Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill - Human Rights Joint Committee Contents


2  Anti-social Behaviour (Parts 1-6)

11.  Parts 1 to 6 of the Bill reform the "toolkit" of measures that currently deal with anti-social behaviour.[10] The Government states that the purpose of these provisions is to "sweep away the existing powers and replace them with a streamlined, flexible framework" to provide a remedy that is timely, effective, easier, quicker and more victim-focused.[11] As such, the measures in Parts 1 to 6 of the Bill seek to fulfil positive obligations which rest on the State under Article 8 ECHR. Simplifying the remedies available against anti-social behaviour, making them speedier to obtain, and broadening their reach, should all provide greater protection against such interferences. Introducing positive requirements into such measures, as well as prohibitions, can also be seen, in principle, as a welcome step in the implementation of the positive obligation on the State to protect people from anti-social behaviour. Preventive measures against anti-social behaviour are in principle a welcome fulfilment of the positive obligation on the state to protect people against having their rights interfered with by others. This is the important context in which we consider the human rights implications of the anti-social behaviour provisions of the Bill.

12.  Questions inevitably arise, however, about the impact of the measures on other competing rights, including the rights of those who are subjected to such measures to respect for their private and family life, their home, their religious beliefs and practices, their freedom of expression and their freedom of association, as well as their right to a fair hearing. Questions also arise about the implications for the specific rights enjoyed by children, against whom many of these measures are applied. We consider these questions further in this Report.

Injunctions to prevent nuisance and annoyance (Part 1)

13.  Part 1 of the Bill introduces Injunctions to Prevent Nuisance and Annoyance ('IPNAs'). IPNAs replace a range of existing anti-social behaviour orders, including the Anti-social Behaviour Order ('ASBO') and the Anti-social Behaviour Injunction ('ASBI').

(A) CHILDREN

Move away from automatic criminalisation for breach

14.  IPNAs are civil orders, with civil sanctions. Breach of IPNAs will be punishable as contempt of court. Although this is punishable by up to two years imprisonment, it does not result in a criminal record—unlike Anti-social Behaviour Orders. The Government highlighted this in its response to our questions.[12] Compared to ASBOs, which are being replaced, IPNAs carry less risk of the inappropriate criminalisation of children and young people. We welcome the Government's aim of reducing the inappropriate criminalisation of children and young people. However, a number of significant human rights issues are raised by this Part of the Bill, which we consider below.

Best interests of the child

15.  Questions arise as to the compatibility of the following provisions of the Bill with the UN Convention on the Rights of the Child:

—  The imposition of civil injunctions on children as young as ten;

—  The use of detention as a sanction for breach of an injunction for children aged 14 and over, and the risk that the Bill might lead to children being imprisoned in respect of conduct falling far short of criminal behaviour; and

—  The power of the courts to decide whether or not to allow the reporting of a child's case in relation to IPNA proceedings.

16.  When considering whether to impose a civil injunction on children aged between 10 to 17 years old, there is no requirement on the face of the Bill to consider the best interests of the child in accordance with Article 3 of the UNCRC.[13] The Children's Commissioner highlighted this:

"The use of formal orders for children as young as ten years, with no requirement to consider children's best interests, specific needs or learning difficulties, or to demonstrate that all possible alternative routes for addressing problem behaviour have been considered, is not age appropriate and is in breach of the UNCRC requirement that children's best interests must be a primary consideration in decisions affecting them."[14]

17.  In relation to the ASBO regime, the UN Committee on the Rights of the Child found that the imposition of ASBOs did not appear to be in the best interests of the child. In the information provided, the Government has not set out how it will ensure that the best interests of the child are a primary consideration when imposing IPNAs against children. In our view, an express guarantee in the Bill is necessary to ensure that relevant agencies and the courts apply this principle.

18.  In relation to a breach of an injunction, the courts may decide to impose either a supervision order (available for 10-17 year olds) or a detention order (available for children aged 14 and over). A range of measures can be included in supervision orders, such as electronic monitoring, curfews, and specified activities. These measures will not be imposed on adults who breach IPNAs. While some of the positive requirements contained in supervision orders may be trying to address behaviour (e.g. requirements to attend specific activities), there is a risk that children may find it difficult to comply with the requirements and therefore risk breaching the supervision order, which may then lead to further supervision orders being imposed, or a detention order for those aged 14-17.[15] The use of detention as a sanction for breach of an injunction for children aged 14 and over, including the risk that the Bill might lead to children being imprisoned in respect of conduct falling far short of criminal behaviour, is not in accordance with the UNCRC requirement under Article 37 that children should be imprisoned only for the most serious offences.

