Citation
Eastwood, N. (2015), "The coalition’s overhaul of anti-social behaviour legislation comes into effect", Drugs and Alcohol Today, Vol. 15 No. 2. https://doi.org/10.1108/DAT-05-2015-0023
Publisher
:Emerald Group Publishing Limited
The coalition’s overhaul of anti-social behaviour legislation comes into effect
Article Type: Legal eye From: Drugs and Alcohol Today, Volume 15, Issue 2.
Anti-Social Behaviour legislation grew exponentially under the previous Labour Government, with the introduction of the first Orders under the Crime and Disorder Act 1998. These saw individuals subjected to conditions which, if breached, would be considered a criminal offence despite the fact that the original Order was a civil one (albeit a decision of the House of Lords[1] held that a criminal standard of proof had to be established in relation to whether anti-social behaviour had occurred). Breach could also lead to a custodial sentence.
In 2003 legislation was passed that targeted people who use drugs specifically, with the introduction of so called “crack house” closures; an unhelpful term in that the closure of a property was related to suspicion of any Class A drug use or supply, and where there was evidence of associated anti-social behaviour or public disorder. These Orders saw a system that stacked up against the defendant, with an individual being subject to a 48-hour Closure Notice during which time full proceedings before the magistrates were expected to take place. Guidance explicitly stated that adjournments should not be granted as a matter of routine, and it tended to be only those who were represented that could get even a short seven-day adjournment. This resulted in many vulnerable people losing their homes, most of who would not go to court because they did not have the resources or capacity to deal with the matter considering the very short lead in time. For those who did attend court, the majority were subject to a full Closure Order which would see their properties closed for between three and six months. This would result in immediate homelessness, and whilst some were housed by their local authority (with significant costs associated to the provision of emergency accommodation), many would also face possession proceedings where their landlords would use the Closure Order as a basis for eventual eviction.
By 2010 there were 19 types of Anti-Social Behaviour Orders (“ASBOs”) ranging from ASBOs on conviction, to Stand Alone ASBOs, to “Crack House” Closures, to Brothel Closures to Dog Control Orders. It has long been the view of the Legal Eye author that these Orders have been used to circumvent the criminal law, either by controlling behaviour that is sometimes criminal (and as such should be dealt with through the criminal law), or used to control those in society who have significant underlying issues (such as mental health problems or problematic drug use) and who should be supported through appropriate services, rather than being further marginalised or excluded. That is why Release was pleased to see that the Coalition Government proposed to address the unwieldy system of Anti-Social Behaviour legislation when it came to power in 2011.
However, what has been introduced is a system where, despite the number of Orders reducing from 19 to six, Orders are easier to obtain as some are purely Civil Orders with a breach treated as contempt of court, carrying up to two years in prison. Overall it would appear that these new powers further undermine the rights of individuals and enhance the State’s power against people, many of whom are vulnerable and marginalised. What follows is an outline of the new legislation.
The Anti-Social Behaviour Crime and Policing Act 2014 has introduced six new ASBOs to replace the previous 19 Orders that existed under various pieces of legislation. As with the previous law, an application for these Orders can be made by a range of bodies including the council, police and registered social housing providers. The six new powers are:
Criminal Behaviour Orders – this power replaces an ASBO on conviction and acts in a very similar way to its predecessor with one exception (this also applies to the Crime Prevention Order detailed below); that it can require a person to do something as well as restrict their activities or where they can go. A breach of this Order carries a maximum of five years imprisonment.
Crime Prevention Injunctions or Civil Injunctions – this power replaces five previous types of ASBOs including ASBOs on application and ASB injunctions. As with the Criminal Behaviour Order, a new aspect of this power is the ability of the court to direct the defendant to undertake explicit requirements, for example drug treatment. The most significant difference between the injunction and the previous ASBOs is that the burden of proof required is the civil standard rather than the criminal standard. This means it will be quicker and easier to obtain such an Order from the court. Breach of the Order will not be a criminal offence but would be punishable through civil contempt of court which carries a penalty of up to two years in prison and/or an unlimited fine.
Police “Directions” Powers – this will replace previous “dispersal powers” and allows a police officer, or in some cases a PCSO, to direct any individual “causing or likely to cause crime or disorder” to leave a particular place. Unlike the previous dispersal powers, there will be no need for a senior officer to authorise a designated zone as a “dispersal zone”. Breach of an Order is a criminal offence punishable by fine and/or up to three months imprisonment. The lack of safeguards around this new power could see individual officers abusing its use, especially in relation to certain groups including young people, people who use drugs and sex workers.
Community Protection Orders (of which there are three: Community Protection Notice; Community Protection Order (public spaces); Community Protection Order (closure)) – these Orders replace a number of powers and expand on the potential to control behaviour deemed “anti-social” that would not have come within the remit of the previous legislation:
A Community Protection Notice can be issued by police, council officers and social landlords (if designated by the Council) to anyone over 16 who is committing anti-social behaviour that “spoils the community’s quality of life”. Breach of this Order is a criminal offence which can be punishable by a Fixed Penalty Notice or a fine.
