The Crime And Disorder Act 1998 (As Amended):
Guidance On Interim Anti-Social Behaviour Orders (ASBOs)
And Power To Apply For ASBOs Extended To Registered Social Landlords

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Contents

Scope And Statutes Of Guidance
Definition Of Anti-Social Behaviour
Interim ASBOs
Power To Apply For ASBOs
Local Authority And Rsl Response To Complaint Or Concern About Anti-Social Behaviour
Private Landlords
Owner Occupiers
Making An Application
Court Proceedings
Appeals
Variations And Revocations Of Orders
Action Following The Making Of An Order
Breach
Annex A: Crime And Disorder Act 1998 (C.37) (Sections 19, 21, & 22) As Amended By Criminal Justice (Scotland) Act 2003
Annex B: Summary Application Procedure

Dear Colleague

SCOPE AND STATUS OF GUIDANCE

1. This guidance contains advice on the procedures and best practice to be adopted by local authorities and registered social landlords in handling anti-social behaviour orders (ASBOs) and interim ASBOs. The police, the procurator fiscal service and the courts may also find the guidance helpful for information. This guidance takes account of the commencement of provisions on ASBOs in the Criminal Justice (Scotland) Act 2003 which introduce interim ASBOs (section 44) and extend the power to apply for ASBOs to registered social landlords (section 45).

2. Sections 44 and 45 of the Criminal Justice (Scotland) Act 2003 will come into force on 27 June 2003¹.

^1. Criminal Justice (Scotland) Act 2003: Commencement Order No.1. Copies available at www.hmso.gov.uk Circular No: JD 11/2003 provided basic information on the provisions of the 2003 Act that are brought into effect by the commencement order. Copies of the circular are available at www.scotland.gov.uk

3. The guidance is based largely on guidance on ASBOs provided in Police Circular No 3/1999, which was prepared in consultation with the Convention of Scottish Local Authorities, the Association of Chief Police Officers and a wide range of other interested parties. The Scottish Federation of Housing Associations and COSLA have been consulted informally on this updated guidance.

4. Copies of this circular are available at www.scotland.gov.uk

5. A copy of the amended sections 19, 21 and 22 of the Crime and Disorder Act 1998 is contained in Annex A. Provisions in the Criminal Justice (Scotland) Act 2003 have amended the 1998 Act. In particular, the Criminal Justice (Scotland) Act 2003 has introduced interim ASBOs and extended the power to apply for ASBOs to registered social landlords. The new provisions will come into force on 27 June 2003. ASBOs came into effect on 1 April 1999. The Criminal Justice (Scotland) Act 2003 also amended the Crime and Disorder Act 1998 to introduce a new duty (section 22A) on police and local authorities to jointly prepare and publish anti-social behaviour strategies.

6. This guidance does not cover provisions in the Housing (Scotland) Act 2001 which relate to the effect of ASBOs on security of tenure. Separate guidance on this issue can be found in SEDD Circular 6/2002, "Housing (Scotland) Act 2001: Scottish Secure and Short Scottish Secure Tenancy". This can be found on Scottish Executive website http://www.scotland.gov.uk/library5/housing/ssss-00.asp

The Housing (Scotland) Act 2001 can be found at http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/s-stat.htm

7. The Executive has made a commitment to consult on proposals for an Anti-Social Behaviour (Scotland) Bill before the summer recess. Further guidance on ASBOs will be issued if changes are made to the law on ASBOs following the Bill.

DEFINITION OF ANTI-SOCIAL BEHAVIOUR

8. Section 19(1) of the Act defines anti-social manner and anti-social conduct (which includes speech) as that which caused or was likely to cause alarm or distress to one or more persons not of the same household. (The expression "likely to cause" is included so that witnesses other than the victims can give evidence of the effects of the behaviour - see paragraph 23.) An ASBO can be applied for where a person has acted in an anti-social manner or pursued a course of anti-social conduct, defined as involving conduct on at least two occasions. Section 19(4) provides a defence that the act was reasonable in the circumstances.

