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Putting our communities first: A Strategy for tackling Anti-social Behaviour

section four

Effective Enforcement: It is important that communities have confidence that all the relevant agencies involved in tackling anti-social behaviour respond quickly and effectively to unacceptable behaviour. The processes have to be efficient and transparent, and it has to be clear that those involved are treating the matter with sufficient priority.

We all have a responsibility to adhere to acceptable standards of behaviour out of respect for ourselves and those around us, whether it be family, friends, neighbours or people we don't know. At times, though, matters have to be enforced in a formal way.

When formal steps have to be taken, it is vital that justice is effective.

We must ensure that:

• The powers are in place
• The right people have the powers they need
• The powers available are straightforward and efficient to use
• Where other interventions are needed, they are available.

We intend to make a number of changes through the Anti-social Behaviour Bill to make the enforcement of anti-social behaviour more effective. Our proposals are set out below.

Fixed Penalty Notices for Anti-social Behaviour

Fixed Penalty Notices (FPNs) are currently used in Scotland for a limited number of offences relating to driving, litter and, following recent legislation, dog-fouling. They can be an effective means of enforcing a sanction quickly while reducing the number of court prosecutions. Primarily, FPNs are a means of improving the efficiency of the criminal justice system and ensuring that some less serious offences are dealt with outwith court. It is important to be clear that the behaviour which the penalty applies to constitutes an offence.

There are implications for the court in terms of fine enforcement and it is important to consider the extent to which wider use of FPNs impacts on the discretion of the Procurator Fiscal over prosecution decisions. There are also a range of issues about whether FPNs should be imposed on under-16s behaving anti-socially, and by what means the penalty would be enforced, taking account of the role of the parent. These issues would have to be considered carefully before implementing any proposals to widen the use of FPNs and the type of offences they should be used to deal with. However, we are considering whether the police should be able to impose Fixed Penalty Notices for a range of low-level, anti-social and nuisance offending. Subject to further discussion with the police and with the Crown Office and Procurator Fiscal Service about how exactly such a system might work in practice, and the responses to this consultation paper, we propose to bring forward legislation to extend the range of offences for which FPNs can be levied. Such a change would not only provide swift and simple justice for minor offences, but would also reduce administrative burdens on the police and courts.

Your views:

• 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?
• Should such penalties be imposed on under-16s?

Dispersal of Groups

We know that there is significant concern in some communities about groups of young people hanging around, for example on street corners, in shopping areas or at bus shelters. While the great majority of young people are responsible and law-abiding, a small minority are not. It is the behaviour and attitude of this minority that we want to address. However, it can be difficult to identify that minority. As a result, although they may be completely innocent of any crime or offence, the presence of any group of young people can be seen as intimidating and contribute to a fear of crime. The Scottish Crime Survey, for example, reported that 40% of respondents considered groups of youths hanging around on the street to be a very big or fairly big problem.

There is therefore a balance to be struck. Young people should not be stigmatised and potentially criminalised simply for gathering together. But there must be effective ways to address the problems caused by those young people who do intimidate, harass and alarm others.

We also want to ensure that the police have the power to tackle other intimidating groups when they congregate intent on causing disorder or alarm. Groups of football hooligans spoiling for a fight or other such groups cause real distress and alarm. They also cause real public order difficulties for the police. We would welcome views on what more can be done to ensure the police have the power to move these groups on and prevent them re-congregating when the safety of the community is at stake.

The police, will of course, act where a crime has been committed. They already have a range of powers to disperse or move on young people, or to take them back to their homes where appropriate. The Hamilton Child Safety Initiative, for example, was set up in October 1997 using these existing powers. More generally, the police have another role - that of engaging with young people to develop constructive relationships to prevent crime and disorder in the community. The police take this role very seriously. They are trained to do it. And they can and do make a big impact at local level. It is important not to damage or undermine that role.

We are already moving to strengthen the powers the police have in a number of ways. In addition to the powers proposed elsewhere in this paper, we are currently working with the police to extend the use and principles of restorative justice, which encourages young people to face up to the consequences of their actions and behaviour and the impact this has on others. We are working with the police and other agencies to develop a national system for warnings to young offenders. We are also contributing to other initiatives, such as the youth shelters which have been installed in a number of areas. These are designed specifically for young people to gather in, protected from the elements, and they have been very successful.

We will continue to develop these and other initiatives which will all have an impact. But could we do more? In particular, should we strengthen the powers that the police have by introducing a new power for them to disperse groups of 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?

While a new power for Scotland along the lines proposed would send a clear signal, it is vital not to fetter police discretion in their relationships with young people. We certainly do not want to create a "them and us" environment. It would have to be a matter for the police to decide when to use such a power, and the circumstances in which that might happen could be rare. Such a power would not be a panacea for the problems described. But it might help address them in some circumstances.

Your views:

• How can we strengthen the powers of the police to tackle disorderly behaviour amongst groups?
• Do you agree that it would be useful to extend police powers in respect of groups of young people in the way proposed?

