Re: More Effective Responses to Anti-Social Behaviour a Consultation Paper

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Dear Sir/Madam

Re: ‘More Effective Responses to Anti-Social Behaviour’ – a Consultation Paper

Response from the Social Housing Law Association (‘SHLA’)

I write further to the above and enclose SHLA’s response to the proposed reforms to the tools available to social landlords, the police and other partners to tackle anti-social behaviour (“ASB”).

The Social Housing Law Association is a membership based organisation of social housing professionals and its lawyers. Its members regularly deal with proceedings relating to anti-social behaviour, including possession claims, ASBIs, ASBOs, closure orders, demotion orders and other ASB related orders, as well as advising social housing landlords on options for dealing with ASB short of Court proceedings, including Acceptable Behaviour Contracts (ABCs) and mediation.

Although an organisation of social housing professionals and their lawyers, SHLA does not see itself as a partisan landlord’s organisation. SHLA believes that social landlords and tenants of social housing share similar objectives, however SHLA is concerned that in recent years there has been a tendency in proceedings involving ASB for courts to elevate the interests of a particular tenant defendant above the wider interests of all tenants and their landlords. We are therefore concerned as an organisation that any reforms to deal with ASB properly reflect the balance to be struck between the rights of the individual accused of ASB and the rights of the victims of ASB and those social landlords who have to deal with and resolve ASB problems.

We hope that our responses provide an insight into our members’ experience of dealing with ASB cases and highlight some of the issues our members foresee with the proposed reforms.

In particular, SHLA opposes the removal and replacement of Anti-SocialBehaviour Injunctions which generally have proved to be an effective tool for Registered Providers in dealing with ASB, particularly where it is connected withapplications for possession in the County Court.

If the Government is adamant that the ASBI should be replaced, then SHLA opposes the proposal that Crime Prevention Injunctions should be dealt with by the Magistrates Court rather than the County Court for the reasons set out in more detail in the attached responses.

SHLA also continues to be concerned at the lack of a single Departmental approach to ASB and our members are worried about the lack of attention given to ASB as it exists in the social housing context in the Consultation Document. The fact that this issue may be the remit of another Government Department (CLG) does not assist or give confidence to social landlordsgenerally that a properly focused approach to ASB is being developed by Government.

Should you have any queries regarding SHLAs’ responses please do not hesitate to contact me.

Yours faithfully

Nick Billingham

On behalf of the Social Housing Law Association

Direct Dial: 020 7880 4272

Direct Fax: 020 7880 4265

E-mail:

Encl

Social Housing Law Association

MORE EFFECTIVE RESPONSES TO ANTI-SOCIAL BEHAVIOUR

CONSULTATION QUESTION RESPONSES FROM SHLA

1) REFORMING THE TOOL KIT

1. What do you think of our proposals to reform? In particular, do you think merging existing powers into the new orders proposed is a good idea?

SHLA is generally in favour of the proposals for reform set out in the Consultation Paper (”the Paper”) and consider the merging of existing powers to be a positive step to making the ASB toolkit more streamlined and straightforward for landlords and practitioners alike. In particular, we welcome more effective inter-agency co-operation when it comes to tackling ASB so that it can be dealt with in a more efficient and less bureaucratic manner.

However, the Paper fails to recognise two things:

Firstly, that the Anti-Social Behaviour Injunction (ASBI) has (especially since 2003 when its ambit was clarified and enlarged) has proved to be an effective tool for Registered Providers dealing with ASB. In cases of sever ASB it has proved to be highly effective in providing an immediate remedy on without notice applications to the County Court, especially when combined with a power of arrest or exclusion order. Members of SHLA are concerned that the new Crime Prevention Injunction will restrict the ability of social landlords to combat ASB and protect victims in the same way.

Secondly, the current delays in the judicial system which often prevent ASB practitioners from obtaining speedy remedies. Our members know from direct experience that the County Courts and Magistrates Courts simply cannot cope with the number of cases they are being asked to deal with. This means that social landlords, local authorities and the police are often unable to obtain ASB orders (in whatever form) as quickly as they should be able to do so. The new proposed tools, if introduced, will be of little help unless more is done to improve resources to the Courts so that the tools can be effectively and quickly deployed.

Our members remain concerned however at the lack of detailed attention given in the Consultation Paper to the issue of ASB in the context of social housing which we believe stems from a continued, unnecessary and unhelpful, division of responsibility between Government Departments for dealing with ASB generally (the Home Office) and ASB in the social housing context specifically (CLG).

