Legal Update: Antisocial behaviour law reforms

The Antisocial Behaviour Bill 2012, which was published in draft form in December, could radically change the way in which authorities approach antisocial behaviour, particularly that involving children. The bill proposes making extensive changes. Injunctions to prevent nuisance and annoyance are among the most controversial measures.

The injunction will replace a range of existing measures including the contentious antisocial behaviour order (Asbo). According to the draft bill, the court may impose an injunction upon a person aged 10 or older (“the respondent”) if two conditions are met.

The first is that the court must be satisfied “on the balance of probabilities” that the respondent engaged in, or threatened to engage in, conduct capable of causing a nuisance or annoyance to any person (section1(2)). “On the balance of probabilities” is a civil standard of proof, which creates a much lower threshold than the criminal standard, of “beyond reasonable doubt”. The second condition is that it must be just and convenient to make the order (s1(3)). The injunction can only be granted on the application of a governmental body; for example, a local authority (s4(1)).

Respondent prohibitions
The injunction can prohibit respondents from doing, or compel them to do, anything described therein (s1(4)). Under s12 and s13, the injunction may exclude the respondent from their place of residence if that place is owned or managed by a local authority or housing provider and the authority or provider is the applicant. Certain further conditions must also be met.

The court is under a duty to ensure that injunctions do not conflict with the respondent’s religious beliefs, attendance at school, or with any other court order (s1(5)). A power of arrest may be attached if the individual used or threatened violence, or if there is a risk of significant harm to another by the antisocial behaviour (s3(1)).

If a child activates the power of arrest, then they may be arrested without warrant and taken before a justice of the peace within 24 hours (s8(3)(b)). The child will face further restrictions or penalties if it is proved “beyond reasonable doubt” that they have breached their injunction. The authorities may impose a supervision or detention order (Schedule 2, Part 1, para.1(1)). Children over 14 may be placed in detention if they breach an injunction, even though such a breach is not a criminal offence. This is a punishment of last resort (Schedule 2, Part 1, para.1(6)) and is limited in duration to three months (Schedule 2, Part 3, para.14(2)).

Draft bill responses
Responses to the draft bill have been mixed. Supporters praise it as a means of reforming and streamlining the flawed system of Asbos. Multiple bodies have said that the bill has not balanced the need to combat antisocial behaviour with the obligation to treat vulnerable members of society fairly. It is of concern that the bill imposes injunctions, albeit not penalties, on the basis of the civil rather than the criminal standard of proof, which has a much lower threshold.

The potentially onerous conditions imposed on a young person by an injunction means that the civil standard is too light and risks “fast-tracking” children into the criminal justice system. The ongoing debate over the bill is broad to the extent that it comprises everything from civil liberties to prison populations to neurological problems in children.