19.  The Bill provides for a power of the courts to decide whether or not to allow the reporting of a child's case in relation to IPNA proceedings. This is a departure from the normal restriction that applies on the reporting of legal proceedings in relation to children under Section 49 of the Children and Young Persons Act 1933.  The Government has said that the decision to name an individual under the age of 18 should be taken by the courts when it is right to do so for the protection of victims and communities.[16] However, the UN Committee on the Rights of the Child found that 'naming and shaming' children subject to ASBOs is in direct conflict with the UNCRC rights to privacy.[17] We are concerned about the potential impact of reporting on children's privacy rights.

20.  In order to reduce the potential negative impact of these provisions on children, and in accordance with the UK's obligation under Article 3 UNCRC, we recommend that the Bill is amended to include an express requirement that the courts must take into account the best interests of the child as a primary consideration when deciding whether to impose the following: any injunction; the terms of any prohibition or requirement; sanctions for breach; and when determining reporting of a child's case. The text of such an amendment is set out below.
New Clause to be inserted in Part 1 of the Bill:

Part 1 in respect of under-18s

Best Interests of the child

The courts must take into account the best interests of the child as a primary consideration when deciding whether to impose the following:

-  an injunction;

-  the terms of any prohibition or requirement;

-  sanctions for breach of an injunction; and

-  when determining reporting of a child's case.

(B) LEGAL CERTAINTY

21.  The Government states that Part 1 of the Bill may engage Articles 5, 6, 8, 9, 10 and 11.[18] These Convention rights require that any interference must be 'in accordance with the law' or 'prescribed by law'. The effect of this is that any rules interfering with these Convention rights must be sufficiently certain and accessible to allow people to understand what is expected of them and when an interference will be justified. Legal certainty is also a well established common law legal principle.[19]

22.  The IPNA will use a wide definition of anti-social behaviour ("conduct capable of causing nuisance or annoyance to any person"). This definition raises a question as to whether it is sufficiently precise to allow people to understand what is expected of them. It potentially encompasses a very wide range of behaviour. There may also be a risk that the interpretation and application of this definition may not be consistent across the relevant agencies. We wrote to the Government to ask whether this definition is sufficiently precise to satisfy the requirements of legal certainty.

23.  The Government's response stated that the meaning of "nuisance and annoyance" is "well known in the county court and is supported by 15 years of case law in our civil legal system". The Government is therefore satisfied that the threshold for the injunction "is not arbitrary, but rather satisfies the common law principles of legal certainty and human rights law".[20]

24.  "Nuisance and annoyance" is the definition currently used for the imposition of Anti Social Behaviour Injunctions (ASBIs). However, there are important differences to note between ASBIs and the proposed IPNAs, to which the Government does not refer in its response. The differences are:

—  ASBIs apply in the housing context where the conduct must relate to, or affect, the housing management functions of a relevant landlord.[21] It concerns specifically housing-related conduct. The ASBI definition is therefore sufficiently clear in this context, and it is limited in its application and use. By contrast, IPNAs will apply in any context. Therefore, conduct in any situation which is capable of "causing nuisance or annoyance" may be subject to an IPNA.

—  Only Local Authorities, Registered Social Landlords and Housing Action Trusts can apply for ASBIs. By contrast, IPNAs are available to a wide range of agencies.[22]

—  IPNAs will be able to impose positive requirements as well as prohibitions. Failure to comply with either a positive requirement or a prohibition may amount to a breach of an IPNA.

—  Importantly, IPNAs will be available to use against under 18s, and children as young as 10.[23] While the legislation on ASBIs does not explicitly exclude juveniles, the civil courts have no power to imprison children, and they are unlikely to impose a fine on a child. However, breach of an IPNA could result in a youth court imposing a supervision order (which is available for children aged 10 or over) or a detention order (which is available for children aged 14 or over).

25.  IPNAs will replace Anti Social Behaviour Orders, which define anti-social behaviour as conduct causing (or likely to cause) "harassment, alarm or distress", which is a higher threshold of anti-social behaviour. We asked the Government what would be the disadvantage of using this definition of anti-social behaviour. The Government response stated that the adoption of the "harassment, alarm and distress" definition would "make the evidence gathering process for injunction applications more onerous for agencies and would cause needless delay in stopping problems and protecting victims."[24]

26.  While we acknowledge the practical issues raised by the Government in relation to evidence gathering, we are not satisfied with the Government's response concerning its justification for the use of the ASBI definition of anti-social behaviour in the context of IPNAs. We consider that "conduct capable of causing nuisance or annoyance to any person" is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law. We recommend that the Bill be amended to make the test for anti-social behaviour more precise.
Amendment to Clause 1(2):

Page 1, line 8, after "conduct" insert "that might reasonably be regarded as"

27.  The broad and open-ended definition of the prohibitions and requirements that may be included in an injunction, in clause 1(4) of the Bill, also raises questions about legal certainty. An injunction may prohibit the person "from doing anything described in the injunction" and may require the person "to do anything described in the injunction". The only constraint on this broad power is that it must be "for the purpose of preventing the respondent from engaging in anti-social behaviour", which is not very much of a constraint bearing in mind the breadth of the definition of anti-social behaviour (see above). This approach contrasts with the approach taken in the TPIMs legislation, which includes an exhaustive list of the sorts of prohibitions and requirements that can be included in a TPIMs order.

