believing that members of public have been intimidated/harassed/alarmed/distressed by groups of persons in a given locality and that problem is significant and persistent

• Consent of local authority needed• Authorisation notice must be publicised• Authorisation for a maximum 6 month period• Code of practice

Part 3 – Dispersal PowersLowering of the threshold:• Any constable in uniform will be at liberty to exercise dispersal powers in

any locality at any time• “Reasonable grounds for believing” presence/behaviour “has

resulted/likely to result” in intimidation/harassment etc. “Reasonable grounds to suspect” that “has contributed/likely to contribute”

• Groups of two or more persons or an individual• Maximum 24 hours 48 hours• Exemptions for peaceful picketing and public processions

just the former

Only safeguard? Direction to be given in writing

Breach without reasonable excuse: summary offence – 3 months/£2,500

Part 4 – Community Protection• Local authority and police powers to deal with environmental ASB

affecting communities

• Chapter 1 – Community Protection Notice

• Chapter 2 – Public Spaces Protection Orders

• Chapter 3 – Closure Orders

• Streamlining of existing provisions

• Potentially wider ambit

Community Protection Notice• May be issued by local authority, or designated body, or police to an

individual or organisation – typically owner/manager/occupier of premises

• Where the conduct of individual or organisation, or conduct on or in relation to the premises, is having a detrimental effect, of a continuing nature, on the quality of life on those in the locality, and the conduct is unreasonable

• CPN can specify requirements – stop doing, do, take reasonable steps to achieve

• Warning in writing and time for compliance must be given first• Will replace litter clearing notices, street litter notices, defacement

removal notices – Environmental Protection Act 1990, as amended by Clean Neighbourhoods and Environment Act 2005, Anti-Social Behaviour Act 2003

• Other potential uses? Now to be used for statutory nuisances

Community Protection NoticeVariety of enforcement avenues – new consistency:• Local authority can take remedial action and recharge, with defaulter’s

consent

• Prosecution in Magistrates’ Court – fines of up to £2,500/£20,000 for an organisation

• Court can make remedial order upon conviction

• Court can make a forfeiture order upon conviction

• Fixed Penalty Scheme could be introduced by local authority – police and any designated organisation e.g. social landlord, could help enforce – penalties of up to £100

Public Spaces Protection Orders• New power for local authorities to restrict activities in a public space• Where such activities would have a detrimental effect on the quality of

life of people in the locality and would be of a persistent or continuing nature

• Will apply to a specified locality – the restricted area – all persons – persons in specified categories – for up to 3 years – plus potential 3 year extension

• Consultation with police – publication – Secretary of State to make regulations

• Banning consumption of alcohol, restricting rights of way, dogs to be kept on a lead

• Will replace Designated Public Place Orders, Gating Orders, Dog Control Orders

• May circumvent need for some byelaws • No reporting requirements re central government

Public Spaces Protection OrdersBreach:

• Offence not to comply without reasonable excuse

• Fine of up to £1,000 on summary conviction

• Fixed Penalty Schemes

Closure Orders• Anti-Social Behaviour Act 2003• Crack house closures• Premises being used in connection with the unlawful use, supply or

production of a Class A controlled judge• Police superintendent with reason to believe can sign a Closure Notice• Notice is served closing premises to everyone but the occupiers – drugs

warrant usually executed at the same time – evidence collected• Case must be brought before Magistrates within 48 hours• Closure Order may be made if Magistrates find that premises have been

so used and use is associated with disorder or serious nuisance and making of the order is necessary to prevent further such disorder/serious nuisance

• Up to 3 months – potential 3 month extension• Closed to occupiers and all comers

Closure Orders• Criminal Justice and Immigration Act 2008• Created Part IA to the 2003 Act• Similar regime in relation to ASB closure orders• Order can be made where – a person has engaged in conduct on the

premises causing or likely to cause harassment, alarm or distress to one or more persons outside of the household – use of the premises is associated with significant and persistent serious nuisance to members of the public – and the making of the order is necessary to prevent the occurrence of such disorder or nuisance

