Anti-social Behaviour, Crime and Policing Bill

The Anti-social Behaviour, Crime and Policing Bill will receive its second reading in House of Commons on 10 June 2013.

Parts 1-6 deal with anti-social behaviour (ASB). The Labour Government legislated for many specific tools to deal with aspects of ASB. The Bill would “streamline” this toolkit, by replacing nineteen of the powers with six new ones. However, in the process of merging various orders, it will introduce important changes to the rules. The Home Affairs Committee conducted pre-legislative scrutiny of a draft Anti-social Behaviour Bill, reporting in February 2013. Some important changes were made to the detail following this, but the main reforms in this Bill are the same.

Under Part 1, a new civil order, the Injunction to Prevent Nuisance and Disorder (IPNA) will replace the current “stand alone” Anti-social Behaviour Order (ASBO). This is the ASBO which does not require a criminal conviction. The IPNA will also replace other orders including the Anti social Behaviour Injunction (ASBI), which social housing providers can use currently. The IPNA will be very like the ASBI, including using its wide definition of ASB. This is conduct “capable of causing nuisance or annoyance to any person” rather than the definition used for ASBOs, which is conduct causing (or likely to cause) “harassment, alarm or distress”. Unlike ASBOs and ASBIs, IPNAs will be able to impose positive requirements as well as prohibitions. In contrast to ASBOs, breach will not be a criminal offence, but will be punished as contempt of court. Cases will be heard in the county court or High Court, whereas stand-alone ASBOs are heard in magistrates’ courts.

Some commentators, particularly practitioners, have welcomed the flexibility of the new IPNA, which they see as being potentially more effective than the ASBO. Other practitioners have criticised the changes. Some commentators have raised concerns about the broad definition of ASB, and the fact that it will have to be proved only to the civil standard, ie on the balance of probabilities. ASBOs require anti-social behaviour to be proved beyond reasonable doubt. Labour has criticised IPNAs as being weaker than the ASBOs because breach will no longer be a criminal offence.

A new Criminal Behaviour Order (under Part 2) will replace some orders which are currently available where a person is convicted of a criminal offence. These include the ASBO on conviction, or “CRASBO”. The new order is similar to the CRASBO; one difference is that, again, courts will be able to impose positive requirements. Two police dispersal powers are being merged into one in Part 3.

Part 4 of the Bill covers powers to deal with environmental anti-social behaviour. Chapter 1 would introduce “Community Protection Notices” to replace current notices requiring litter clearance or removal of graffiti or fly posting. The new notices would cover a wider range of behaviour and could be issued by more agencies. Chapter 2 would introduce “Public Spaces Protection Orders” to replace Designated Public Spaces Orders (which control public drinking), Dog Control Orders and Gating Orders. Again, they would be much broader powers, which could prohibit a much wider range of behaviour. There have been concerns about the breadth of this new power. Chapter 3 would merge four separate powers to close premises associated with anti-social behaviour into one power. Compared to the current general power to close premises associated with ASB, the threshold test will be lower.

Eviction is the ultimate sanction that landlords can employ against tenants who exhibit anti-social behaviour. As a general rule, and certainly in the case of social landlords, other interventions would usually be exhausted before resorting to a claim for possession. The key aim of Part 5 of the Bill is to expedite the eviction of landlords’ most anti-social tenants and to give landlords more flexibility to tackle tenants’ anti-social behaviour when it takes place away from the locality of the home.

Where a landlord (social or private) seeks to evict a tenant for anti-social behaviour, the court has discretion over whether to the grant the order and will consider whether it is reasonable to do so in the circumstances. Part 5 of the Bill will introduce a new “mandatory” ground for possession for use against landlords’ most anti-social tenants. Where a mandatory ground is used the court has no discretion to refuse the order as long as the notice requirements and other conditions are met.

The existing discretionary grounds of possession for anti-social behaviour in the 1985 and 1988 Housing Acts will be amended so that they can be used where anti-social behaviour occurs outside the locality of the perpetrator’s dwelling-house. A new discretionary ground for possession will enable landlords to seek possession of a secure or assured tenant’s property where the tenant or a person living with them has been convicted of an offence committed at the scene of a riot anywhere in the UK.

