Legal Eye

Citation

(2012), "Legal Eye", Drugs and Alcohol Today, Vol. 12 No. 3. https://doi.org/10.1108/dat.2012.54412caa.003

Legal Eye

Article Type: Legal Eye From: Drugs and Alcohol Today, Volume 12, Issue 3

Niamh Eastwood Head of Legal Services, Release, UK.

This edition of Legal Eye is only going to address one issue, the coalitions new proposals regarding anti-social behaviour (ASB). There are other legal and policy matters that could be discussed including that woeful document “Putting full recovery first”, but this has already been well reported in The Guardian (O’Hara, 2012).

The Department of Work and Pensions has proposed that people on benefits who use drugs will have to go into treatment or risk losing their benefit. This is also of interest but at this stage it is just Ian Duncan Smith making a statement to AA representatives at Parliament (Watt, 2012) – once the regulations are published we will report on them.

However, the reason for this single issue edition is because the proposals contained in the White Paper “Putting victims first – more effective response to anti-social behaviour” will significantly damage certain parts of society. It is imperative to highlight what the Government intends to do in order to challenge what will essentially lead to higher levels of social exclusion.

“Putting victims first – more effective response to anti-social behaviour”

The Home Office launched its White Paper on tackling ASB in May 2012 (Home Office, 2012). The paper proposes the streamlining of the current system of ASB legislation and it is the Government’s intention to replace the current 19 ASB powers with six new powers (detailed below). In fact, the paper will result in ASB orders being more easily obtained, will allow the court to issue proactive orders aimed at tackling “the underlying cause” of the behaviour and will see tenants, of both social and private housing, being more easily evicted. As is usual in these types of Government documents a number of specific groups are targeted and demonised including troubled families; alcoholics and drug users. The term “yob” or “yobbish” is used on a number of occasions throughout the document. The new orders will, like the current orders, apply to children from the age of 10.

The current 19 ASB, which range from stand-alone ASB orders (“ASBOs”) (Crime and Disorder Act 1998, Part one), ASBO on conviction and closure of premises where there is Class A drug use (or as the paper repeatedly refers to them as “Crack House Closures” – a term that does not exist in law), will be replaced by:

• •

  Crime prevention injunction (CPI) – this order will replace a number of existing powers including the stand-alone ASBO, the most typical order applied for. The new CPI will be obtained on the grounds that the case has been proofed on the civil standard of proof, that is, “on the balance of probabilities” rather than a criminal standard, “beyond all reasonable doubt” which is the current requirement for an ASBO. Considering that a breach of a CPI could lead to a charge of “contempt of court” and ultimately imprisonment, the criminal standard should clearly be applied.

  Further to this, the White Paper states that it is necessary to introduce civil orders “to deal with anti-social individuals” as an alternative to criminal proceedings in cases where the police cannot prove the offence. Clearly, where criminal activity has taken place a criminal investigation and proceedings should be brought.

  A CPI will replace “Intervention Orders” which were introduced under the Drugs Act 2005 and which provide courts the power to subject someone to a drug testing and treatment for a maximum period of six months. These types of orders can only be applied to those aged 18 or over, the White Paper does not address age requirements in imposing drug treatment under a CPI.

  CPIs would have no minimum or maximum terms and could be applied indefinitely.

• •

  Criminal behaviour order (CBO) – this order replaces an anti-social order on conviction (criminal anti-social behaviour orders (CRASBO)) which can be issued by a court alongside a sentence for a criminal offence. Breach of a CBO will result in a maximum five years imprisonment, this is the same level of sentencing for a breach of a CRASBO. The White Paper is unclear as to how this will work procedurally but as the matter is being dealt with by a criminal court it is expected that the criminal standard of proof will apply.The White Paper states that courts will also be given the power to impose positive requirements to address “the underlying issues that may be driving” the behaviour.Breaches of both the prohibitive and the “positive” element of a CBO could lead to the imposition of a harsher sentence than would have been available for the original offence.Under a CBO courts could direct people to drug treatment. The proposals state that in the case of those aged 18 or over, the minimum period for CBO would be one year and, again, the maximum period would be indefinite. It would therefore be necessary for the court to determine the appropriate period for treatment. Clearly, all court orders should be subject to a maximum term and, particularly so, where an individual is being forced into an activity by the state.

• •

  Community protection notice – this order would be issued by the police to “deal with particular problems which negatively affect the community’s quality of life”. This type of notice would direct people or businesses to stop an activity-causing nuisance. It would replace littering and defacement orders but will not be limited to these types of ASB. Non-compliance with a community protection order (CPO) would be a criminal offence.

• •

  CPO (public space) – this order will again replace a number of powers that deal with specific activities including designated public place order (includes restriction on alcohol consumption) and dog control orders. Like the community protection notice this will apply to any behaviour but would allow the police to put restrictions or requirements in relation to a specific area.

