Anti Social Behaviour Legislation: Friend or Foe

Anti Social Behaviour Legislation: Friend or Foe

25/11/2004

Speaking at the launch of Putting our Communities First, the Scottish Executive's consultation in the summer 2003 on its plans for anti social behaviour proposals, Margaret Curran, the Minister for Communities said:

"Our strategy recognises that anti-social behaviour is caused by all age groups, not only the young and not only in deprived communities.” "It is founded on the basic principle that every one of us has rights, but we also have responsibilities. That principle is, after all, the core requirement for a healthy civic society. A society where we respect each other and our property."

And thus the Scottish Executive embarked on a strategy to tackle what it considered to be a growing problem of anti social behaviour in Scottish communities.  The Act introduces a number of measures and changes in the areas of justice, environment, housing and child welfare, all linked to tackling anti social behaviour.

Briefly the Act defines anti social behaviour as follows:
1. 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 of the same household as A; and "antisocial behaviour" shall be construed accordingly (section 110/1)

The main provisions briefly are as follows:

 Antisocial Behaviour Strategies - a duty on each local authority to work jointly with the relevant chief constable to prepare, publish, and keep under review, a strategy for tackling antisocial behaviour in the authority area.

Antisocial Behaviour Orders (ASBOs) ASBOs are preventative orders to protect people affected by anti social behaviour from further acts or conduct that would cause them alarm or distress. Breach of an order is a criminal offence. Local authorities and registered social landlords will be able to apply to the sheriff to have an ASBO granted against those aged 12 and above (currently can only be applied to those aged 16 and above). It also gives the court new powers to refer such children to the children’s hearing system and where appropriate make a parenting order.  

Dispersal of groups - contrary to the proposals in the Executive's consultation document this measure does not apply exclusively to those under 16. The Act give senior police officers the power to authorise police officers to disperse groups of two or more people in a specified area, at specified times and for a specified period (not exceeding 3 months).

 Noise Nuisance – local authorities are given power to implement a noise nuisance service in their area up to 24 hours a day and 7 days a week.  Also the act allows for fixed penalty notices for noise nuisance and additional powers for local authorities to seize noise making equipment.
 Parenting Orders (POs) - the court may grant an application for a PO from a local authority where a child has engaged in antisocial behaviour or criminal conduct. A PO may be granted on request of the Principle Reporter under the same conditions and/or where 'the making of the order is desirable in the interests of improving the welfare of the relevant child'. Before making a PO the court is obliged to hear the views of the relevant child ('having regard to the age and maturity of the relevant child, so far as is practicable') and those of the parent or relevant adult. PO cover an adult who has general day to day care of a child and not only those with rights and responsibilities. Breach of a PO will constitute an offence and the parent will be liable for a fine - the welfare of the child will be considered by the court in making this decision.

Community Reparation Orders (CROs) - where someone is convicted of an offence involving antisocial behaviour and was between the age of 12 and 21 when this was committed then the court may impose a CRO in place of a sentence. This will require the offender to carry out activities designed to enable reparation to be made to those affected by their actions or to reduce the likelihood of the person engaging in such behaviour again.
 
Supervision requirements - the Children (Scotland) Act 1995 is amended to enable supervision requirements imposed by a children's hearing to include restricting a child's movements and requiring the child to comply with arrangements for monitoring their compliance with such a restriction. Devices that may be used for the purpose of monitoring are to be specified in regulations. The Act also strengthens duties on local authorities to provide services required to make a supervision requirement effective and strengthens local authority accountability in respect of the provision of education for excluded pupils.

