Response of the Independent Commission on Youth Crime and Antisocial Behaviour

Response of the Independent Commission on Youth Crime and Antisocial Behaviour

to the

Home Office Consultation Paper

More Effective Responses to Anti-Social Behaviour

May 2011

About the Commission

The Independent Commission on Youth Crime and Antisocial Behaviour is chaired by Anthony Salz, Executive Vice-Chairman of Rothschild. It is hosted by the Police Foundation with financial support from the Nuffield Foundation.

Its principal terms of reference have been to:

1) Identify a set of principles for:

• responding fairly, effectively and proportionately to antisocial behaviour and offending by children and young people;
• minimising the harm that the antisocial and criminal behaviour of young people causes to themselves and to society.

2) Assess the strengths and weaknesses of existing responses to youth crime and antisocial behaviour in England and Wales against these principles by:

• gathering evidence from research, statistics and other literature
• consulting with relevant organisations, individual experts and stakeholders, including young people themselves
• supplementing the evidence obtained with a series of visits to relevant locations in the United Kingdom.

3) Investigate and identify alternative approaches, drawing on promising practice in the United Kingdom and other countries.

4) Devise a blueprint for an effective, just, humane and coherent response to children and young people’s antisocial and criminal behaviour in England and Wales that reflects the fundamental principles that have been identified.

5) Produce proposals for the sustainable reform of relevant services for children and young people’s services, including youth justice procedures, that are based on sound evidence.

The Commission published its report Time for a fresh start / Amser am gychwyn newydd in the summer of 2010.

A book of supporting evidence A New Response to Youth Crime, edited by Prof David J. Smith and written by leading international experts, was published at the same time by Willan

Introduction

1. The Commission welcomes this opportunity to respond to the Home Office consultation paper on More Effective Responses to Anti-Social Behaviour.Consistent with the terms of reference of the Commission, we are responding to those proposals as they relate to children and young people.

1. We agree with the Home Secretary (Ministerial Foreword, pp. 1-2) that everyone has the right to feel safe in their home and neighbourhood and that antisocial behaviour is not a problem that the police should be expected to tackle alone. We also welcome her acknowledgement that the centre does not have all the answers and her commitment to listen to views from outside government.

1. As a contribution to the consultation, the Commission – in collaboration with the legal and human rights charity JUSTICE – convened an expert seminar in April 2011 to discuss the Government’s proposals. This brought together youth justice practitioners, police, magistrates, lawyers, academics and representatives from local government, children’s organisations and think-tanks as well as officials from the Home Office and the Youth Justice Unit at theMinistry of Justice. This response should be read in conjunction with the notes from the seminar, which are appended.

Overview

1. Although the Commission agrees there is a good case for reforming the various measures against antisocial behaviour that have been introduced since 1998, it is disappointed that the consultation paper does not pay more attention to the appropriate response when children and young people commit antisocial behaviour – and how their treatment should be distinguished and kept separate from that of adults.

1. We also regret that the opportunity has not been taken to propose reforms to aspects of the existing antisocial behaviour legislation that appear to place the United Kingdom in conflict with the United Nations Convention on the Rights of the Child (1989). These notably include the breach of children’s right to privacy in legal proceedings.

1. We are concerned that the Government – through the new Crime Prevention Injunction – is proposing a significant extension of the parallel use of civil court orders to tackle behaviour covering a range of criminal as well as non-criminal acts. This means that children and young people who breach an order or injunction could be placed in custodyfor breach without committing any criminal offence. In addition, breach of the proposed CPI would make it possible to sanction children and young people in ways that mirror the criminal Youth Rehabilitation Order, but on the basis of hearsay evidence and a lower standard of proof.

1. We strongly favour the use of restorative justice methods to resolve incidents involving antisocial behaviour at an early stage and prevent them from escalating. We support the Ministry of Justice proposals in its Green Paper on sentencing (2010) for extending the use of restorative justice in informal and formal out-of-court responses to offending by children and young people. These have the potential to provide an effective and evidence-based response to non-criminal nuisance behaviour by under-18s, as well as antisocial behaviour that breaks the criminal law. Used constructively, they could ensure that any resort to civil court orders was rare and exceptional.

The Commission’s position

1. In its report Time for a fresh start, the Commission[1] emphasised that despite political and media stereotyping, antisocial behaviour is not exclusively, or even mostly, caused by children and young people. It also acknowledged that genuine, serious problems have been created in some neighbourhoods as a result of intimidation, drunken behaviour, vandalism and harassment.

1. While agreeing with some objections to the use of Anti-social Behaviour Orders (ASBOs), not least the imposition of unrealistic prohibitions on children and young people that has led to orders being breached, the Commission thought it likely that ASBOs had played some part in alleviating antisocial behaviour and reassuring communities that firm action was possible. It also accepted that ‘hearsay’ evidence collected by local agencies from residents who are too scared to come forward should be admissible in exceptional cases.