9. An ASBO is a civil preventative measure. It is intended to tackle both behaviour which is likely to escalate to the criminal level, and patterns of behaviour which cumulatively cause considerable alarm or distress to the community but which do not consist of single acts which are sufficiently serious or sufficiently clear-cut to be prosecuted individually as criminal offences. An ASBO is not intended to be a substitute for criminal proceedings where these are appropriate, and is intended to be complementary to other civil procedures such as interdict (where use of these is appropriate). It does not affect other proceedings such as recovery of possession of heritable property or actions of damages.

10. An ASBO can be made against persons of all housing tenure types: i.e. owner occupiers, private sector tenants, and tenants of public sector landlords, including local authorities.

11. Applications for ASBOs can only be made in respect of those aged 16 or over at present in Scotland. However, the Executive’s Partnership Agreement includes a commitment to extend ASBOs to under 16s in an Anti-Social Behaviour Bill. A consultation on our proposals for the Bill will take place over the summer. Extending ASBOs to under 16s will not preclude cases involving anti-social conduct by children being handled by the children’s hearing system, as is currently the case. It will be for individual practitioners to decide on the most appropriate approach to take depending on the circumstances of the case.

12. ASBOs are not intended to address behaviour that is merely different, or behaviour that is the result of a mental disorder and should not be used to promote the harassment of individuals or groups for behaviour that results from being of a different race or religion.

13. ASBOs are not intended to address what would be considered civil disputes between neighbours over, for example, boundaries.

14. ASBOs can be used to address anti-social behaviour wherever it occurs: they are not restricted to housing situations involving neighbours. They may, for example, be used to deal with anti-social conduct in and around retail premises.

15. An ASBO is not a criminal conviction and does not form part of a criminal record. However, as breach of an ASBO is a criminal offence, an individual found guilty of breach of an ASBO would have a criminal conviction.

16. The behaviour which is to be used as justification for an application must have taken place after the provisions in the 1998 Act were commenced on 1 April 1999. The introduction of interim ASBOs does not alter this.

17. It will be for the courts to decide whether particular behaviour in specific circumstances satisfies the criteria in the legislation.

INTERIM ASBOs

18. Section 44 of the Criminal Justice (Scotland) Act 2003 amended the Crime and Disorder Act 1998 to introduce interim Anti-Social Behaviour Orders. Interim ASBOs are intended to provide more immediate protection from anti-social behaviour and can be applied for pending the substantive application for an ASBO. Section 19 (2A) of the 1998 Act sets out the conditions to be fulfilled before granting an interim ASBO (see amended sections of 1998 Act at Annex A).

19. The sheriff may grant an interim order provided the individual named on the application has received intimation of the initial writ and the sheriff is satisfied that the anti-social conduct complained of would be established when a full hearing takes place. The sheriff must also be satisfied that an interim order is necessary to protect relevant persons from further anti-social acts or conduct by him.

20. In order to prove that intimation has been received by the defender, it may be advisable for local authorities and RSLs to intimate the initial writ personally.

21. There is no explicit right to have any representations made by or on behalf of the respondent before an interim ASBO is granted, although the court, using its discretion, can consider any such representations as it sees fit. If the court allows both parties to be heard when considering a request to grant an interim ASBO, a solicitor can represent a respondent who wishes to oppose an interim order under the special urgency provisions of Regulation 18 of the Civil Legal Aid (Scotland) Regulations 2002, which enable representation to be provided prior to the determination of an application for civil legal aid. If civil legal aid has been granted prior to such hearing, then opposition to the seeking of an interim ASBO will be covered by the grant of legal aid.

22. While breach of an interim ASBO has the same criminal penalty as a full ASBO, the interim order does not impact on security of tenure. The provisions in the Housing (Scotland) Act 2001 will continue to be related to the granting of full ASBOs only.

POWER TO APPLY FOR ASBOs

23. Under section 19 of the 1998 Act (as amended), a relevant authority may make an application for an order if it appears to the authority that a person aged 16 or over has acted in an anti-social manner or pursued a course a course of anti-social conduct that caused or was likely to caused alarm or distress. However, authorities are not required to apply for ASBOs, either at all or in particular circumstances. The definition of a ‘relevant authority’, for the purposes of section 19 of the 1998 Act, includes local authorities and registered social landlords.