Other measures include:

• Banning the sale of spray paint to under-16s
• Giving local authorities the power to issue fixed penalty notices for  litter
• Strengthened local authorities' powers to tackle noisy neighbours
• Strengthening local authorities' powers to deal with landlords who don't tackle antisocial behaviour by their tenants through a national landlord registration scheme
• Giving the police powers to close premises where drug-dealing or other antisocial behaviour takes place and to disperse groups where there is anti-social behaviour
• Introducing fixed penalty notices for some antisocial behaviour
• a power for senior police officers to authorise the closure of premises associated with significant and persistent disorder or significant, persistent and serious nuisance to the public.
• The Act extends Restriction of Liberty Orders to under 16s as a sentencing option in the criminal court.

Timeline

26/06/03 - Scottish Executive issue 'Strategy to tackle antisocial behaviour' consultation document.
11/09/03 - End of consultation
29/10/03 - Antisocial Behaviour etc. (Scotland) Bill introduced to Scottish Parliament.
17/06/04 - The bill was passed at Stage 3 Debate by MSPs.
26/07/04 - The bill received Royal Assent and became an Act of the Scottish Parliament.
28/10/04 – the act came into effect with the issue of guidance on anti social behaviour strategies.

So the law is now in effect, the guidance on producing anti social behaviour strategies has been issued and local authorities have been advised to produce first edition local strategies by the end of March 2005. 
Guidance on ASBOs and noise management is being finalised.  Capability Scotland responded to the consultation on all of this draft guidance

FOE? WILL IT DISCRIMINATE AGAINST DISABLED PEOPLE/FAMILIES WITH A DISABLED CHILD?

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
Capability Scotland is 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, Tourette Syndrome, ADHD and Huntington’s disease as well as people with learning disabilities and other types of disabilities.

The definition of anti-social behaviour in section 110(1) is extremely general and does not even require any negative consequences to have occurred as a person is deemed to have engaged in anti-social behaviour, including speech, if person 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 of the same household as A

Therefore, a person with a disability could display a strange behaviour which does not harm anybody and this could be interpreted as ‘likely to cause’ distress.  This definition does not differentiate between intended and unintended anti-social behaviour.

At stage 1 and again at stage 2 there was a commitment to these issues being tackled in the guidance.

During Stage 2 of the Bill, in response to amendments lodged on ASBOs and disabilities, the Deputy Communities Minister, Mary Mulligan MSP 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 definition
The reasoning behind not changing the definition was that this was an implementation matter and would be dealt with in guidance.  There are also provisions 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.

In relation to our concerns being addressed in guidance, it would seem that this is not the case.  The guidance to accompany the Act was consulted upon recently and our 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. It states:

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.

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.

So disability is not mentioned in terms of the definition of antisocial behaviour or for noise management or anti social behaviour strategies - we think it should.  There is just one paragraph across all the guidance – and this is in the ASBO guidance – that talks about the law in relation to medical and developmental conditions and young people with disabilities.
 
The big weakness remaining is the language - the draft guidance talks about it being "highly unlikely" that an ASBO would be an appropriate measure to deal with a person whose behaviour is the result of disability.  This phrase has no basis in law and is open to interpretation - we would prefer to see this changed to read "it is not probable that an ASBO would be the most appropriate means to address the behaviour of a child with autistic spectrum disorder or any disability or other developmental condition which might cause their behaviour"

Capability Scotland urged the Scottish Executive to adopt this paragraph, with the wording changed of course, into the guidance on strategies and noise management.  This has not happened.

The guidance also urges the seeking of advice from a "medical expert" where it is suspected that someone has a disability or developmental condition - this creates an issue of workload, of GPs being approached who don't necessarily have the appropriate knowledge or information and ignores the role organisations and agencies can play in providing appropriate advice and information on behaviours that are associated with diagnosed conditions.  So appropriate signposting is missing from the guidance which would be truly useful to local authorities, police and other agencies.

The guidance on noise management also raises huge concerns about what constitutes normal everyday behaviour.

We have heard from many parents of children with disabilities and have heard evidence from other disability organisations that noise management is one of the biggest problems that parents face in bringing up a child with a disability.  Some disabilities can cause a person to make unusual or different noises.  These noises are often beyond the noise maker’s control and they are often unaware that they are disturbing others. 

