The Scottish Government

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CHAPTER 1 INTRODUCTION

1.1 Dispersal powers were introduced in Scotland under the Antisocial Behaviour etc (Scotland) Act 2004. They formed part of a wider agenda to provide more tools to authorities responsible for tackling antisocial behaviour. The powers were designed to address the problems caused by the antisocial behaviour of groups in public spaces.

1.2 A range of interventions and procedures for dealing with antisocial behaviour had already been introduced during the first session of the Scottish Parliament 1999-2003. Some of these included the development of legislation on Antisocial Behaviour Orders ( ASBOs), probationary tenancies, an action plan on youth crime, children's hearings, restorative cautions, funding for Community Safety Partnerships ( CSPs) and the introduction of community warden schemes.

1.3 The Scottish Executive partnership agreement, "A Partnership for a Better Scotland", published at the beginning of the second session of the Scottish Parliament, in May 2003, committed the Executive to legislate further to tackle antisocial behaviour, with a particular focus on families and young people.

1.4 In the consultation document, Putting Our Communities First (2003a), the Scottish Executive laid out the proposed strategy in four themes:

• protecting and empowering communities;
• preventing antisocial behaviour - children and families;
• building safe, secure and attractive communities; and
• effective enforcement.

1.5 Within the "effective enforcement" section, the paper proposed new "dispersal" powers specifically designed to relieve the distress caused to members of the public by the presence and behaviour of large groups of young people in public spaces.

1.6 The paper introduced this proposal as a response to concerns within Scottish communities about groups of young people in public spaces and the report quoted evidence from the 2000 Scottish Crime Survey (Scottish Executive, 2002) where 40% of respondents said that groups of "young people hanging around" were either a "very big" or "fairly big" problem where they lived. This section of the paper also invited views on how the government might address other problem groups such as football hooligans.

Background

1.7 Previous research had identified the issue of young people congregating in public spaces as a cause of disorder and a problem for police. Fifty-nine percent of respondents to the Scottish Crime Survey of 1996 had cited this as a big or "very big" problem where they lived. Although this had dropped to 40% by 2000, it had risen to 43% by the time of the Scottish Crime Survey of 2003 and was the second top answer when people were asked about the significance of certain types of disorder.

1.8 Problems associated with groups of young people in public spaces have presented a long-term challenge to authorities across the UK. Research carried out by the Home Office in the late 1990s identified the challenges associated with police responses to this behaviour (Bland and Read, 1999.) The authors interviewed police officers in different parts of the UK and found that often the difficulties arose because of the size of the groups rather than because of their behaviour,

"… two people drinking out on the grass was not a problem, and did not require a police response. Thirty people doing the same constituted a public order problem. Clearly there were circumstances where other members of the public found the sheer numbers of teenagers gathered intimidating." (Bland and Read, 1999:13)

1.9 In this situation police officers would ask individuals to leave the area but they would expect to be called back to the location throughout the course of the evening in response to residents' complaints. The authors of the report found that these experiences resulted in feelings of frustration and fatalism in police and a lack of belief that they were doing anything constructive to tackle the root causes of the disorder.

1.10 A new apporach to tackling this problem was used by Strathclude police in Lanarkshire in 1997. This high profile police operation, named the "Hamilton Child Safety Initiative," was set up in three housing estates in Hamilton, with the primary objective of increasing the safety of young people and secondary objectives of reducing juvenile crime and increasing parental responsibility. In the first 6 months of the operation the police intervened on 229 occasions with young people perceived as vulnerable; 87% of these people were taken by police from public spaces to their homes. This new approach represented a development of police enforcement methods.

1.11 The Scottish Office's evaluation of the initiative found support for the initiative from parents and local businesses and even young people themselves (McGallagly et al, 1998.) The initiative attracted significant publicity, from national and international media and was referred to in much of the coverage as a "curfew". (Bland and Read, 2000: 34)

1.12 The desire of the UK government to offer new alternatives for the management of group public space disorder was expressed in other legislation including the 1998 Crime and Disorder Act which introduced "Local Child Curfew Schemes," (England and Wales only) influenced by the Hamilton initiative, where local authorities could apply for curfews in an area (Home Office, 2001.) Within these curfew areas police were empowered to escort under-10s home who were in breach of the curfew. This would lead to local authority intervention or support proceedings if these were thought to be necessary. This policy was developed in the 2001 Criminal Justice and Police Act which further enabled Chief police officers to activate the powers and raised the age limit for curfew powers from 10 to 16 year olds.

1.13 There were no applications for local child curfew schemes in the first five years of their introduction and police forces and local authorities had concluded that other measures should be used to tackle the more specific causes of the problems. ³

1.14 Dispersal powers were introduced in England and Wales in the Antisocial Behaviour Act 2003 ( UK.) These powers enable police to designate an area with a history of antisocial behaviour problems as a "dispersal area" from which, for a period of up to 6 months, they would be allowed to disperse individuals. The legislation also contains a curfew element to enable police to take under 16s home if they were unsupervised in an area. Home Office figures released in 2005 showed that there had been 809 designations between Jan 2004 and June 2005 including 234 in the first seven months after their introduction (Home Office, 2005.)