• Unlike with crack house closures, local authorities as well as police can serve notices and apply

Closure OrdersThe new closure orders will:• Bring the two parallel sets of provisions together• Be available to both police and local authorities• Broaden the circumstances in which orders may be made – Magistrates’

Court will be able to make an order where satisfied that:

1. engaged/likely to in disorderly, offensive or criminal behaviour, OR

2. use has resulted/likely to in serious nuisance to public, OR

3. has been/likely to be disorder associated, AND that

4. necessary to prevent behaviour/nuisance/disorder recurring/occurring

• Lowering of the thresholds• Breach – summary offence – 3 months and/or up to £5,000

Closure OrdersLowering of the thresholds?• Unlawful use in connection with controlled Class A drugs any

criminal behaviour• Conduct causing or likely to cause harassment, alarm or distress

disorderly or offensive behaviour• Has engaged in or is likely to engage in if the order is not

made• Necessary impact on members of the public – disorder or serious

nuisance (crack house) – significant and persistent serious nuisance (ASB) necessary to prevent the behaviour, nuisance or disorder

Part 5 – Recovery of Possession on ASB Grounds

• Long-standing ASB grounds• Ground 2 Schedule 2 Housing Act 1985 – secure tenants• Ground 14 Schedule 2 Housing Act 1988 – assured tenants• Tenant or someone residing at or visiting the dwelling-house: - has been guilty of conduct causing or likely to cause nuisance and

annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality, or

- has been convicted of an indictable offence committed in, or in the locality of, the dwelling-house

• Discretionary grounds – Court may make a possession order if it considers it reasonable to do so in all of the circumstances

• Court has power to suspend or postpone the effect of the order

Absolute Ground• New mandatory ground• Would apply where Defendant has already been found to be guilty of

ASB in another forum• E.g. convicted of a serious offence, found to have breached an

injunction for prevention of nuisance and annoyance or a criminal behaviour order, a closure order has been made

• ASB in question would have to be in/in the locality of the dwelling-house or directed against someone who resides in the locality or against the landlord/someone employed in connection with the landlord’s housing management functions

• Landlord could choose to use absolute ground – secure tenants would have right to request a review of the decision

• Special notice seeking possession required• Time limits for service of notice will apply• Human rights defences

Riot Ground• New discretionary ground• To enable landlords in England to bring a claim for possession where

tenant, or someone residing in the dwelling-house, has been convicted of an offence committed at the scene of a riot anywhere in the UK

• No need for nexus – between offence and property – or between offence and anyone connected with the property

• Reasonableness• Knee-jerk reaction• How often is this ground likely to be used and, if used, what is the

likelihood of possession being granted?

Part 6 – Local Involvement and Accountability

2 strands:

Community remedies – community input into sanctions which police can employ in dealing with perpetrators of low level ASB – Community Remedy Document – listing actions perpetrators can be asked to undertake - in consultation with community representatives and the public – subsequent victims of ASB to be invited to express a view on the sanction to be applied

ASB Case Reviews – Community Triggers – subject to a threshold to be set locally being met, a complainant will be able to trigger a case review involving local authority, police, social landlords and health services providers, to assess what action has been taken and make recommendations – outcome to be reported to applicant

Points to Consider?• Tipping of the balance – revised powers

• Lowering of thresholds

• Role of the Courts

• Case law

• Human rights

• Tipping of the balance - new duties

• Easier for practitioners?

Progress of the Bill

• Introduced - 9 May• Second reading - 10 June• Public Bill Committee, oral evidence including from CIH and SLCNG,

consideration and deliberations -18 June to 16 July• Report Stage and Third Reading in Commons - 14 October to 15

October• First and Second Reading in Lords - 16 & 29 October• Committee stage in Lords – began 12 November - CIH submissions 18

November• Royal Assent before Christmas?• Implementation 2014?

Anti-Social Behaviour, Crime and Policing Bill 2013-14

Mary Martil

Batchelors Solicitors

Bromley Kent BR1 1RW

020 8768 7000

mmartil@batchelors.co.uk

www.batchelors.co.uk