Acronyms that speak louder than words

On April 1 ASBOs (antisocial behaviour orders) came into force, to add to the remedies available to the authorities to deal with anti-social behaviour.  By these (and other) means community safety is to be promoted by local authorities, the police and the courts.

On July 31 last year a minor revolution took place with the enactment of the Crime and Disorder Act 1998 which makes various provisions for preventing crime and disorder, creates racially-aggravated offences, gives the courts special powers to deal with offenders who have a history of drug abuse or sexual deviance and abolishes the death penalty for treason and piracy.

As well as ASBOs, SOOs and DTTOs (sex offender orders and drug treatment and testing orders) are introduced.  Evidently there has been a shift in emphasis from reactive to proactive, preventative measures, as we shall see.

Legal provisions of the 1998 Act relevant to community safety in Scotland

A summary of the Scottish provisions is:

Anti-social behaviour orders - section 19;

Sex offender orders - section 20;

Extended grounds of eviction for public sector and other landlords - section 23;

Additional police powers to deal with noise making equipment - section 24 and Schedule 1;

Extended sentencing options given to the courts in respect of sexual and violent offenders under sections 86 to 88;

Drug treatment and testing orders to be an additional alternative disposal available to the courts - sections 89 to 95; and

Racially motivated or aggravated offences to be the subject of special provisions - sections 33 and 96;

Disclosure of information to the authorities is made possible by section 115 which authorises,

but does not require, disclosure in circumstances where it might not be permissible otherwise.

Proposed measures not in this Act

Proposals to introduce discretionary probationary tenancies, to suspend the right to buy from bad tenants and to encourage witnesses to speak out, are also being actively explored in the context of promoting community safety.  Perhaps Holyrood will be asked to legislate on these topics.

Existing remedies

The new measures are intended to complement existing legal remedies which continue to be of core importance.  Assault, breach of the peace and so on will operate as before, together with statutory provisions such as the useful assortment contained in the Civic Government (Scotland) Act 1982.  Interdict and lawburrows will remain, as will actions of harassment and non-harassment orders under sections 8 to 11 of the Protection from Harassment Act 1997.

Obviously, the new remedies also exist in the context of the current rules of evidence and procedure.  Applications for ASBOs and SOOs will be civil proceedings brought under the Sheriff Court Summary Application Rules 1993.  The application will be brought within the sheriffdom where the offending behaviour occurred, all in terms of sections 19(2), 20(3) and 21 of the 1998 Act.  The standard of proof will be on a balance of probabilities.  Questions regarding the relevance, admissibility, sufficiency of and weight to be attached to evidence, will be governed by the existing rules.  The Civil Evidence (Scotland) Act 1988, which enables a fact to be established even by uncorroborated, hearsay evidence, may be significant in practice in this context.

Anti-social behaviour orders

ASBOs are a preventative civil measure designed to complement existing civil and criminal legal remedies.  However, who may apply for an ASBO, in what circumstances, against whom and to what effect?  The answers are contained in sections 19, 21 and 22; there are separate provisions in the Act for England and Wales.  Only local authorities may apply in Scotland, whereas in England the police may also take action.  Before making an application to the court, the authority must consult the police but failure to consult will not invalidate an ASBO.  Certain statutory criteria must exist; the culprit must be over 16, must have acted in an anti-social manner (caused or likely to cause alarm or distress to one or more persons not of the same household as himself) or pursued a course of anti-social conduct (conduct that caused or was likely to alarm or distress persons not from his household).  The order must be necessary to protect persons in the authority’s area from further anti-social behaviour by the person against whom the order is sought.  The distinction between behaving in an anti-social manner and pursuing a course of anti-social conduct is that the former encompasses even a single act, whereas, in terms of section 19(7), “conduct” must involve acts (including speech) on at least two occasions.  A series of minor infractions could, presumably, constitute a course of statutory anti-social conduct even if any single one of the infractions did not amount to behaving in an anti-social manner.  The alarming or distressing cumulative effect of certain behaviour is thus recognised.

