The Scottish Government

« Previous | Contents | Next »

Listen

The Role Of Mediation In Tackling Neighbour Disputes And Anti-Social Behaviour

3. LEGAL MEASURES

Neighbour disputes and anti-social behaviour

3.1 'Neighbour dispute' is not a specific legal category, and can cover a wide variety of behaviour and situation (for example, it is not a category by which the Scottish Legal Aid Board can examine their records). There is a close relationship between measures aimed at neighbour disputes and at anti-social behaviour. As Bannister and Scott (2000) point out, however, the two are not synonymous: the anti-social behaviour 'spectrum' includes neighbour problems, neighbourhood problems and crime problems. As Mackay and Brown (1998) note, neighbour disputes do not necessarily involve anti-social behaviour: 'disputes in neighbourhoods may result from innocent clashes of interest'.

Principal legal measures

3.2 Since 1998, the legal framework within which local authorities tackle neighbour disputes involving anti-social behaviour has changed. Until the advent of ASBOs, the legal remedies available to social landlords were action for repossession and interdict. The Crime and Disorder Act 1998 altered the statutory grounds for possession to broaden the scope of behaviour covered, to include anti-social behaviour by visitors, and to facilitate the use of professional witnesses.

3.3 Furthermore, the Crime and Disorder Act introduced Anti-Social Behaviour Orders (ASBOs), with effect from April 1999. At the time of writing, ASBOs were available to local authorities only, although the Criminal Justice (Scotland) Bill extends them to other social landlords. Breach is a criminal offence. The advantage of ASBOs from the local authority's point of view is that they can be used against non-tenants; and where there is no breach of tenancy conditions; and they can be used as evidence in any subsequent eviction proceedings. They take longer to obtain, however, than interim interdicts - although the Criminal Justice (Scotland) Bill 2002 makes provision for interim ASBOs. In 2000-01, only 13 percent of ASBOs were granted in less than one month, and half took more than four months from the date of lodging the application in court (Fletcher 2002). With the introduction of anti-social behaviour orders (ASBOs), social landlords in Britain are increasingly relying on civil law powers to control behaviour due to difficulties with witnesses in criminal proceedings (Burney 2000). ASBOs are, however, not only used for neighbour disputes; they can also be used to anti-social behaviour related to drug dealing, for example.

3.4 An interim interdict can be granted very quickly without representation from the defender. It may be recalled later if the defender gives an undertaking as to future conduct. As for ASBO, breach is an offence. Unlike for ASBOs, there may be difficulty in establishing title and interest if council property or employees are not involved. Atkinson, Mullen and Scott (2000) found that the use of interdict for anti-social behaviour was less frequent than action for possession, and was rare outside local authorities (in 1996-97, 29 such interdicts were granted, 27 to local authorities).

Other legal measures

3.5 Two other forms of legal action to tackle neighbour disputes co-exist with ASBOs, interdicts and repossession proceedings. These are environmental legislation (for noise issues) and police action. Figure 1 shows a simplified model of the various ways neighbour disputes may be dealt with.

3.6 Noise is the main reason for environmental services' involvement in neighbour disputes. Under Part III of the Environmental Protection Act 1990, local authorities have a duty to investigate noise complaints, and in certain circumstances can issue abatement notices. The most recent published statistics on domestic noise complaints for Scotland, however, date from 1996-97. They show that of 3,243 complaints recorded by environmental health officers, in 419 cases the nuisance was confirmed; and only 24 abatement notices were served. It appears to be the case that some local authorities no longer regard domestic noise as an environmental health priority.

3.7 The police may be involved in neighbour disputes when called upon by one of the parties or another agency, or when there is a breach of an interdict or ASBO. They also have powers under the Civic Government (Scotland) Act to seize noise-making equipment where a nuisance is established. Procurators Fiscal may become involved in cases where an ASBO has been breached.

Figure 1: Intervention in neighbour disputes

Extent of ASBOs and repossession actions

3.8 In the period 1 December 2000 to 30 November 2001, around 100 ASBO applications were made by local authorities in Scotland, with a similar number of actions for eviction on anti-social grounds. Figures for actions by social landlords in Scotland are as shown in the table below. In many cases, the legal process was ongoing, therefore figures refer to decrees granted within the timeframe of the research. Where decrees did not lead to eviction, in most cases the tenant abandoned the property. In only two cases was an ASBO application rejected by the Court. According to the COSLA Audit (Janes forthcoming), that most landlords obtained decree 'seems to reflect that only very strong cases were presented' (a finding borne out in the present study).

