ASB Bill 2013-14

Report
Anti-Social Behaviour, Crime and
Policing Bill 2013-14
Mary Martil
Batchelors Solicitors
(Why) Do We Need a New Law?
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Existing remedies – for social landlords ASBIs, possession, ASBOs and
demotion orders – for local authorities the same plus a range of
environmental and public spaces measures – for the police ASBOs,
CrASBOs, dispersal powers
Coalition commitment to “introduce effective new measures to tackle
ASB and low level crime”
Home Office consultation February 2011 – proposal to simplify powers
and radically streamline the ASB toolkit, sweeping away existing
remedies and replacing them with new ones, and introducing a
“community trigger” to give people affected a say in when powers should
be exercised
DCLG consultation August 2011 – a new mandatory power for antisocial behaviour
Riots August 2011 – new discretionary riot ground added
White Paper May 2012, Bill December 2012
4 Strands – My View
1) Simplification – ASB identified as a separate area of law; police local
authority and social landlord powers brought together; disparate pieces
of legislation discarded and replaced with one Act
2) Lowering of thresholds – remedies made more available by: broadening
the circumstances in which they apply; applying less stringent tests;
lowering the burden of proof; reducing the procedural steps; removing
judicial discretion
3) Knee jerk reaction – introducing a ground for possession specifically in
relation to the summer 2011 riots
4) Big society ideas – localism, community involvement, empowerment of
victims
6 Parts
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Part 1 – Injunction to Prevent of Nuisance and Annoyance
Part 2 – Criminal Behaviour Order
Part 3 – Dispersal Powers
Part 4 – Community Protection
– Chapter 1, Community Protection Notice
– Chapter 2, Public Spaces Protection Orders
– Chapter 3, Closure Orders
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Part 5 – Recovery of Possession: Anti-Social Behaviour Grounds
Part 6 – Local Involvement and Accountability
Part 1 – Injunction to Prevent Nuisance and Annoyance
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ASBIs version 1 – Housing Act 1996 – local authorities only – engaging
in conduct causing or likely to cause nuisance and annoyance, where
conduct included violence or threats of violence and there was a
significant risk of harm – there had to be a nexus between the victim and
the local authority via residential premises provided by the authority –
Manchester CC v Lewis Lee, 2003
ASBIs version 2 – Anti-Social Behaviour Act 2003 – social landlords
generally – engaging in conduct capable of causing nuisance and
annoyance – to a victim in one of the specified categories - where
affecting housing management functions – no need for
violence/threats/risk of harm but, where they exist, powers of arrest and
exclusion orders make ASBIs powerful tools
To be replaced by an injunction to prevent nuisance and annoyance, but
new features to be added in line with ASBOs, which are to be discarded
Part 1 – Injunction to Prevent Nuisance and Annoyance
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ASBOs – Crime and Disorder Act 1998 – may be made against any
person aged 10 or over found to have acted in an anti-social manner – a
manner that caused or was likely to cause harassment, alarm or distress
to one or more persons not of the same household as himself – where
such an order is necessary to protect relevant persons from further antisocial acts
Complaint can be laid in the Magistrates’ Court by police, local authority
or social landlord
Preceded by consultation process – Certificate of Consultation required
Prohibitions only, and for a minimum of 2 years, but can be indefinite i.e.
until further order
Breach is a criminal offence which only the police (or local authority) can
prosecute
Heavily criticised – discredited?