28.  We wrote to the Government to ask whether clause 1(4) satisfies the prescribed by law requirement and why it has not taken the approach taken in the TPIMs Act. The Government response stated that it considers it important that the Bill is not "proscriptive so that the restrictions or requirements can be tailored to the individual circumstances of a case and take account of new innovative means of tackling anti-social behaviour." It argues that all requirements in an IPNA are "in accordance with the law" because they "will be made following an order of the court, empowered to do so by legislation." The Government considers that because the purpose of an IPNA is to prevent an individual from engaging in anti-social behaviour, the range of requirements and prohibitions "can be reasonably anticipated and must be justifiable". The Government does not consider that any issue as to a lack of legal certainty arises here. It says that guidance will be issued setting out examples of the prohibitions and positive requirements that could be included in an injunction.

29.  The current ASBO legislation contains a similar provision in relation to prohibitions. Section 1C(2) of the Crime and Disorder Act 1998 states that an order can prohibit an offender from doing anything described in the order. This wide power has been the subject of a number of legal challenges, which have established important legal principles concerning the validity of ASBO prohibitions. These principles reflect the legal certainty requirement. The Crown Prosecution Service has also issued detailed guidance to which prosecutors must have regard when drafting prohibition applications.[25]

30.  Case law has established the following legal principles in relation to ASBO prohibitions:

  • It is necessary to show a link between the anti-social behaviour that the offender has engaged in and the prohibitions that are sought.[26]
  • The terms of the order must be precise and easy to understand so that the individual knows exactly what he is prohibited from doing.[27]
  • The terms of the order must be reasonable and proportionate, realistic and practical and must be worded in such a way to make it easy to determine and prosecute a breach.[28]
  • Generic prohibitions should not be imposed in an order. Prohibitions should identify and prohibit the particular type of anti-social behaviour that gives rise to the necessity of an order.[29
  • A prohibition that interferes with one or more ECHR rights - such as freedom of expression, freedom of assembly and association, or the right to respect for private and family life - may be justifiable, provided it is necessary, prescribed by law, and proportionate.[30]

31.  There is no equivalent guidance concerning positive requirements in injunctions, as distinct from negative prohibitions, because these are introduced for the first time by this Bill. It is important to note that the inclusion of positive requirements in a civil order is rare, and a departure from the ASBO regime. The Government's response does not specifically state whether the legal principles which have been established in relation to ASBOs will apply equally to the new IPNA prohibitions and positive requirements.

32.  Bearing in mind the breadth of the Bill's definition of "anti-social behaviour", we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in an injunction in clause 1(4) of the Bill does not satisfy the requirement of legal certainty. In order to satisfy that requirement, it is not sufficient simply to state that any requirements in an injunction will be contained in an order of the court authorised by statute. The quality of the law which authorises the making of such orders must satisfy minimum standards of foreseeability.

33.  We recommend that the Bill be amended to achieve greater legal certainty on the face of the Bill, by stating that any prohibition or requirement must identify specified actions which are related to the anti-social behaviour that the respondent has engaged or threatened to engage in. The following amendments to clause 1(4) of the Bill would give effect to this recommendation.
Amendments to clause 1(4)(a)

Page 2, line 1, leave out "doing anything" and insert "specified actions"

Page 2, line 2, after "injunction" insert "which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in"

Amendment to clause 1(4)(b)

Page 2, line 3, leave out "anything" and insert "specified actions"

Page 2, line 3, after "injunction" insert "which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in"

(C) ADEQUACY OF SAFEGUARDS TO ENSURE NECESSITY AND PROPORTIONALITY OF INTERFERENCES

34.  Any interference with an individual's Convention rights under Articles 8, 9 (in relation to the right to manifest belief), 10 and 11 must be necessary and proportionate to the legitimate aim it is sought to achieve. However, there is no requirement that the imposition of an IPNA be "necessary" to protect people from anti-social behaviour or that the terms of the injunction be proportionate to the aim of protecting the public. The Home Office draft Guidance, Reform of anti-social behaviour powers: draft guidance for frontline professionals, highlights that there is "no need to prove necessity, unlike ASBOs".[31] Instead, an IPNA may be imposed if the court considers it "just and convenient" to grant the injunction in order to prevent anti-social behaviour.[32] A similar issue arises with the use of the word "practicable" in clause 1(5) in order to determine whether prohibitions and requirements in an injunction are justifiable interferences with religious beliefs.