24. Section 45 of the Criminal Justice (Scotland) Act 2003 amended section 19 of the Crime and Disorder Act 1998 to extend the power to apply for ASBOs to registered social landlords (RSLs) (i.e. those bodies registered in the register maintained under section 57 of the Housing (Scotland) Act 2001 (asp 10)). A Registered Social Landlord can apply for an ASBO to protect a person residing in, or otherwise on or likely to be on, premises provided or managed by that landlord; or a person in, or likely to be in, the vicinity of such premises. When ASBOs were introduced in April 1999 only local authorities could apply.

25. Section 45 of the 2003 Act also had the effect of amending section 21 of the 1998 Act to make clear that RSLs must consult the police and notify the local authority before applying for an ASBO or interim ASBO.

26. Extending the power to RSLs is without prejudice to the power of the local authority to seek an ASBO in respect of RSL premises.

27. Each authority should develop a policy outlining when it would consider an application, the criteria it would use etc. This should be done in consultation with the police, so that the circumstances in which an ASBO would be appropriate, and the interface with criminal proceedings in each area are clear. The policy should take account of the examples of good practice in ‘Tackling Anti-Social Behaviour: Audit of Practice in Scottish Local Authorities 2001/2002’, which has been produced by the Sociable Neighbourhood National Co-ordinator and will be published shortly. Information on local policies on use of ASBOs should be included in the anti-social behaviour strategies which will be published by police and local authorities. The duty to prepare and publish joint strategies on anti-social behaviour was introduced by section 83 of the Criminal Justice (Scotland) Act 2003, which added section 22A to the Crime and Disorder Act 1998. Section 22A of the 1998 Act has not yet been brought into effect.

28. Information on the use of ASBOs should be well publicised in the local authority’s area. This should ensure both that the public is aware of the ASBO mechanism and that unrealistic expectations as to when it might be used are avoided. Anyone with a complaint about anti-social behaviour should consider and, where appropriate, try discussion, negotiation and mediation as a way of resolving it. In some circumstances, those affected may wish to consider legal action on their own account. The authority’s policy should make it clear how individuals should proceed if they wish to make a complaint about anti-social behaviour.

LOCAL AUTHORITY AND RSL RESPONSE TO COMPLAINT OR CONCERN ABOUT ANTI-SOCIAL BEHAVIOUR

29. Good practice guidance on dealing with complaints is included in section 10 of SODD Circular 16/1998 on Housing and Neighbour Problems which was issued on 5 November 1998 is still relevant especially with reference to preventative, housing management responses. With specific reference to ASBOs, however there are a number of key issues which are outlined below. In addition, a Good Practice Guide on the application and use of ASBOs prepared by the Sociable Neighbourhood National Co-ordinator, will be published later this year.

30. On receiving a complaint or having its own concerns about anti-social behaviour, the local authority or registered social landlord should:

• establish the facts, taking great care when investigating complaints to avoid the possibility of discrimination/victimisation on the grounds of race, sex, sexual orientation, disability or religion.
• determine whether the behaviour which has caused the complaint or concern would constitute anti-social behaviour (i.e. is the complaint simply the result of a clash of personalities or beliefs? is the behaviour merely eccentric? does the person have a mental disorder? could the person argue that the behaviour was reasonable in the circumstances?)
• local authorities should ensure that all relevant departments are involved in the consideration of the case and discussions on what action should be taken, so that the authority’s response is a collaborative one and all the consequences of any particular course of action are taken into account. This would include the housing and social work departments, and the legal department where any court action might be contemplated.
• establish what steps any complainer has taken to resolve matters, and consider whether further steps would be appropriate. These might include mediation in some circumstances, or - depending on the circumstances of the complainer and the behaviour - civil action.
• where such remedies are not appropriate or have failed, and the local authority or registered social landlord is satisfied that the person has acted in an anti-social manner and that an order is necessary to protect the community from further anti-social acts, the relevant authority should consider the possibility of an application for an ASBO against the authority’s own policy criteria.

