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A Report on the Consultation Responses to Putting Our Communities First: A Strategy for tackling Anti- Social Behaviour
Chapter Ten Theme Four: Effective Enforcement
This chapter provides findings on the consultation responses to proposals relating to:
- Fixed Penalty Notices for Anti-social Behaviour
- Dispersal of Groups
- Making Anti-Social Behaviour Orders Effective
- Licensed Premises - Police Powers
- Closure Notices
10.1 Fixed Penalty Notices for Anti-Social Behaviour
The consultation document argues that fixed penalty notices (FPNs) can be an effective means of enforcing a sanction quickly whilst reducing the number of court prosecutions. They offer a means of improving the efficiency of the criminal justice system. FPNs are already used in Scotland in relation to driving, litter and dog-fouling. The Scottish Executive proposes to bring forward legislation to extend the range of low level, anti-social and nuisance offences for which the police can issue FPNs. The document also raises the possibility of FPNs being imposed on under-16s, with due consideration given to how this would be enforced and the role of parents or guardians. The document sought views on the following questions:
46. Do you support extending the use of Fixed Penalty Notices levied by the police to a range of low-level, anti-social and nuisance offending?
47. Should such penalties be imposed on under-16s?
10.1.1 Extending the Use of Fixed Penalties
10.1.1.1 Over 80 percent of responses to this question supported the introduction of powers for police to issue Fixed Penalty Notices (FPNs) for a range of low-level anti-social behaviour offences. Those supporting their introduction included most local authorities, the Association of Chief Police Officers in Scotland, the Association of Scottish Police Superintendents, Strathclyde and Lothian and Borders Police Boards, the Chartered Institute of Housing in Scotland and the Scottish Federation of Housing Associations. However, even responses supporting the proposal raised concerns about two issues relating to the likely effectiveness of the proposals and the consequences of non-payment of the fines. There were also felt to be considerable resource implications for the police service in enforcing and administrating FPNs.
10.1.1.2 Those responses supporting the measure believed that FPNs worked well for other offences, including traffic infringements. FPNs would be beneficial in reducing bureaucracy and increasing the speed and effectiveness of enforcement procedures in relation to anti-social behaviour, particularly in reducing the time of legal processes and lessening the pressure on the courts. The Scottish Police Federation was not certain that much police time would be saved through FPNs. The Federation sought clarification of any additional workload on the police. If there was no requirement on police officers to gather full statements from witnesses where this was not possible at the time of the offence, lodge productions and attend to other details required by the court then this would not result in additional police work. However, the Federation were concerned that, in the event of appeal or non-payment there could be considerable delay between the time of the offence and the requirement on police officers to gather necessary evidence and report the offence, which would not be efficient or desirable.
10.1.1.3 Strathclyde Joint Police Board and Renfrewshire Community Safety Partnership also pointed to the successful piloting of such measures in England and Wales. However, the Scottish Police Federation argued that the Scottish Executive should not rely on the findings from England and Wales, but that such schemes should be piloted and evaluated in Scotland prior to being introduced nationally. Perth and Kinross Safer City Centre Forum and Community Planning Partnerships also supported the idea of a pilot.
10.1.1.4 Those opposed to the introduction of FPNs raised four main objections. Firstly, they believed that FPNs were unlikely to be effective, and that a mixture of holistic proactive measures to address the causes of anti-social behaviour and the use of ABCs or reparation were more likely to reduce offending behaviour. These respondents included Highland and Shetland Islands Councils, Barnardos Scotland, Save the Children, Greater Easterhouse Social Inclusion Partnership, the Haldane Regeneration Group and Aberdeenshire Children's Panel. The Scottish Police Federation, whilst not explicitly opposing FPNs, argued that the best way to deal with disorder was to ensure that there were enough police officers on the streets in order to prevent disorder or to provide a deterrent through the realistic prospect of offenders being caught and punished. The Commission for Racial Equality in Scotland did not believe that FPNs would be effective in tackling racist anti-social behaviour. A further problem relating to effectiveness was individuals giving false identities.
10.1.1.5 Secondly concerns were raised that FPNs would be disproportionately targeted on groups with very low incomes, leading to increasing financial burdens which may exacerbate anti-social behaviour. There were also concerns that non-payment would lead to custodial sentences for what had originated as minor offences. Respondents voicing concerns on these issues included Falkirk, Stirling, Highland, Renfrewshire and South Ayrshire Councils. This view was shared by Dundee Anti-Poverty Forum, who pointed out that, conversely, financial sanctions were unlikely to be an adequate deterrent for those on higher incomes who were engaged in anti-social behaviour. It should be noted that several respondents supporting the measures also expressed concerns about the impact on low-income families. The Scottish Police Federation raised the possibility that FPNs would significantly increase the number of people drawn into the criminal justice system.
10.1.1.6 A third concern, raised by Stirling Council and two other responses, was that police issuing fines would damage their relationships with local communities, particularly with young people. Related to this, The Scottish Police Federation argued that there was an important question of perception related to the principle that the police should enforce the law and not dispense justice. FPN schemes would have to make it clear that it was the court that is applying the penalty. The Scottish Police Federation believed that even here there is likely to be a perception that it was the police who were fining people, and that this would not be helpful.
10.1.1.7 A fourth concern, raised by North Ayrshire Community Safety Partnership, was that FPNs would impact on police resources to the detriment of focusing on more serious crimes.
10.1.1.8 A number of respondents including Dundee City, Dumfries and Galloway and North Ayrshire Councils and Larkfield and Eildon Housing Associations stated that there was a need for a much clearer definition of the range of low-level and nuisance anti-social behaviour to which FPNs would be applied. Dumfries and Galloway Council believed that FPNs should be linked to local bye-laws (for example regarding drinking alcohol in public places).
10.1.1.9 Related to this point was the subjectivity of interpretation of when behaviour merited a FPN. The Scottish Police Federation pointed out that, unlike road traffic offences in which it is usually clear if an offence has been committed, FPNs in relation to anti-social behaviour and nuisance would be much more open to interpretation and discretion. Firm guidelines would therefore need to be used to increase consistency of application.