35.  We therefore wrote to the Government to ask for its justification for the use of the "just and convenient" and 'practicability' standards set out in clauses 1(3) and 1(5) of the Bill.

36.  The Government response relied on section 6 of the Human Rights Act: the courts will exercise the power to impose injunctions, along with any prohibitions or requirements, compatibly with Convention rights, and the Government does not therefore consider that the word "necessary" needs to be used in the legislative tests.

37.  A test of "just and convenient" for the imposition of measures which interfere with Convention rights is not compatible with the ECHR, because it is a considerably lower test than the requisite test of "necessary and proportionate". We do not consider that the Government's reliance on section 6 of the Human Rights Act is a satisfactory response, as Parliament has the opportunity to define the test appropriately on the face of the legislation.

Amendment to clause 1(3):

Page 1, line 10, leave out "and" and insert ",", and after "convenient" insert "and proportionate"

(D) ABSOLUTE RIGHT TO HOLD RELIGIOUS BELIEFS

38.  As currently drafted, clause 1(5)(a) provides that prohibitions and requirements in an IPNA must, "so far as practicable", avoid any conflict with the respondent's religious beliefs. We wrote to the Government about the compatibility of this clause with Article 9 ECHR, which permits justifiable interferences with the freedom to manifest one's religion or belief under Article 9(2), but does not permit interferences with the right to hold religious beliefs (which is an absolute right under Article 9(1)). We also asked the Government to explain the purpose of the selective restrictions in clause 1(5): in other words, why is express provision made in relation to certain Convention rights like religious belief, but not for others, such as the right to respect for private life or freedom of association. The Government's response did not engage with this question, but focused instead on the justification for the restriction in clause 1(5)(a) concerning religious belief.

39.  The Government's response acknowledged that it is obliged to adhere to the absolute right guaranteed under Article 9(1) in relation to the freedom to hold religious beliefs, and that the manifestation of religious beliefs can be subject to certain restrictions that are in accordance with law and necessary in a democratic society. However, it did not acknowledge that there is an issue with the drafting of the clause, and stated that the courts will interpret clause 1(5) in a Convention-compatible manner.

40.  We do not consider that this is a satisfactory response. In our view, Parliament should ensure that legislative provisions are compatible with Convention rights, rather than rely on the courts to render laws compatible by interpretation. We are not persuaded as to why it is necessary to single out religious belief in clause 1(5), particularly as the freedom to hold religious beliefs is an absolute right. We recommend that this provision is deleted.

Amendment to clause 1(5)

Page 2, line 6, leave out clause 1(5)(a)

(E) RIGHT TO RESPECT FOR HOME AND FAMILY LIFE

41.  When introduced, the Bill originally provided that in granting an IPNA to a housing provider (or local authority carrying out its housing management function), the court may attach a power to exclude the respondent from his or her home or specified area.[33] The home had to be owned or managed by the local authority or housing provider and the exclusion could only be applied for by the relevant local authority or housing provider. The court may exclude the respondent if it thinks that they have been violent or threatened violence to other persons or if there is a significant risk of harm from the respondent to other persons.[34]

42.  We wrote to the Government about the justification for confining the scope of the power in clause 12 to tenants of a local authority or housing provider. The Government's response explained that it has limited the use of the power to those who live in social accommodation, because it considers that it may not be appropriate for the State to exercise a power to exclude people from their home when it has no direct stake in that housing arrangement. It said "only local authorities and social housing providers should be able to exclude tenants in clause 12 of the Bill because excluding individuals from their homes could lead to an inappropriate use of the power with unintended legal consequences if they were excluded by an agency other than the landlord."[35]

43.  In the Public Bill Committee ("PBC"), concerns were raised about the lack of parity between the sanctions available in social housing and in the private rented sector, also highlighting that there should be effective means of providing protection from violent antisocial behaviour regardless of tenure.[36]

44.  At the PBC, and in its response to our questions, the Government said that it would consider further whether to extend the power in clause 12 to cover other forms of tenure, in particular the private rented sector. We welcome the Government's amendment to clause 12 to apply the exclusion powers without regard to tenure. We also note the Government's statement in relation to the amendment that it expects this power to be "rarely used".[37]

45.  We also asked the Government to clarify whether the violence, threatened violence or significant risk of harm must concern someone who lives in the same premises as the respondent. The Government's response confirms that it is possible to exercise the power of exclusion where the conduct occurs in respect of a victim or person at risk outside the premises. The Government states that "this is for the clear policy imperative to address anti-social behaviour caused by a person which affects neighbours."[38] In stating that this power complies with Convention rights, the Government relies on the duty of the local authorities and courts to exercise their powers compatibly with Convention rights.

