Antisocial Behaviour (Scotland) Act

Antisocial Behaviour (Scotland) Act

17/08/2004

Capability Scotland has worked jointly with the National Autistic Society and Leonard Cheshire on monitoring this Act's progress through the legislative process.  We tabled a number of amendments throughout the Act's history mainly concerned with the definition of antisocial behaviour used in the Act.

We welcome the general principles behind the Act as people with disabilities can often be the victims of antisocial behaviour.  However, people with disabilities can also display challenging, obsessive or ritualistic behaviour which may appear to some people to be antisocial.

Definition of Antisocial Behaviour
We are concerned that the definition of antisocial behaviour used in the Act may discriminate against children and adults because of behaviour caused by their disability.  This could affect people with 'hidden' disabilities such as autistic spectrum disorders, Tourete Syndrome, ADHD and Huntington's disease as well as people with learning disabilities and other disabilities.

The definition used in the Act in section 143:

For the purposes of this Act, a person ("A") engages in antisocial behaviour if A -
a) acts in a manner that causes or is likely to cause alarm or distress; or
b) pursues a course of conduct that causes or is likely to cause alarm or distress,
to at least one person who is not in the same household as A; and "antisocial behaviour" shall be construed accordingly.

We argued throughout the Bill process for the inclusion of some statement in the definition which would distinguish between intentional behaviour and behaviour out with a person's control.  The definition used in the finalised Act does not differentiate between intended and unintended antisocial behaviour.  This definition could result in a person with a disability displaying a behaviour that although not harming anyone, could be interpreted as 'likely to cause' distress.

In response to our concerns, we received a commitment from Deputy Communities Minister Mary Mulligan who stated on 28th April 2004:

'Of course steps should be taken to raise awareness and understanding of the implications of medical and developmental conditions that might relate to antisocial behaviour.  I can confirm that statutory guidance will address those issues.'

Reasons for not changing the behaviour

The reasoning behind not changing the definition was that this was an implementation matter and would be dealt with in guidance.  There are also provision made within the Act that children's best interests and welfare will be taken into account when considering the application for an Antisocial Behaviour Order (ASBO).  There are also provisions that specify that the Principle Reporter for the Children's Hearings System in the local authority area must be consulted when an ASBO against a child is applied for.

We have seen evidence from England however, that ASBOs have already been used against children with disabilities which suggests that these provision do not go far enough.

In relation to our concerns being addressed in guidance, it would seem that this is not the case.  The guidance to accompany the Act is in draft form at the moment and the general feeling is that the issues we raised are not being adequately addressed.  The guidance addressing the issue of disability only relates to parts 1 and 2 of the Act (the definition of antisocial behaviour is not contained in these sections).  Disability is only mentioned in relation to ASBOs:

29. ASBOs are intended to provide protection to individuals and groups whose quality of life is undermined by antisocial behaviour by others.  Individuals who experience prejudice on the grounds of race, religion, gender, age, disability or sexual orientation may also be more likely to be victims of antisocial behaviour.

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

Disability is not mentioned in terms of the definition of antisocial behaviour.  We would argue that this guidance is quite weak and uses inappropriate language.

What actually happens
Antisocial Behaviour Orders (ASBOs)

• Each local authority and relevant chief constable will be responsible for preparing a strategy on tackling antisocial behaviour in the authority's area.  This will take into account the relevant services available in the area.
• Antisocial Behaviour Orders (ASBOs) are applied for to the relevant authority and the sheriff will make a decision as to whether an ASBO should be served.
• ASBOs will be served to the specified person if:
  • they are at least 12 yrs of age
  • they have engaged in antisocial behaviour towards a relevant person
  • the ASBO is necessary to protect relevant persons from further antisocial behaviour
• When an application is made for an ASBO against a child, the child will have to attend a Children's Hearing to determine whether an ASBO is required.
• ASBOs prohibit the person from doing anything set out in the Order.  Criteria set out in the ASBO will be necessary to protect others from further antisocial behaviour.
• An Interim Order can be put in place before the outcome of an application for an ASBO has been determined.
• A person in breach of any of the criteria in an ASBO will be guilty of an offence.
  Breach of an ASBO can result in imprisonment from 6 months to 5 years or a fine, or both.
• Children may face a 'supervision requirement' which can take a number of forms including accommodation in a secure setting or a 'movement restriction condition'.
• Parents of children may face a Parenting Order

Noise Nuisance

• Initial Warning Notice will be served.
• If noise exceeds permitted level after notice has been served, they are guilty of an offence.
• This offence is punishable by a fine or a fixed penalty notice of £100

Housing

• Antisocial Behaviour Notices will be served to landlord of relevant house
• Landlord must address antisocial behaviour
• Breach of notice is an offence and is punishable by withholding rent from landlord.
• If landlord fails to take appropriate action to prevent antisocial behaviour, the local authority will step in
• The definition of antisocial behaviour differs in this section to state that antisocial behaviour is defined as the person:
  • Acting in a manner that causes or is likely to cause alarm, distress, nuisance or annoyance
  • Pursues a course of conduct that causes or is likely to cause alarm, distress, nuisance or annoyance to a person residing in, visiting or otherwise engaging in lawful activity at, or in the locality of, a relevant house.

Parenting Orders

• A Parenting Order will be served when:
  • The child has engaged in antisocial behaviour
  • The making of an order is desirable in the interests of preventing further antisocial behaviour
  • The child has engaged in criminal conduct
  • The making of an order is desirable in improving the welfare of the child
• Before an application is made by a local authority for a Parenting Order, the Principle Reporter will be consulted
• The Clerk of the Courts will copy the Order to the Parent
• Parents must comply with the conditions and requirements specified in the Order
• Requirements will normally include counselling/guidance sessions
• Failure to comply with any element of the Order is an offence punishable by a fine
• The welfare of the child will be considered when addressing the offence
• Within the process of serving a Parenting Order, the child and parent will have the opportunity to be heard and information will be obtained on the family circumstances of that parent and the likely effect of those circumstances
• There is specific mention in section 110 of the Act that account will be taken of religion, work and education - no mention of medical problems, developmental problems or disability

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