- Victims failed by ineffective enforcement and a ‘post-code lottery’ from under-used Stalking Protection Orders.
- Vague laws, gaps in Guidance, and inadequate monitoring by central Government meaning that certain Orders risk being imposed inappropriately on racialised communities, as well as those experiencing homelessness and mental ill-health.
- Failure to address concerns raised by experts when creating new Orders, leading to concerns that children will be drawn further into the criminal justice system.
JUSTICE has published a robust report, ‘Lowering the Standard: A review of Behavioural Control Orders in England and Wales’, which describes how the use of Behavioural Control Orders should not be seen as “a magic bullet” in addressing matters of public safety and security.
Following the template of infamous Anti-Social Behaviour Orders (‘ASBOs’) introduced in 1998, these once “unique” and “novel” tools have quietly crept across our justice system. Today, there are now over 30 types of Order, seeking to tackle a range of issues such as anti-social behaviour, football violence, organised crime, trafficking, domestic abuse, stalking, sex-offending, and protest, amongst others.
Behavioural Control Orders are legal tools that impose conditions on a person with the aim of changing their behaviour. The report explores the rapid growth of Orders across the justice system and asks whether the current regime is achieving its aims to protect victims, prevent crime, and rehabilitate individuals. Controversial examples range from banning a pensioner from wearing a bikini in her garden to restricting a family with an autistic child from closing the door too loudly, under threat of a fine or prosecution.
Fiona Rutherford, Chief Executive of JUSTICE, says:
“Despite being introduced over two decades ago as a unique tool, the explosion in the use of Behavioural Control Orders has gone unchecked. Systemic issues, from ambiguous legislation to the lack of training, funding and monitoring, means that these orders are vulnerable to disproportionate and inconsistent application. We urge policy-makers to address these issues now, and ensure that orders are applied effectively – protecting those they are designed to protect, without generating further harm”
The report finds that successive Governments have failed to provide robust evidence proving that Orders are an effective way of dealing with these complex issues. Even where certain orders have the potential to serve the needs of victims, we have seen that the police and local councils neglect to use them to their full advantage.
Moreover, they do not account for the punitive nature of these Orders and whether they pose problems for legal clarity, the rule of law, and human rights in respect of individuals who are subject to them. As a result, the significant variation across the country in terms of the number of Orders imposed, the behaviours targeted and the conditions they include has created “personalised penal codes”.
The Working Party identified a number of overarching concerns.
- Systemic issues including ambiguities in legislation, lack of training, lack of funding for enforcement and a lack of sufficient monitoring have led to inconsistent and inappropriate enforcement practices across the country. For example:
- Several Orders designed to protect women and girls from domestic abuse and stalking continue to be under-used, relative to the extremely high prevalence of these crimes. Between 2020 and 2021, 436 interim and full Stalking Protection Orders were granted, relative to 33,206 instances of police report incidents of stalking. FOI data from 27 forces show that, between January 2021 and March 2023, 522 Stalking Protection Orders were applied for, relative to 98,696 police recorded incidents in 2021 and 117,973 in 2022.
- Orders are being inappropriately used in response to innocuous behaviour such as swearing, closing the door too loudly, or even advertising a charity bake sale amounting to criminalisation creep and distracting resource from tackling the real issues and actors causing harm to communities.
- Orders under the 2014 Anti-Social Behaviour Crime and Policing Act continue to disproportionately impact those experiencing homelessness, notwithstanding evidence showing that such persons are more likely to be victims of anti-social behaviour than perpetrators of it.
- Inadequate procedural safeguards in the investigation and enforcement of Orders, and the lack of a Liaison and Diversion Service within the civil justice system, gives rise to a significant risk that Orders are being imposed on those experiencing mental ill-health, learning disabilities, substance use disorders and other vulnerabilities affecting their ability to comply with Orders or understand the legal process.
- Despite the Government stressing that Orders are preventative and rehabilitative, their practical effect means that they are unduly punitive.