• •

  Directions power – the Home Office proposes that current dispersals orders be replaced with a system whereby it would be easier to obtain such orders. Currently, dispersal orders have to be designated by a police officer who is at least the rank of Superintendent. The new system would remove this requirement and allow the police or Community Support Officer to require someone to leave and not return to a specific area for up to 48 h. The test that would be applied would be whether there “was reasonable suspicion for suspecting that the person’s behaviour is contributing to or is likely to contribute to ASB or crime or disorder in the area and the direction is necessary”. Breach of the requirement would be a criminal offence. Clearly, such a power without proper safeguards could be open to abuse.

• •

  Community protection order (closure) (CPO (closure)) – this order will replace all existing closure of property orders based on ASB, including the power under Part 1 of the Anti-social Behaviour Act 2003 which permits the closure of premises where there is “reasonable suspicion of Class A drug use” and nuisance behaviour. The Government refers to these orders as “crack house closures”. Clearly, a term used to whip up public support for a deeply flawed power which sees the displacement of vulnerable and marginalised people who use drugs.

  A CPO (closure) will operate in much the same way as a current closure order in that the occupants of the property will be notified of the intention to close the property. Once notified there will be a 48 h period where only the legal residents of the property can remain. Before the expiration of the 48 h, the matter will be brought before the court and an application for a three-month closure order will be made (this can be extended to six months). It appears that a local authority will also be able to make an application, currently under Part 1 of ASBA 2003 only the police can bring an application.

  A CPO (closure) will be granted where “there is a public nuisance or there is or is likely imminently to be disorder…and the order is necessary… [in] preventing the occurrence or reoccurrence of such disorder or behaviour”. Closure orders that relate to drug use will no longer require “reasonable suspicion of Class A drug use” but will be simply based on whether there is “public nuisance” or “disorder”.

As well as the six new powers outlined above, the Government also intends to make eviction proceedings easier for what they describe as “nightmare neighbours”. They propose to introduce a discretionary ground of possession proceedings (these precede the eviction order) allowing landlords (both social and private) to seek possession of a property where a member of the household has been involved in a riot. As a discretionary ground the tenant can defend the action brought against them and the judge can decide not to grant possession. However, the Government will also introduce mandatory grounds for possession proceedings, meaning that unless there are procedural problems, the order must be granted by a judge regardless of the defendant’s situation. The four cases where this will be introduced are:

1. 1.

   Where any occupant of a premises including a visitor has been convicted of an offence. The type of offences falling into this category include supplying drugs or production with intention to supply where the offence has been committed “in the locality” of the premises in the last 12 months.

2. 2.

   The breach of a CPI where it had originally been obtained by or in consultation with a landlord in the last 12 months. The breach can be committed by the tenant, member of their household or a visitor.

3. 3.

   The property has been subject to a CPO (closure) for more than 48 h.

4. 4.

   Breach of a noise abatement notice committed by an occupant of the property or a visitor.

These powers are disproportionate in that the person committing the offence or breach will have been dealt with through the courts for the primary issue already. It will impact on some of the most vulnerable people in society causing displacement and in many cases street homelessness. The proposal to evict people who have committed an offence smacks of the US system which disproportionately impacts on black people as they are over represented in the criminal justice system, especially for drug offences. The same problem exists in the UK with research from Professor Alex Stevens showing that a black person was 6.4 times more likely to be arrested for drugs offences, 9.2 times more likely to be stopped and searched and 11 times more likely to be imprisoned for drugs offences than their white counterparts (Stevens, 2011). This is despite the fact that drug use is higher amongst the white population.

People who grow cannabis for personal use could also fall foul of these proposals. Many grow cannabis for medical purposes or to avoid the black market but this would be irrelevant. Judges would not be able to use their discretion in such cases, as they can now, but rather they would be required to grant the possession order.

Finally, the White Paper helpfully suggests ways to tackle “underlying causes” of ASB. In relation to those who drink problematically, the Government proposes to “enable courts to require someone to stop drinking, as well as barring them from specific pubs”. With regards to drugs, in the detailed two and half paragraphs dedicated to the subject, they reiterate their plans to close “crack houses” (it is unclear as to how this tackles the underlying behaviour) and refer to the Drug Strategy 2010, the Positive Future Programmes from 10- to 19-year olds and the Drug Intervention Programme implying this has been successful in dealing with ASB.

This is another Government paper that demonises those who are most excluded from society. It attempts to draw a line between “victims” and perpetrators when those of us who work in the drugs field know it is much more about shades of grey. It is another example of Government abrogating their duty to deal with the structural problems in society such as inequality; inadequate housing and access to good quality education and jobs and blaming someone else for it.