Part 1 – Injunction to Prevent Nuisance and Annoyance
The proposed new injunction apes the ASBI in many respects, but bolts on
features of the ASBO, such as:
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The police can apply as well as landlords and it is not confined to a
housing-related context
Orders can be made against children as young as 10 (cases against
minors will be dealt with in the Youth Courts and the youth offending
team will have to be consulted beforehand)
Current statutory provisions in relation to Criminal and rules of the
criminal courts will apply to make it easier for vulnerable or intimidated
witnesses to give evidence
Part 1 – Injunction to Prevent Nuisance and Annoyance
The conditions which must be met before a Court may grant the new
injunction are that:
• The Court is satisfied, on the balance of probabilities, that the
Respondent has engaged or threatens to engage in conduct capable of
causing nuisance or annoyance to any person, and that the Court
considers it just and convenient to grant the injunction for the purpose of
preventing the Respondent from engaging in anti-social behaviour
• Lowering of the bar – standard of proof (as compared to the ASBO
where the standard is equivalent to beyond a reasonable doubt)
• Lowering of the bar – circumstances in which an order will be made (as
compared to both the current ASBI (no wider than necessary and
proportionate as a means of avoiding any apprehended harm) and
ASBO (necessary to protect relevant persons from further anti-social
acts)) – Moat Housing Group (South) Ltd v (1) Harris & (2) Hartless
[2005] EWCA Civ 287; Crime and Disorder Act 1998, Section 1(b)
Part 1 – Injunction to Prevent Nuisance and Annoyance
Other features of the proposed new injunction are:
• Orders will be able to include both prohibitions and requirements (like
the current ASBIs, but unlike ASBOs)
• An order which includes a requirement will have to specify a person or
organisation responsible for supervising compliance with the
requirements (a new concept)
• Exclusion orders, including orders excluding Defendants from their
home, are to remain available – but only to local authorities and housing
providers who make an application in a housing-related context in the
same circumstances as currently
• Enforcement is by application, by the Claimant, back to the County
Court for committal to prison, other than to the extent that a power of
arrest is enforced by the police (as with ASBIs) and other than in the
cases of minors – Schedule 2 supervision orders
Part 2 – Criminal Behaviour Orders
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Will replace the anti-social behaviour order on conviction in criminal
proceedings, known as the CrASBO
Since Police Reform Act 2002, where someone convicted of an offence,
and that person has been known to have been involved in anti-social
behaviour, an Anti-Social Behaviour Order can be made to address that
behaviour
The CrASBO is made in addition to the sentence being imposed, or in
addition to a conditional discharge
The existing CrASBO principles will largely apply to the new criminal
behaviour order and the behaviour which the criminal behaviour order is
to address is the same as under the ASBO/CrASBO regime i.e. conduct
likely to cause harassment alarm or distress to someone not of the
same household
Similarly, breach of criminal behaviour order, without reasonable
excuse, criminal offence – up to 6 months/5 years imprisonment
Part 2 – Criminal Behaviour Orders
Some substantive changes:
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The criminal behaviour order can include prohibitions and requirements,
like the new injunction to prevent nuisance and annoyance
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As with the new injunctions, where requirements are included in the
order, it must identify a person or organisation who will be responsible
for supervising compliance
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Potential duration of the Order has been reduced in the case of young
offenders – rather than the 2 year minimum period and potentially
indefinite orders, which apply to adults, orders against under 18s are to
be for a fixed period of 1 to 3 years
Part 2 – Criminal Behaviour Orders
Lowering of the threshold?
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Once satisfied that the behaviour has taken place, the Court will be able
to (“may”) make the order where it “considers that making the order will
help in preventing the offender from engaging in such behaviour”
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In the case of a CrASBO, an order can only be made where the Court
“considers…that an order…is necessary to protect persons in any place
in England and Wales from further anti-social acts” by the offender
Part 3 – Dispersal Powers
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Current police powers to give directions to a group to disperse
Subject to bureaucratic procedure/checks and balances?
Authorisation by senior police officer – superintendent or above – where
has grounds for believing that members of public have been
intimidated/harassed/alarmed/distressed by groups of persons in a
given locality and that problem is significant and persistent
Consent of local authority needed
Authorisation notice must be publicised
Authorisation for a maximum 6 month period
Code of practice
Part 3 – Dispersal Powers
Lowering of the threshold:
• Any constable in uniform will be at liberty to exercise dispersal powers in
any locality at any time
• “Reasonable grounds for believing” presence/behaviour “has
resulted/likely to result” in intimidation/harassment etc.