46.  We consider that further provision is required in the Bill to ensure that the power to exclude a person from his or her home is necessary and proportionate. The text of such an amendment is set out below.
Amendment to clause 12

Page 6, line 29

In clause 12(1)(c) after "the court" insert "is satisfied that the exclusion is necessary and proportionate, and"

Criminal Behaviour Orders (Part 2)

47.  Part 2 of the Bill creates the Criminal Behaviour Order ('CBO'), which a court can impose upon a person convicted of any offence. This replaces the current post-conviction ASBO (known as 'CRASBO'), and also the drink banning order on conviction.

48.  The Government's human rights memorandum states that these provisions may engage rights under Articles 5, 6, 8, 9, 10 and 11 of the ECHR.[39] In relation to Articles 8, 9, 10 and 11, the Government states that the legitimate aim of CBOs is to prevent disorder, and that the courts will take into account proportionality issues when determining whether to impose a CBO and any prohibitions or requirements.

(A) STANDARD OF PROOF

49.  We wrote to the Government to ask for clarification about the standard of proof that is to be applied in order to establish anti-social behaviour for the purposes of a Criminal Behaviour Order ("CBO"). The CBO uses the higher threshold of anti-social behaviour, which is behaviour that caused, or was likely to cause, "harassment, alarm or distress".[40]

50.  Clause 21(3) states that the court must be "satisfied" that the offender has engaged in anti-social behaviour. The Explanatory Notes state that as "the order would be made on conviction, the standard of proof would be "beyond reasonable doubt",[41] but this is not made explicit on the face of the Bill.

51.  The Government response confirmed its intention "that the fact of anti-social behaviour having taken place will, in practice, have to be established beyond reasonable doubt."[42] This would continue the precedent established by the House of Lords in the McCann case, which held that the standard of proof applicable to the determination of whether anti-social behaviour has occurred for the purposes of ASBOs is the equivalent of the criminal standard of beyond reasonable doubt, even though the proceedings for ASBOs were civil proceedings.[43]

52.  The Government explained that it did not consider it necessary to include the applicable standard of proof "because of the similarity of the criminal behaviour order with the ASBO on conviction" and because "the courts are able to take into account relevant case law to make their own judgment on the applicable standard of proof".[44] We believe that the Government should make the appropriate standard of proof clear on the face of the Bill, rather than leave the courts to make their own judgment on the applicable standard of proof, particularly as the standard of proof is specified in relation to IPNAs. We recommend that clause 21(3) be amended to specify the criminal standard of proof.

Amendment to clause 21(3)

Page 11, line 24, after" satisfied", insert ", according to the criminal standard of proof,"

(B) NECESSITY

53.  In addition to the court being "satisfied" that the offender engaged in anti-social behaviour under clause 21(3), a CBO can only be imposed if the court considers that making the order "will help in preventing the offender from engaging in such behaviour".[45] Again, the Home Office draft Guidance highlights that there is "no need to prove necessity unlike ASBOs."[46] We wrote to the Government to ask for its explanation as to why the higher standard of "necessity" is not used instead.

54.  In its response, the Government stated:

"The disadvantage to using "necessary" instead of "will help" is a question of the time it takes gathering evidence to prove necessity to a court. Front line professionals have told us that securing an ASBO can be a slow, bureaucratic and expensive process. The level of evidence needed to prove necessity is disproportionately time consuming. Dropping the level of the test for an order to help instead of necessary as is the case with ASBOs will speed up the application process. Practitioners have welcomed this change to the test telling us that it will allow them to act quickly to protect victims and communities."[47]

55.  We acknowledge the practical points that the Government makes in its response to us, particularly its concerns regarding the difficulty in obtaining evidence. However, any interferences with the rights protected by Articles 8, 9 (in relation to the manifestation of religion or belief), 10 and 11 of the Convention must be "necessary", which means there must be a pressing social need for the interference. We therefore recommend an amendment to this clause to require that the CBO will prevent the offender from engaging in anti-social behaviour.

Amendment to clause 21(4)

Page 11, line 27, after "will" leave out "help in preventing" and insert "prevent"

(C) LEGAL CERTAINTY

56.  Clause 21(5) provides for the same broad and open-ended definition of the prohibitions and requirements that may be included in a CBO as set out in clause 1(4) in relation to IPNAs. This raises the same question about legal certainty discussed above. We consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a CBO in clause 21(5) of the Bill does not satisfy the requirement of legal certainty, for the reasons we have given above. We recommend that the Bill be amended to achieve greater legal certainty on the face of the Bill.