Scottish Executive Consultation

1.15 The Scottish Executive's consultation document Putting Our Communities First (2003) acknowledged that police already had powers to disperse or move young people on or take them home for criminal behaviour but proposed new police powers, similar to the dispersal powers introduced in England and Wales in 2003.

1.16 The consultation asked for respondents' views on methods of protecting the interests of communities without stigmatising or potentially criminalising perpetrators, especially in circumstances where fear and intimidation were the (possibly unintended) consequences of gatherings of individuals.

1.17 The proposed dispersal powers were similar to those introduced in England and Wales and would allow police, in problem areas, to disperse groups of people (the 2003 consultation said under 16s but this age limit was removed from the Bill that eventually followed) and remove them to their place of residence if members of the public had been distressed as a result of their behaviour or presence.

1.18 Over 80% of the respondents to the consultation believed the police already had sufficient powers to deal with the antisocial behaviour of groups (Flint et al, 2003: 109.) Some people believed this new method would only create extra tensions between police and young people. Other points were made about the social effects of the legislation and the risk that young people would be further stigmatised and socially excluded. Other concerns were raised about the legal implications of the powers and the possible breach of international human rights conventions. Some organisations said that this proposed solution to the problem was too short term and missed the need for longer term solutions such as extra spending on parks and recreation facilities.

1.19 Young people were also consulted on the proposed powers and expressed objections to an approach which would apply blanket prohibitions on a geographical area rather than an offending individual.

1.20 Ministers said that these concerns were noted but that the measures represented a reasonable and balanced approach and would only be used where there had been a history of groups of people causing significant problems. They also said that the powers would be limited and safeguarded through the requirement of consultation with the local authority concerned (Scottish Executive, 2003b).

Dispersal Legislation

1.21 Dispersal powers were eventually introduced in Scotland in Part 3 of the Antisocial Behaviour etc (Scotland) Act 2004 and allow the police to designate zones from where they can disperse groups of people who are causing distress to members of the public. The powers came into force in October 2004. The original consultation document focused on young people but the final legislation places no age restriction on the powers.

1.22 The police already have powers under the Civic Government (Scotland) Act 1982 and at common law to deal with certain kinds of group related behaviour, (obstruction of passage, drunkenness in public places, noise nuisance and breach of the peace.) The new powers however, allow police officers to direct a group to disperse or leave the designated location and prevent non-residents from returning for a maximum period of 24 hours. Police must believe that the presence of the individuals is likely to, or has resulted in any members of the public being alarmed or distressed.

1.23 As with other methods introduced to combat antisocial behaviour in the 1998 Crime and Disorder Act and the 2004 Antisocial Behaviour etc (Scotland) Act, dispersal powers are designed to provide respite to communities who have suffered from forms of antisocial behaviour without the use of formal criminal sanctions. The legislation does however make the breach of a direction to disperse a criminal offence.

1.24 Contrary to the consultation and unlike England and Wales, the Act contains no curfew power and there is no provision for allowing police constables to remove under 16s to their place of residence. In circumstances where they have reason to believe that a child's welfare is at risk, police already have legal responsibilities and must follow force procedures on child protection.

1.25 The legislation places additional restrictions on Scottish police forces' use of the powers. The powers in Scotland can only be authorised for up to three months instead of the 6-month limit in England and Wales. Also, as well as the requirement to provide evidence of persistent and significant antisocial behaviour, as in England and Wales, Scottish police forces must have evidence also that the behaviour is "serious." Antisocial behaviour is described within official guidance document as being serious when it introduces a possible risk to members of the public in the location. This means that evidence of minor irritation is not sufficient evidence to warrant authorisation of the powers. It is the responsibility of the senior police officer to decide whether the behaviour meets this criteria and the guidance suggest that police officers consider the cumulative effects of sustained antisocial behaviour on residents. In practice this means that there may be fewer circumstances where dispersal powers can be considered in Scotland.

Legislation Summary

• Dispersal powers can be authorised by senior police officers only (of Superintendent rank or above) where they feel that members of the public have been caused alarm or distress by the presence of groups of 2 or more people.
• The powers may only be authorised where the police officer believes the behaviour in question is significant, persistent and serious. After consultation with local authorities and other relevant organisations an area can be designated as a dispersal zone for a specified period within the maximum 3-month duration of the Dispersal powers. After this time the dispersal powers may be renewed only if a senior police officer believes that there is still a significant, persistent and serious problem.
• Police officers are required to consult with the local authority at an early stage but may ultimately authorise a designation without their agreement. The police are also required to publish an "authorisation notice" including details of the geographical area and the relevant times when the restriction is in place. This notice has to be displayed in conspicuous locations within the designated area and advertised in a local newspaper that is distributed in and around the area.
• The senior police officer can withdraw the authorisation at any time during the 3-month dispersal period if he or she is satisfied that the powers are no longer required.
• In the dispersal zone, during police-specified hours, police constables may require groups of 2 or more persons to disperse and, if they are not resident, require them not to return to the designated area for a minimum period of 24 hours.
• The constable must have reasonable grounds for believing that the presence or behaviour of the group in question is causing or is likely to cause alarm or distress to members of the public.
• The contravention of a direction to disperse is a criminal offence and is liable on conviction to a maximum fine at level 4 (£2500) or 3 months imprisonment or to both.

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