“Reasonable grounds to suspect” that “has contributed/likely to
contribute”
• Groups of two or more persons
or an individual
• Maximum 24 hours
48 hours
• Exemptions for peaceful picketing and public processions
just the former
Only safeguard? Direction to be given in writing
Breach without reasonable excuse: summary offence – 3 months/£2,500
Part 4 – Community Protection
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Local authority and police powers to deal with environmental ASB
affecting communities
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Chapter 1 – Community Protection Notice
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Chapter 2 – Public Spaces Protection Orders
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Chapter 3 – Closure Orders
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Streamlining of existing provisions
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Potentially wider ambit
Community Protection Notice
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May be issued by local authority, or designated body, or police to an
individual or organisation – typically owner/manager/occupier of
premises
Where the conduct of individual or organisation, or conduct on or in
relation to the premises, is having a detrimental effect, of a continuing
nature, on the quality of life on those in the locality, and the conduct is
unreasonable
CPN can specify requirements – stop doing, do, take reasonable steps
to achieve
Warning in writing and time for compliance must be given first
Will replace litter clearing notices, street litter notices, defacement
removal notices – Environmental Protection Act 1990, as amended by
Clean Neighbourhoods and Environment Act 2005, Anti-Social
Behaviour Act 2003
Other potential uses? Now to be used for statutory nuisances
Community Protection Notice
Variety of enforcement avenues – new consistency:
• Local authority can take remedial action and recharge, with defaulter’s
consent
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Prosecution in Magistrates’ Court – fines of up to £2,500/£20,000 for an
organisation
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Court can make remedial order upon conviction
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Court can make a forfeiture order upon conviction
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Fixed Penalty Scheme could be introduced by local authority – police
and any designated organisation e.g. social landlord, could help enforce
– penalties of up to £100
Public Spaces Protection Orders
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New power for local authorities to restrict activities in a public space
Where such activities would have a detrimental effect on the quality of
life of people in the locality and would be of a persistent or continuing
nature
Will apply to a specified locality – the restricted area – all persons –
persons in specified categories – for up to 3 years – plus potential 3
year extension
Consultation with police – publication – Secretary of State to make
regulations
Banning consumption of alcohol, restricting rights of way, dogs to be
kept on a lead
Will replace Designated Public Place Orders, Gating Orders, Dog
Control Orders
May circumvent need for some byelaws
No reporting requirements re central government
Public Spaces Protection Orders
Breach:
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Offence not to comply without reasonable excuse
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Fine of up to £1,000 on summary conviction
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Fixed Penalty Schemes
Closure Orders
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Anti-Social Behaviour Act 2003
Crack house closures
Premises being used in connection with the unlawful use, supply or
production of a Class A controlled judge
Police superintendent with reason to believe can sign a Closure Notice
Notice is served closing premises to everyone but the occupiers – drugs
warrant usually executed at the same time – evidence collected
Case must be brought before Magistrates within 48 hours
Closure Order may be made if Magistrates find that premises have been
so used and use is associated with disorder or serious nuisance and
making of the order is necessary to prevent further such
disorder/serious nuisance
Up to 3 months – potential 3 month extension
Closed to occupiers and all comers
Closure Orders
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Criminal Justice and Immigration Act 2008
Created Part IA to the 2003 Act
Similar regime in relation to ASB closure orders
Order can be made where – a person has engaged in conduct on the
premises causing or likely to cause harassment, alarm or distress to one
or more persons outside of the household – use of the premises is
associated with significant and persistent serious nuisance to members
of the public – and the making of the order is necessary to prevent the
occurrence of such disorder or nuisance
Unlike with crack house closures, local authorities as well as police can
serve notices and apply
Closure Orders
The new closure orders will:
• Bring the two parallel sets of provisions together
• Be available to both police and local authorities
• Broaden the circumstances in which orders may be made – Magistrates’
Court will be able to make an order where satisfied that:
1. engaged/likely to in disorderly, offensive or criminal behaviour, OR
2. use has resulted/likely to in serious nuisance to public, OR
3. has been/likely to be disorder associated, AND that
4. necessary to prevent behaviour/nuisance/disorder recurring/occurring
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Lowering of the thresholds
Breach – summary offence – 3 months and/or up to £5,000
Closure Orders
Lowering of the thresholds?