We would highlight that in cases where a person in a property is causing ‘unreasonable’ noise but that noise is the result of the manifestation of a disability, a warning notice and a fixed penalty fine would have no effect as the noise is uncontrollable.  It would be probable that the best solution in these circumstances is adjustment of the physical environment. 

Under the Civil Rights section of the guidance on Noise Management, it is stated:

“.in using the provisions of the Anti-Social Behaviour Etc. (Scotland) Bill to protect others from the anti-social behaviour of an individual, the rights of that individual (the perpetrator of the noise) must not be prejudiced, and any action taken to stop the noise maker from making noise must be proportionate given the circumstances.  Consequently where there is poor sound insulation the exceedance of the Permitted Noise Level through normal everyday behaviour by the noise maker is unlikely to be an appropriate action/outcome.”

We would argue that noise created by a person as a result of their disability can be included under ‘normal everyday behaviour by the noise maker’, thus strengthening the case for addressing this type of noise with physical adjustments to the environment, such as noise insulation.

Capability Scotland is aware that some local authorities already use noise insulation in these situations but inclusion of this recommendation in the guidance would encourage prioritising of this option.  We are also aware that there are long waiting lists for installation of noise insulation and we would like to see further guidance to encourage local authorities to make noise insulation a priority in these circumstances.

Other general concerns
There need to be robust mechanisms in place to evaluate the implementation against the provisions of the law and all guidance issued - we want to be assured that children and young people with disabilities are not being targeted by this legislation.

Generally the emphasis throughout the passage of the legislation and now into the drafting of the guidance has been shifted away from protection of communities and children and development of communities to a focus on the punitive aspects of the law.  We believe at this stage that it has failed to recognise a fundamental difference between what is intended anti social behaviour and that which is not. In terms of human rights it remains to be seen whether this legislation is disproportionate and possibly even discriminatory.  The sister act in England and Wales has already been challenged on human rights grounds. So it remains to be seen in implementation whether the rights which the Minister for Communities,  spoke about will be protected or whether disabled people will be prosecuted as antisocial just by nature of their impairment.

It will also be interesting to see if the Disability Discrimination Act 1995 affords rights to disabled people should any anti social measures be used against them.   Discrimination under the Act occurs if "for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does or would not apply and he cannot show that the treatment in question is justified". It may well be possible to argue that any targeting of anti social measures to disabled people whose unintended behaviour is anti social could be discriminatory by virtue of the person being treated differently purely on the grounds of their disability.  Again some interesting housing examples in England point to this happening already.

Case studies of the use of ASBOs against children with disabilities in England

• An article in The Guardian (8.11.03) reported that a mother and son were evicted from their home and were served with an ASBO because of the son's bad behaviour. The boy has ADHD.
• An anonymous call was made to the NAS’ helpline by the parent of a 13 year-old boy with autism.  The boy was served with an ASBO after neighbours complained about the noise the he was making when jumping on his trampoline. (Trampolining has been found to be therapeutic for people with autism).  The local authority was aware that the boy had autism when it applied for an ASBO.
  
• Evidence to the Communities Committee from Children in Scotland said that they are aware of an example in England where a child with autism was making so much noise, knocking the walls, etc., that the neighbours complained and an ASBO was applied for.

Cases where the DDA and anti social behaviour have clashed in England.

North Devon Homes v Brazier [2003] EWHC 574; [2003] 22 EG 141 (QB, Steel J).

The (assured) tenant was a disabled person within the meaning of the 1995 Disability Discrimination Act. She experienced a psychotic illness, possibly schizophrenia. As a consequence of her illness she caused considerable nuisance to her neighbours. The landlord sought to evict her. Under s7 of the Housing Act 1988 the court has the power to order possession if reasonable to do so. The judge made an order for possession. On appeal to the High Court, the order was set aside. It was held that the court's powers under the 1988 Act are, in such a case, subject to the 1995 Act.