1. The Commission, nevertheless, recommended that ASBOs should only be used against children and young people as a last resort, with a presumption that those of them who breached orders would not be sentenced to custody.

1. It further proposed that the presumption favouring publicity when ASBOs are imposed on children and young people should be overturned, as it appeared to run contrary to the basic principle set out in the United Nations Convention on Children’s Rights that children should have their privacy respected at all stages in criminal proceedings.

1. The Commission welcomed the ‘tiered approach’ increasingly adopted by English and Welsh local authorities where most action against antisocial behaviour was taken through warning letters and non-binding Antisocial Behaviour Contracts or Agreements (ABC / ABAs). In addition to offering a more cost-effective alternative to court proceedings with children and young people[2], the Commission noted that these informal procedures would lend themselves to the processes of mediation and reparation that characterise restorative justice. The Commission saw merit in making ABC / ABAs the outcome of a fully restorative procedure.

1. The Commission also argued that since much of the behaviour dealt with through the special procedures against antisocial behaviour included criminal offences, formal action should shift towards greater use of the criminal law wherever possible. Accompanied by implementation of the Commission’s other recommendations for reform of the youth justice system, this would enable the use of restorative approaches by police to settle cases outside court and – in more serious cases – for restorative youth conferencing procedures. In the words of Time for a fresh start:

“Restorative conferencing would provide a more demanding alternative to ASBO proceedings (seemingly treated as a ‘badge of honour’ by some young people) by obliging them to face up to the harm their behaviour has caused to victims, families and communities and take action to make good the damage.”

The consultation paper

1. Our response to the questions posed in the Home Office consultation paper is restricted to those that particularly relate to antisocial behaviour involving children and young people under-18 and the implications that they hold for them.

Reforming the toolkit

p14, Q1: What do you think of our proposals for reform? In particular, do you think merging existing powers into the new orders proposed is a good idea?

Q4: Do you think there are risks related to the introduction of any of the new orders?

Q5: Do you think these proposals risk particular groups being disadvantaged in a disproportionate way?

1. We find it difficult to see how the proposed orders will simplify the existing system and consider that insufficient attention has been paid to their implications for children and young people. While accepting the use of civil court orders against antisocial behaviour as a last resort, the Commission recommended that their use be kept to a minimum, with greater emphasis placed on preventive and restorative solutions. We perceive a real risk that the Government’s proposals would expand, not diminish, the use of court orders. This would result in a growing number of children and young people facing interventions and sanctions through civil, rather than criminal law. Indeed, there is some potential for the Crime Prevention Injunction to become a preferred route to process young offenders, without resort to the Youth Court or its higher standard of proof (see seminar notes). Whether intended or not, we do not view this as a desirable consequence of the proposals.

Criminal Behaviour Order

pp.15 & 16, Q1: What do you think of the proposal to create a Criminal Behaviour Order?

Q3: What are your views on the proposal to include a report on the person’s family circumstances when applying for an order for someone under 16?

Q 5: Should there be minimum and maximum terms for Criminal Behaviour Orders, either for under 18s or for over 18s? If so what should they be, and should they be different for over or under 18s?

1. We recognise that the proposals for a Criminal Behaviour Order (CBO) are, in some respects, an improvement on the existing Anti-Social Behaviour Order on conviction (CRASBO). It would only be available when the recipients had been convicted to the higher standard of proof in a criminal court and – unlike the CRASBO – it would include preventive requirements to promote positive, law-abiding behaviour. One attraction would be its ability to place a continuing prohibition on harassment and other antisocial behaviour after the recipient had completed whatever criminal sentence was imposed.

1. The Commission would, nevertheless, want to see especially careful safeguards apply when orders were sought against children and young people to prevent them creating a disproportionate additional sentence. They should be subject to a maximum time limit of no more than two years and subject to regular review, for example at six-monthly intervals.

1. The welfare needs and family circumstances of any child or young person brought before the courts should be properly assessed so that appropriate help and support can be made available. The Commission has recommended that children and young people facing prosecution should be allocated a lead professional (usually a member of the local YOT) to implement this and ensure constructive liaison between the relevant agencies.

