House of Lords - Explanatory Note
Anti-Social Behaviour Bill - continued          House of Lords

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Clause 39: Penalty Notices for disorderly behaviour by young persons

     101.     This clause amends the Criminal Justice and Police Act 2001 which introduced a penalty notice scheme for disorderly behaviour. Subsection (2) extends the scheme to 16 and 17 year olds and subsection (3) provides a power, by affirmative resolution procedure, to extend it to a lower age group. If so extended, there is also a power to make provision for a parent or guardian of an under 16 year old to be notified that a penalty notice has been given and for the parent or guardian to be liable to pay the penalty. Subsection (4) permits different levels of penalty to be set for different age groups. For the present, it is not intended to have a different level of penalty in respect of 16 and 17 year olds.

102.     The extension of the scheme to 16 and 17 year olds will be piloted and supplementary guidance will be issued to the police on the use of their discretion. The power to extend the scheme to a younger age group at this stage will be revisited in the light of the outcome of these pilots for 16 and 17 year olds.

Clause 40: Curfew orders and supervision orders

103.     This clause introduces Schedule 2 which amends the existing provisions relating to supervision orders and curfew orders. Curfew orders and supervision orders are both community sentences. Supervision orders are available only for offenders aged under 18. Curfew orders require the offender to remain for specified periods at a specified place. This may reduce the risk of further offending. A curfew order can be monitored electronically. A supervision order can include a range of requirements, such as a requirement to participate in specified activities or a requirement to make specified reparation. A supervision order lasts for at least 6 months but not more than 3 years.

104.     Schedule 2 increases the maximum length of a curfew order for an offender aged 10 but under 16 from 3 months to 6 months. The Schedule makes it clear that a curfew order and a supervision order may be imposed at the same time. It increases the maximum period during which the offender may be required by a supervision order to comply with specific directions of the supervising officer or specific requirements of the court as to activities etc. from 90 days to 180 days.

105.     Schedule 2 also enables the court to include in a supervision order a requirement that the offender live with local authority foster parents for a specified period of not more than 12 months (extendable for up to 18 months.). This new requirement is available only in the case of an offender who would otherwise meet the criteria for a custodial sentence and whose offending is to a great extent due to his home circumstances.

     Clause 41: Extension of powers of community support officers etc.

     106.     The Police Reform Act 2002 created the new civilian role of community support officer. A community support officer is a uniformed police authority employee under the direction and control of a chief officer of police who can be designated by that chief officer with a specific range of police powers set out in Part 1 of Schedule 4 to that Act.

107.     The Police Reform Act also enables a chief officer of police to establish and maintain a scheme that accredits suitably skilled and trained non-police employees involved in the provision of community safety with powers to undertake specified functions in support of the police. For example, a chief officer may accredit neighbourhood wardens employed by the local authority or a social landlord, with powers to address antisocial behaviour. Regulations will be in place to enable the chief constable of the British Transport Police (BTP) to maintain a railway safety accreditation scheme, which will be similar to those of Home Office police forces.

108.     Subsections (3) and (6) of this clause amend the Police Reform Act 2002 by adding to the powers that can be conferred on community support officers and accredited persons. They have already been given the power to issue fixed penalty notices for cycling on the pavement. This amendment makes it easier to enforce this power by conferring power to stop cyclists. It only applies when the community support officer or accredited person believes that an offence of cycling on the pavement has been committed. Failing to stop a cycle when required to do so is an offence under the Road Traffic Act 1988 and is liable to a fixed penalty notice of £30.

109.     Subsection (5) adds the power to issue fixed penalty notices for disorder under the Criminal Justice and Police Act 2001 to the powers that can be conferred on suitably trained persons who are accredited under either a community safety accreditation scheme or a railway safety accreditation scheme. This power is already available to community support officers. Accredited persons will be given the power to issue fixed penalty notices under this scheme but subsection (5) excludes two offences where the offender must be drunk for the offence to apply. The excluded offences are being drunk in a highway, other public place or licensed premises and disorderly behaviour while drunk in a public place.