• Unlawful use in connection with controlled Class A drugs
any
criminal behaviour
• Conduct causing or likely to cause harassment, alarm or distress
disorderly or offensive behaviour
• Has engaged in
or is likely to engage in if the order is not
made
• Necessary impact on members of the public – disorder or serious
nuisance (crack house) – significant and persistent serious nuisance
(ASB)
necessary to prevent the behaviour, nuisance or
disorder
Part 5 – Recovery of Possession on ASB Grounds
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Long-standing ASB grounds
Ground 2 Schedule 2 Housing Act 1985 – secure tenants
Ground 14 Schedule 2 Housing Act 1988 – assured tenants
Tenant or someone residing at or visiting the dwelling-house:
has been guilty of conduct causing or likely to cause nuisance and
annoyance to a person residing, visiting or otherwise engaging in lawful
activity in the locality, or
has been convicted of an indictable offence committed in, or in the
locality of, the dwelling-house
Discretionary grounds – Court may make a possession order if it
considers it reasonable to do so in all of the circumstances
Court has power to suspend or postpone the effect of the order
Absolute Ground
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New mandatory ground
Would apply where Defendant has already been found to be guilty of
ASB in another forum
E.g. convicted of a serious offence, found to have breached an
injunction for prevention of nuisance and annoyance or a criminal
behaviour order, a closure order has been made
ASB in question would have to be in/in the locality of the dwelling-house
or directed against someone who resides in the locality or against the
landlord/someone employed in connection with the landlord’s housing
management functions
Landlord could choose to use absolute ground – secure tenants would
have right to request a review of the decision
Special notice seeking possession required
Time limits for service of notice will apply
Human rights defences
Riot Ground
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New discretionary ground
To enable landlords in England to bring a claim for possession where
tenant, or someone residing in the dwelling-house, has been convicted
of an offence committed at the scene of a riot anywhere in the UK
No need for nexus – between offence and property – or between
offence and anyone connected with the property
Reasonableness
Knee-jerk reaction
How often is this ground likely to be used and, if used, what is the
likelihood of possession being granted?
Part 6 – Local Involvement and Accountability
2 strands:
Community remedies – community input into sanctions which police can
employ in dealing with perpetrators of low level ASB – Community Remedy
Document – listing actions perpetrators can be asked to undertake - in
consultation with community representatives and the public – subsequent
victims of ASB to be invited to express a view on the sanction to be applied
ASB Case Reviews – Community Triggers – subject to a threshold to be set
locally being met, a complainant will be able to trigger a case review
involving local authority, police, social landlords and health services
providers, to assess what action has been taken and make
recommendations – outcome to be reported to applicant
Points to Consider?
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Tipping of the balance – revised powers
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Lowering of thresholds
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Role of the Courts
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Case law
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Human rights
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Tipping of the balance - new duties
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Easier for practitioners?
Progress of the Bill
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Introduced - 9 May
Second reading - 10 June
Public Bill Committee, oral evidence including from CIH and SLCNG,
consideration and deliberations -18 June to 16 July
Report Stage and Third Reading in Commons - 14 October to 15
October
First and Second Reading in Lords - 16 & 29 October
Committee stage in Lords – began 12 November - CIH submissions 18
November
Royal Assent before Christmas?
Implementation 2014?
Anti-Social Behaviour, Crime and Policing
Bill 2013-14
Mary Martil
Batchelors Solicitors
Bromley Kent BR1 1RW
020 8768 7000
[email protected]
www.batchelors.co.uk

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