Under s22(3)(c) of the 1995 Act it is unlawful to discriminate against a disabled person "by evicting the disabled person or subjecting him to any other detriment". Discrimination occurs if "for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does or would not apply and he cannot show that the treatment in question is justified". There are specific grounds in s24 of the 1995 Act that can be used to justify discrimination. The one relied upon in this case was danger to "the health or safety of any person" (s24(3)(a)).

There were thus two questions: (i) Was there discrimination? (ii) If so, was it justified?

L argued that any other tenant behaving as the tenant had done would have been treated in the same way, ie by eviction. However, the court held that this argument could not be relied upon under the Act where the behaviour was caused by the disability. That was the position in this case. On the facts, the judge had found that she was unable to prevent herself behaving in the way complained about because of her disability. She was therefore discriminated against. As to justification, there was no evidence that T was a danger to "the health or safety of any person":

" ... I accept that ... unlawfulness under the 1995 Act would not necessarily be determinative of the application under the Housing Act.. The Act does not bar evictions: only those which are not justified by the specific circumstances set out in section 24. The [landlord] having adopted a proper review of the situation in accordance with the express terms of the Act, may conclude in the future that the health and safety of her neighbours are prejudiced and thus steps should be taken to evict the [tenant]. But this situation has not arisen... the fact that the 'eviction' ... is not justified by the terms of the Act and is thus unlawful is a highly relevant consideration in the exercise of the discretion." (paragraphs 23 and 24).

 Manchester City Council v Romano [2004] EWCA Civ 834.

This is a further case on the topic in which North Devon Homes was considered. The Disability Rights Commission was represented by counsel as an interested party. The claim was for possession based on nuisance under Ground 2 of Sch 2 to the Housing Act 1985. The defendants were guilty of behaviour that amounted to nuisance. The issue was whether or not it was reasonable to order possession under s84 in the light of the Disability Discrimination Act 1995. One tenant suffered from a depressive mental illness and the other had a personality disorder such that the DDA applied. Held: The possession orders in each case were nonetheless justified because of the effect of the health on neighbours.

FRIEND: WILL IT HELP END LOW LEVEL HARASSMENT OF DISABLED PEOPLE?

Hate crime has been moving up the political agenda in Scotland and ironically in the summer of 2003 at the time when the consultation on anti social behaviour was introduced we also had the establishment of a hate crime working group by the Scottish Executive.

Legislation tackling sectarian crime and racially motivated crime already exists in Scotland.  This new working group was set up , as a  result of successful lobbying, to see if other groups in society also need the protection of hate crime legislation.

Capability Scotland and the Disability Rights Commission – who were both members of the working group - carried out joint research looking broadly at the nature and extent of hate crime committed against disabled people.

Hate crime is defined as crime motivated by malice or ill-will towards a social group. The expression of "malice and ill-will" is used in other existing legislation against racism and religious hatred, and provides a more suitable and subtle definition of this type of crime than the stronger term "hatred".

Hate crime can range from name-calling, to day-to-day harassment, violence and in extreme cases, murder. Victims of hate crime often have a visible or other distinguishing characteristic which acts as a "marker" of their difference and may single them out for abuse, such as "looking gay", having a dedicated accessible parking bay, or using a wheelchair. Hate crime represents an antipathy towards particular social groups whereby perpetrators of hate crime believe that they can, and should be able to, get away with their crimes.

They may believe the victim deserves to be attacked because they are different, that they are "fair game", and in some cases, the perpetrator feels he or she is "helping" society. They feel superior by making their victim feel inferior. No matter what the offence, even relatively minor incidents have a detrimental impact on society, creating divisions and tension.

Our research findings showed that approximately half the disabled people who took part in our survey had experience hate crime because of their disability.  73% of respondents who reported being frightened or attacked had experienced verbal abuse and intimidation.  Just over a third of incidents reported were physical attacks.