1. Are there other tools and powers for dealing with anti-social behaviour you think should be repealed? If so, why?

No

1. Do you think these proposals will reduce bureaucracy for frontline professionals? Will they have other benefits as well?

It is not clear at this stage whether the proposals would reduce bureaucracy. As we have said above, one of our members’ main concerns about enforcing ASB remedies isto do with the lack of capacity in the Courts to deal with cases quickly enough. This applies to the County Courts and to the Magistrates Courts.

In addition, it does not appear that any less evidence will need to be obtained to apply for a Crime Prevention Injunction, for example, than the current ASBI. However, we hope that the new proposals will make the process of obtaining evidence from the Police/Local Authority more straightforward.

1. Do you think there are risks related to the introduction of any of the new orders?

We believe that there are risks associated with the introduction of the new orders in particular: who will have the responsibility to take action against people causing ASB? How will this be decided? The cost implications and consequences if there are problems with this i.e the community trigger and precisely which agency will be responsible for taking steps? This is left open in the Paper (see para 2 of page 25).

In the context of the judicial system we would also highlight the need for effective, focussed training of the judiciary to ensure that before these tools come into force, Judges in the County Courts and Magistrates Courts are well versed in the nature, effect and intention of the Orders. In the past, our members have been concerned at the lack of judicial training before new forms of ASB remedy are introduced which has led to a reluctance on the part of Judges to make the orders (for example, it took some time before judges became familiar with and comfortable with granting ASBIs and demoted tenancy orders following the 2003 Act).

1. Do you think these proposals risk particular groups being disadvantaged in a disproportionate way? If so, how?

Other than streamlining the legal remedies available, the proposed order/injunction and powers do not appear to us to create any new remedies to tackle ASB to those already available. However, our members are concerned that victims of domestic violence may be disadvantaged by the requirement of the Crime Prevention Injunction that victims are “not of the same household”. ASBIs are currently used to good effect by local authorities and social landlords to combat DV and this exclusion risks removing that current avenue/remedy.

There is also scant recognition in the Paper of problems associated with ASB caused by individuals with mental health difficulties and the associated problems which social landlords and other agencies experience in obtaining remedies against those with mental health problems. Our members are concerned that this issue is not acknowledged and that such an important facet of ASB practice is not being addressed by Government by proposing reforms to Court procedures for dealing with perpetrators of ASB with mental health problems.

1. Because community safety is a non-devolved matter in Wales, are there any specific issues there that should be recognised?

None that we are aware of.

2) THE CRIMINAL BEHAVIOUR ORDER

1. What do you think of the proposal to create a Criminal Behaviour Order?

We do not oppose this proposal. The proposal states that the order will be available post-conviction only and applied for by the prosecutor alongside prosecution for an offence. In theory this appears to be a time-saving exercise which we support.

However, the Criminal Behaviour Order will need to be driven by the Police and we are concerned that use of this type of order will decline in use as the Police face front-line cuts which cause them to focus on criminal behaviour rather than ASB.

In addition, social landlords currently face difficulties in ensuring that CRASBOs are obtained by the Police/CPS when criminal action has been taken against social housing tenants who have committed ASB-related crimes. Often, social landlord will only discover that criminal proceedings have taken place against a tenant of theirs after the fact and without being able to lobby the prosecutor/Police for a CRASBO to be made.

Accordingly, we would wish to see some positive duty on the Police/CPS to liaise with the landlord of any Defendant prior to sentencing of that individual to obtain representations from the landlord about the appropriateness of a CBO.

1. Thinking of existing Civil Orders on conviction, are there ways that you think the application process for a Criminal Behaviour Order could be streamlined?

We do not apply for civil orders on conviction as this is a matter for the CPS so do not have any suggestions as to how this could be streamlined. However, as we have said above, our members remain concerned that as with the current CRASBO, CBO’s will rely on the initiative of the Police and the CPS with little opportunity for intervention or persuasion by other agencies with an interest, such as social landlords.

We would welcome some form of statutory obligation on the CPS and/or the police to consult with relevant agencies where a CBO application is possible so that the views of, inter alia, social landlords can be taken into account where, for example the perpetrator is causing ASB in or in the vicinity of social housing.

1. 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?