Amendment to clause 21(5)(a)

Page 11, line 31, leave out "doing anything" and insert "specified actions"

Page 11, line 31, after "order" insert "which relate to the anti-social behaviour which the respondent has engaged in"

Amendment to clause 21(5)(b)

Page 11, line 32, leave out "anything" and insert "specified actions"

Page 11, line 32, after "order" insert "which relate to the anti-social behaviour which the respondent has engaged in"

(D) ABSOLUTE RIGHT TO HOLD RELIGIOUS BELIEFS

57.  Clause 21(9) provides for selective restrictions on the scope of prohibitions and requirements that may be included in a CBO. This is the same issue as discussed in relation to clause 1(5) of the Bill above. The Government response refers to the response it gave in respect of clause 1(5). We recommend the same amendment to clause 21(9) as we recommended in relation to clause 1(5) above, for the same reasons.
Amendment to clause 21(9)

Page 12, line 3, leave out clause 21(9)(a)

(E) REPORTING IN CHILDREN'S CASES

58.  Part 2 of the Bill also contains a power for the courts to decide whether or not to allow the reporting of a child's case in relation to CBO proceedings.[48] As noted in relation to IPNAs above, this is a departure from the normal restriction that applies on the reporting of legal proceedings in relation to children under Section 49 of the Children and Young Persons Act 1933.  We are concerned about the potential impact of reporting on children's privacy rights. We therefore recommend that the Bill contains a requirement that the courts must take into account the best interests of the child as a primary consideration when determining reporting of a child's case.

Amendment to clause 22

Page 12, after line 44 insert:

(9) The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child's case.

Amendment to clause 29

Page 16, after line 40 insert:

(7) The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child's case.

Police Dispersal Powers (Part 3)

59.  Part 3 of the Bill creates a new police dispersal power which replaces two existing powers to direct people away from an area in order to prevent anti-social behaviour.

60.  Under the Bill's provisions, officers no longer need reasonable belief that the public have actually been harassed or intimidated in the area. Instead, they need to consider that use of the power may be necessary to remove or reduce the likelihood of anti-social behaviour, crime or disorder in the locality. Authorising officers no longer have to believe that anti-social behaviour is a persistent problem in the area, and there is no time limit on the authorisation (currently dispersal authorisations cannot exceed six months). A new dispersal order may be imposed for a 48-hour period.[49]

61.  The new dispersal power could be widely used due to the broad discretion given to the police in relation to the new power and the possibility of an extensive definition of the area subject to the dispersal powers. In our view, granting authorisation for the use of these dispersal powers should be exceptional, and appropriate safeguards should be in place to ensure that there is no arbitrary use of the provisions. We therefore wrote to the Government to ask whether the power to authorise the use of these exceptional powers is sufficiently tightly circumscribed and whether the very broad discretion left to the authorising officer could be narrowed in certain ways.

(A) REASONABLE BELIEF

62.  In particular, we asked whether the Government would consider amending clause 32(2) of the Bill to make clear that the authorising officer's belief that the statutory condition for authorising the use of the dispersal power is met must be "reasonable". The Government response acknowledges that the Committee's question raises an important point and that it will consider the inclusion of "reasonable" in clause 32(2) in advance of the Bill's Report Stage. We welcome the Government's amendment to clause 32(2) of the Bill to make clear that the authorising officer's belief must be "reasonable" in order to use the dispersal powers provided in Part 3 of the Bill. In our view, this is essential to ensure that any use of the powers is properly circumscribed.

(B) NECESSITY

63.  Part 3 of the Bill engages the rights under Articles 8, 9 (in relation to manifestation of religion or belief), 10, 11 and Article 1 of Protocol 1. Any interference with these rights must be necessary and proportionate in order to be justified. We therefore asked the Government for its justification for providing in clause 32(2) that an authorisation can be made if the authorising officer considers that use of the dispersal powers "may be necessary" rather than "is necessary".

64.  The Government's response explained that: "the dispersal power is intended to be used preventatively, and "may be necessary" offers more flexibility than determining whether it is necessary to use the power before granting the authorisation. To restrict the authorisation to an area where it "is necessary" to use the dispersal power would imply that the authorising officer definitely expects the power to be used."[50]

65.  We accept the legitimate aim of these measures. However, as these measures interfere with individuals' privacy rights and freedom to assemble, it is essential that the dispersal powers are only exercised when necessary and proportionate. We also accept the Government's point that these are intended to be preventive powers and therefore the condition for authorisation must be defined in terms of future events. We recommend, therefore, that:

—  there is clear guidance for the police on the use of this dispersal power; and that

—  there is a review of the use of this dispersal power after 2 years of its operation, and periodically thereafter.