The decision to apply for an ASBO and the granting of it are discretionary.  The sheriff may grant an ASBO if satisfied that the statutory criteria have been fulfilled and if it is necessary for the protection of persons in the area of the authority making the application.  The sheriff must disregard any act of the defender which was reasonable.  An application may not be made nor an ASBO granted in respect of anything done before April 1, 1999 but, surely, evidence of pre-commencement behaviour will be admissible to establish the necessity of an order so long as there is also evidence of at least one post-commencement incident.  The extent of the sheriff’s powers to make an ASBO is contained in sections 19(3) and 21(7).  Basically, the sheriff may make such order as is necessary to protect persons in the area of the applicant authority from further anti-social acts by the defender.  Orders will have effect for the period specified therein by the sheriff or, if no period is stated, indefinitely.  Orders shall continue in force even pending the outcome of an appeal but there is no provision for interim ASBOs, therefore existing remedies (interim interdict?) will require to be employed for urgent, serious cases.  Orders may also be varied or revoked at a later date upon application by either the relevant authority or the offender.  Typically, conditions imposed by sheriffs in ASBOs will be similar to those in common law interdicts, therefore ASBO writs will require precise drafting.

Breach of ASBOs

Failure to obey an ASBO is an offence (section 22) even if the failure would not have otherwise constituted one.  If, however the breach also constitutes a separate offence and the perpetrator is being prosecuted for it, then there will be no additional breach prosecution but the circumstances can be taken into account in sentencing if the crown expressly libel it in the complaint.  Accordingly, a breach is a criminal matter attracting criminal sanctions and penalties and the police should investigate and report alleged breaches in the normal way.  Proof of a breach will require both corroboration of the crucial facts and proof beyond reasonable doubt.

Sex offender orders

The Sex Offenders Act 1997 required sex offenders to register with the police.  Now sections 20, 21 and 22 of the 1998 Act empower the police to apply to the sheriff for a sex offender order if necessary to protect the public from serious harm from a convicted sex offender in circumstances where that person’s behaviour is giving cause for concern.  The local authority must be consulted before application but failure to consult does not invalidate a SOO.  The SOO provisions mirror those for ASBOs in many respects but an interim SOO may be competently granted pending a final determination.  Jurisdiction arises from the location of the offending behaviour as with ASBOs, and prohibitions necessary to protect the public from serious harm may be imposed on the offender.  A constable may arrest without warrant anyone reasonably suspected of breaching a SOO.  Orders have effect for the period specified by the sheriff or indefinitely if no period has been stated; they also continue in force pending the determination of any appeal but may be varied or revoked upon a summary application by the police or the offender.

Drug treatment and testing orders

Sections 89 to 95 of the Act amend the Criminal Procedure (Scotland) Act 1995 and introduce DTTOs.  DTTOs provide the courts with an alternative disposal for convicted offenders aged 16 or over who misuse drugs.  The instant conviction need not be drug related if the offender is a drug abuser who appears capable of responding to treatment.  DTTOs shall be for no less than 6 months and no more than 3 years and can only be made in areas where appropriate arrangements have been established, providing a report confirms the offender’s suitability.  The court must be satisfied that the offender is dependent on, or has a propensity to misuse, drugs and that the condition is susceptible to treatment.  The offender must also be willing to comply with the DTTO requirements which may involve providing samples.  Breach of a DTTO is an offence and may be proved by uncorroborated evidence.  Breach entitles the court to vary or revoke the DTTO.  If it is revoked, sentence may be imposed for the original offence.  The Act lays down a strict regime for DTTO offenders.  Treatment must be undertaken, samples given, residence monitored, contact with a supervising officer maintained and review hearings attended.  Rehabilitation rather than punishment is the aim of DTTOs.

Noise-making equipment: new police powers of search

Section 24 of the Act amends the Civic Government (Scotland) Act 1982 by giving the police power to enter premises, search for and seize offending noise-making apparatus, using reasonable force if necessary.  No prior warrant is required.  Schedule 1 governs the retention, reclamation and disposal of seized apparatus.