31. It should be noted that Section 19(6) of the Act makes it clear that the existence of the ASBO mechanism is without prejudice to the use of existing legal remedies to tackle anti-social behaviour such as interdict or eviction.

32. ASBOs are one of a range of remedies available and it is important that careful consideration is given to the most appropriate remedy in the circumstances. The suitability of other preventative measures such as warnings, mediation, enforcement of tenancy agreements etc should be considered and, where appropriate, tried before an early application for an ASBO and an interim ASBO is made. Where the assessment suggests that there is a need to provide immediate protection from anti-social behaviour, or regularity of incidents and the likelihood that the conduct will continue if an ASBO is not granted quickly, an early application for an ASBO and interim ASBO would be appropriate. Breach of an ASBO, as well as incurring criminal penalties, would strengthen the case for any subsequent action for eviction.

PRIVATE LANDLORDS

33. Where it is the tenants of landlords other than local authorities or RSLs- private or public - who are behaving anti-socially, the landlord should follow his own policy and procedures for dealing with complaints. Landlords should not approach the local authority with a request for an ASBO until they have considered and where appropriate tried all the means at their disposal to resolve the problem.

34. If after following their own policy and procedures through a landlord considers that an ASBO would be appropriate in a particular case, the landlord should consult the local authority or RSL (if the property is in the vicinity of premises owned or managed by an RSL) over the possibility of an application, providing all the evidence collected and an account of the steps already taken to try to resolve matters. It would then be for the relevant authority to determine whether an application was appropriate in the light of its own policy and priorities.

OWNER OCCUPIERS

35. Where the relevant authority receives a complaint either about or from an owner occupier involving anti-social behaviour, it will consider the matter in the context of its policy on anti-social behaviour and its priorities and will determine what, if any, action it will take in the light of these. In most instances, we would anticipate that cases involving owner occupiers will be handled by the local authority in its strategic capacity. However, it is within the locus of a registered social landlord to make an application against or on behalf of an owner occupier in, or likely to be in, the vicinity of premises owned or managed by an RSL. As with all cases of anti-social behaviour, the individual(s) affected should ensure that they have tried or considered the possibility of attempting to resolve the situation through discussion, negotiation and mediation. When they approach the relevant authority, they should indicate the scale of the problem, and any steps taken to try to resolve it.

MAKING AN APPLICATION

36. Where a relevant authority considers that an application for an ASBO is appropriate it should:

• involve its own solicitors or legal department at the earliest possible stage.
• consult the police (a statutory requirement under Section 21(1) of the Act). The police may have information which would support the application for an Order; and consultation should prevent the possibility of civil and criminal action relating to the same behaviour taking place simultaneously, unless it is agreed that both are necessary. Where the views of the procurator fiscal would be helpful on a particular case - for example, because a criminal prosecution may be a possibility - these should be sought by the police. It will be for the police and local authorities or RSLs, where appropriate, to reach agreement between them on how the flow of information on the progress of any criminal proceedings should be managed.
• consult any other relevant interests in a particular case.
• note that section 115 of the Act provides for the disclosure of information by any person to the police and the local authority for the purposes of the Act. Decisions on whether it is right to do so in any particular circumstances must, however, continue to be taken on a case by case basis.
• collect the evidence, bearing in mind the importance of obtaining statements from as many witnesses as possible at an early stage. If the order is defended, it would be helpful to have more than one source of evidence. The local authority or RSL applicant has to show that the behaviour caused or was likely to cause alarm or distress and so can arrange for the behaviour to be witnessed and evidence provided by, for example, its own staff or the police. ASBOs are civil orders so the civil standard of proof will apply and the orders will be granted on the balance of probabilities. The normal civil evidence rules will apply (e.g. no need for corroboration, hearsay evidence admissible).
• indicate in writing the possibility of an application to the person against whom the order would be sought, offer a meeting to discuss the matter and advise them to seek legal advice from a solicitor or citizens’ advice bureau. The person may agree to modify the behaviour so that an order is no longer necessary.
• decide what terms of the order to seek. The terms must be only those necessary to protect persons in the area of the local authority from further anti-social acts or conduct. They can be prohibitory only, and cannot therefore require the person to take any particular action or to undergo supervision or training. They should be specific, and in terms that are easily understood so that it will be readily apparent to the person and to the local community what constitutes a breach. Unless the circumstances are exceptional, the terms should not be such as to prevent the person from practising his or her religion or attending work or school/further education.
• decide what duration of the order to seek, up to and including indefinite (section 21(7).
• consider whether voluntary supervision or training would be appropriate in the circumstances, and if so whether social work services is in a position to offer it.
• instruct solicitors/ legal department to apply for an order through a summary application to the sheriff in the court district where the alarm or distress is alleged to have been caused. The application should include information on the action taken by the local authority, any other relevant landlord and any complainer to resolve the problem, and/or an explanation as to why other steps are inappropriate in the particular case.
• liaise closely with the sheriff clerk over the possibility of an application being made, and any need for it to be dealt with particularly quickly.
• throughout, keep the complainer , the police and anyone else affected by the anti-social behaviour informed.