3.9 Evictions for anti-social behaviour form a tiny proportion (less than half of one percent) of all eviction actions: 29,000 by local authorities in 2001-02. The number of evictions for anti-social behaviour has remained fairly constant since 1999. Although available for all tenures, ASBOs are still largely associated with council tenants. Owner occupation accounts for 63 percent of tenure, but very few ASBO actions; council tenure (24 percent of housing) accounts for four-fifths of ASBO actions.

Table 1: Actions against anti-social behaviour

Scotland 2000-01

Source: Adapted from Fletcher 2002.

Complexities of the legal process

3.10 During this study, the following information on the processes involved was gathered, in order to make sense of the data on costs and outcomes, and to demonstrate their complexity compared to mediation.

3.11 In terms of legal remedies, the process for dealing with neighbour disputes varies, depending on factors such as whether or not the local authority has a dedicated investigation team, on the tenure of the defendant, and the requirements of the local courts. Although the processes are similar for repossession or ASBO actions, there are many possible processes and stages that have implications for costs and outcomes. In repossession proceedings, written warnings and interviews will precede the first formal stage - service of a notice of proceedings for recovery of possession (NOPFROP). There may be a further period of monitoring the situation, until it becomes necessary to prepare a case. If the action reaches court, it may be defended. It may be sisted to allow a defence to be prepared, or for further monitoring of behaviour. It may then go to proof. If decree is granted, eviction may follow; but most tenants faced with an eviction will relinquish the property. In the case of an ASBO, if granted, it may be breached, and this may lead to prosecution.

3.12 There may be local variations in the availability of information. Not all police information systems will record every incident. Police forces' policies may differ in terms of what is regarded as a relevant report to pass on in relation to a particular anti-social behaviour situation (e.g. hoax 999 calls or calls to other addresses). Depending on local circumstances, there may be a need to prepare for a hearing on the evidence. Sheriffs' requirements differ between areas; for example, for repossession cases, hearings on evidence are required in one area studied. Solicitors may or may not feel it necessary to precognose witnesses, depending on their priorities. Different local arrangements exist for liaison; for example, one area studied has a standing multi-agency meeting on anti-social cases. Different local practices exist; for example, some councils find that joint meetings between the perpetrator, police and housing officers is often highly effective, in a way that a Notice of Proceedings would not be of itself. Others find that ASBO warning letters are often effective.

3.13 Where a specialist investigation team exists, it is likely to do the majority of evidence-gathering after the case is passed over by a local office, usually at Notice of Proceedings stage. They will then take over liaison with neighbours, receive diary records and interview neighbours, and respond to out of hours calls and undertake proactive monitoring to make their own observations. They will then pass records to legal staff, and later appear as witnesses if necessary. Depending on funding arrangements, specialist teams may deal only with cases involving council tenants. Aside from preparing writs and evidence, and appearing in Court, legal staff have administrative duties such as to notify calling dates to witnesses and to notify decree and service, or other outcome, to housing services, local police and police HQ. Figure 2 gives a simplified representation of the processes a legal action may go through and the different agencies involved.

Figure 2: Formal processing of anti-social behaviour cases

ASBOs, evictions and prosecutions

3.14 Action for repossession may run in parallel to an ASBO application, but often commences following breach of ASBO. In one specialist team studied, all evictions included in the research followed breach of an ASBO. While some local authorities have taken the ASBO route readily, others prefer not to make ASBO applications, unless the perpetrator is not a council tenant, and instead pursue housing management options such as transfers, with eviction as a last resort. In some areas, housing managers are increasingly asking for ASBOs, but legal services are more cautious: they find that ASBOs are not necessarily effective and are most likely to succeed where there is a criminal record and the perpetrator is not vulnerable. Thus, except where non-council tenants or owner occupiers are concerned, the use of ASBO or eviction is less a matter of seriousness than of policy choice and local circumstances.