110.     The offences for which accredited persons will be able to issue notices are:

  • Use of insulting or abusive behaviour to cause harassment alarm or distress.

  • Throwing fireworks in a thoroughfare.

  • Trespassing on a railway

  • Throwing stone etc at trains or other things on railways

  • Buying or attempting to buy alcohol for consumption in a bar in licensed premises by a person under 18

  • Knowingly giving a false alarm to the fire brigade

  • Wasting police time or giving a false report

  • Consumption of alcohol in a designated public place

  • Using a public communications system for sending messages known to be false in order to cause annoyance.

111.     Section 1(2) of the Criminal Justice and Police Act 2001 allows the Secretary of State to add to or remove from the list of offences in section 1 by order. Subsections (4) and (7) give the Secretary of State power by order to provide that any offence for the time being included in section 1 should not be one in respect of which community support officers or accredited persons can issue fixed penalty notices. New section 15A(2) and new Section 9A(2) have the effect that any such order would be subject to the affirmative resolution procedure.

Clause 42: Report by local authority in certain cases where person remanded on bail

     112.     This clause inserts a provision into the Children and Young Person Act 1969 following section 23A. Section 23A provides that where a court does not grant bail, remands and committals of a child or young person charged with or convicted of an offence must be to local authority accommodation.

     113.     Section 23(4) of the Children and Young Persons Act 1969 gives the court the power to impose a security requirement when remanding a child to local authority accommodation. However, by section 23(5) of the Children and Young Persons Act 1969 the court may not impose a security requirement in respect of a child who has not reached the age of 12.

114. This provision is designed for serious or persistent 10 and 11 year old young offenders in cases where the court might have considered remanding a child to secure accommodation if they were aged 12 or over. The provision of a report by the local authority will enable the court to be aware where the child would be placed if the court decided to remand the child to local authority accommodation. In particular this would allow the court to see if the local authority would use their discretion to send the child home. If the court was satisfied with the local authority's initial report, it could, either remand the child into local authority accommodation if it thought that this placement would be best for the child's welfare, or continue bail if it was satisfied that there were no difficulties with the child remaining with his parents. If the court was not satisfied with the local authority's initial report, it could then direct the local authority to make investigations under section 9 Children and Young Persons Act 1969. The results of any such investigations would be taken into account at the sentencing stage.

115.     Subsection (6) allows the Secretary of State to extend this provision by order to 12-16 year olds who met the criteria for a secure remand, and whose behaviour was due, to a significant extent, to their home circumstances.

             PART 6: FIREARMS

116.     This part of the Bill introduces a number of changes to the Firearms Act 1968 with a view to tackling the misuse of air weapons and imitation firearms, and introducing stricter controls over especially dangerous air weapons.

Clause 43: Possession of air weapon or imitation firearm in public place

117.     This clause amends section 19 of the 1968 Act, which deals with the carrying of firearms in a public place, so as to include air weapons and imitation firearms. These amendments mean it will be an offence to carry an air weapon (whether loaded or not) or an imitation firearm in a public place without lawful authority or reasonable excuse. An "imitation firearm" is defined in section 57(4) of the 1968 Act. It covers anything which has the appearance of being a firearm whether or not it is capable of discharging a shot or bullet. Subsection (3) makes this an arrestable offence by adding the new offence to the list of arrestable offences set out in Schedule 1A to the Police and Criminal Evidence Act 1984. This will be subject to a maximum penalty of 6 months imprisonment.

Clause 44: Air weapons: age limits

     118.     This clause makes a number of amendments to sections 22, 23 and 24 of the Firearms Act 1968 in order to change the age at which a young person may own an air weapon and to tighten up on when it may be used unsupervised. The present limit is raised from fourteen to seventeen and it will also be an offence for anybody to give an air weapon to a person under seventeen. This means that no-one under 17 will be able to have an air weapon in their possession at any time unless supervised by someone who is aged at least 21 or as part of an approved target shooting club or shooting gallery. However, 14 to 16 year olds (inclusive) will be permitted to have air weapons unsupervised when on private land, provided they have the consent of the occupier. It will be an offence for them to shoot beyond the boundaries of that land.