COURT PROCEEDINGS

37. The applicant authority must lodge the application in court for granting of a warrant for citation and thereafter must serve the application on the defender as the person whose behaviour is the subject of the application. In terms of the rules of court, the applicant thereby intimates the warrant and the date of any hearing. Averments must be included in the application, specifying the circumstances giving rise to the application. The relevant authority applying for the order should seek to ensure that the person is aware of the seriousness of the order and provide written information on the penalties for breach. The person should be informed in writing that he or she should attend the hearing or be legally represented, failing which the order may be made against him or her, and that he or she has the opportunity to state his or her case. An application for an interim ASBO shall be made by crave in the Initial Writ in which an ASBO is sought. An application for an interim ASBO once craved shall be moved by motion to that effect. The sheriff shall not consider an application for an interim ASBO until after service of the initial writ has been effected on the person in respect of whom application is made.

38. In applying for an Anti-Social Behaviour Order it is open to the relevant authority to apply for a shortened period of notice of no less than 48 hours (instead of the normal period of 21 days) when the application is presented. An application for an interim ASBO can be made after the action has been served on the defender. Application for an interim ASBO is made by the motion procedure under Chapter 15 of the Ordinary Cause Rules which allows the matter to be dealt with promptly. If the initial writ has been served the sheriff may dispense with intimation of the motion for the interim ASBO and grant it without hearing the defender. At the First Hearing for a full order, if the individual attends or lodges answers the court can regulate the procedure and assign an early diet where a full hearing is necessary in the circumstances where a defender is opposing the application. Where the individual fails to defend the application at the First Hearing for the full order, the court may grant the order on the motion of the applicant.

39. Authorities should be aware that civil legal aid may be available to the defender, who meets the eligibility tests, to oppose the order. The Sheriff may agree to the sisting of the proceedings to allow the defender to apply for civil legal aid.

40. If the application is defended, the sheriff will consider on the evidence whether the person has acted in an anti-social manner as defined by the Act and if so whether an order is necessary to protect the community from further anti-social acts. In terms of section 19(4), the sheriff is to disregard any acts shown by the person to have been reasonable in the circumstances. If the sheriff is satisfied, he will consider what terms and duration would be appropriate and will then make the order.

41. Where a hearing is fixed to hear evidence, the normal summary application rules will apply. The evidence in support of the application will be submitted by the applicant and it will be that evidence upon which the court will decide balanced with any evidence submitted by the defender. The question of whether the hearing is to be in private is a matter for the court. A flow chart showing the procedure under the summary application rules is attached at Annex B.

42. Once the order is made, the sheriff clerk will serve a copy on the defender, either in person if he is present in court or by registered post or recorded delivery. The court will provide a copy of the order to the relevant authority applicant, who should copy it to the police for dissemination to its officers within the relevant area. The pursuer should forthwith intimate the making or recall of an ASBO or an interim ASBO to the relevant Chief Constable.

APPEALS

43. Either the applicant or the defender can appeal the sheriff’s decision. In terms of sections 27 and 28 of the Sheriff Court (Scotland) Act 1907, the person appealing can choose whether to appeal to the Sheriff Principal or Court of Session. It should be noted that under section 21(9A) an interlocutor granting or refusing an interim ASBO is an appealable interlocutor.