Racially motivated anti-social behaviour

Sections 33 and 96 make two distinct amendments to the criminal law.  The former makes racial harassment a specific offence and the latter enables racism to be libelled expressly as a specific aggravation in defined circumstances, so that courts may take it into account in sentencing.  An offence will be racially aggravated if at the time of commission of the offence, or immediately before or after it, the offender evinces ill-will or malice towards the victim based on the victim’s actual or presumed race or if the offence is motivated wholly or partly by ill-will towards members of a racial group based on such membership.  Section 33 amends the Criminal Law (Consolidation) (Scotland) Act 1995 to create a new offence of pursuing a racially aggravated course of conduct with the intention of harassing a person (or which reasonably appears to be harassment) and which causes or is intended to cause alarm or distress, where the perpetrator is motivated by ill-will based on the victim’s (presumed) membership of a racial group.  Racial group refers to race, colour, nationality or ethnic or national origins.  A person’s religious persuasion or sexual orientation is immaterial.  The penalties for infraction are potentially more severe than under the pre-existing law.

Extended grounds of eviction for anti-social behaviour by tenants and their household The Housing (Scotland) Act 1987 and the Housing (Scotland) Act 1988 govern most public sector and social tenancies.  These Acts created secure and assured tenancies respectively.  The bad behaviour eviction grounds are contained in paragraphs 2 and 7 of Schedule 3 of the 1987 Act and ground 15, Schedule 5 of the 1988 Act.  These provide grounds for eviction where there has been a conviction for use of the house for immoral or illegal purposes by the tenant or lodgers, or conduct by the tenant or anyone lodging with the tenant in the vicinity of the house which is a nuisance or annoyance to such an extent that the landlord should not be required to continue to make any accommodation available to the tenant.  The new extended grounds widen the relevant circumstances to include the eviction of any visitor to the house for using it immorally or illegally, and eviction for any offence punishable by imprisonment committed in the locality of the house by tenants, lodgers or visitors.  Grounds for eviction will also now exist where any tenant or lodger or visitor has acted in an anti-social manner in relation to any other person residing, visiting or otherwise engaged in lawful activity in the locality, or has pursued a course of equivalent anti-social conduct.  As with ASBOs “anti-social” means causing alarm or distress or behaving in a manner likely to cause them. “Conduct” includes speech and a course of conduct must involve at least two incidents.  So, general bad behaviour by various parties in the locality will count over and above behaviour merely in the immediate vicinity.  The new grounds are not retrospective.

Conclusions

Scottish Office guidance states that ASBOs are not a substitute for criminal proceedings and are complementary to interdicts and evictions.  Evictions remain a last resort to be pursued only when other measures, including ASBOs, have failed.  It will be seen if actual practice coincides with the guidance and whether the new measures will make a significant impact.  It was misconceived to expect local authorities to tackle crime and disorder effectively using statutory housing management powers.  It was also a gross slur on local authority tenants to portray endemic bad behaviour as a public housing issue.  The 1998 Act redresses the balance to some extent.  ASBOs solve certain problems of title and interest encountered with interdicts and can be targeted against known culprits regardless of their housing status to provide a less blunt instrument than eviction of a household.

ASBOs have nothing to do with housing management.  They do not affect a person’s residential tenure and need have nothing to do with neighbour nuisance at all.  The alleged offender does not require to be resident in the authority’s area nor be one of their tenants nor be bothering one of their tenants nor be doing anything even relating to the authority’s (other) statutory functions.

Consideration of the equivalent English provisions in the Act reveals some substantial differences between our respective jurisdictions.  English ASBOs may be made in respect of children aged 10 and over for a minimum of 2 years.  The police may also apply.  The Act also contains a larger package of measures exclusively for England including Parenting orders, Child safety orders, local child curfew schemes, provisions for the removal of truants to designated premises and duties on the police and local authorities to devise crime and disorder strategies.

The 1998 Act signals a shift of emphasis in the twin contexts of anti-social behaviour and the role of local authorities.  It recognises that anti-social behaviour, or crime and disorder, to give it an equally valid label, has moved out of the “stair-head”, neighbour rammy league (if it was ever there), and should be addressed as the serious problem that it is, in a comprehensive way.  It is a mainstream issue, not a peripheral irritant.  Local authorities now become municipal policemen tasked with making ASBOs work and with making communities safe.  They will welcome an extra function at a time when Holyrood may be looking around for powers to assume and the public is wondering whether there is not now a superfluous layer in the municipal fabric of Scotland. Unfortunately, high hopes and good intentions do not appear to have translated into an appropriate resource allocation.

Time will tell whether ASBOs, SOOs and DTTOs are effective or not.  Let us hope that they are not damp squibs which raise our expectations then let us down.

Phil Forte, Solicitor
University of Abertay, Dundee