(C) THE RIGHT TO FREEDOM OF ASSEMBLY AND ASSOCIATION

66.  The Bill contains an express provision which states that the dispersal powers cannot be used against individuals taking part in lawful picketing or public processions of a kind prescribed by section 11(1) of the Public Order Act 1986.[51] The Government states that it is satisfied that any interference with Article 11 pursues legitimate aims (namely, the prevention of crime and disorder, and the protection of the rights of others) and that any interference is proportionate to this aim.[52]

67.  We welcome the protection given in this Bill to lawful picketing under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 and processions under the Public Order Act 1986. However, the drafting of this clause remains narrow. As a result, the dispersal powers could be used to target other forms of peaceful assembly, such as static assemblies and impromptu protests. In a recent report on the UK, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association noted the absence of any legal provision that protects spontaneous processions.[53] He also noted that the Protection from Harassment Act 1997, which was designed to address stalking, has developed over time to be used to deal with protestors.[54] Similarly, there are concerns that, due to the Bill's broad definition of anti-social behaviour, there is a risk that protests and assemblies may be dealt with under the Bill's anti-social behaviour powers rather than under public order legislation, which has higher thresholds and levels of protection.[55]

68.  The Children's Commissioner has also stated that while there may be potential benefits of the new dispersal powers for some children affected by anti-social behaviour, it considers that children may be at risk of disproportionate restrictions on their freedoms of movement and assembly.[56]

69.  The UN Committee on the Rights of the Child has stated that the concept of "dispersed zones" may violate the rights of children to freedom of movement and peaceful assembly, the enjoyment of which is essential for the children's development and may only be subject to very limited restrictions as enshrined in Article 15 of the UN Convention on the Rights of the Child.[57]

70.  We welcome the protections given in this Bill to lawful picketing and processions under the Trade Union and Labour Relations (Consolidation) Act 1992 and the Public Order Act 1986. In our view, however, the protections offered in this Bill remain too narrow. It is important that there is a clear connection between the use of the dispersal powers with the legitimate aims pursued of addressing anti-social behaviour. The powers must not be used in a way that targets peaceful assemblies. We recommend that clause 34(4) of the Bill is amended to make this clear.
Amendment to clause 34(4)

Page 20, after line 17 insert: "(c) any other form of peaceful assembly."

Recovery of possession on riot-related anti-social behaviour grounds (Part 5)

71.  Part 5 introduces a new discretionary ground of possession for riot-related anti-social behaviour to enable landlords of dwelling-houses in England to apply for possession where a tenant or person living in the property has been convicted of a riot related offence committed anywhere in the UK. The court may only order possession on this discretionary ground where it considers it "reasonable" to do so.[58]

72.  We wrote to the Government to ask for its view as to whether, in the absence of any requirement that there be a connection between the particular dwelling-house and the riot-related offence, the new riot-related grounds for possession introduced by clause 91 amounts to a punishment rather than a means of preventing harm to others.

73.  The Government's response stated that "the intention is that the proposal will send a strong signal and carry a deterrent effect to potential rioters who are tenants or members of their household."[59] It considers that seeking possession against those convicted of rioting beyond the local area is "only likely to happen exceptionally". Further, the Government stated that the courts must be satisfied that it is reasonable to grant possession, and that "the absence of any connection between the dwelling house and the riot-related offence will be a factor for the court in exercising its discretion".

74.  Concerns have been expressed about the proportionality of these measures. For example, where one member of a family has been convicted of a riot-related offence, there is a risk that other family members and children may be made homeless. [60]

75.  We also asked the Government for its justification for interfering with the Article 8 rights of other family members, including children, who live in the home. The Government's response explained that the riot-related ground for possession is discretionary, and the court will therefore take into account the rights of other family members, including the rights of any children under Article 16 UNCRC, when deciding whether it is reasonable to grant possession. While the case of Pinnock establishes that tenants of public authorities or of landlords exercising public functions are currently able to raise Article 8 as a defence to possession proceedings,[61] we consider that it is better to draft legislation in a way that does not give rise to unnecessary interferences with rights, rather than to rely on the courts to render laws compatible by interpretation.

76.  We are not persuaded by the Government's justification for this discretionary ground of possession for riot-related anti-social behaviour. In our view, it is unnecessary and disproportionate. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We recognise the seriousness of riot-related offences. However, we believe that the custodial sentences imposed by the courts in relation to these offences act as a sufficient deterrent. We recommend that this provision is removed from the Bill.