Clause 45: Prohibition of certain types of weapon

119.     This clause contains a ban on air weapons that use the self-contained gas cartridge system, which are vulnerable to conversion to fire conventional ammunition and have been increasingly used in gun crime. The clause adds the weapons to section 5(1) of the 1968 Act, thereby making them prohibited weapons which cannot be possessed, purchased, acquired, manufactured, sold or transferred without the authority of the Secretary of State. Provision is made for existing owners of the weapons to retain possession, provided they obtain a firearms certificate from the police.

120.     This clause also creates an order making power that will enable the Secretary of State to prohibit or introduce other controls in respect of any air weapon which appears to him to be especially dangerous.

             PART 7: THE ENVIRONMENT

     Noise

Clauses 46 : Closure of noisy premises

121.     Clause 46 allows a chief executive of a local authority to issue a closure order in relation to licensed premises or premises operating under a temporary event notice which are causing a public noise nuisance. Subsection (1) sets out the circumstances under which a closure order can be made. Subsection (3) states that the closure order can apply for a maximum of 24 hours, starting from the time when the notice was issued to the manager. Subsections (4) and (5) provide that if a person disobeys a closure order they are committing an offence and can receive a penalty of up to 3 months imprisonment or a fine of up to £20,000.

Clauses 46 : Closure of noisy premises: supplemental

122.     Subsection (1) of clause 47 outlines the circumstances under which an order can be cancelled, and requires the officer issuing the order to inform the relevant licensing authority. Subsection (2) sets out the process by which the chief executive officer of a local authority can authorise environmental health officers to issue closure orders.

Clause 48: Dealing with noise at night

123.     This clause amends the Noise Act 1996, which currently gives powers to deal with noise at night (by way of warning notices, fixed penalties etc.). These powers have previously only applied to a local authority (in England, Wales or Northern Ireland) that adopts to apply them in its area. Subsection (2) removes the adoptive nature of the powers in respect of England and Wales, thereby bestowing these powers on all English and Welsh local authorities. Subsection (3) removes the previously associated duty (once the powers had been adopted) to take reasonable steps to investigate a complaint, and substitutes a discretionary power to take such steps in response to a complaint. Subsection (4) removes a provision that applied to the situation where one authority had adopted powers under the Act but a neighbouring authority had not, as this will no longer apply.

     Graffiti and fly-posting

124.     Clauses 49 - 53 give authorised local authority officials the ability to issue fixed penalty notices to offenders who have perpetrated acts of graffiti or fly posting. The intention is to levy the penalties only on the persons actually committing these acts, and not in the case of fly-posting on the person (unless he is one and the same) whose goods or services are advertised on the poster.

Clause 49: Penalty notices in respect of graffiti or fly-posting

125.     Subsection (1) sets out the power for the local authority official to issue a penalty for the relevant offence (defined at Clause 49). Subsection(2)(a) excludes from the scope of such offences capable of being dealt with by means of a fixed penalty notice any that is racially or religiously targeted or motivated. Subsection (3) restricts the possibility of being issued with a fixed penalty notice in lieu of prosecution for an offence under s.224(3) Town and Country Planning Act 1990 to the person personally affixing or placing the unlawful advertisement in question. Subsection (4)(a) provides that offenders have 14 days in which to pay the penalty, after which prosecution for the offence can be initiated. Subsection (4)(b) sets out that no proceedings may be brought where payment of the fixed penalty has been made within the 14 day period. Subsection (5) provides that in issuing a fixed penalty a local authority officer must provide a written statement setting out the particulars of the offence. Subsection (6)(a), (b) and (c) sets out that the notice setting out the particulars of the offence must state that legal proceedings will not be initiated until after 14 days, the amount of the fixed penalty and details of where the penalty should be paid.

