Anti-Social Behaviour, Crime and Policing Bill
Written evidence from the Association of Chief Police Officers of England, Wales and Northern Ireland (ASB 05)
1. The police service continues to recognise that all individuals and communities have a right to live their lives free from intimidation and harassment that affects their quality of life. One of the core purposes of policing is to keep people safe and this includes dealing effectively with anti social behaviour (ASB). ACPO believes that the critical determining feature of the police service’s response to crime and anti social behaviour should be the risk of harm to the victim or community. ACPO sustains a culture that treats the harm caused by crime and anti social behaviour as a strategic priority for all our forces, the service as a whole and encourages appropriate partner agency involvement.
2. We believe the ‘spectrum of harm‘ concept should be at the heart of our policing model. By adopting this approach we avoid the dangers of 'policing by categories' whereby a predetermined response is provided by officers, staff and partners. We prioritise our response to the most vulnerable or those suffering the greatest harms. Practitioners approach incidents with an open and an enquiring mind to establish what has happened, who has been harmed or who is at risk of harm, and how they can respond in a way that prevents further harm. Comprehensive care plans are in place to support community members who require elevated levels of support. We deliver a bespoke, differentiated service which meets individual victim’s needs.
3. In framing our response to the Anti-Social Behaviour, Crime and Policing Bill, the police service acknowledges the need to take the issues surrounding ASB seriously, to deliver efficient local policing services with a multi agency approach to help and protect all members of our communities but particularly the vulnerable, and it aspires to prevent and stop issues which affect people so that they feel safe in their homes.
4. The ACPO Anti-Social Behaviour Portfolio welcomes the opportunity to comment on the proposed changes to legislation before the Scrutiny Panel. Throughout the past three years the portfolio has consulted a number of times with the wider police service on anti social behaviour issues including tools and powers.
5. In broad terms the proposals contained within the bill are practical, positive, reasonable and balanced. It proposes a simplified and consolidated process for dealing with anti social behaviour (ASB) taking into account the shortcomings of the existing tools currently available and recommending more streamlined and seemingly less bureaucratic methods of tackling these issues with the emphasis on localisation. In short the de-cluttering of the intervention landscape will increase the likelihood of positive outcomes, usin g a reduced number of powers, with potential gains in terms of efficiency and effectiveness.
6. Specific feedback and observations on the proposed changes:-
Injunctions to prevent Nuisance and Annoyance
7. T he proposed measure appears significantly quicker and more cost effective than the current ASBO processes with the ‘balance of probability’ level of proof and the ‘threaten to engage’ a key factor which will assist . It can be obtained in the County Court for adults and in the Youth Court for 10 to 17-year-olds but the question has been raised whether it could possibly be heard in the Magistrates Court also , with the correct level of training, which would alleviate any court availability issues but still leave the most appropriate application at the most appropriate court .
8. The new injunction , it seems will be based on the ASB I but replaces the ASBO and will expand the range of agencies that can use it, and increase the range of circums tances in which it can be used , all of which are seen as positives . A power of arrest could be attached to the injunction if the individual had used or threatened violence or if there was a risk of significant harm to the victim. The attached power of arrest creates an obligation on the police to take positive action: in that sense we would have a duty to arrest once a breach occurs. This is a significant difference from current powers which (because a breach of an ASBO is an offence) provide a power of arrest for a breach but not a duty. We recognise, and fully respect, that a breach of an injunction is a contempt of court and not an offence, but we feel that retention of the discretion to arrest would allow us and our partners to decide upon the best course of action according to the circumstances. This may mean we do not arrest for every breach, particularly when there is a 'minor' breach, but it would give us the power to arrest which is an effective tool in the right circumstances
9. There would be no minimum or maximum length for the injunction and a b reach would be punishable as contempt of court in the case of an adult, which might include being punished by up to two years in prison. For a child between 10 and 17 the penalty for a breach would be a curfew, activity or supervision requirement, with repeated breaches causing serious harm, resulting in custody for up to three months. Interim orders could be obtained without notice and in the absence of the defendant , we see these proposals as positive . B reaches of a positive mandatory condition may be more problematic to prosecute with associated bureaucratic issues . The stipulation that the ‘Chief of Police’ should be informed when either conditions have been complied with or breached should be removed as the police may not have any direct involvement with the perpetrator and this again would create unnecessary bureaucratic issues in how and why we would have a need to record.