- Use of Orders against children as young as 10 risks drawing them further into the criminal justice system, as they are considerably more likely to breach conditions than adults. Data emerging from the Knife Crime Prevention Order Pilot shows that, out of 138 imposed, 52 were against under-18s, whilst 46 were applied to young adults between the ages of 18 and 21 as of February 2023. The youngest recipient was aged 13. The majority of these were imposed on young Black men and boys.
- A lack of funding for available services and programmes means that positive requirements, such as attending educational courses or health programmes, are rarely fulfilled. Even where positive requirements can be enforced, there are concerns about the quality of those programmes and the risk that some may make the problem worse.
- Certain Orders may impinge on someone’s ability to access treatment – one individual described how a Dispersal Order affected his ability to manage his addictions, as the centre where he collected his methadone was within the restricted area. In another case, the imposition of an Order triggered a bi-polar episode for the victim.
- Difficulties in assessing the effectiveness of Orders and a lack of data and mechanisms for data sharing
- There are significant gaps and variations in data capture across enforcement bodies and in respect of different Orders. The Home Office does not publish data relating to Orders centrally, nor in an accessible format. Moreover, there is no clear mechanism for measuring the effectiveness of Order, nor any clear guidance on what criteria their effectiveness should be measured against. Once introduced into the law, there is a failure to monitor Orders to ensure that they are working in practice and/or not leading to adverse impacts.
- Orders can be performative rather than pragmatic
- The evidence upon which new Orders are created is unsatisfactory. Orders are rushed onto the statute books, without giving adequate consideration to concerns raised by relevant stakeholders and experts on all sides of the debate. This has resulted in the Government recycling old problems into new Orders by failing to address how Orders will work in practice.
- Orders can amount to a knee-jerk reaction to high-profile and complex issues, treating the symptom rather than the cause. An Order alone cannot have a significant impact on reducing harm and crime without the State taking responsibility for investing in tackling the social causes: inequality, poverty, inadequate housing, education and an under-resourced mental health service – all of which have been depleted due to years of public spending cuts.
Key recommendations in today’s report include:
- The Government must conduct an urgent review into the function, efficacy and impact of existing Behavioural Control Orders.
- The creation of new Orders must be based on a solid and transparent evidence base and be subject to pre-legislative and post-legislative scrutiny and be monitored on an ongoing basis.
- The Home Office must work with HM Courts and Tribunals Service, the Office of National Statistics and enforcement bodies to rapidly improve data capture.
- Gaps in existing statutory guidance must be immediately addressed in consultation with experts and procedural safeguards strengthened.
- Mechanisms should be put in place to embed multi-agency working and enforcement bodies should create specialised, accredited roles for single points of contacts or leads for types of Order.
- Legal Aid arrangements must be urgently reviewed to ensure that recipients of Behavioural Control Orders, as well as victims who bear the burden of applying for Behavioural Control Orders, have access to challenge the imposition of an Order, given that breach of an Order leads to a criminal offence.
Chair of the Working Party, George Lubega, said:
“The sheer scale of this report illustrates the size of this issue. Behavioural Control Orders impact diverse areas and affect individuals across the country, and it is clear that they often do not achieve their intended purposes. Our recommendations give a route map for a thorough assessment of the system, with evidence and data at the heart of future decision-making.”
The Working Party was chaired by George Lubega, and its members were: Caroline Addy (Doughty Street Chambers), Josie Appleton (Manifesto Club), Jodie Beck, Lara ten Caten (Liberty Human Rights), Andrew Goldsborough (Lincolnshire County Council), Janine Green (Anti Social Behaviour Consultant), Professor Jennifer Hendry (University of Leeds), Cheryl Higgins, Peter Hood (King & Spalding LLP), James Ketteringham (South Yorkshire Police), Caroline Liggins (Hodge Jones Allen), Moira MacFarlane (ACA Law), DS David Thomason (Cheshire Police), Greg Unwin, Barrister, (187 Chambers) and Andrea Fraser (JUSTICE).
JUSTICE is grateful to King and Spalding LLP, Shepherd and Wedderburn and Mischon de Reya for their pro bono research in support of the report.
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