3.15 Breach of ASBO is not necessarily followed by prosecution. In some cases where ASBOs are breached, neighbours and main complainers have moved away, leaving empty houses and little scope for gathering evidence for further proceedings. Some officers report difficulties or uncertainty in enforcement of ASBOs. The CIOH survey indicated that only half of breaches are prosecuted. In the present study, however, in one area each ASBO breach recorded led to prosecution, with penalties ranging from admonition, to probation, to six months' imprisonment. In the event that the ASBO is breached, the Council may proceed towards repossession; but face uncertainty as to whether a Sheriff will take into account breaches where there is no conviction. Furthermore, prosecutors may require police evidence of breach, even if housing officers are the main source of evidence.

3.16 Several process-related factors influence the outcomes of legal action. Even for specialist teams, the co-operation of neighbours is essential for evidence-gathering, and this is not guaranteed (for example, the complainers themselves may be engaging in anti-social behaviour); this may result in insufficient evidence for action. The local authority may have a legal duty or commitment under other policies to rehouse households with children or significant community care needs, therefore there is little point in pursuing an eviction. Alternatively, the authority may pursue an eviction on grounds of rent arrears or abandonment of tenancy in anti-social cases. Frequently, the anti-social behaviour exists alongside criminal activity and ceases when the perpetrator is taken into custody. Less serious cases may be solved by voluntary transfer or social work intervention.

Legal action in context

3.17 As demonstrated by the recent COSLA audit (Janes forthcoming), a range of measures are used to tackle anti-social behaviour aside from mediation and legal action, including information to residents, multi-agency working, use of allocations policy and tenancy agreements (such as local lettings plans, contracts, visits and support), services for young people and vulnerable people, environmental approaches (such as improved estate management and concierges), and support for complainants. These are variable across the country, however; for example, only a quarter of local authorities have well-developed intensive management and support for anti-social households (one of the areas in the present study had introduced support workers for perpetrators to reduce the need for legal action). The audit identifies several constraints to effectively tackling anti-social behaviour by means of legal proceedings. These include the following:

a. lack of joint working and information sharing between agencies (despite s.115 of the 1998 Act which is designed to facilitate information exchange)

b. reluctance on the part of the police to detain people for breach of an ASBO and of procurators fiscal to prosecute (in 2000-01, 30 ASBOs were breached, which was nearly half the number of ASBOs granted in the same period, but only 17 of the 30 breaches resulted in prosecution - Fletcher 2002).

c. delays and inconsistencies in the legal process: the cautious approach of legal staff in local authorities; court delays (sisting cases for legal aid or monitoring of behaviour); and inconsistency or leniency on the part of Sheriffs;

d. age limits: in Scotland (unlike in England), ASBOs cannot be granted against people under 16;

e. victim and witness support and protection, particularly in the context of delays in legal proceedings.

3.18 These points suggest that there is scope for greater use of alternatives to legal action, such as mediation.

Legal action and mediation

3.19 The relationship between mediation and legal proceedings must be seen in the light of the fact that many (possibly the majority) of neighbour disputes see neither form of intervention. Even if a dispute does come to the attention of any relevant agency, it may be that the dispute is insufficiently serious to warrant legal action but mediation is not available (or refused or inappropriate). An important point to note is that all local authorities involved in the study would refer to mediation, if possible, all but the most serious cases, such as those that involved violence and racial abuse.

3.20 Comparing mediation with other interventions presents particular challenges. Mediation increasingly forms one part of a process of intervention by, say, a housing department. Courts increasingly wish to see before them only those cases which, where appropriate, have been to mediation. Disputes are therefore not necessarily dealt with either by mediation or by other methods - a range of interventions, including mediation, are often employed in one case. Informal negotiations may precede mediation, and formal intervention may succeed it if mediation does not bring resolution. Informal intervention may or may not increase the chances of successful mediation. Informal intervention is likely to sift out cases unsuitable for mediation. Criminal or other civil legal proceedings may (but not necessarily) prevent a dispute from going to mediation.

3.21 It is clear, then, that when one compares mediation with other interventions, one is not necessarily comparing similar types of case. Moreover, the use of a mixture of interventions, including mediation, in one case poses a challenge for comparison of cases.

« Previous | Contents | Next »