10. There is a lower threshold of ‘nuisance or annoyance’ in comparison to the ASBO which required ‘harassment, alarm and distress’. This would enable injunctions to be sought in the most typical scenario of ASB by youths in residential areas, when a higher test may be more difficult to prove. Accepting that the courts would be the safeguard, there is a need to consider the potential for the power to be used inappropriately, thus stigmatising and possibly criminalising young people unnecessarily. In addition the expectations of the public need to be managed and having this low threshold could result in people expecting action that simply would not be possible or appropriate which would affect satisfaction and put unsustainable pressure on resources. ACPO’s view would be to retain the ‘harassment, alarm and distress’ test. Similarly with the terminology ‘just and convenient’ where it was thought that this could be misinterpreted or misused, ACPO would advocate ‘necessary’ to replace this.
11. Experience has indicated that the effectiveness of ASBOs are maximised when supported with other elements such as support packages or an individual action plan that addresses the causes of offending behaviour and meets the varied needs of a perpetrator. Indeed the bill recognises this feature by including both prohibitions on behaviour and positive requirements to change behaviour in the longer term . However concern about agencies capacity and capability to deliver this support in difficult economic times has to be considered.
12. Even with a renewed simplified interventions landscape a threat remains that underlying cultural and partnership issues may still frustrate the practical implementation of these measures. The ‘Anti Social Behaviour Case Management trials’ provided tangible evidence of the benefits of closer working practices to improve the interpretation of data protection law. The new proposals and future working practice may further benefit from an overt positive requirement for Community Safety Partners to pro-actively share information.
The Criminal Behaviour Order - (CBO)
13. T his order is available on conviction and is intended to be given, on application by the prosecution , in addition to a court sentence. This proposal has been favourably viewed with many practitioner s seeing it as a revamped CRASBO with mandatory positive as well as prohibitive conditions. The powers are simple and flexible and feedback is also very positive over the fact that the CBO is available to other partners and not just the police and CPS. It is interesting that the threshold for the CBO is causing or likely to cause ‘harassment, alarm or distress’ as opposed to the lower threshold test suggested in injunctions. This seems to be an inconsistent approach and ACPO would advocate the higher test in both.
14. There is concern about how potential breaches will be effectively managed. A systematic approach and set of guidelines may be needed to ensure the prohibitions are appropriate and relevant to the defendant’s circumstances. If there is no direct responsibility then some agencies may be reluctant about submitting or supporting an application.
15. Whilst it is a legitimate expectation that the positive requirements will reduce the breach rate, one should not get overly concerned regarding high breach rates. Individuals subject to anti social behaviour interventions who require parameters put on their behaviour, are the more problematic members of our communities. It is seen favourably that the police and other partners will be given flexibility to determine the seriousness of any first breach and how it should be dealt with. The monitoring and compliance of requirements will need some thought to ensure its effectiveness and to avoid varying bureaucratic processes.
16. These proposals have received significant support as it strengthens police powers to remove people from areas for poor public place behaviour in general and not overly focusing on alcohol related disorder as it is at present. Both Section 30 Anti Social Behaviour Act 2003 and Section 27 Violent Crime Reduction Act 2006 Dispersal orders have proved to be very effective tools and c ombining these orders will simplify their administration and reduce costs.
17. The use of dispersal powers can be highly controversial. The current dispersal power is instigated by police and is risk assessed as part of its inception. This at present designates areas after consultation and agreem ent of the local authority which helps facilitate a problem solving approach for a period of time up to 6 months. It involves an exit strategy, community involvement and the responsibility not to displace the problem elsewhere . I n these new proposals, although PCC’s would be expected to provide democratic ove rsight this is after the event and not through a process which engages the community before the powers are used. This could result in disproportiona te use of the powers and greater tensions in some communities or sections of communities.
18. The terminology ‘ likely to ’ contribute to one of the two conditions used in the new proposals has caused some concern as this is very subjective. It can simply arise from a fear of what someone might do rather than where ASB or crime has occurred and that person is responsible. The power also appears to be exercisable when any ‘crime or disorder’ has occurred or is likely to. In theory without proper stipulation this could mean that a crime totally unrelated to ASB may have been occurring in a location, for example car crime, and people could be dispersed simply because they are suspected of being likely to commit this offence. This again could unfairly impact on certain groups such as youths, who very often are doing no more than ‘hanging out’ together. There would need to be clear guidance in relation to what is trying to be achieved by this part of the bill.
Community Protection Notices
19. A Community Protection Notice would deal with environmental ASB with councils and the being able to issue the notices. They would be issued to an individual or a responsible person within a business or organisation to deal with a problem affecting the community and are intended to deal with a range of issues such as graffiti, littering, and dog-fouling of a persistent nature rather than single incidents. They could also be used to tackle neighbourhood noise issues. Breach of the notice would be a criminal offence punishable by a fine of up to £2,500 or £20,000 for businesses. Where there was a requirement under the notice to ‘make good' but this was not done, councils could complete the works and charge the individual responsible. This is all seen as a positive from an ACPO perspective with the positive requirement to do or stop doing behaviour, and forfeiture of items seen as useful powers.