44. Under section 21(10) of the Act, the order remains in force pending the outcome of the appeal. It is, however, possible to apply for an order to be varied or revoked while an appeal is pending.

VARIATIONS AND REVOCATIONS OF ORDERS

45. Orders may be varied or revoked on an application from the applicant authority or the person against whom the ASBO is made. Changing circumstances can thus be taken into account. Applications from the relevant authority for the variation and revocation of orders should follow the same procedures as outlined above, including consultation with the police. Where the individual applies for an order to be varied or revoked, the sheriff shall obtain the views of the original authority applicant before coming to a decision.

ACTION FOLLOWING THE MAKING OF AN ORDER

46. Once an order is made (whether an interim order or a full ASBO), the authority which applied for the order should inform the complainer and anyone else likely to be adversely affected by a breach of the order in writing of the making of the order and its terms and duration. It should be made clear that breach of an order is a criminal offence which should be reported in the normal way to the police. An order is a public court document, and the fact that it has been made and its terms and duration are in no way confidential.

47. The relevant authority should review the situation on a regular basis, and certainly every 6 months, to assess the effect the order is having. This could, for example, involve discussing with any original complainer and others likely to be affected by a breach whether the situation had improved. At least once per annum, the relevant authority should consider whether the order could now be varied or revoked, and formally record the decision. This is particularly important where indefinite orders are concerned.

48. The terms of orders relate to the protection of a particular community and cannot be "transferred" to another community if the individual moves house. (A fresh application for an ASBO would be required if the individual’s behaviour in the new community warrants this.) If an individual moves away from the protected community, the relevant authority should consider whether the need for the original order remains, for example because it is feared that despite moving out of the area the individual may return to it to engage in anti-social behaviour. If there is no continuing need for the original order, the authority should consider applying to the sheriff to have it revoked.

49. The exchange of information about individuals between landlords and other agencies is an important and sensitive area. Where a relevant authority is aware that an individual plans to move or has moved to a different area, the authority should, as part of its established procedures for the exchange of information, inform the "receiving" authority that an ASBO was granted against the individual, so that the information can be taken into account in considering the individual’s suitability for housing, or where the local authority or RSL has to consider action because of complaints about anti-social behaviour in relation to the individual in the future.

50 .Information should be retained on the use and effect of interim ASBOs and ASBOs to support monitoring and evaluation exercises.

BREACH

51. Under section 22(1), breach of an interim ASBO or a full ASBO is a criminal offence for which the penalties are up to 6 months imprisonment or a fine not exceeding the statutory maximum or both on summary conviction and up to 5 years imprisonment and an unlimited fine or both on indictment. The police will investigate alleged breaches and report these to the procurator fiscal as normal. The normal common law powers of arrest would apply.

52. Under section 22(3), where a person commits a separate criminal offence which involves breach of an order, the breach will not be separately prosecuted but will be taken into account in determining the sentence for that offence.

Scottish Executive
Justice Department
June 2003

Annex A: CRIME AND DISORDER ACT 1998 (c.37) (SECTIONS 19, 21, & 22) AS AMENDED BY CRIMINAL JUSTICE (SCOTLAND) ACT 2003

Sections 19, 21 and 22 of the Crime and Disorder Act 1998 have been amended by provisions in the Criminal Justice (Scotland) Act 2003 impacting on anti-social behaviour. The 2003 Act received Royal Assent on 26 March 2003.

In particular, the 2003 Act introduced the following changes:

• section 44 introduced interim ASBOs
• section 45 extended the power to apply for ASBOs to registered social landlords
• section 83 placed a new duty on police and local authorities to prepare anti-social behaviour strategies

The amended provisions in Crime and Disorder Act 1998 are detailed below.

19 Anti-social behaviour orders.

19 (1) A relevant authority may make an application for an order under this section if it appears to the authority that the following conditions are fulfilled with respect to any person of or over the age of 16, namely—

(a) that the person has—
(i) acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause alarm or distress; or
(ii) pursued a course of anti-social conduct, that is to say, pursued a course of conduct that caused or was likely to cause alarm or distress,to one or more persons not of the same household as himself (and in this section "anti-social acts" and "anti-social conduct" shall be construed accordingly); and

(b) that such an order is necessary to protect relevant persons from further anti-social acts or conduct by him.