1. We consider that the Commission’s proposals for the introduction of restorative youth conferencing in England and Wales – modelled on the system in Northern Ireland – would provide a more effective and evidence-based means of dealing with many cases where the proposed Anti-Social Behaviour Order might be sought. Youth conferencing takes place with the agreement of young offenders in Northern Ireland either as a diversionary process to avoid prosecution, or by order of the Youth Court when a young person has been convicted. By bringing together the young person, parents, police and – with their agreement – the victim or their representative, the facilitated conference requires offenders to face up to the consequences of their antisocial behaviour and agree with the other parties how best to make amends. With the victim present or represented (as happens in most cases in Northern Ireland) issues like preventing further harassment can be directly and successfully addressed. The agreed restorative plan must be ratified by the Youth Court (or prosecutor in the case of diversionary conferences). This provides a safeguard against the imposition of disproportionate requirements. As detailed in our report, the role of the professional facilitators and the training they receive appears crucial in achieving high levels of direct or indirect victim participation. These, in turn, are linked to good outcomes in terms of preventing further criminal and antisocial behaviour.

p.16 Q6: Should the legislation include examples of possible positive requirements, to guide applicant authorities and the courts?

Q7: Are there examples of positive requirements (other than formal support provided by the local authority) which could be incorporated in the order?

1. In the absence of any more widely available restorative justice system in England and Wales, we suggest that referral to a professionally facilitated youth conference should be explored as one of the options available to the court when making an Anti-Social Behaviour Order against a child or young person. Although the referral would require the young offender’s consent, we believe – on the evidence available – that it could lead to more effective and realistic requirements being imposed than a court hearing alone. This would reduce the likelihood of their being breached.

Crime Prevention Injunction

p19, Q1: What do you think of our proposals to replace the ASBO on application and a range of other court orders for dealing with anti-social individuals with the Crime Prevention Injunction?

Q2: Which test should the court apply when deciding whether to impose a Crime Prevention Injunction – that the individual’s behaviour caused ‘harassment, alarm or distress’ or the lower threshold of ‘nuisance or annoyance’?

Q8: What are your views on the proposed breach sanctions for over 18s and for under 18s for the Crime Prevention Injunction?

1. We are concerned that the proposed Crime Prevention Injunction (CPI) could lead to a significant extension of the parallel use of civil court orders to respond to a range of criminal and non-criminal acts. As discussed at our joint seminar with JUSTICE on April 19th, this could have disproportionate consequences for children and young people and erode safeguards that have traditionally protected them and limited their liabilities under civil law.

1. The Commission acknowledges that children and young people made subject to a CPI would not acquire a criminal record, even if they breached the injunction. We have also noted the Government’s proposal that breach of an injunction would need to be demonstrated to the criminal, rather than civil standard of proof. We are, nevertheless, disappointed that the CPI would maintain the current situation with ASBOs so that under-18s found to have breached their injunction could still be sent to custody. Contrary to our recommendations in Time for a fresh start (2010), it would be possible for children and young people to be imprisoned for persistent nuisance behaviour, without having committed any criminal offence. We not only consider this to be disproportionate, but also costly and ineffective since there is no evidence that it would properly address the underlying behaviour problems or their causes.

1. The danger of the CPI resulting in children and young people receiving disproportionate interventions and sanctions would increase if the test for granting an injunction were applied as causing ‘nuisance or annoyance’ rather than ‘harassment, alarm or distress’. If the proposed CPIs or any similar provision are implemented, the higher threshold should apply.

1. The consultation paper does not give many specific examples of the types of prohibition on future behaviour and positive requirements to address underlying problems that might be included in injunctions. However, it seems probable that they would mirror a number of requirements available for inclusion in the Youth Rehabilitation Order (YRO), which is used for criminal sentencing in the Youth Court. These include prohibited activities, exclusion from specified places, school attendance, drug and mental health treatment and participation in constructive activities. There are even greater similarities between the YRO and the proposals for dealing with children and young people who breach a CPI, who could be sanctioned using supervision, activity, curfew and detention (i.e. custody).

1. We are concerned that the CPI would make it possible to intervene with children and young people and to sanction them in similar ways to the criminal law, regardless of their behaviour being non-criminal – and on the basis of hearsay evidence and a lower standard of proof. We urge the Government to reconsider this proposal.

1. We also draw attention to the view expressed at the April 19th seminar that the CPI could be used as an alternative to criminal proceedings, or even become the preferred formal response to children and young people who commit antisocial or criminal acts. While children and young people who were subject to injunctions would avoid a criminal record, we do not think that either the wider interests of children and young people or of justice would be served if this happened.

1. We, again, draw attention to the Commission’s proposals for the extension of restorative justice in England and Wales which we think provide a more proportionate, just and effective response to antisocial behaviour and offending by children and young people – both formally through youth conferencing and through informal procedures (see below).

p.19 Q3: Do you think the Crime Prevention Injunction should be heard in the County Court or the Magistrates Court?

Q4: If you think that the injunction should be heard in the Magistrates’ Court, do you think the Crime Prevention Injunction for those under 18 should be heard in the Youth Court?