A Community Protection Order (public spaces) is issued in relation to a geographical area, rather than an individual, and can be authorised by the Council after consultation with the police. The identified area would be restricted in relation to its use in terms of certain behaviours, if it can be established that the behaviour has a “detrimental effect on the quality of life of those in the locality”, is “persistent or continuing in nature”, and is considered “unreasonable”. Breach is a criminal offence punishable by a Fixed Penalty Notice or a fine on prosecution.
A Community Protection Order (closure) – this power will replace the closure orders introduced in 2003, or so called “crack house closures”, which were extended to cover brothels under the Policing and Crime Act 2009. Like the preceding orders this power will give the occupant of any premises a 48-hour notice period during which time only residents of the property can gain access; it is a criminal offence for anyone who is not a resident to enter the property. Within the 48 hour period the matter must be brought before the magistrates court where the court will issue a Closure Order, closing the property for three to six months. Unlawful entry is a criminal offence, with breach of a Notice carrying a maximum of three months in prison and a breach of an Order a maximum of six months.
In addition to the above Orders a new “community trigger” has been introduced which will see police, councils, registered social landlords and clinical commissioning groups required to investigate alleged anti-social behaviour if they receive complaints from an individual or a number of people (minimum three complaints in six months). They will then be required to determine if the relevant threshold has been met and, if so, to take action which may include initiating one of the above powers.
All of the above powers are now in force. As we have seen previously, new legislation often leads to the relevant authorities engaging in the use of the powers more aggressively. It is also worth noting that the new Orders cover a much greater range of activities than previously. Additionally, many of these Orders are easier for the authorities to obtain requiring a lower burden of proof, and in some cases they can initiate the use of some of the powers without a court order; for example, the Community Protection Notice.
Finally, the legislation also brought in a new absolute ground for possession that will apply to all types of tenancies. Essentially, if the tenant, a member of their household, or a visitor commits: a “serious criminal offence” (this includes the offence of possession with intent to supply which could be established on the very low threshold of social supply); a breach of a civil injunction; a breach of a criminal behaviour order; or the property is closed due to a Community Protection Order (closure), they could face eviction proceedings and the landlord would not be required to demonstrate the application was reasonable, leaving the tenant with no defence and the court with no discretion. This power significantly increases the risk of homelessness for certain groups including sex workers who are at greater risk of being subject to the new ASB powers.
The main drive for reform of the old anti-social behaviour system was that it had become cumbersome and complicated. Whilst we now have a much simpler system, that simplicity has led to the new powers having greater reach than before. It has also resulted in the orders being easier to obtain, with a lower standard of proof, and in some cases, like the Community Protection Notice, no need for oversight. This leaves individuals less able to hold the State to account and at greater risk of interference for behaviour that could be dealt with in a more constructive and supportive manner. Ultimately, these powers, like their predecessors, lead to vulnerable, marginalised and excluded populations being subjected to unreasonable conditions that they cannot meet and which fail to tackle the root causes of problems: causes such as poverty, housing, mental health problems and problematic drug use.
Police watchdog calls for reform of strip search, traffic stops, but real reform of stop and search must look at drug laws
Her Majesty’s Inspectorate of Constabulary (HMIC), often referred to as the police watchdog (Travis, 2015), and published its 2015 review into the use of stop and search by police forces across England and Wales, with some welcome recommendations. The onus now lies on the Home Office to enact tangible and much needed change.
The aim of the report[2] was threefold: first, it sought to establish whether police forces had incorporated the recommendations set out in the HMIC’s report[3] of 2013 (this report found that 27 per cent of stop and searches “did not include sufficient grounds to justify the lawful use of the power”); second, the HMIC investigated the use of traffic stops under section 163 of the Road Traffic Act; and third, the use of strip search as part of stop search was considered.
The final two areas were investigated as a direct result of a request by the Home Secretary to the HMIC.
The report concluded that police forces “have made disappointingly slow progress in improving their use of stop and search powers since 2013” with only one of the ten recommendations – the use of technology to record stop and search encounters – considered as making “good progress”. This demonstrates that much more needs to be done by individual police forces to tackle the problems that exist in the use of stop and search, problems that, for some communities, create a lack of legitimacy and trust.
The critique of the use of traffic stops and strip searches raised many of the same issues in terms of lack of recording and an indication that both powers may be used disproportionately against those from black and ethnic minority groups.
The authors of the report identified that there was a lack of recording in relation to traffic stops stating that they “encountered severe difficulties in obtaining sufficient information from forces to assess how effectively and fairly officers use the Road Traffic Acts power to stop motor vehicles”. This is pretty shocking considering that 47 per cent of those who responded to the HMIC public survey (n: 10,094) reported that they had experienced a traffic stop.