10.1.1.10 Falkirk Council, North Ayrshire Community Planning Partnership and Cardonald and District Seniors Forum argued that uniformity and consistency was essential. Strathclyde Joint Police Board argued that a gravity matrix of offences had to be developed. Perth and Kinross Tenants Federation, Fife Community Safety Partnership and Cunninghame Housing Association believed that adequate safeguards to address this issue would have to be built into any enforcement regime. The WS Society stated that the right to trial and the need for corroboration should apply in relation to FPNs. Fife Community Safety Partnership suggested that FPNs could be effective in public spaces, but that the issue of subjectivity would be much more of a problem in contentious domestic situations, particularly in relation to lifestyle or neighbour disputes. East Renfrewshire Council also pointed out that there would be difficulties in issuing FPNs in cases involving the use of drink and other drugs and that clear guidance should be produced about circumstances where issuing FPNs would not be appropriate.
10.1.1.11 North Lanarkshire and East Ayrshire Councils pointed out that FPNs would not be recorded as criminal convictions, and could not therefore be used as previous offences in relation to applications for ASBOs or eviction proceedings. On a related point the Scottish Police Federation sought clarification as to whether FPNs would be a conviction or would be quotable in future proceedings. The Federation also questioned how many FPNs could be issued to an individual for similar offences before this option was withdrawn.
Aberdeen City Council highlighted that the relationship between police issuing FPNs and the operational remit of local authority anti-social behaviour units would need to be clarified.
10.1.1.12 A small number of responses mentioned a role for community wardens in administering FPNs. Whilst there was some support for this, the majority of these responses were against extending the power to issue FPNs for low-level anti-social behaviour offences to community wardens.
10.1.2 Imposing Fixed Penalties on Under-16s
10.1.2.1 Over three-quarters of responses were opposed to imposing fixed penalties for low-level anti-social behaviour and nuisance offences on persons aged under-16. Those opposed to the measure included Children 1st, Save the Children, Barnardos Scotland, the Aberlour Trust, North Lanarkshire, Shetland Island and Aberdeenshire Councils, the Howard League for Penal Reform, the Scottish Federation of Housing Associations and the Scottish Council for the Single Homeless. Perth and Kinross Community Planning Partnership believed the proposals may be against the principles of the Children (Scotland) Act 1995. The Scottish Children's Reporters Administration questioned what evidence there was for the success of such schemes.
10.1.2.2 A large number of responses were opposed to the measure because children under-16 had no independent source of income, and that therefore the burden for payment would fall to a third party, namely parents. These included Dundee Youth Justice Group, the Chartered Institute of Housing in Scotland, Aberdeen City, Aberdeenshire and Renfrewshire Councils, Fife Community Safety Partnership, North Ayrshire Community Planning and Community Safety Partnerships, Save the Children, West Lothian Children's Panel Advisory Committee and Perth Safer City Centre Forum.
10.1.2.3 The Police Federation argued that it was essential that parents should be involved in addressing any anti-social behaviour perpetrated by their children. However, it was not certain under a FPN system whether parents would even become aware of the behaviour if the fines were paid promptly by the young person. Lothian and Borders Police Board, Larkfield Housing Association and the Scottish Youth Parliament made similar points and it was suggested that the concept of FPNs be extended to include non-financial penalties such as reparation to the community. The YMCA Scotland made the further point that such fines may increase the likelihood of young people acquiring the money to pay fines illegally if they did not wish their parents to become involved.
10.1.2.4 Related to these points was the concern that such measures would disproportionately disadvantage families on low incomes and lead to the unnecessary criminalisation, through non-payment, of young people for what originated as minor offences. Responses raising this concern included Youthlink Scotland, North Lanarkshire and Dumfries and Galloway Councils, the Prince's Trust, Children in Scotland, the Scottish Institute for Residential Care and South Ayrshire Conservative Group.
10.1.2.5 A large number of respondents felt that alternative strategies such as reparation of Parenting Orders would be more appropriate and effective in such circumstances. These included Lothian and Borders Police Board, Orkney Islands, East Renfrewshire and Dundee Councils, the Scottish Youth Parliament, South Ayrshire Conservative Group, Darnley Estate and Strathblane Community Councils and Irvine Housing Association and the Scottish Grocers Federation.
10.1.2.6 A number of responses including COSLA, the Children's Panel Training Unit, East Ayrshire and Angus Councils and YMCA Scotland argued that under-16s should be kept within the Children's Hearing System. Similarly Aberdeenshire Council believed that young people should kept out of the adult criminal justice system for as long as possible. The WS Society suggested that different tariffs should apply to under-16s.
10.1.2.7 Those broadly in favour of the proposals, including the Association of Chief Police Officers in Scotland, Aberdeenshire, Edinburgh City and South Lanarkshire Councils, Renfrewshire Community Safety Forum and Victim Support Fife also recognised the needs for appropriate safe guards, a point also made by West of Scotland Seniors Forum. There was some division amongst those supporting the proposals about whether the appropriate aim was to encourage parental responsibility or to ensure that the child involved was subject to sanctions. Victim Support Fife argued that the money from fines should be channelled into local communities through community safety partnerships.
10.1.2.8 The Association of Chief Police Officers in Scotland and Lothian and Borders Police Board suggested that the measures were a matter of law in terms of issue process of recovery in the event of non-payment. Clarification of the collection methods, and of sanctions in the event of non-payment, were sought by many respondents. Clarification was also sought regarding the position of young people over the age of 16 who remained in local authority care. The Association of Chief Police Officers in Scotland also recommended that effective warning and marketing of this measure should be undertaken if it was introduced.
10.1.2.9 Three responses made reference to the scheme undertaken in Angus, described earlier in this report, where the police and Environmental Health Officers had issued fixed penalty notices to under-16s for litter offences. This scheme was reported to have been successful. Similarly, Falkirk Council has written to parents as a final warning where under-16s have been involved in littering offences, and Falkirk Council suggested this approach would provide an alternative option. The Scottish Council for the Single Homeless also suggested that the provision of more litter bins, and regular emptying may be more effective than FPNs. Increasing the opportunities for the police to engage with young people was suggested as an important element in addressing anti-social behaviour by an individual respondent.
10.2 The Dispersal of Groups
The consultation document acknowledges significant concern in some communities about groups of young people 'hanging around'. It recognises the need to strike a balance between taking effective measures to address the problem of young people who intimidate, harass and alarm others, whilst at the same time avoiding criminalising or stigmatising young people for simply gathering together. The document also emphasises that other groupings, involving adults, can also be problematic. The document asks for views on whether, and how, police powers could be extended to move such groups on and prevent them congregating elsewhere. The document also highlights the importance of effective liaison between police officers and young people and the provision of 'youth shelters' for young people to gather in.