We are generally supportive of this proposal as the current law relating to ASB does not properly address ASB problems caused by underage perpetrators. Our members frequently deal with cases where people under 16 have been guilty of anti-social behaviour and that the behaviour stems from a turbulent, abusive or unsettled family environment.

We are in favour of a report setting out the family circumstances as this will allow the Court to make appropriate and constructive restrictions and positive requirements to guide the individual and give them the tools to improve their behaviour for the better. This will be a positive reform as the individual’s behaviour will be addressed rather than the individual simply facing punishment for the offence they have committed.

This will also mean that steps can be taken to address the family circumstances if it becomes apparent that parents are not taking responsibility for the actions of their children, such as the making of parenting orders.

1. Are there other Civil Orders currently available on conviction you think should be incorporated in the Criminal Behaviour Order? (for example the Drinking Banning Order)

No

1. Should there be minimum and maximum terms of 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?

We consider the minimum term for a Criminal Behaviour Order to be in force should be 12 months but do not think that there should be an upper limit. This should depend on the severity and duration of the conduct. Equally, there should be opportunity for orders to be extended so that if an individual is not responding, the order can remain in force.

We do not think that the rules should differ for under- and over- 18 year olds.

1. Should the legislation include examples of possible positive requirements, to guide applicant authorities and the courts?

Yes, this would be of assistance provided that it is not an exhaustive list and is clearly expressed to be by way of example only.

1. Are there examples of positive requirements (other than formal support provided by the Local Authority) which could be incorporated in the order?
2. Acceptable Behaviour Contracts/Agreements
3. Parenting Programmes/Classes
4. Youth Intervention Schemes
5. Involvement in Community Projects
6. Do you think the sanctions for breach of the prohibitive elements of the order should be different to those for breach of the positive elements?

We think that it is important that both the positive and prohibitive elements of an order should be of equal importance and, therefore, carry the same sanctions for breach. If a breach of the positive elements of an order does not carry the same sanction as the prohibitive elements, it is foreseeable that an individual may treat the positive elements as less significant and fail to comply when in reality the positive elements are likely to assist the individual in their rehabilitation.

1. In comparison to current orders on conviction, what impact do you think the addition of positive requirements to a Criminal Behaviour Order will have on the breach rate?

The breach rate may increase because an individual will have to do a positive act to comply rather than refrain from acting, such as staying out of a particular area. Our members do not see this as a disadvantage but are concerned about effective enforcement of any breach by the prosecuting authorities. If breaches are not properly and effectively enforced - as has been the experience of breaches of ASBOs – the effectiveness of the CBO could well be compromised.

1. In comparison to current orders on conviction, what do you think the impact would be of the Criminal Behaviour Order on i) costs and ii) offending outcomes?

Our members do not apply for civil orders on conviction as this is a matter for the CPS so we are unable to comment.

1. In comparison to current orders on conviction, how many hours, on average, of police and practitioner time do you think it would take to prepare and apply for a Criminal Behaviour Order?

Our members do not apply for civil orders on conviction as this is a matter for the CPS so we are unable to comment.

3) CRIME PREVENTION INJUNCTION

1. What do you think of our proposals to replace the ASBO on application and arrange other court orders for dealing with anti-social individuals with the Crime Prevention Injunction?

The current anti-social behaviour injunction (ASBI) is a successful tool to tackle ASB and is used on a regular basis by local authorities, social landlords and practitioners. Therefore, our members would prefer retention of the ASBI as it stands. If it is to be replaced, we would like reassurance that the Crime Prevention Injunction would be of equal effect and as straightforward to obtain.

As stated above, the Paper fails to acknowledge the significant impact of ASB in the social-housing related context and our members are concerned that the Home Secretary does not appreciate how widespread is the use of ASBIs by social landlords currently in combating ASB. Fro the majority of registered providers of social housing the ASBI is the favoured tool for dealing with tenants and members of their household behaving in an anti-social manner. Any proposal which might weaken the effectiveness of the ASBI would be strongly opposed by our members

Subject to those important caveats, we do not oppose the Crime Prevention Injunction in principle, and welcome the proposal that it could be obtained against minors.

We do however have concerns about the procedure for obtaining CPI’s against minors and query whether a litigation friend would need to be appointed to act on behalf of the minor in accordance with CPR rule 21. If so, this is likely to remain a hindrance to the obtaining of Orders against minors and delay the process of obtaining an effective remedy – as is the case currently.