Making Anti-social Behaviour Orders More Effective

Since ASBOs were introduced in 1999, they have not been used consistently across Scotland. There is a wide variation in the numbers of applications made by different local authorities. Some authorities have yet to apply for an ASBO, while others such as Fife, Edinburgh City and North Lanarkshire have used ASBOs on a regular basis. The number of ASBO applications in an area does not indicate that the policy of one authority is more effective than that of another, but it does demonstrate that ASBOs are an important tool for some authorities in their approach to preventing further anti-social conduct. Up to 30 November 2001, 211 ASBOs were applied for and 129 granted in Scotland (not granted includes applications ongoing, withdrawn or rejected).

One of the main criticisms of ASBOs is that they take too long to obtain. Delays have undermined their effectiveness and it has been clear that more immediate protection from anti-social behaviour is necessary. To overcome this problem, the Executive introduced interim ASBOs in the Criminal Justice (Scotland) Act 2003. Interim ASBOs will come into effect on 27 June 2003 and will play an important role in protecting communities from anti-social behaviour. In addition, the Executive extended the power to apply for ASBOs, and interim ASBOs, to registered social landlords. Previously only local authorities, in consultation with the police, could apply to a Sheriff for an ASBO.

These provisions will improve the effectiveness of ASBOs, but where more needs to be done to make ASBOs an effective response to anti-social conduct, we will take steps to do so. In part, this will be through the dissemination of best practice. The Executive will shortly be publishing Tackling Anti-Social Behaviour: Audit Of Practice In Scottish Local Authorities 2001-2002. Where further legislative change is required, we will make changes in the Anti-social Behaviour Bill.

As well as extending ASBOs to under-16s, we intend introducing a number of legislative changes to make ASBOs more effective:

Introducing a Power for the Court to Grant ASBOs on Conviction of an Offence to Prevent Anti-social

Acts

In order to deal with anti-social behaviour in an effective and timely manner, courts should have the power to make an ASBO immediately after a person has been found guilty for any criminal offence, in addition to the sentence. The court must be satisfied that there is evidence of persistent anti-social behaviour on the part of the convicted person, as defined in Section 19 of the 1998 Act, and that an "ASBO on conviction" is necessary to protect a person or persons not in the convicted person's household from anti-social behaviour.

Unlike ordinary ASBOs, there would be no requirement that a local authority or registered social landlord should apply for the imposition of an ASBO following the sentence. The evidence presented to the court during the proceedings, together with any evidence from the criminal record of the convicted person, would provide the basis for the court's decision.

Introducing a Statutory Power of Arrest for Breach of an ASBO

Section 22 of the Crime and Disorder Act 1998 provides that breach of an ASBO is a criminal offence; but there is no statutory power for the police to arrest without warrant on suspicion of a breach. The police have powers to make an arrest under common law and other statutory provisions, but we understand there is a lack of clarity about whether an arrest should be made in individual cases. To enable the police to act immediately to stop any further anti-social conduct taking place, and clarify the law in this area, we intend to introduce a statutory power of arrest for breach of an ASBO. We introduced a statutory power of arrest for breach of a non-harassment order in the Criminal Justice (Scotland) Act 2003.

ASBOs in Related Civil Proceedings

It may also be appropriate to have powers in the civil court to grant an ASBO without an application, particularly in eviction proceedings. It has been reported, for example, that some eviction proceedings are undertaken in court on the basis of rent arrears when in fact anti-social conduct is the main reason for seeking to evict.

Who Should be Able to Apply for ASBOs?

We considered extending the power to apply for ASBOs but, for the following reasons, decided against this. In Scotland, local authorities and RSLs (with effect from 27 June 2003) can apply for ASBOs. When ASBOs were originally introduced, consideration was given to whether the police should also have the power to apply. Following consultation with ACPOS, it was concluded that the police should not be able to apply for ASBOs, but that there should be a duty on local authorities to consult the police before making an application. This has the advantage of maintaining a clear distinction between civil and criminal law.

Geographic Scope of ASBOs

At present ASBOs can only be used to protect persons in the area of the local authority from further anti-social acts or conduct. A summary application can be made to the Sheriff within whose Sheriffdom the alarm or distress was alleged to have been caused or to have been likely to be caused. There can be difficulties if the anti-social conduct takes place in the Sheriffdom of one local authority while the person whom the ASBO refers to lives in another local authority area or even another neighbouring Sheriffdom, or if the Sheriffdom has jurisdiction over more than one local authority area. These boundary issues may undermine the effectiveness of ASBOs in some cases where the behaviour does not necessarily fall neatly within one local authority or one Sheriffdom. There may therefore be cases where an ASBO ought to extend beyond a particular local authority area or Sheriffdom. Potentially, the ASBO may have to cover the whole of Scotland. Extending the potential scope of ASBOs in such a way would have to have due regard to the jurisdiction of the court in which the order is made.

