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What difference does the revised anti-social behaviour guidance make?

On 24 December 2017, the Government published the revised Statutory Guidance for Frontline Professionals on anti-social behaviour (ASB) powers available under the Anti-social Behaviour, Crime and Policing Act 2014 (the Act). It is the first revision since the Act entered into force in October 2014 (ironically the original guidance was produced, in July 2014, some three months before the section 91 power to issue the same came into force ).

Many of the changes in the Revised Guidance are either cosmetic or re-emphasise the "victim centred" drive which very much informed and underpinned the Act. For example, there is a new section at the start entitled The impact on victims and communities, which repeats the importance of keeping the victim informed while the appropriate response to ASB complaints is considered by the local authority, police, etc. It also encourages collaborative working between different agencies where necessary.

Issues of note

However, such emphasis on under-used measures, such as the 'community trigger', would not, though important, in itself merit particular comment. What does justify some focus is:

(a) The changes to the guidance concerning public spaces protection orders (PSPOs)

Particular concerns have been raised in relation to PSPOs, which can apply to a number of specified activities in a designated area. The Local Government Association was moved to produce its own guidance in May of last year: "to set out the issues to consider where local areas are contemplating introducing a PSPO, and offers practical guidance on the steps to take if councils choose to do so. It should be read in conjunction with the Home Office's statutory guidance on the Anti-social Behaviour, Crime and Policing Act 2014."

This followed criticism from some commentators on the way in which PSPOs have been used. One example is open-air sleeping in public places, which was made the subject of a PSPO by Rushcliffe Borough Council in February 2017. Other examples are busking, street-speaking and street entertainment. Birmingham City Council carried out a consultation in 2015 - Public Spaces Protection Order Consultation: Noise from Buskers, Street Entertainers & Street Speakers in the City Centre - but decided against it upon considering the responses.

At the time of writing, Newport City Council is reviewing a PSPO brought in in 2015, which imposes a blanket ban on aggressive begging, touting for services or charity donations and street drinking in the city centre. There are reports that this might extend in part the PSPO, due to expire this November, to all begging and groups gathering in the city centre.

It is notable that the Revised Guidance continues to misstate the statutory test for the introduction of a PSPO; it is the "detrimental effect" of the identified behaviour which must justify the restrictions imposed by PSPO, not the "activity or behaviour" as (erroneously) set out in both the original and Revised Guidance.

There is a fairly lengthy new section on homelessness and rough sleeping in the context of PSPOs. This states that they "should not be used to target people based solely on the fact that someone is homeless or rough sleeping", though councils may consider the issue carefully and decide to combat "specific behaviour that is causing a detrimental effect on the community's quality of life".

(b) The references to CPNs and other powers

A new example is given of CPNs being used against dog owners who allow their animals to stray in public spaces and for a positive requirement for the dog owner to attend training sessions. Interestingly this is the example given in section 6.17 of Kuljit's book Cornerstone on Anti-Social Behaviour: The New Law.

In more detailed guidance than appeared in 2014, councils are now urged to pay due regard to the interests of dog walkers by, for example, publishing a list of alternative sites where dogs can be walked without restriction, and by considering other methods of combatting the problem such as "educational days for irresponsible dog owners".

As in the original Guidance, the Revised Guidance gives "aggressive begging" as an example of ASB for the purposes of a civil injunction under s.1 of the Act. Since the ASB threshold is higher in this context (conduct causing or likely to cause "harassment, alarm or distress" where the conduct is not related to housing), the unsurprising implication is that the Home Office believes it to be capable of triggering a council's CPN and PSPO powers as well.

In this regard, the general thrust of the Revised Guidance, therefore, seems to be in favour of reading the threshold concept of ASB relatively broadly: even lower level and less obvious behaviour may be capable of triggering certain of the Act's powers.

(c) The acknowledgement of vulnerabilities

Whilst the Revised Guidance continues to stress that the Act's primary focus is the impact of the ASB on the victim or victims, local authorities are also directed to consider to the interests of those against whom the Act's powers are used, particularly with vulnerable persons or where fundamental rights to freedom of movement and/or freedom of expression are in play.

New passages have also been added that re-emphasise the need for any measures taken to be proportionate and to comply with relevant duties under the Equality Act 2010. Certain explicit references to the European Convention of Human Rights (ECHR) that appeared in the 2014 Guidance are omitted in the Revised Guidance. This is presumably to render it more intelligible to non-lawyers and to emphasise substance over form: the overriding concern for decision-makers should be to take action that is proportionate on the facts, not to dig around in the law reports to find that the Human Rights Act 1998 (HRA) and ECHR precedents that might be capable of justifying their decisions post hoc.

Conclusion

As the first revision since the Act came into force, the Revised Guidance in general appears true to its aim of "ensuring that the [Act's] powers are used appropriately to provide a proportionate response to the specific behaviour that is causing harm or nuisance without impacting adversely on behaviour that is neither unlawful nor anti-social".

Kuljit gave evidence to the London Assembly's Police and Crime Committee which examines the work of the Mayor's Office for Policing and Crime (MOPAC). Their report is due to be published on 18 January 2018. We will send an e-flash on the contents of that report next week.

Kuljit Bhogal is Co-Chair of the Cornerstone Housing Team and member of the Public Law Team. She is also author of Cornerstone on Anti-Social Behaviour: The New Law.

Andy Lane is a member of Cornerstone Barristers' Housing and Public Law Teams, and edits the Cornerstone Housing Newsletter. He is also the author of Cornerstone on Social Housing Fraud.