Community Protection Orders
20. Although there is a minor danger that the differing tiers within the Community Protection Order may prove confusing to practitioners and the public, these proposals have been well received. The proposals will be useful as they increase th e number of people who can action and deal with nuisance caused by ASB and includes consultation with amongst others, residents. The emphasis is taken away from the police to deal and thereby problem orientated p artnership approaches are supported in order to improve community safety .
Recovery of Possession of Dwelling Houses: Anti Social Behaviour Grounds.
21. We will work with housing agencies to support the use of powers of Recovery of Possession of Dwelling Houses and welcome an amendment to the Draft Bill which now makes it clear an offence committed against a landlord or their agent anywhere rather than solely in the locality of the premises will provide an absolute ground for repossession.
22. The use of restorative approaches and informal tools is welcomed by ACPO and can play a significant part when dealing with anti social behaviour , put ting the victim at the heart of any decisions that are made, thus helping to heal situations, some of which have been ongoing for some considerable time.
23. Concerns have been raised however, around operational practicalities surrounding this part of the bill and the bureaucracy it may introduce. The police service has gradually and carefully been reintroducing discretion for officers in order to allow them to deal with individual situations as required having consideration to the needs of the victim and situation. This has worked to good effect in relation to ASB and it is feared that by introducing a pre mandated ‘list’ or menu of sanctions that outlines how low level crime and ASB will be dealt with outside of court in a particular area, will stifle this discretion and force police officers and partners in to pre determined courses of actions that will not necessarily benefit either the victim or police.
24. It is accepted that this list contained in the community remedy document will be agreed by the Chief Constable and PCC for a particular area following consultation with the local community and that the victim will be able to choose from the list. ACPO believe that the menu should be kept as broad as possible, strengthening the caveats around an officer's freedom to use something more suitable even though it isn't on the menu (perhaps an Inspector could authorise that) might be good practical ways to make the idea work. A concern is how robust this process will be to ensure fair representation of the whole community when compiling the list and deciding a chosen sanction offered to an offender is proportionate to the offence . It seems that there will be significant added bureaucratic processes required to administer this remedy.
Responses to Complaints about Anti Social Behaviour
25. ACPO supports any intervention which assists to identify and support any individual whose life is being affected as a result of anti social behaviour. We recognise, and support, measures that improve accountability and help to sustain public confidence. ASB is however often a complicated matter, with complexities that the public do not always understand, have an appreciation of what agencies are actually empowered to deliver for them, or the affordability of their proposals. The implementation of this process would need to take in to consideration that there may be difficulties ensuring that the harm and vulnerability element of ASB is not overlooked by the sheer quantity of incidents, malicious, vexatious or indeed prejudicial reporting or inappropriate intolerance or perceptions of people.
26. Whilst the bill proposes a threshold for the activation of the trigger of three complaints of ASB in a six-month period, there remains the flexibility for that threshold to be determined locally. Inherent in this is a risk of varying practices developing across areas and therefore very different interpretations and services..
27. Although not perfect the current tools and powers have enjoyed a sustained period of time to be tested and developed within court and subject to judicial reviews. A settled position has been reached in many aspects of tackling perpetrators and the implementation of new powers will need to consider how best to mitigate the potential for fresh legal challenge s .
28. Any new tools and powers will do little to deal with inadequacies in case management skills , application / enforcement processes , lack of i nformation sharing or failing to take a joined up approach. To make behaviour order s successful requires multi agency involvement support and buy in, engagement with families, victims and offenders, ownership and effective enforcement when necessary.
29. Anecdotal evidence suggests a dis-satisfaction from communities and practitioners that courts do not deal with anti social behaviour related breaches seriously enough , which has the potential to encourage a lack of confidence , although data on sentencing (in relation to breaches of ASBOs) suggests that this dissatisfaction is based more on perception than reality. Similarly consideration of appropriate steps to minimise adjournments or assessments, which can easily damage community confidence , should also be considered.
30. Providing effective responses to incidents of anti social behaviour and risk of harm is not simply a matter for the police alone and there is a clear need for a partnership approach. We build on excellent foundations where the police service and its partners have long recognised this fact and our staff are engaged in first class work, preventing and intervening in issues, and making a difference to people’s lives. The ability to enhance partnership working will be immeasurably helped by joint case management tools, procedures and protocols that would ensure ‘joined up’ thinking in improving community safety.
31. Equally harm in our neighbourhoods cannot be ‘solved’ by public services alone. Society requires confident and resilient communities, demonstrating a culture of mutual respect between people. We and our partners support communities to develop their own capacity and capabilities.
32. Interventions in the bill, with some considerations, are consistent with the police service’s ambition to allow people to live their lives without fear of intimidation and harassment and we look forward to working with both the Government and partners in making our communities even safer places to live, visit or work.