(2) An application under subsection (1) above shall be made by summary application to the sheriff within whose sheriffdom the alarm or distress was alleged to have been caused or to have been likely to be caused.

(2A) On an application made under subsection (1) above, being an application of which the person in respect of whom it is made has received intimation, the sheriff may, pending its determination, make such interim order as the sheriff considers appropriate provided that he is satisfied–

(a) that were the actings or conduct complained of in the application established, the condition mentioned in paragraph (a) of that subsection would be fulfilled; and
(b) that such an interim order is necessary for the purpose mentioned in paragraph (b) of that subsection.

(3) On an application under subsection (1) above, the sheriff may, if he is satisfied that the conditions mentioned in that subsection are fulfilled, make an order under this section (an "anti-social behaviour order") which, for the purpose of protecting relevant persons from further anti-social acts or conduct by the person against whom the order is sought, prohibits him from doing anything described in the order.

(4) For the purpose of determining whether the condition mentioned in subsection (1)(a) is fulfilled, the sheriff shall disregard any act of the person in respect of whom the application is made which that person shows was reasonable in the circumstances.

(5) This section does not apply in relation to anything done before the commencement of this section.

(6) Nothing in this section shall prevent a relevant authority from instituting any legal proceedings otherwise than under this section against any person in relation to any anti-social act or conduct.

(7) In this section "conduct" includes speech and a course of conduct must involve conduct on at least two occasions.

(8) In this section and section 21 below–

"relevant authority" means–
(a) a local authority (that is to say, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39)); or
(b) a body registered in the register maintained under section 57 of the Housing (Scotland) Act 2001 (asp 10) (the register of social landlords);
"relevant person" means, in relation to an application by–
(a) a local authority, a person in the area of that authority;
(b) a registered social landlord–
(i) a person residing in, or otherwise on or likely to be on, premises provided or managed by that landlord; or
(ii) a person in, or likely to be in, the vicinity of such premises;

and any reference to the area of a local authority is a reference to the local government area (within the meaning of the said Act of 1994) for which that authority is constituted.

21 Procedural provisions with respect to orders.

21 (1) Before making an application under—

(a) section 19(1) above;
(b) subsection (7)(b)(i) below,

a relevant authority shall consult the relevant chief constable.

(2) Before making an application under section 20(1) above or subsection (7)(b)(i) below, a chief constable shall consult the local authority within whose area the person in respect of whom the application is to be made resides or appears to reside.

(2A) Before making an application under section 19(1) above or subsection (7)(b)(i) below, a registered social landlord shall provide notification of its intention to do so to the local authority within whose area the person in respect of whom the application is to be made resides or appears to reside.

(3) In subsection (1) above "relevant chief constable" means the chief constable of the police force maintained under the Police (Scotland) Act 1967 (a) the area of which includes the area of the local authority making the application; or (b) as the case may be, the place where the person in relation to whom the application is to be made by the registered social landlord resides or appears to reside.

(4) A failure to comply with subsection (1) or (2) above shall not affect the validity of an order made on any application to which either of those subsections applies.

(5) A record of evidence shall be kept on any summary application under section 19 or 20 above or subsection (7)(b) below.

(6) Subsections (7) to (9) below apply to anti-social behaviour orders and sex offender orders and subsections (8) and (9) below apply to an order made under section 19(2A) or 20(4)(a) above.

(7) An order to which this subsection applies—

(a) shall have effect for a period specified in the order or indefinitely; and
(b) may at any time be varied or revoked (in the case of a sex offender order, by the appropriate court for that order)on a summary application by—
(i) the local authority or, as the case may be, chief constable or registered social landlord who obtained the order or, in the case of a sex offender order, any other relevant chief constable"; or
(ii) the person subject to the order.

(7A) In subsection (7) above—

"the appropriate court" means—
(a) the sheriff who made the sex offender order; or
(b) the sheriff whose sheriffdom includes any part of the area of the applicant's police force or of the police force of any other relevant chief constable;

"relevant chief constable" means a chief constable who believes that the accused is in, or is intending to come to, the area of his police force.