And hate crimes were most likely to occur in public places such as in the street or in the park, in shops and on public transport. Strangers were the most likely people to be carrying out the attacks.  We also found that these attacks had a huge effect upon disabled people: around a third of people had to avoid specific places and changed their usual routine.  One in four had moved home as a result of attacks.  And respondents felt scared, embarrassed and in many cases powerless to stop attacks.

So our research painted a picture of some people experiencing physical attacks but many people experiencing lower level harassment.  Worryingly most people did not tell the police about this kind of behaviour and did not feel that there was much that could be done to stop attacks. It also seemed that where people were reporting crimes there was little use of the common law on breach of the peace to stop this behaviour.

The Executive recognises that groups who are subject to hate crime may also be more likely to experience the effects of antisocial behaviour.  The antisocial behaviour legislation is intended to complement work on hate crime as it provides additional tools to protect victims of antisocial conduct, which may involve incidents not sufficiently clear-cut to be prosecuted on a criminal basis.

The working group concluded that while these initiatives may be helpful in so far as they provide general help for victims of hate crime, other measures are necessary to target hate crime directly.

In the main the working group recommended that the Scottish Executive should introduce a statutory aggravation as soon as possible for crimes motivated by malice or ill-will towards an individual based on their sexual orientation, transgender identity or disability. The legislation should be framed in such a way as to allow this protection to be extended to other groups by statutory instrument over time if appropriate evidence emerges that such other groups are subject to a significant level of hate crime.

The legislation should ensure the recording of hate-motivated incidents (by the police), and reports and decisions of proceedings (by Crown Office and Procurator Fiscal Service) and convictions (by Scottish Criminal Records Office).
Whilst the group realised that hate-aggravated harassment and alarming and distressing behaviour is a major concern it did not call for a general statutory offence of harassment.  Instead it recommended that consideration should be given to whether a general statutory offence of harassment and alarming or distressing behaviour would be an effective tool to combat such conduct. It also said that  if such an offence is not introduced, guidance should be issued to police and prosecutors to ensure the rigorous application of breach of the peace, together with the statutory aggravation, to such offences.

The  working group has only just published its report.  It is not known whether the executive will introduce further hate crime legislation and if so when.   And it seems most likely that any additional legislation will be a statutory aggravation. 

Given that the police seem not to be using existing common law to deal with harassment and other similar crimes against disabled people, this means that for now anti social behaviour legislation may be the best hope of protection for disabled victims of harassment.   –especially the name calling and bullying. This was the most significant type of harassment people faced – and the one they felt least able to do anything about.  It may be that this legislation fills a gap that the police have not tackled via existing means.  However in order to do that the police will have to be trained and aware how to use the anti social behavior legislation to protect certain groups such as disabled people. 

CONCLUSION
In conclusion we have in the anti social behaviour legislation a dichotomy.  Capability Scotland knows from its research that a significant number of disabled people experience what is called hate crime – but particularly lower level harassment.  The common law to date has not tackled this effectively and recommended legal changes may not be acted upon for some time.  In the meantime perhaps the anti social behaviour legislation can provide protection and support to those disabled people feeling victimized, scared and humiliated within their communities.  But only if the police view it as a new means to tackle this kind of harassment. 

On the other hand the law and its guidance as it stands currently could easily discriminate against disabled people – particularly Capability Scotland  believes,  families with a disabled child.  The woolly definition and inadequate legal drafting  in the guidance may leave the path open for cases similar to those in England and Wales were unintentional behaviour resulting from an impairment is deemed to be anti social and therefore subject to the new law.

However despite what may happen at a grassroots level none of this begins to tackle the inherent problems necessitating the anti social behaviour legislation and the proposals from the Hate Crime Working Group.  Legislation alone cannot make us a more tolerant civil society – for that we need to see effort put into understanding what the route problems are and long term strategies to tackle these.  For disabled people and their families as ever attitudes and awareness remain the insurmountable barriers to equality in their communities.

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