The Anti-Social Behaviour Crime and Policing Act 2014 has introduced new anti-social behaviour orders (ASBO) to replace the previous orders that existed under various pieces of legislation. As with the previous legislation. an application of these orders can be made by a range of bodies including the council, police and registered social housing providers. The new powers are:
Criminal Behaviour Orders
This power replaces an ASBO on conviction and acts in a very similar way to the old Order except (and this also applies to Injunctions below) - that it can require a person to do something as well as restrict their activities or where they can go. Breach of this order carries a maximum of five years imprisonment.
Injunctions
This power replaces five old types of ASBOs including ASBOs on Application and ASB injunctions. These can be given to anyone aged 10 years and above. All sorts of people and organisations can apply, including local police, British Transport Police, local authorities, registered social landlords, housing action trusts and English County Councils. As with the Criminal Behaviour Order, a new aspect of this power is the ability of the Court to direct the defendant to undertake requirements, for example, drug treatment.
The most significant difference between the Injunction and the previous ASBOs is that burden of proof required is the civil standard rather than the criminal standard. This means it will be quicker and easier to obtain such an order from the Court.
The Court Breach of the order will is not a criminal offence but would be punishable through civil contempt of Court which carries a penalty of up to two years in prison and/or an unlimited fine.
Police Dispersal Powers
This will replace previous ‘dispersal powers’. This power will allow a police officer, or in some cases a PCSO, to direct any individual whose behaviour has ‘contributed or is likely to contribute’ to anti-social behaviour to leave a particular place.
The powers will operate for a 48 hour period once a senior officer has authorised them to be used. Anyone made to leave will not be able to return to the excluded for up to 48 hours. Breach of an order is a criminal offence punishable by fine and/or up to three months imprisonment. The lack of safeguards around this new power could see individual officers abusing its use, especially in relation to certain groups including sex workers.
Community Protection Notice
These can be issued by police, council officers, and social landlords (if designated by the Council) to anyone over 16 who is committing anti-social behaviour that is having an ongoing negative effect on the quality of life of the community.
A Notice can include: requirements to stop doing certain things; requirements to do certain things and to take reasonable steps to achieve specified results. Failing to comply is a criminal offence which can be punishable by a fixed penalty notice or a fine.
Public Spaces Protection Orders
These are issued in relation to a geographical area, rather than an individual, and can be authorised by the Council after consultation with the police. The Order then: prohibits specified things being done in the restricted area; requires specified things to be done by persons carrying on specified activities in that area, or does both of these things. The activities must be ‘persistent or continuing in nature’ and ‘unreasonable’. Breach is a criminal offence punishable by a Fixed Penalty Notice or a fine on prosecution. It is very likely that this type of order could be used by councils and the police in an attempt to stop street sex working in certain areas increasing the risk of criminalisation of sex workers and potentially forcing them into riskier environments.
Closure Notices and Orders
This power replaces the old closure Orders introduced in 2003, that became known, incorrectly, as ‘crack house closures’ and which were extended to cover brothels under the Policing and Crime Act 2009.
The Police or Council can issue a Notice if use of particular property has resulted, or is likely soon to result, in nuisance to members of the public, or if there has been, or is likely soon to be, disorder near the property that is linked with the use of the property. Like the old power, this will give the occupant of any premises a 48 hour period during which time only residents of the property can gain access, it is a criminal offence for anyone who is not a resident to enter the property. Within the 48 hour period the matter must be brought before the Magistrates Court where the Court will issue a closure order, closing the property for three – six months. Unlawful entry is a criminal offence, with breach of a notice carrying a maximum of three months in prison and a breach of an order a maximum of six months.
In addition to the above orders a new ‘community trigger’ has been introduced which will see police; councils, registered social landlords and clinical commissioning groups required to investigate alleged anti-social behaviour if they receive complaints from an individual or a number of people (minimum three complaints in six months). They will then be required to determine if the relevant threshold has been met and, if so, to take action which may include initiating one of the above powers.
It is worth noting that the new orders cover a much greater range of activities than previously, including the possibility of targeting street sex working. Additionally, many of these orders are easier for the authorities to obtain requiring a lower burden of proof, and in some cases they can initiate the use of the some of the powers without a court order, for example, the Community Protection Notice.
Finally, the legislation also brought in a new absolute ground for possession and will apply to all types of tenancies. Essentially, if the tenant, a member of their household, or a visitor commits: a ‘serious criminal offence’ (this includes the offence of possession with intent to supply which could be established on the very low threshold of social supply); a breach of a civil injunction; a breach of a criminal behaviour order; or the property is closed due to Community Protection Order (Closure), they could face eviction proceedings and the landlord would not be required to demonstrate the application was reasonable leaving the tenant with no defence and the Court with no discretion. This power significantly increases the risk of homelessness for certain groups including sex workers who are at greater risk of being subject to the powers.