(8) The clerk of the court by which an order to which this subsection applies is made or varied shall cause a copy of the order as so made or varied to be—

(a) given to the person named in the order; or
(b) sent to the person so named by registered post or by the recorded delivery service.

(9) An acknowledgement or certificate of delivery of a letter sent under subsection (8)(b) above issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgement or certificate.

(9A) An interlocutor granting or refusing, under section 19(2A) above, an interim order is an appealable interlocutor.

(9B) Where an appeal is taken, by virtue of subsection (9A) above, against an interlocutor granting an interim order that order shall, without prejudice to any power of the court to vary or recall it, continue to have effect pending the disposal of the appeal.

(10) Where an appeal is lodged against the determination of an application under section 19 or 20 above or subsection (7)(b) above, any order made on the application shall, without prejudice to the determination of an application under subsection (7)(b) above made after the lodging of the appeal, continue to have effect pending the disposal of the appeal.

22 Offences in connection with breach of orders.

22 (1) Subject to subsection (3) below, if without reasonable excuse a person breaches an anti-social behaviour order, or an interim order under section 19(2A) above, by doing anything which he is prohibited from doing by the order, he shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a term of imprisonment not exceeding six months or to a fine not exceeding the statutory maximum or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.

(2) Subsection (3) applies where—

(a) the breach of the order referred to in subsection (1) above consists in the accused having acted in a manner prohibited by the order which constitutes a separate offence (in this section referred to as the "separate offence"); and
(b) the accused has been charged with that separate offence.

(3) Where this subsection applies, the accused shall not be liable to be proceeded against for an offence under subsection (1) above but, subject to subsection (4) below, the court which sentences him for that separate offence shall, in determining the appropriate sentence or disposal for that offence, have regard to—

(a) the fact that the offence was committed by him while subject to the order so referred to;
(b) the number of such orders to which he was subject at the time of the commission of the offence;
(c) any previous conviction of the accused of an offence under subsection (1) above; and
(d) the extent to which the sentence or disposal in respect of any such previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.

(4) The court shall not, under subsection (3) above, have regard to the fact that the separate offence was committed while the accused was subject to the order so referred to unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

(5) The fact that the separate offence was committed while the accused was subject to an anti-social behaviour order shall, unless challenged—

(a) in the case of proceedings on indictment, by giving notice of a preliminary objection under paragraph (b) of section 72 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") or under that paragraph as applied by section 71(2) of that Act; or
(b) in summary proceedings, by preliminary objection before his plea is recorded,

be held as admitted.

(6) Subject to subsection (7) below, subsections (1) to (5) above apply in relation to an order under section 20(4)(a) above and to a sex offender order as they apply in relation to an order under section 19(2A) above and to an anti-social behaviour order.

(7) Subsection (2) above as applied for the purposes of subsection (6) above shall have effect with the substitution of the words "at the time at which he committed" for the words "which constitutes".

22A Anti—social behaviour strategies

(1) Each local authority shall prepare jointly with the relevant chief constable a strategy for dealing with anti-social behaviour in the authority’s area; and the authority shall publish the strategy.

(2) The strategy shall, in particular, include provision as to–

(a) how the authority and the police are to co-ordinate the exercise of their functions in so far as they are exercisable in relation to anti-social behaviour in the authority’s area; and
(b) the exchange of information between the authority and the police relating to such behaviour.

(3) The local authority and the relevant chief constable–

(a) shall keep the strategy under review; and
(b) may from time to time revise the strategy, and the authority shall publish the strategy as so revised.

(4) In this section–

"anti-social behaviour" means any act or conduct (including speech) which causes or is likely to cause alarm, distress, nuisance or annoyance to any person;

"local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39) and any reference to the area of such an authority is a reference to the local government area within the meaning of that Act for which it is so constituted;

"relevant chief constable" means the chief constable of the police force maintained under the Police (Scotland) Act 1967 (c.77) the area of which includes the area of the local authority.

Annex B

SUMMARY APPLICATION PROCEDURE