In particular the document asks whether a new power should be given to the police to disperse groups of young children and young people aged under-16 and remove them to their place of residence where an officer has reason to believe: (a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in their police area and (b) that anti-social behaviour is a significant and persistent problem in the relevant locality. The document stresses that police discretion must remain, and that a 'them and us' environment should not be created. It recognises that such a power would not be a panacea for problems, but may help address them in some circumstances. Views were sought on the following questions:
48. How can we strengthen the powers of the police to tackle disorderly behaviour amongst groups?
49. Do you agree that it would be useful to extend police powers in respect of groups of young people in the way proposed?
10.2.1 Strengthening Police Powers to Deal With Groups and Extending Powers to Disperse Young People
10.2.1.1 Over 80 percent of respondents to this question believed that the police already had sufficient powers to deal with anti-social behaviour amongst groups. Over two thirds of responses were also opposed to the extension of police powers in respect to groups of under-16s as proposed in the consultation document. The majority of respondents expressed the view that the police had sufficient powers already. The Association of Chief Police Officers in Scotland believed that the extension of police powers in relation to the dispersal of groups was unnecessary as sufficient powers already exist, both at common and in statue law to deal with disorderly groups. Anti-social behaviour in the Crime and Disorder 1998 Act is defined as 'acting in a manner likely to cause alarm and distress.' The Association argued that whilst teenagers loitering in shopping centres in the evening may indeed be considered anti-social, particularly by elderly or vulnerable persons, the Procurator Fiscal could find proving to a criminal standard that this in itself causes alarm and distress difficult. They reflected the views of many other respondents that there was a danger that all such gatherings of young people would become labelled as problematic. The Association pointed out that mob behaviour is a different matter, and that common law mobbing and rioting enabled police action to be taken before damage to property or injury to persons has been occasioned.
The Scottish Police Federation also believed that additional police powers to disperse groups were not required. The Federation argued that sufficient powers already existed in the Civic Government (Scotland) Act 1982 which contains a number of offences and powers for the police and, under common law, the offences of breach of the peace, disorderly conduct, conduct likely to provoke a breach of the peace and mobbing and rioting. The Federation feared that new powers would raise public expectations when the real issue was a lack of police resources.
10.2.1.2 A minority of responses were in favour of extending police powers. Edinburgh City Council and Victim Support Fife argued that these were not stand alone measures as they may just displace problems rather than resolving them. Edinburgh and Aberdeen City Councils also argued that there was a need to address the behaviour of individuals within groups, as well as focusing on the collective actions of the groups. East Ayrshire Council stressed that powers should be applied to over-16s too and that the issue of groups of mixed ages, including those over and under-16, which were common, would have to be addressed. Cunninghame Housing Association believed that CCTV had an important role in addressing anti-social behaviour by groups. Irvine Housing Association argued that the police should liase closely with social landlords in implementing any new powers.
10.2.1.3 Many responses supporting the extension of police powers felt that existing powers of dispersal were inadequate, but that this was in part a result of a lack of police resources or police enforcement rather than necessarily the limitation of present legislation. Both supporters and opponents of the extension of police powers argued that a greater police presence in local communities would be the most effective means of reducing anti-social behaviour in relation to groups of adults and young people. These included the Scottish Police Federation, Aberdeenshire Council, Cumbernauld Homeowners Association, Dumfries and Galloway Housing Partnership, and Dundee and Perth and Kinross Tenants Federations.
10.2.1.4 Concerns were raised by several responses about the discretion given to police officers exercising judgement. Save the Children and the Princes Trust were concerned that the right of free assembly was being removed on the basis of subjective judgement. It was further argued that any powers of dispersal in the circumstances outlined potentially involved breaches of existing human rights legislation. Responses raising this issue included YMCA Scotland, Children 1 st, the Princes Trust, Youthlink Scotland, Childline Scotland, Save the Children, the Chartered Institute of Housing in Scotland, Aberdeen Youth Justice Strategy Group, Stirling Council and the Scottish Liberal Democrats.
10.2.1.5 In relation to extending powers to deal with under-16s, three main objections were raised. Firstly, the majority of responses believed that existing powers were sufficient to address the issue and that where anti-social behaviour had actually occurred, the police were already able to take appropriate action.
10.2.1.6 Secondly many responses were strongly opposed to the proposals because they believed they would single out and target young people unfairly, and that extending police powers in the way proposed would result in the continuing stigmatisation and demonisation of young people. This, it was argued, was often based on intolerance, misunderstanding or fears about potential anti-social behaviour, rather than on actual acts of anti-social behaviour. Many responses argued that 'hanging about' had always been a part of youth culture, and that to seek to criminalise young people for what did not, in itself, constitute anti-social behaviour, would be an excessively punitive and discriminatory measure. It was reported by Youthlink Scotland and Children in Scotland that this was very much the view of the young people they had consulted about this proposal.
The Scottish Police Federation argued that the vast majority of young people were 'law abiding, socially responsible and a credit to themselves and their parents.' They stated that much anti-social behaviour was perpetrated by a small number of persistent offenders, who could make the lives of local communities a misery, but suggested that early intervention, enough secure accommodation places and rehabilitative schemes were required to address this issue. Further, the Federation stressed the importance of the police working with young people to build relationships and trust and to re-establish respect for authority, and that such initiatives should be adequately resourced.
10.2.1.7 Thirdly, there was considerable concern that, despite the awareness of the issue in the consultation document, any new powers would result in a deterioration of the already difficult relations between the police and young people in local communities. The concern about the increase of conflict between the police and young people was raised by 25 responding organisations including: the Association of Chief Police Officers in Scotland, The Scottish Police Federation, the Association of Scottish Police Superintendents, Strathclyde and Lothian and Borders Police Board, COSLA, several local authorities, the Scottish Liberal Democrats and children's charities.