We are considering amending the Crime and Disorder Act 1998 to allow prohibitions imposed by an ASBO to extend to the whole of Scotland, provided that they are necessary to protect persons from further anti-social acts by the individual concerned.

Your views:

• 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)?
• Do you agree there should be a statutory power of arrest for breach of an ASBO?
• 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?
• 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?
• Do you agree that the prohibitions in an ASBO should be able to extend beyond a local authority area, where this is necessary to protect persons from further anti-social acts by the individual concerned?

Licensed Premises - Police Powers

The links between alcohol and anti-social behaviour are well established. Alcohol can increase the number and seriousness of incidents of loutish, aggressive behaviour, vandalism and criminal damage. The Executive published a Plan for Action on alcohol problems in January 2002 and this will support efforts to tackle anti-social behaviour. The two key priorities of the Action Plan are to reduce binge drinking and to reduce harmful drinking by children and young people.

Licensing laws are an important issue linking alcohol misuse and anti-social behaviour. The Nicholson Committee recently reviewed Scottish liquor licensing law, with particular regard to health and public order. Their report will be published shortly. The committee have drawn attention to inconsistencies in the powers available to the police, both of entry and for achieving immediate closure of premises. At present, the police may apply to the licensing board under Section 85 of the Licensing (Scotland) Act 1976 for an order, in the interests of public order or safety, to achieve closure of licensed premises for up to 3 hours on specified days. There is no right to object to such an order (Section 66 of the 1976 Act). But there is no equivalent power as regards off-licences or registered clubs where alcohol is also served.

Section 86 of the 1976 Act requires the police to obtain the written authority of a justice of the peace or an officer of or above the rank of inspector, before entering any unlicensed premises where food or drink is sold for consumption on the premises "or in which he has reasonable grounds for believing that alcoholic liquor is being trafficked in unlawfully".

In the case of registered clubs, Section 114 of the Act requires the police to apply for a warrant authorising entry to a Justice of the Peace or the Sheriff, having heard evidence on oath. Police officers can enter pubs at any time to ensure that the licensing laws are being observed, but may only enter off-licences if they already have grounds to suspect that the terms of the licence are being breached.

The police have, in practice, been able to achieve rapid closure of premises in serious incidents of disorder in off-licences or registered clubs under common law powers. However, their statutory powers to close premises in these circumstances do not cover registered clubs, are expressed in rather old-fashioned terms, referring to the possibility of "riot and tumult", and can only be exercised with authorisation from a Justice of the Peace or a Sheriff. Given rising public concern about the ease with which children under 18 are able to get hold of alcohol from some off-licensed premises, and the need for the police to be able to deal immediately with disorder wherever it occurs, it will be helpful to clarify police powers in this regard. Similarly, it is not clear why registered clubs should be treated differently from licensed premises in this respect.

Your views:

• Do you agree that the police should have the same right of entry to off-licences and registered clubs serving alcohol as they have to licensed premises?
• Do you agree that there should continue to be no right to object for a licence-holder against an order issued by the licensing board under Section 85 of the Licensing (Scotland) Act 1976?
• Do you agree that the procedure for a closure order under Section 85 should apply to all licensed premises and to registered clubs?
• 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?

Closure Notices

It is clear to those that live in some of Scotland's communities that there are particular premises - including residential accommodation - that become a focus for disorder, nuisance and anti-social behaviour. This might involve drug dealing, but misuse of alcohol and other illegal activities may also go on at these premises or be organised from them. The presence of such nests of criminal activity reduces the confidence and quality of life for people who want to take pride in their communities, and to bring up their children in a safe environment.

Where criminal activity takes place the police will act. However, those behind these criminal enterprises are calculating, determined and organised. When one troublemaker is taken out, often another will take his or her place. This is particularly galling for the ordinary decent people who live close by and have to put up with the presence of these "neighbours".

We have already taken steps to tackle the damage to communities caused by these people. The Proceeds of Crime Act, which came into force last year, provides a statutory basis for confiscating the assets of drug dealers and other criminals. We now want to give the police and local authorities additional powers. We therefore propose to introduce a new power under which the properties from which the drug dealing or other criminal activity is being carried out can be closed down and a closure notice issued, following ratification by a court. The closure notice could allow the property to be sealed for a set period of time to eliminate the focus for other illegal activity and disorder. As part of this work, we will take into account the position of managers and staff working in residential and other services for drug misusers.

The application of such a power would clearly need to take account of the wider circumstances in which the premises were being used. If the premises were a commercial property or a residential address that was being used simply as a base from which to deal drugs or commit other crimes, the consequences of closure would be very different than if the property was the main residence of a family with young children. Similarly, account would need to be taken as to whether the property was owned by the offender or rented or leased from a third party. These would all be factors for the court to take into account following application by the police and after consultation with the local authority.

The intention, however, would be - in one way or another - to remove the individual behind the criminal activity from the premises concerned.

Your views:

• Do you agree that there should be a new power for the police, under the direction of a 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?
• 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?
• Should there be any limits on the power and how otherwise should it work?

   

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