126.     Subsection (7) provides that payment of a penalty may be made by pre-paying and posting a letter containing the full amount of the penalty (in cash or otherwise) to the person named on the notice. Subsection (8) provides that where a letter is sent containing payment of the penalty, that payment is deemed as having been made at the time the letter would ordinarily be expected to be delivered. Subsection (9) provides that the penalty notice shall be in such form as the "appropriate person" (i.e. the Secretary of State, in England, or the National Assembly for Wales, in Wales) shall prescribe. Subsection (10) provides that the penalty for these offences is £50. Subsection (11) provides that the appropriate person, may, at some time in the future, change the amount of the fixed penalty.

     Clause 50: Relevant offences

     127.     This clause describes the offences in respect of which fixed penalty notices may be issued, being the graffiti-type and fly-posting-type offences otherwise prosecutable under the enactments listed at subsection (1)(a)-(f). It is understood that such graffiti-type are almost always prosecuted under the Criminal Damage Act 1971, although the other enactments listed contain provisions which might also equate to the same offence).

Clause 51: Penalty receipts

128.     Subsection (1) provides that penalties issued under clause 48 are paid to the local authority. Subsection (2) sets out that a local authority officer may make a statement/certificate stating the facts about payments which may be used in evidence in any proceedings. Subsection (3) provides that any sums received by a local authority from fixed penalties shall be used by it only for the purposes of qualifying functions. Subsection (4) and (5) relate to the qualifying functions. Subsection (6) sets out that the local authority must provide the appropriate person with information relating to the use of the penalty receipts. Subsection (7) provides that the appropriate person may make provision for what local authorities must do with receipts if they are not being spent, and makes provision for appropriate accounting arrangements. Subsection (8) provides that where a local authority has not spent these receipts they may be required to surrender them to the appropriate person. Subsection (9) sets out that the appropriate person must consult with local authorities and others he considers appropriate before making regulations under this clause.

Clause 52: Powers of police civilians

129.     Subsection (1) amends Schedule 4 to the Police Reform Act 2002 to include powers for a community support officer to issue penalty notices in respect of graffiti and fly posting (as they currently have for issuing penalties in respect of littering and dog fouling). Subsection (2) amends Schedule 5 to the Police Reform Act 2002 in respect of powers of accredited persons to issue fixed penalty notices to include being able to do so in respect of graffiti and fly-posting.

     Clause 53: Interpretation

130.     Subsection (1) defines "advertisement", "land" "appropriate person", "authorised officer", "local authority", "racial group" and "religious group". Subsection (2) applies a provision of the Crime and Disorder Act 1998. Subsection (3) permits the appropriate person to issue guidance to local authorities in respect of the exercise of their officers' discretion to issue fixed penalty notices under clause 49(1) and about the giving of such notices. The intention is to specify that such notices are appropriate only in the case of "minor" instances of graffiti or fly-posting; where major criminal damage has been done, criminal prosecution will continue to be the appropriate course.

Clause 54: Graffiti removal notices

131.     Subsections 1 and 2 enable a Local Authority to serve a "graffiti removal notice" on the owners of street furniture, statutory undertakers and educational institutions whose property is defaced with graffiti that is either detrimental to the amenity of the area or offensive. Subsection 3 sets out that the notice will require them to remove the graffiti within a specified period of time, a minimum of 28 days. Subsections 4 and 5 state that if the person responsible for the property fails to remove the graffiti, the Local Authority can intervene and clean up the graffiti. Subsection 7 allows that they may affix a notice to the offending surface if they are unable to locate the person responsible. Subsections 8 and 9 define the surfaces covered, subsection 10 sets out whom the notice should be served upon and subsection 11 provides the definition of remaining terms.

Clause 55: Exemption from liability in relation to graffiti removal notices

132.     Clause 55 sets out the terms of the exemption from liability for damages that protects those taking action under clause 54.

Clause 56: Sale of aerosol paint to children

133.     The clause makes it an offence to sell aerosol spray paints to persons aged under 18. The objective is to reduce the incidence of criminal damage caused by acts of graffiti. Subsection (2) contains a definition of aerosol spray paints. Subsection (3) sets out the maximum penalty for the offence which is a fine of £2,500. Subsection (4) provides a defence for those who took all reasonable steps to determine the purchaser's age and reasonably believed he was 18 or over. Subsection (5) provides a defence for someone who is charged with an offence but did not carry out the sale themselves (such as a shopkeeper) if they took all reasonable steps to avoid the commission of an offence.