10.2.1.8 Those responses favouring the proposal included six local authorities, three housing associations and an MSP. They argued that additional police powers would be useful, and that problems relating to gatherings of young people and actual anti-social behaviour arising from these gatherings, were major concerns in local communities and that in certain circumstances groups of young people should be dispersed from particular locations. However, these responses did not advocate these powers being used in a draconian manner and also supported a number of safeguards being met, including the adequate provision of alternative places to meet and sufficient leisure or recreation facilities being available. Renfrewshire Council made the further point that the safety of young people without stable or secure home environments needed to be addressed if new powers were introduced. It was argued that further police resources would be required if these powers were to be used effectively. Two responses from individuals suggested further use of 'curfews' along the lines of the Hamilton Child Safety Initiative. The Association of Chief Police Officers, whilst highlighting the concerns discussed above, felt there was merit in focusing on areas where young people persistently gathered and intimidated or harassed others, and that sensible use of the National Intelligence Model to identify such 'hot spots' such as these would give clear direction to police managers in addressing this issue. This would preclude the requirement for new statutory legislation.
10.2.1.9 The Scottish Police Federation believed that the proposal for a young person under-16 in an unruly group to be taken home would be a logistical impossibility in many cases and may bring the police into further greater conflict with parents and young people. They also queried what would happen in the event of parents not being home.
10.2.1.10 Concerns about the impact of the extension of police powers on minority groups were raised by LGBT Youth Scotland, Edinburgh Youth Social Inclusion Partnership, NCH Scotland and the Commission for Racial Equality in Scotland. They argued that young people likely to be targeted for their race, religion or sexual orientation often felt the need to associate in groups in public places. There were concerns that these young people would be disproportionately targeted by extending police interventions to disperse groups. The Commission for Racial Equality in Scotland argued that if these powers were introduced then it should be subject to regular ethnic monitoring. The point was also made by the Aberlour Trust that parents more widely preferred their children to be associate in groups when they were unsupervised, for their own safety. NCH Scotland, the Commission for Racial Equality in Scotland and NCH Scotland also believed that the application of extended powers through grounds (b) outlined above would be disproportionately targeted on young people from more deprived backgrounds and/ or living in more deprived areas. The WS Society stated that they believed grounds (b) were discriminatory and unenforceable.
10.2.1.11 Children in Scotland, NCH Scotland and Aberdeen City Council indicated that there was a need for more mediation services and responses from several religious groups also supported the need for greater avenues for dialogue and understanding between different sections of local communities.
10.2.1.12 A significant number of responses suggested that extending police powers did not address the real issues involving a lack of leisure facilities and diversionary activities for young people. These responses included the Church of Scotland, Children in Scotland, Children 1 st, Youthlink Scotland, the Aberlour Trust, YMCA Scotland, LGBT Youth Scotland, the West of Scotland Seniors Forum and North Ayrshire Community Planning Partnership.
Many responses argued that there was a need to increase the number of legitimate areas for young people to meet in local areas. Falkirk and East Ayrshire Council have established youth shelters which were judged to have been successful, and their increasing use was supported by the Scottish Youth Parliament.
Barnardos Scotland believed that not enough imagination and resources were dedicated to the design, construction and maintenance of high quality parks and playing fields, and that the Scottish Executive should give consideration to addressing the facilities provided in public places through community planning partnerships.
10.2.1.13 The National Youth Justice Co-ordinators Group suggested that what was required was not dispersing or criminalising groups of young people, but rather encouraging them to take ownership and a sense of responsibility for their local communities. The group, along with the Scottish Children's Reporters Administration, pointed out that in other European countries such as Denmark trained street workers, rather than police officers, were used for this purpose. There was support for the increasing funding of detached street workers and wider youth support services from a number of respondents including the Princes Trust, the Howard League for Penal Reform, the Scottish Council for the Single Homeless, the Church of Scotland and Perth Safer City Centre Forum. Barnardos Scotland felt that the proposals might undermine the work of juvenile liaison officers. Greater Easterhouse Social Inclusion Partnership suggested an important role for community wardens in building positive relationships between young people, agencies and other sections of local communities. One response also suggested that sending warning letters to parents might have some effect.
10.3 Making Anti-social Behaviour Orders More Effective
The consultation document reports that since Anti-social Behaviour Orders (ASBOs) were introduced in 1999 they have not been used consistently across Scotland. In order to address the issues of delays in obtaining ASBOs, the Scottish Executive introduced interim ASBOs in the Criminal Justice (Scotland) Act 2003. The Scottish Executive intends to introduce a number of legislative changes to make ASBOs more effective. These include: introducing a power for the court to grant ASBOs on conviction of an offence to prevent anti-social acts; introducing a statutory power of arrest for breach of an ASBO and; giving civil court the power to grant an ASBO without an application, for example in relation to eviction proceedings. ASBOs currently apply to a specified local authority area. The Scottish Executive is considering amending the Crime and Disorder Act 1998 to enable ASBOs to apply to wider geographical areas, and potentially the whole of Scotland. Local authorities and registered social landlords can apply for ASBOs. The Scottish Executive decided that the police should not be able to apply for ASBOs, but that there be a duty on local authorities to consult the police before making an application, thus maintaining the distinction between civil and criminal law. The consultation asked views on the following questions:
50. Do you agree that the power to apply for ASBOs should be limited to local authorities and registered social landlords (in consultation with the police)?
51. Do you agree that there should be a statutory power of arrest for breach of an ASBO?
52. Do you agree that the court should have the power to impose an ASBO on conviction for a criminal offence, where there is evidence of persistent anti-social behaviour?
53. Do you think the court should have the power to grant an ASBO in related civil proceedings, such as an eviction Hearing, where there is evidence of anti-social conduct?
54. Do you agree that the prohibitions in an ASBO should be able to extend beyond a local authority area, where there is necessary to protect persons from further anti-social acts by the individual concerned?
10.3.1 The Power to Apply for ASBOs
10.3.1.1 Almost all the responses agreed that the power to apply for ASBOs should be limited to local authorities and registered social landlords (RSLs). North Lanarkshire Council argued that strict control of the application procedure was essential, as long as those who needed to could understand the process. The Scottish Federation of Housing Associations and Aberdeen City Council argued that the power to apply for ASBOs should be limited to local authorities and RSLs because of the link between ASBOs, security of tenure and landlord duties in relation to homelessness legislation.