Amendment to clause 91

Page 61, after line 21, leave out clause 91




10   Secretary of State for the Home Department, A plan to fight crime, 5 October 2010.See House of Commons Library Research paper 13/34, Anti-social Behaviour, Crime and Policing Bill (4 June 2013) for information on the history of previous anti-social behaviour measures and a summary the key differences between those measures and the proposals in the Bill. Back

11   Home Secretary, Second Reading, HC Deb 10 June c68; Letter to the Chair from Jeremy Browne MP, Minister for Crime Prevention, dated 9 May 2013. Back

12   Letter to the Chair from Damian Green and Jeremy Browne, 16 July 2013, Q. 2 Back

13   Article 3 provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration Back

14   OCCE, A Child Rights Impact Assessment of the Anti-Social Behaviour, Crime and Policing Bill, June 2013, para 4.3.1 Back

15   OCCE, A Child Rights Impact Assessment of the Anti-Social Behaviour, Crime and Policing Bill, June 2013, para 4.3.2 Back

16   Government Response to the Home Affairs Committee Twelfth Report of Session 2013-13, page 10 Back

17   Articles 16 and 40(2)(vii); UN Committee on the Rights of the Child, 49th Session, 3 October 2008 Back

18   Anti-social Behaviour, Crime and Policing Bill, Government Memorandum, para 4 Back

19   Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, HL, at 638 per Lord Diplock Back

20   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 3 Back

21   s153A Housing Act 1996 (inserted by s13, Anti-social Behaviour Act 2003) Back

22   While relevant landlords can apply for ASBIs, the police, transport police, local authorities, Transport for London the Environment Agency and NHS Protect in England (and the equivalent body in Wales) will be able to apply for IPNAs. This list is similar to the list of relevant authorities which can currently apply for ASBOs. Back

23   Clause 11 and Schedule 2 deal with enforcement of breaches for under 18s Back

24   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q.3 Back

25   http://www.cps.gov.uk/legal/a_to_c/anti_social_behaviour_guidance/#an11  Back

26   R v Boness [2005] EWCA Crime 2395 Back

27   R v Boness [2005] EWCA Crime 2395 Back

28   R v Boness [2005] EWCA Crime 2395 Back

29   W v DPP [2005] EWCA Civ 1333 where it was held that a prohibition 'not to commit any criminal offence' was too wide and therefore invalid Back

30   Avery, Avery, Nicholson and Medd-Hall [2009] EWCA Crim 2670 Back

31   Home Office draft Guidance, Reform of anti-social behaviour powers: draft guidance for frontline professionals, October 2013, p. 22 Back

32   Clause 1(3) of the Bill Back

33   Clause 12 of the Bill Back

34   ENs para 101 Back

35   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q.9 Back

36   Public Bill Committee, Tuesday 25 June 2013,col.195-206 Back

37   Letter to Rt Hon David Hanson P from Rt Hon Damian Green MP, Minister of State for Policing and Criminal Justice, 7 October, p. 2 Back

38   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 10 Back

39   Anti-social Behaviour, Crime and Policing Bill, Government Memorandum, para 30 Back

40   Clause 21(3). Back

41   ENs para 108 Back

42   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 12 Back

43   Clingham (formerly C (a minor)) v Royal Borough of Kensington & Chelsea, R v Manchester Crown Court ex parte McCann [2002] UKHL 39; [2003] 1 AC 787 Back

44   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 12 Back

45   Clause 21(4) of the Bill Back

46   Home Office draft Guidance, Reform of anti-social behaviour power: draft guidance for frontline professionals, October 2013, p. 29 Back

47   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 13 Back

48   Clause 22 (8) and clause 29(5) Back

49   Clauses 32 to 34 of the Bill Back

50   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 17 Back

51   Clause 34(4) of the Bill Back

52   HR MEMO, para 50 Back

53   Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, 17 June 2013, para 11 Back

54   Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, 17 June 2013, para 47; Joint Committee on Human Rights, Seventh Report of Session 2008-09, Demonstrating respect for rights? A human rights approach to policing protest, para 99 Back

55   Submission to the JCHR from Mr. Matthew Varnham, 22 August 2013 Back

56   OCCE, A Child Rights Impact Assessment of the Anti-Social Behaviour, Crime and Policing Bill, June 2013, pp 22-24  Back

57   UN Committee on the Rights of the Child 'Concluding Observations: United Kingdom of Great Britain and Northern Ireland', 2008, paras 34-35 Back

58   Clause 91, inserting new Grounds 2ZA and 14ZA into Part 1 of Schedule 2 to the Housing Act 1985. Back

59   Letter from Damian Green and Jeremy Brown to Chair, 16 July 2013, Q. 19 Back

60   Liberty, Anti-social Behaviour, Crime and Policing Bill Commons Briefing, para 48 Back

61   Manchester City Council v Pinnock [2010] UKSC 45 Back


 
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Prepared 11 October 2013