     Waste and litter

Clause 57: Unlawfully deposited waste etc

134.     This clause gives waste collection authorities in England and Wales a strategic role for dealing with the illegal dumping of waste (or "fly tipping"), facilitates the definition of this role further to the receipt of statutory directions and extends the range of powers available to them. This should lead to better enforcement of current legislation, a significant increase in investigation activity, better detection of the perpetrators of the crime and, eventually, a reduction in levels of unlawfully deposited waste.

135.     Subsection (2) corrects an error in the Control of Pollution (Amendment) Act 1989 (c. 14). Subsection (3) amends the Control of Pollution (Amendment) Act 1989 (c.14) to give waste collection authorities in England and Wales the powers to stop, search and seize a vehicle they suspect of being used for the unlawful deposit of waste. Subsection (4), by means of an amendment to the Environmental Protection Act 1990, gives the Secretary of State the power to issue statutory directions to clarify the roles and responsibilities in the exercise of their powers under s.59 of that Act of the waste regulation authority (Environment Agency) and waste collection authorities when dealing with illegally deposited waste, and provides that each of them shall provide the Secretary of State annually with such information as he shall specify in relation to the categories and quantities of waste that they have dealt with under those powers. This power is exercisable by the National Assembly for Wales in Wales by virtue of subsection (9). Subsections (5) to (8) amend section 108 of the Environment Act 1995 to give waste collection authorities the power to investigate incidents of unlawfully deposited waste. Subsection (9) makes a consequential amendment in relation to Wales.

Clause 58: Extension of litter authority powers to take remedial action

136.     This clause amends section 92(10) of the Environmental Protection Act 1990 to remove the barrier which currently prevents local authorities from entering relevant land (Crown land or land owned by a Statutory Undertaker), clearing that land of litter, and recovering its costs through the courts. Exceptions will still apply to land occupied for naval, military or air force purposes.

PART 8: PUBLIC ORDER AND TRESPASS

Clause 59: Public assemblies

137.     Section 14 of the Public Order Act 1986 gives a senior police officer power to impose conditions on public assemblies. Before doing so, he must reasonably believe that serious public disorder, serious damage to property or serious disruption to the life of the community might result, or that the purpose of a demonstration is the intimidation of others with a view to compelling them to act in a particular way. Conditions include the location of the assembly, its maximum duration or the maximum number of persons who may constitute it. At present these provisions only apply to groups of 20 or more persons.

138.     Clause 59 amends the definition of public assembly in section 16 of the Public Order Act 1986 from "20 or more persons" to "2 or more persons" so that the powers in that Act to impose conditions on public assemblies apply to groups of two or more people. The requirement for a senior officer to hold beliefs described in paragraph 134 is unchanged.

     139.     The clause would not affect peaceful picketing by members of a trade union at their place of work. Picketing is protected by section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 which makes lawful certain activities done for the purpose of peacefully obtaining or communicating information or of peacefully persuading a person to work or not to work.

Clause 60: Aggravated trespass

     140.     Clause 60 amends sections 68 and 69 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) to extend provisions relating to the offence of aggravated trespass to cover trespass in buildings, as well as in the open air. The result is that the offence of aggravated trespass will be constituted where a person trespassing, whether in a building or in the open air, does anything which is intended to intimidate or deter persons from engaging in a lawful activity, or to obstruct or disrupt that activity.

     141.     The amended provisions might be used in respect of activists who invade the building of a targeted company with the intention of conducting an intimidating and disruptive protest. Subsection (2) amends section 68 by removing the words "in the open air" so that the offence in section 68 of the 1994 Act becomes aggravated trespass on land. Subsection (3) amends section 69 of the 1994 Act by removing the words "in the open air" so that where a senior officer reasonably believes that a person or persons are committing or participating in aggravated trespass he may direct them to leave the land. Land is defined in the Interpretation Act 1978 so as to include buildings.

 
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Prepared: 27 June 2003