10.3.1.2 Six responses believed that the power to apply for ASBOs should also be given to the police, including Dundee Tenants Federation, The Scottish Grocers Federation, The Scottish Retail Consortium and Lothian and Borders Police Board, who argued this power should also be available to the police in exceptional circumstances. Additionally Glasgow Housing Association and Edinburgh City Council recommended that giving power to the police to apply for ASBOs be reconsidered, given that police requests for ASBOs were increasing and this had significant resource implications for local authorities and registered social landlords.
10.3.1.3 Falkirk Council felt there was merit in the power being extended to private landlords. The Scottish Borders Tenants Organisation supported this and felt it should additionally be extended to owner-occupiers. Falkirk and South Lanarkshire Councils, Cunninghame Housing Association and an individual respondent felt that there should be an option for individuals, communities or other agencies to instigate an application process in certain circumstances (in conjunction with the police or local authority). Aberdeenshire Council Estate Management Tenant Function Group argued that this option should be available to Children's Panels and Cardonald and District Seniors Forum felt this should be extended to the Reporter. Copperworks Housing Association felt that emergency and health services should be able to apply for ASBOs. Highland Council considered that ASBOs relating to behaviour in town centres may require an extension of powers to different organisations to apply. It was also felt by several of these responses that local communities should be more involved in ASBO applications and Perth and Kinross Tenants Federation requested that more information on ASBOs be provided to local residents.
10.3.1.4 The Scottish Liberal Democrats, Edinburgh City Council Liberal Democrat Group and RSLs in Easterhouse felt that more evidence about the workings and success of ASBOs was required before their applications were extended.
10.3.1.5 Edinburgh Tenants Federation stated that the power should only apply to local authorities. NCH Scotland argued that the power to apply for ASBOs should reside with only one agency, which should access all the necessary information about the full circumstances of individual cases. Children 1 st believed that ASBOs should only be used as a last resort after consultation with all relevant agencies, and that this requirement should apply equally to local authorities and RSLs. Penicuik and District Crime Prevention Panel recommended that RSLs should always consult with local authorities and the police.
10.3.1.6 The support for these powers from Renfrewshire and Aberdeenshire Councils, Aberdeenshire Children's Panel, the Scottish Children's Reporters Administration and the Children's Panel Training Units was conditional on the power being given to the Reporter for applying for ASBOs involving under-16s. Fife Community Safety Partnership raised the danger of double jeopardy if individuals subject to criminal justice procedures were also subject to ASBO conditions.
10.3.1.7 Glasgow Housing Association reported that information about cases taken up by the Procurator Fiscal and sentences passed for ASBO breaches were not automatically fed back to local authorities or RSLs, which made assessment of their success difficult. The GHA recommended that consideration be given to placing a statutory duty on Procurator Fiscal's offices to provide this information.
10.3.2 A Statutory Power of Arrest for Breach of an ASBO
10.3.2.1 Almost all of the responses to this supported a statutory power of arrest for breach of an ASBO, including all the police representative organisations. Lothian and Border and Strathclyde Police Boards believed that this power was required because ASBO breaches may not always involve other statutory offences, and the power of arrest would provide an immediate remedy to ASBO breaches. This view was shared by many other responses including Falkirk Council who noted that this power would underline the seriousness of breaching an ASBO.
10.3.2.2 Two responses were opposed to this power being introduced. NCH Scotland believed that it was necessary to secure a person's safety from violence or intimidation, interdicts or injunctions were the appropriate measure, and that they supported the power of arrest attached to these measures. One local authority was opposed to introducing a statutory power of arrest for breach of an ASBO, stating that if the breach was a criminal offence then the police already had sufficient powers to take action. Similarly, the Scottish Children's Reporters Administration, whilst not stating explicit opposition, also noted that, given that most anti-social behaviour constitutes an offence, they did not see the necessity of this new power.
10.3.3 Imposing an ASBO on Conviction
10.3.3.1 Almost all the responses received in relation to this issue, supported courts having the power to grant an ASBO on conviction of a criminal offence where there is evidence of persistent anti-social behaviour. Dumfries and Galloway Council believed that ASBOs could work alongside other sentencing options and Strathclyde Police Board also welcomed linking ASBOs to other offences. South Lanarkshire argued that such a measure would bring ASBOs into line with non-harassment orders. One local authority also felt that this measure would be particularly relevant in racial crimes. The national police representative organisations also supported this power. Other responses welcomed the measure as a means of speeding up the ASBO process, providing additional protection for communities subject to anti-social behaviour and avoiding victims or witnesses potentially having to go through a second court process. Glasgow Housing Association also supported this measure although they cautioned that the Procurator Fiscal would be required to assume a co-ordination role in order for the process to work effectively
10.3.3.2 Several responses emphasised that the Children's Hearing System should be fully involved in the case of ASBOs imposed on those under-16 or those aged over-16 under supervision.
10.3.3.3 NCH Scotland did not support ASBOs being used as replacements for proper sentencing and adequate resourcing of community reparation. One local authority felt that sufficient court disposals were available for criminal offences.
10.3.3.4 The Chartered Institute of Scotland stated that the same burden on proof should be required in these circumstances as would be required in direct applications for ASBOs. The Institute sought clarification as to who would draft ASBOs in these cases.
10.3.3.5 East Ayrshire Council recommended that consideration be given to district courts having the powers to impose ASBOs relating to anti-social behaviour as many of these offences would be heard in these courts and it would prevent overburdening courts and creating an inconsistent 'lottery' situation. Conversely, Stirling Council felt this was not appropriate as local authorities were responsible for the provision of advice to Justices.
10.3.3.6 Orkney Islands and Shetland Islands Councils were concerned about the difficulty of transparency. Orkney Islands believed that a blurring of distinctions between criminal and civil proceedings was problematic Shetland Islands believed that ASBOs should only be imposed where they had been sought because their was a need for the accused to hear the case being made for an ASBO. East Renfrewshire Council argued that ASBOs should only be imposed by courts where they were in possession of all the necessary information. Edinburgh Council recommended that sheriffs ask local authorities for a report on the anti-social behaviour involved while Glasgow Housing Association felt that the power for sheriffs to request this from the relevant landlords was essential.
10.3.4 Granting ASBOs in Related Civil Proceedings
10.3.4.1 A large majority of respondents supported this proposal. Glasgow Housing Association felt that granting ASBOs in related civil proceedings may address the problem of individuals evicted from an area moving within the immediate vicinity and continuing to engage in anti-social behaviour.