Part 6 of the Bill would introduce a new “Community Remedy” which uses a restorative justice approach to deal with low level crime and anti-social behaviour. Police and Crime Commissioners will consult the public about a range of possible sanctions. They would draw up a “community remedy document” containing a menu of these sanctions. Where an individual admits ASB or a criminal offence, a police officer or other authorised person would be able to use the sanctions if this is more appropriate than court proceedings or a fixed penalty notice. Part 6 would also introduce a new “Community Trigger” which would allow people to request a review where there had been a certain number of complaints about ASB. The threshold would be set locally, but could be no higher than three qualifying complaints. MPs, local councillors and others would be able to use the trigger on victims’ behalf.

Part 7 deals with dangerous dogs. The Government consulted on various issues relating to dog ownership in 2012. Tougher sentencing guidelines for existing legislation were also published at the time. Following consultation the Government’s announced its decision to introduce compulsory microchipping of all dogs from April 2016. It would also extend dangerous dogs legislation to private property and does this through clauses 98 and 99 of this Bill. Clause 98 would also address the issue of attacks on assistance dogs by other dogs, by amending the legislation to consider it an aggravated attack under Section 3 the Dangerous Dogs Act 1991.

Part 8 relates to firearms and would introduce a new offence of possessing prohibited firearms for sale or transfer with a maximum penalty of life imprisonment. The Bill would increase, to life imprisonment, the maximum penalty for the existing offences of manufacture, sale or transfer, or purchase or acquisition for sale or transfer of an unauthorised firearm. The maximum penalty for unlawful importation or exportation of firearms would also be increased to life imprisonment.

Part 9 of the Bill covers forced marriage. The Labour Government brought in civil Forced Marriage Protection Orders (FMPOs) from 2008. Breach of these is punished as contempt of court. The Prime Minister announced in October 2011 that the Government would criminalise the breach of these orders. The Government also consulted on criminalising breach of forced marriage itself. A majority of respondents were in favour, for example because they felt it would act as a deterrent and empower young people to challenge their families. However just over one third were opposed, fearing (for example) that it could deter victims from asking for help or result in parents taking their children abroad. The Bill makes both forced marriage and breach of an FMPO into criminal offences. Forced marriage will still be an offence if it takes place abroad.

Part 10 of the Bill deals with policing and related matters. Clauses 105-111 would give powers to the new College of Policing to make draft regulations and codes of practice.

Clauses 112-115 would abolish the Police Negotiating Board (PNB), the current negotiating forum for police pay, and replace it with a new Police Remuneration Review Body. The Secretary of State would be required to consider advice from the Review Body before making changes to pay and conditions for officers below the rank of chief superintendent; for officers above that rank the Secretary of State would be required to consider advice from the Senior Salaries Review Body.

Clauses 116-120 would give the Independent Police Complaints Commission additional powers. There has been controversy about the role of the IPCC, and particularly about its capacity to deal with police corruption. The IPCC has made the case for a number of new powers, and three of these would be introduced by the Bill. Currently the IPCC only has oversight of private contractors who are designated to carry out escort and detention functions. Clause 116 would allow regulations to extend this oversight to other contractors and their employees. Clauses 117 and 118 would increase the IPCCs investigation powers, and clause 120 would require forces to respond to certain IPCC recommendations.

Clause 125 would provide a statutory duty for HM Crown Prosecution Service Inspectorate to inspect the Serious Fraud Office.

Clause 124 and Schedule 6 amends Schedule 7 of the Terrorism Act 2000, which relates to port and border controls. The Bill provides for improved officer training, reductions in the maximum time allowed for examination and detention, reduced search powers, enhanced rights to a solicitor and internal review.

Part 11 of the Bill relates to extradition. The proposed amendments will make a number of changes to the Extradition Act 2003. The Government states that they will amend issues that were identified by the Sir Scott Baker’s Independent Review, and will rectify technical flaws which have come to light in the operation of the Act.

Part 12 of the Bill would, amongst other things, enable minor offences of shoplifting to be treated as summary only (i.e. dealt with in the magistrates’ court) for most purposes; make amendments to the operation of the Victim Surcharge; and, confer on the Lord Chancellor a power to make regulations in connection with court and tribunal fees.

Clause 132 is concerned with compensation for miscarriages of justice. It would provide a narrower, statutory definition of a miscarriage of justice, reversing the effect of recent judgments in which the courts have broadened the band of persons who qualify for compensation for miscarriages of justice beyond those who can show they are ‘demonstrably innocent’.

Clause 134 would enable a protection provider (usually the police) to make protection arrangements for anyone whose safety may be at risk by virtue of another person’s possible or actual criminal conduct.