StopWatch[4], a coalition of young people, academics and NGOs working on improving stop and search, estimates that there are in the region of 5.5 million traffic stops a year and that black people are disproportionately targeted. The racial disparity that exists in traffic stops was also a concern of the HMIC who reported that of those who responded to the survey the percentage of black people who reported being subject to a traffic stop in the last 12 months was almost twice that of white people (7-8 per cent of white people reported experiencing a traffic stop compared to 10-14 per cent of black people).
Release, along with our colleagues at StopWatch (Townsend, 2014), has long campaigned around the issue of strip search being used as part of a stop and search. I still find it shocking that in the UK the police have the power to strip and search anyone, even those under 18, as part of a stop search. The only legal test that has to be established is one of necessity, which sets a dangerously low threshold.
The HMIC highlighted their significant concerns about the use of the power reporting that only four forces out of 44 had a policy in place that dealt with the use of strip search as part of a stop search. The other 40 forces could get away with providing “no information about these highly intrusive searches”. As such, the HMIC was unable to report on the number of strip searches carried out by police forces in England and Wales and described levels of scrutiny and accountability to be “very weak”.
The recommendations of the HMIC in respect of this power, as with traffic stops, was increased transparency through data recording and a revision of Code A to provide greater clarity both in relation to grounds and procedure.
The report overall demonstrates that the HMIC is an organisation that wants to effect change within the rank and file of the force. It should be congratulated on this review as its language is tough in terms of being critical of those forces – which is the majority – failing to reform the use of stop and search.
There is a real commitment to reforming the use of traffic and strip searches, at least in securing greater transparency in the use of these powers. However, in relation to strip search more needs to be done, and it is our position that no one should be subject to such an intrusive and humiliating procedure unless a threshold of arrest has been met. That is why we would call on whoever is in the Home Office come May 2015 to address the use of strip search as part of stop and search as matter of urgency.
Glaringly, a major issue that was not mentioned at all in the report is that of drug searches, which are the major driver of stop and search, and the most likely grounds for strip searches. For there to be any meaningful reform of stop and search we have to tackle this issue. Nowhere is this point more evident than when looking at the stop and search figures for the Metropolitan Police Service (MPS).
It should be noted that the MPS has been successful at significantly reducing the numbers of street stop and searches from a high of half a million in 2010, of which 50 per cent were for drugs (278,762). The arrest rate for drugs searches that year was a shockingly low 6 per cent, as Release’s research (Eastwood et al., 2013, pp. 27-30) into racial disparity and drugs policing confirmed. Since 2010 the numbers have fallen to less than 200,000 people searched in London (Eastwood et al., 2013, pp. 18-26) in the last 12 months; however, the percentage of drug searches has risen from 50 to 60 per cent.
January 2015 figures show the percentage of drug searches carried out in that month formed 65.2 per cent of all searches, with the arrest rate still extremely low; just 11 per cent. It is worth noting that the HMIC report of 2013 identified that the “vast majority of searches for drugs were for low-level possession”.
Despite some patchy reform in the use of stop and search it is clear that low-level possession of drugs is still driving this type of policing. If we want real reform of stop and search we have to reform our drug laws. We need to stop using the criminal justice system to respond to the possession of drugs for personal use. If we did this it would end the unnecessary harassment of tens of thousands of people a year, and possibly lead to improved relationships between the police and communities.
Notes
1. In Clingham (formerly C (a minor)) vs Royal Borough of Kensington and Chelsea, R vs Manchester Crown court ex parte McCann (2002) UKHL 39; (2003) 1 AC 787 the House of Lords held that the standard of proof applicable to the determination of whether anti-social behaviour has occurred under section 1(1)(a) CDA 1998, is the equivalent of the criminal standard of beyond reasonable doubt.
2. www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/stop-and-search-powers-2.pdf
3. www.justiceinspectorates.gov.uk/hmic/media/stop-and-search-powers-20130709.pdf
Niamh Eastwood is the Head of Legal Services, at Release, London, UK.
References
Eastwood, N., Shiner, M. and Bear, D. (2013), The Numbers in Black and White: Ethnic Disparities in the Policing and Prosecution of Drug Offences in England and Wales, Release, London, pp. 27-30 , available at: www.release.org.uk/publications/numbers-black-and-white-ethnic-disparities-policing-and-prosecution-drug-offences
Townsend, M. (2014), “Black drivers are more likely to be stopped by police”, available at: www.theguardian.com/law/2014/feb/02/black-drivers-stopped-police (accessed 17 June 2015)
Travis, A. (2015), “Too little progress on stop and search, says police watchdog”, available at: www.theguardian.com/law/2015/mar/24/police-stop-and-search-little-progress-watchdog (accessed 17 June 2015)