10.3.4.2 The Chartered Institute for Housing in Scotland and Eildon Housing Association stated that the same burden of proof must be required in such cases as is required in a direct application for an ASBO. To do otherwise, they argued, would discriminate against social housing tenants as they would be subject to different conditions from individuals in the private sector. Larkfield Housing Association also stated this should apply to all housing sectors. Several other local authorities and social landlords emphasised that appropriate and sufficient evidence of anti-social behaviour must always be required. Edinburgh City and Shetland Islands Councils believed that evidence of anti-social behaviour would need to be presented to the court to enable the defender to adequately prepare their defence.
10.3.4.3 The Scottish Federation of Housing Associations opposed this proposal as they argued that the power for civil courts to impose an ASBO without application could introduce an element of double jeopardy. Fife Community Safety Partnership raised similar concerns. Stirling Council was not convinced how effective the proposal would be.
10.3.4.4 Highland Council and Irvine Housing Association argued that if landlords were pursuing a decree for eviction then this was the legal action that the sheriff should take a decision on, and that ASBOs must not be used instead of eviction inappropriately. However, another local authority believed that guidelines should exist so that ASBOs could be used as an alternative to eviction in these cases.
10.3.4.5 Aberdeenshire and North Lanarkshire Councils reported that existing options enabled decisions to be taken on a civil standard of evidence in relation to anti-social behaviour and breaches of previous orders.
10.3.5 ASBOs Extending Beyond Local Authority Areas
10.3.5.1 Over ninety percent of responses which considered this question supported the extension of ASBOs to wider geographical areas if required. Strathclyde Joint Police Board argued that as anti-social behaviour crossed local authority boundaries, it was appropriate that sheriffs could extend ASBOs to address this. North Ayrshire Community Planing Partnership believed such a measure would reduce bureaucracy and that wider enforcement would reduce any problems related to different interpretations of conditions applying to ASBOs in different authorities. South Lanarkshire Tenants and Residents believed that such a measure would prevent individuals engaged in anti-social behaviour avoiding the conditions of an ASBO by travelling to other areas. They also believed it would protect individuals who had moved away to escape from incidents of anti-social behaviour. Orkney Islands Council believed it would be useful to consider ASBOs that had been applied in other areas to their own housing allocation processes.
10.3.5.2 Responses from the Association of Chief Police Officers in Scotland, Moray, West Lothian and Aberdeenshire Councils and Lothian and Borders Police Board suggested that Scotland-wide ASBOs would raise issues of proportionality in relation to the Human Rights Act. Another local authority also questioned the legality of this measure. The Association of Scottish Police Superintendents, whilst recognising the logic of the proposal, believed that due to boundary anomalies between agencies and authorities, Scotland-wide prohibitions may be seen as draconian and consequently open to challenge. One local authority felt that extending ASBOs to several neighbouring local authorities would be useful, for example where they shared boundaries with a single police force area, but that for wider geographical coverage, interdicts were the appropriate remedies rather than ASBOs. Glasgow Housing Agency and Edinburgh City Council noted that significant evidence would be required to apply such a 'broad brush' prohibition on an individual. The Scottish Children's Reporters Administration noted that supervision orders were valid throughout the UK and could be transferred between areas.
10.3.5.3 Aberdeenshire Council and Aberdeenshire Council Estate Management Tenant Group argued that, where relevant, the conditions of an ASBO should extend to England and Wales. One individual respondent wished to see ASBOs being applied nationally by default, and only applying locally in certain circumstances.
10.3.5.4 The Chartered Institute of Housing in Scotland, Perth Safer City Forum, Perth and Kinross Community Planning Partnership and Dumfries and Galloway Housing Partnership believed that the extension of ASBOs would necessitate some type of national ASBO database to allow organisations to know the terms and conditions applying to relevant ASBOs.
10.3.5.5 Aberdeenshire Children's Panel Advisory Committee argued that relevant support packages also needed to be transferable.
10.3.5.6 NCH Scotland and one local authority opposed extending the geographical scope of ASBOs. The local authority argued that prohibitions in ASBOs should continue to be specific to the presenting problem and area.
10.4 Licensed Premises - Police Powers
The consultation document states that the links between alcohol and anti-social behaviour are well established, and that licensing laws are an important issue linking alcohol misuse and anti-social behaviour. The Nicholson Committee has recently reviewed Scottish liquor licensing law, with particular regard to health and public order. The consultation documents refers to several inconsistencies in current licensing legislation in relation to different types of licensed premises and proposes to make amendments so that powers apply to all licensed premises. The document proposes clarifying police powers in relation to off-licences, under-age drinking and disorder. Views were sought on the following questions:
55. Do you agree that the police should have the same right of entry to off-licenses and registered clubs serving alcohol as they have to licensed premises?
56. Do you agree that there should continue to be no right to object for a license-holder against an order issued by the licensing board under Section 85 of the Licensing (Scotland) Act 1976?
57. Do you agree that the procedure for a closure under Section 85 should apply to all licensed premises and registered clubs?
58. Do you agree that we should clarify the powers of the police to close licensed premises where there is, or is likely to be, disorder in them or in their vicinity?
10.4.1 General Comments
10.4.1.1 From the approximately 60 responses to these questions, there was universal agreement with the proposals in questions 54,56 and 57, with a small number (5) of disagreeing responses to question 55. The measures were supported by all the national police representative organisations.
10.4.1.2 Nine respondents either reported that they would wait for the findings of the Nicholson Committee (a major review of licensing regulations in Scotland, which has completed its work during the course of this consultation period) before commenting, or that the issue should be addressed through licensing law consultation.
10.4.1.3 In relation to questions 56 and 57, several responses stated that these questions should refer to other sections of the 1976 Act, as Section 85 referred to the right of entry rather than of closure. Respondents reported that it was Section 32 of the 1976 Act that related to closure, which related to off-licenses but not registered clubs, and that a right of appeal existed. Other responses referred to Section 66 of the 1976 Act, which applied to all licensed premises and registered clubs.
