In Summer 2022, JUSTICE announced its Working Party, which will examine the function and enforcement of ‘Behavioural Control Orders’ in the United Kingdom. These are orders obtained via a civil procedure, that seek to restrict a person’s behaviour for a preventative purpose and that have criminal consequences if breached.
Behavioural Control Orders are civil orders that impose conditions upon a person’s behaviour to prevent them from carrying out a form of unwanted conduct. Where the conditions are breached, the recipient of the order is guilty of a criminal offence.
Some orders are granted by the courts; others by local authorities without any judicial oversight. Some orders are applied for by the persons seeking protection from them, others by the police, local authorities or the National Crime Agency. They can impose restrictive conditions, including prohibiting a person’s ability to associate with other persons, be present in certain geographical areas, access technology, or control how they behave in their own home. Some orders can also impose positive requirements – making it mandatory for a recipient to attend certain behavioural or treatment programmes.
Initially viewed as a novel means to target football hooliganism in the 1980s and anti-social behaviour in the early 1990s, Behavioural Control Orders have become common across the justice system. The Anti-Social Behaviour Order (“ASBO”) created the template for many orders that have come since. There are now numerous Behaviour Control orders aimed at controlling ‘anti-social behaviour’ (Dispersal Orders, Public Space Protection Orders and Community Protection Notices) as well as those emerging in other areas, including in relation to:
– – Serious and violent offending (Knife Crime Prevention Orders, Serious Violence Reduction Orders)
– Sexual misconduct (Sexual Harm Prevention Orders, Sexual Risk Orders), amongst others.
– Gender-based violence (Female Genital Mutilation Protection Orders, Stalking Protection Orders, Forced Marriage Protection Orders, Domestic Abuse Protection Orders).
JUSTICE recognises that many Behaviour Control Orders have arisen as the result of legitimate policy aims. This is especially true of the orders that intend to protect specific victims from specific perpetrators. Therefore, it is important to note that the Working Party does not question the general policy approaches to tackling the harmful behaviours. To do so would be beyond the scope of this review. Instead, we are interested in the role that Behaviour Control Orders play within that approach.
However, despite the preponderance of these orders, few attempts have been made so far to explore the efficacy of this model, nor to understand the common problems (and solutions) across the framework.
To that end, the JUSTICE Working Party is concerned with understanding whether the Behavioural Control Orders regime “works” in the sense of being effective for victims, fair, accessible, proportionate and rights-compliant. We also wanted to better understand the problems, and the extent to which they apply across the regime. As part of our analysis, the Working Party will pay particular attention to:
a) The purpose of different Behavioural Control Orders, including their underlying policy aim, and whether the Behavioural Control Orders / standard conditions imposed by the order, are an effective and proportionate means of achieving the intended policy outcome. This includes the effectiveness of monitoring and data collection across different types of Behavioural Control Order.
b) The procedural stages involved in issuing and enforcing Behavioural Control Orders, including the relevant safeguards available at each stage. This included reviewing the approaches adopted by different issuing and enforcement agencies. It also meant looking at the different training afforded to different agencies to ensure that they are capable of applying for/imposing the orders. The Working Party was keen to understand how inconsistent practices could be rationalised.
c) The ability of individuals to understand the consequences of being issued with an order and the ease with which they can access advice and support. This includes the effect of Behavioural Control Orders on persons with protected characteristics.
d) The efficiency and effectiveness of the appeal system, including the ability of persons to participate in the process. From a victim’s perspective, we are also interested in understanding the extent to which the victim feel they have the power to request an enforcement body to issue an order, or have their concerns about the imposition of an order, taken seriously.
It is not the intention of the Working Party to substitute the opinion of subject-matter experts with that of its own, but rather to amplify the voices of those experts with respect to the issues they experience with the Behaviour Control Orders in their area.
The goal of the Working Party is to look at the way Behavioural Control Orders operate in practice. In particular, the Working Party will explore whether Behavioural Control Orders are issued and enforced in a fair and consistent manner that respects human rights and whether they are effective in achieving those legitimate purposes.
Members of the Working Party:
Chair: George Lubega, CMS
Caroline Addy, Barrister, Doughty Street Chambers
Josie Appleton, Manifesto Club
Jodie Beck, Liberty Human Rights
Andrew Goldsborough, Prosecution Lawyer, Lincolnshire County Council
Janine Green, Anti Social Behaviour Consultant
Dr Vicky Heap, Sheffield Hallam University
Professor Jennifer Hendry, Professor of Law & Social Justice, University of Leeds
Cheryl Higgins, Lay Justice member
Peter Hood, King & Spalding LLP
James Ketteringham, Solicitor, South Yorkshire Police
Caroline Liggins, Solicitor, Hodge Jones Allen
Moira MacFarlane, ACA Law, Advocate at Magistrates court
Lara ten Caten, Liberty Human Rights
DS David Thomason, Cheshire Police
Greg Unwin, Barrister, 187 Chambers
Andrea Fraser, JUSTICE (rapporteur)
We are grateful to King & Spalding LLP for supporting this Working Party.
The report was launched on 22 September 2023. 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, Local authorities and the police are not supported to use them appropriately, due to lack of training, inconsistent guidance and lack of investment.
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” for recipients and a “postcode lottery” for victims.
– 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.
– Despite the Government stressing that Orders are preventative and rehabilitative, their practical effect means that they can be unduly punitive.
– Orders can be performative rather than pragmatic
Key recommendations 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 publicly funded legal advice and representation is available for al hearings relating to applications for Behavioural Control Orders. Given the serious consequences, the level of legal aid must be such to make it easier and financially viable, for parties to provide legal advice and representation throughout.