The Home Office issued a consultation paper in February 2011, More Effective Responses to Anti-Social Behaviour, to which JUSTICE responded.
What changes is the government proposing?
The main measures proposed by the consultation paper are the Crime Prevention Injunction (CPI) and the Criminal Behaviour Order (CBO). The CPI would be available on the application of the police or local authority in the county court and the CBO would be available on application by the prosecution, or on the court’s own motion, in the criminal courts after conviction for any offence. Both would require it to be proved on the balance of probabilities that the defendant’s behaviour had caused, or was likely to cause, harassment, alarm or distress to one or more persons not of his household ((For CPIs, an alternative test is also considered by the paper – that the defendant’s behaviour had caused or was likely to cause ‘nuisance or annoyance’ to one or more persons not of his household.)) and that the order is necessary to prevent future such behaviour. The court could then include any prohibitions or positive requirements it considered necessary provided that a relevant authority was in a position to satisfy or discharge them. Breach of a CPI would not be a criminal offence but would be a contempt of court for which a person could be fined or imprisoned. Breach of a CBO would be a criminal offence.
Those orders sound like ASBOs. What is the difference?
The proposed orders are very similar to existing anti-social behaviour orders available under the Crime and Disorder Act 1998. There are four main differences: firstly, CPIs are intended to be made in the civil courts and not in magistrates’ courts; secondly, CPIs are injunctions and so breach would be a contempt rather than a crime; thirdly, both CBOs and CPIs would be available on the civil – rather than the criminal – standard of proof; and finally, both CBOs and CPIs could contain positive requirements as well as prohibitions. In this way they amalgamate ASBOs with other existing orders that can impose positive requirements, such as Individual Support Orders currently available for children under 18.
Will these changes make a difference in practice?
Transferring CPI applications into the civil court system will not, we believe, make a huge difference to the types of orders that are made. Civil courts currently hear allegations of anti-social behaviour in the context of anti-social behaviour injunctions (available under the Housing Act 1996) and are experienced in making orders restraining similar behaviour under the Protection from Harassment Act 1997 and the Family Law Act 1996 (non-molestation orders), etc. The civil courts in cases such as Novartis v SHAC ((  EWHC 2716 (QB).)) have shown themselves to be ready to make expansive orders highly restrictive of individual freedoms and therefore it is to be doubted if they will adopt a more restrained approach to CPIs than the magistrates’ courts’ current approach to ASBOs (the vast majority of which are granted in the form applied for by the police/local authority).
The addition of positive requirements may result in some defendants being ordered to attend programmes or treatment of the kind currently available under the community order and youth rehabilitation order in criminal proceedings. However, the numbers are likely to be very small, since in the context of current cuts to public spending agencies are unlikely to make programmes available where they are not required to do so by legislation. We therefore predict that most CBOs and CPIs will be made up of prohibitions and (in smaller numbers) those positive obligations that do not require action by a public authority.
The absence of a criminal conviction for breach of a CPI is a positive step as it avoids criminalising individuals for acts which in themselves would not be criminal (eg visiting a location in violation of an exclusion zone contained in an order; meeting with individuals with whom association is forbidden by the terms of the order). However, since fines and imprisonment (albeit for shorter periods than currently available for breach of an ASBO) will be available the sanctions are similar in form although less severe in extent. The sanctions for breach of a CBO will be the same as those for breach of an ASBO.
Finally, the change in the standard of proof required is likely to make CPIs and CBOs easier to obtain than ASBOs, although some would argue that the admission of hearsay evidence in ASBO applications has meant that they do not in reality apply the criminal standard of proof (beyond reasonable doubt).
Will the new orders be compliant with the European Convention on Human Rights?
Article 6 of the European Convention on Human Rights (ECHR), which guarantees fair trials in criminal matters and in disputes concerning civil rights and obligations, places additional obligations upon the state in criminal cases, detailed in Article 6(2) and (3). These include the presumption of innocence; affording the defendant adequate time and facilities to prepare his defence; legal aid for representation where the interests of justice require it; etc. Determining whether a matter is ‘criminal’ or ‘civil’ for the purposes of Article 6 does not merely depend upon the classification in domestic law but is carried out according to the criteria laid down by the Strasbourg court in Engel v Netherlands (No 1).(((1976) 1 EHRR 647, pp678-679. )) In addition to the domestic classification under Engel the court will examine the nature of the offence and the severity of the potential penalty. In Secretary of State for the Home Department v MB and AF (( UKHL 46. )) the House of Lords found non-derogating control order proceedings to be civil in character, inter alia, on the grounds that ‘no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligations imposed must be no more restrictive than are judged necessary to achieve the preventative object of the order’. ((Lord Bingham of Cornhill at para 24.)) However, Lord Bingham added that the civil limb of Article 6(1) ECHR entitled the defendant ‘to such measure of procedural protection as is commensurate with the gravity of the potential consequences’. It remains to be seen whether the courts would accept that the ordinary civil standard of proof offers sufficient protection to the defendant in CPI and CBO cases.
What changes does JUSTICE suggest?
We believe that there is a place for the use of injunctions by public authorities – in particular, local authorities – to restrain unlawful acts against the community and vulnerable members of the community. However, we believe that the standard of conduct required to obtain an ASBO, CBO or CPI is too low and that a specific pre-existing civil wrong such as nuisance or trespass should be proven; it should be necessary to make the injunction in order to prevent further such wrongs. The order should be made in terms that are proportionate and closely related to the specific wrongs proven; it should not form a personal code of conduct for an individual, with restrictions on association (except in appropriate cases – as with non-molestation orders – with victims) and large exclusion zones, nor should it be akin to a criminal sentence. The name of the order should not be stigmatising, as ASBOs, CBOs and CPIs are. The order should be strictly time limited – one to two years maximum – and regularly reviewable. Such orders should not be used against children under 18.