10.4.1.4 The support for these measures reflected the desire for clarity in legislation and recognition amongst respondents about the links between off-licenses, under-age drinking and disorder. The proposals were supported alongside calls for further measures, including educating young people about the misuse of alcohol, dealing with unlicensed premises supplying alcohol, issuing stronger penalties for those supplying alcohol to under-18s and not siting off-licenses in residential areas. One housing association suggested that measures should be enforced in such a way as to avoid displacement of problems to adjacent areas.
10.4.2 The Same Right of Entry for Off-licenses, Registered Clubs and Licensed Premises
10.4.2.1 There was universal support for this proposal and no objections
10.4.3 The Continuation of No Right of Objection for a License-Holder Against a Closure Notice
10.4.3.1 Not withstanding the confusion about the question discussed above, a large majority of the responses agreed that there should continue to be no right for license-holders to object.
10.4.3.2 However, five responses believed that such a right to object should be established. Renfrewshire and Edinburgh City Councils believed that the current position was not compliant with European Human Rights legislation and Stirling Council and West of Scotland Seniors Forum also believed that there was a strong case, on grounds of fairness, for a right to appeal. Edinburgh City and South Lanarkshire Councils believed that there should be a right to object, but with an expedient process so that safety and disorder issues could still be tackled swiftly. Strathfillan Community Council also felt there should be a right to object, but that premises should be closed in the interim.
10.4.3.3 A number of responses including the Association of Chief Police Officers in Scotland, Lothian and Borders Police Board and Moray, Aberdeenshire and West Lothian Councils recognised that a balance needed to be struck between human rights legislation and the need to ensure public safety and order.
10.4.4 Closure Order Procedures Applying to All Licensed Premises and Registered Clubs
10.4.4.1 Not withstanding the confusion about the question discussed above, there was universal support for this proposal, with no responses disagreeing. Edinburgh City Council stated that any closures had substantial economic implications for license-holders, and that some redress should be available, either through appeal or alternatively introducing a right to damages if a closure order was implemented when it was unwarranted.
10.4.5 Clarification of Police Powers in Relation to Closing Licensed Premises
10.4.5.1 Again there was universal agreement that clarifying police powers in this regard would be useful. The Association of Chief Police Officers in Scotland, Lothian and Borders Police Board, the Society of Local Authority Chief Executives and several local authorities felt that it would be helpful for the Scottish Executive to clarify the powers of the police in both common and statutory law in relation to disorder in the vicinity of licensed premises. Shetland Islands and Orkney Islands believed there would be difficulties in linking disorder to specific licensed premises and East Ayrshire Council requested the Scottish Executive to provide a clear definition of 'vicinity.'
10.5 Closure Notices
The consultation document states that in some Scottish communities there are particular premises, including residential premises, which become a focus for disorder, nuisance and anti-social behaviour, often linked to drug and alcohol misuse and other illegal activities. It argues that such premises have a detrimental impact on the quality of lives of neighbours and the confidence of local communities. The Scottish Executive proposes giving additional powers to the police, through the courts, to close down such premises for a set period of time, taking into account wider circumstances including the presence of children in residential premises and issues relating to the responsibility of third parties. The document sought views on the following questions:
59. Do you agree that there should be a new power for the police, under the direction of the court and following consultation with the local authority, to close down premises which are the centre of illegal activity, disorder or other anti-social behaviour?
60. Should the power be limited to non-residential premises and houses in which no one is formally residing or should it apply to all such premises, including occupied residential accommodation?
61. Should there be any limits on this power and how otherwise should it work?
A new power to close down premises
10.5.1 A New Power to Close Down Premises
10.5.1.1 Over two thirds of responses supported giving this additional power to the police as proposed. The Chartered Institute of Housing in Scotland and the Scottish Federation of Housing Associations supported the broad thrust of the proposals, emphasising the role of the courts and the local authorities.
10.5.1.2 The Association of Chief Police Officers in Scotland, the Association of Scottish Police Superintendents, Lothian and Borders Police Board and Aberdeenshire Council supported additional powers, but argued that these should be given to local authorities rather than the police. The Scottish Police Federation felt that existing powers were sufficient, particularly in relation to licensed premises and local authority housing. The Association of Chief Police Officers in Scotland and Larkfield Housing Association argued that these powers should also apply to the owner-occupied sector. North Ayrshire Community Planning Partnership believed that local authorities and registered social landlords, rather than the police, should be given the power to apply for closures as these landlords were best placed to collate all the information in respect of tenants' behaviour and initiate the appropriate response. Local agreements should be established enabling the police to inform social landlords of anti-social behaviour. Renfrewshire Community Safety Partnership supported such agreements.
10.5.1.3 East Ayrshire Council supported the use of such powers in exceptional circumstances. The Council was concerned about how sufficient evidence would be gathered, and suggested that police search warrants could be utilised in this regard. The Scottish Retail Consortium believed that the powers should extend to immediate closure.
10.5.1.4 The Scottish Police Federation and Strathclyde Joint Police Board argued that extra resources would need to be provided, in particular to enable trained and specialist staff to undertake such closures.
10.5.1.5 The potential of such closures merely leading to the displacement of such problems was raised by the Association of Scottish Police Superintendents, Lothian and Borders Police Board, the Society of Local Authority Chief Executives and Falkirk, Aberdeenshire, West Lothian and Moray Councils.
10.5.1.6 Stirling Council was not clear that such new powers were needed and were concerned about the potential damage to police relations in the community with regard to the scope of this power. The Council argued that there should be a right of appeal to the Sheriff. The Scottish Council for the Single Homeless believed that the proposals were too vague and lacked clarity for residential managers.
10.5.2 Applying the Powers to All Premises
10.5.2.1 Responses were divided about whether such powers should apply to all premises, including formally occupied residential accommodation. Those in favour of the powers applying to all premises believed that this was necessary to stop displacement and to enable a consistent approach to enforcement.
10.5.2.2 Several responses were concerned about how such proposals would work in practice in relation to occupied residential premises. In particular, clarification was sought about how such powers would exist alongside other housing legislation including the Housing (Scotland) Act 2001 and the Homelessness (Scotland) Act 2003. Concerns were raised about the potential for increasing homelessness, particularly involving children, and clarification was sought about local authorities' duties to accommodate families in this situation. These responses included the Chartered Institute of Housing in Scotland, Irvine Housing Association and North Ayrshire Community Planning Partnership.
10.5.2.3 A number of responses were also concerned about such a power leading to an increase in the number of voids, with subsequent detrimental environmental impacts, increased vandalism and potential loss of rental income. Clarification was sought about how such loss of income would be underwritten and how it would operate in relation to housing benefit. These responses included Registered Social Landlords in Easterhouse, Greater Easterhouse Social Inclusion Partnership, Dumfries and Galloway Housing Partnership and Larkfield Housing Association. Concerns were also raised about the difficulties of applying such powers in relation to existing tenancy agreements. East Ayrshire Council and the Scottish Liberal Democrats believed that social landlords already had the powers to address anti-social behaviour appropriately through tenancy agreements, although the issue of action in the private rented and owner-occupied sector remained.
10.5.2.4 The Scottish Federation of Housing Associations, the Scottish Drugs Forum and the Scottish Youth Parliament argued that such powers should not extent to hostels and residential units for drug rehabilitation etc. Aberdeenshire Council was concerned that there was a potential to victimise or displace particular groups.
10.5.3 Limits of Police Powers of Closure
10.5.3.1 Several responses believed that the proposals were too vague and that further consultation and clarification was required about definitions, procedures and applications to particular types of premises before any new powers were introduced. These responses included the Scottish Council for the Single Homeless, Highland, Falkirk, Renfrewshire, Dundee City, Aberdeen City and Angus Councils, the Scottish Liberal Democrats and Perth Safer City Centre Forum. Seven responses believed that producing clear guidance was essential if the powers were to be used appropriately and proportionately.
10.5.3.2 A number of responses believed that safeguards should be provided by the powers being invoked only after the issue and breach of an ASBO. This, it was believed, would help address concerns about powers being ultra vires or lacking proportionality in relation to human rights legislation. These responses included the Association of Chief Police Officers in Scotland, COSLA, Lothian and Borders Police Board and Moray, West Lothian and Aberdeenshire Councils. The WS Society stated that such powers would need to take account of the right to free enjoyment of property in human rights laws.
10.5.3.3 Orkney Islands, Shetland Islands, and Edinburgh City Councils, along with another local authority that wished to remain anonymous, argued that closures should be subject to a right of appeal, while North Lanarkshire Council and North East Glasgow Community Safety Forum emphasised the need for the closures to be time-limited. The Howard League for Penal Reform argued that the court should be satisfied that there is evidence of continuing illegal activity and that closure was necessary for the protection of the community. Aberdeenshire Council made a similar point. It was also suggested that the police should be obliged to consult with local authorities regarding the closure of occupied residential premises. The Howard League for Penal Reform and Renfrewshire Community Safety Partnership reflected the concerns of several respondents when they argued that emergency and longer-term accommodation for children would have to be available if this power was used.
10.6 SUMMARY
Fixed Penalty Notices for Anti-social Behaviour
- There was overall support for extending the use of Fixed Penalty Notices levied by the police to a range of low-level, anti-social behaviour and nuisance offending, although further clarification of what behaviour would be covered by such notices was desired.
- The majority of respondents did not believe that such penalties should be imposed on under-16s due to their lack of independent income and the need to ensure the responsibility of the young person, rather than the parents, for their behaviour.
Dispersal of Groups
- A large majority of responses believed that the police already had sufficient powers to tackle disorderly behaviour amongst groups. It was felt that more effective use of such powers, related to police resources and presence in local communities, was a more appropriate approach to addressing this issue.
- A similarly large majority of responses did not believe that it would be useful to extend police powers in respect of groups of young people in the way proposed in the consultation document. This was abased on concerns about the disproportionate targeting of young people in relation to anti-social behaviour, the potentially negative impact upon police relationships with young people and contravention of international legislation.
Making Anti-social Behaviour Orders (ASBOs) More Effective
- The majority of responses believed that the power to apply for ASBOs should be limited to local authorities and registered social landlords (in consultation with the police). Those supporting this limit argued that it was required due to the link between ASBOs and tenancy. However, a minority of responses suggested that the powers should be extended to other groups, including to the police themselves.
- There was widespread support for a statutory power of arrest for breach of an ASBO.
- The majority of responses were in favour of courts having the power to impose an ASBO on conviction of a criminal offence, whether there is evidence of persistent anti-social behaviour. This was believed to offer greater protection to victims and local communities, and could be usefully applied in conjunction with other support measures. Responses were concerned that any such power would have to ensure that the full information about individual circumstances was taken into account.
- Although the majority of responses were in favour of courts having the power to grant ASBOs in related civil proceedings, a number of concerns were raised. These included clarifying how an ASBO would relate to the outcome of other proceedings, for example eviction, blurring the distinction between criminal and civil proceedings and the fact that such measures would create inconsistencies in the treatment of social housing tenants and other citizens.
- There was widespread support for ASBOs extending beyond a local authority area if required. It was also argued however that such extensions should only apply in specific circumstances, and that Scotland-wide ASBOs would need to have full regard to the issue of proportionality in human rights legislation. The need for a national ASBO register to make this effective was also raised.
Licensed Premises- Police Powers
- There was some confusion about what sections of the legislation the proposals were actually addressing. Several other responses also believed that full account of the findings of the Nicholson Committee should be taken before these proposals were introduced.
- Beyond these concerns, there was very widespread support for police having the same rights of entry to, and for authorities having the same right to order the closure of, off-licenses and registered clubs as they have to licensed premises. The majority of responses also believed that there should continue to be no right to object for a licensing order to a closure notice, although a minority argued that such a right should be created.
- There was widespread agreement that there should be clarification of police powers to close licensed premises in relation to disorder within their vicinity.
Closure Notices
- The majority of responses supported a new power for the court to order the closure of premises at the centre of illegal activity or anti-social behaviour. However, although many respondents argued that this power should be given to the police as proposed, a number of other respondents, including police organisations, believed that the power should be given to local authorities.
- Responses were equally divided about whether such powers should apply to all premises or be limited to non-occupied/non-residential accommodation. Those supporting a universal coverage argued that this would be essential for consistency and the effectiveness of such powers. Those who believed the power should be limited to non-residential premises were concerned about the likely increases in homelessness, impacts on local authorities and how such powers would relate to existing tenancy agreements.
- There was a general consensus that police powers should be limited in this area. There was also a widespread request for greater clarification and consultation about how these powers would be applied, particularly in relation to occupied residential premises.
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