1. Security protective marking
1.1. Not protectively marked.
2. Summary of changes to policy
2.1. The following changes were made to this policy on 17 November 2011:
2.2 The policy is scheduled for review in November 2013. The review for this policy is on hold pending the Kent Police Policy Restructure throughout 2013/14.
3.1. This policy applies to police officers and Police Community Support Officers (PCSOs).
4.1. The purpose of this policy is to give guidance on the conditions and actions on Anti-Social Behaviour Orders (ASBO).
5.1. Section 1 of the Crime and Disorder Act 1998 allows the police, Local Authority or certain other agencies (including the County Council, British Transport Police, Registered Social landlords, Housing Action Trusts and the Environment Agency) to apply for an Anti-Social Behaviour Order (ASBO). ASBOs are intended to protect the public from behaviour that causes or is likely to cause harassment, alarm or distress where there is a necessity for such an order. It is to be used where other remedies have been explored and deemed inappropriate or less effective than an order or where the behaviour is sufficiently serious for an ASBO to be considered immediately (see paragraph 26).
5.2. An ASBO is a civil order which contains conditions that prohibit the offender from carrying out specific anti-social acts or from entering defined areas. Orders are valid for a minimum of two years, are not criminal sanctions, and are not intended to punish the offender. However a breach of the order is a criminal offence, punishable with up to five years imprisonment.
5.3. ASBOs may be granted as a civil stand alone application following conviction (a post conviction order), or in urgent cases as an Interim Order which includes interim post conviction.
5.4. Interim Orders are intended for use in situations where there is an urgent need to protect the community and must be submitted with the main ASBO application.
5.5. An ASBO can apply across the whole of England and Wales, although more usually they are applied to a local government area.
6. Anti-Social Behaviour
6.1. Section 1(1) of the Crime and Disorder Act 1998 defines acting in an “anti-social manner” as acting in “a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the person carrying out the anti-social behaviour”.
6.2. A Court can grant an ASBO when it is satisfied that:
- The defendant behaved in an anti-social manner and
- an order is necessary for the protection of persons from further anti-social behaviour by the defendant.
6.3. For further information on Anti Social Behaviour (ASB) types, the Home Office ASB typologies can be found on the following link: www.homeoffice.gov.uk/rds/pdfs04/dpr26.pdf
6.4. The order is not intended to be used to deal with civil disputes or minor nuisances and does not replace the use of criminal offences.
6.5. Care should be taken when investigating complaints of ASB to avoid discrimination or victimisation on the grounds of race, gender, sexual orientation, religion and belief, age or disability (see policy M62 Hate Crime for further information).
6.6. A list of other approaches to problems of ASB is to be found in paragraph 26 below.
7.1. Before an ASBO is applied alternatives, detailed in paragraph 24, should be considered.
7.2. Section 1E of the Crime and Disorder Act 1998 sets out the consultation requirements for agencies applying for orders. These are that:
- The police and local authorities must consult each other;
- Registered Social Landlords, Housing Action Trusts and the British Transport police must consult both the local authority and the police force for the area.
7.3. The statutory requirement for consultation does not mean that the agencies must agree to an application being made but rather that they are told of the intended application and given the opportunity to comment. Thus an individual agency could apply for an order without the other’s agreement, so long as discussion had taken place, although this would be unusual.
7.4. A fully co-ordinated approach involving all agencies is essential if ASB is to be successfully addressed.
7.5. The early liaison between partner agencies may take a number of forms (e.g. telephone call, other conversation, meeting or correspondence). These liaisons are referred to as Case Management Meetings.
These Case Management Meetings are intended to:
- Define the problem;
- Identify the nature of the risk;
- Identify the information holders;
- Outline future disclosure procedures.
7.6. The Inter Agency Scoping Meeting Form 3275 (available in Word) enables officers to contemporaneously record the agencies contacted, whether they hold relevant information and whether they are to attend a Case Management Meeting.
7.6.1. Notes of all stages of the process may be required as evidence in future civil/criminal proceedings. The following forms available on Microsoft Word may be used:
- 3276 Interagency Project Overview form,
- 3277 Interagency Project Access list,
- 3278 Interagency Project Chronology form,
- 3279 Interagency Project File Cover.
7.7. Every effort should be made to agree on the suitability of a case for an ASBO prior to the application. Agencies will identify personnel who will certify that consultation has taken place (using a Certificate of Consultation Form 3274). In the case of a police led application this will be the Divisional Commander or an officer with delegated authority (certifying officer).
7.8. A signed document of consultation (Certificate of Consultation Form 3274) is all that is required by the court. This should not indicate whether the party consulted was in agreement or not. Supporting statements or reports from partner agencies should be provided separately.
7.9. All forms and data they contain will be securely retained on Division by the Joint Family Management Officer in accordance with the Data Protection Act 1998 and ACPO / ACPOS (2020) Information Systems Community Security policy. The Joint Family Management Officer will be responsible, on behalf of the police, for recording the exchange of all information and monitoring compliance with this policy, the ACPO (2010) Guidance on the Management of Police Information and Checklist 2 (MoPI 2010).
8. Membership of a case management meeting
8.1. The police and local authority will determine the membership of the Case Management Meeting locally. This may take the form of a local ASB partnership or group. A multi-agency approach should be adopted so that all agencies that could hold information on the individual in question are involved in the process at an early stage. Where an order is likely to cross-district or unitary authority boundaries, relevant neighbouring local authorities should be invited to the Case Management Meeting.
8.2. Relevant agencies holding information should be invited to attend. Membership may include representatives from:
8.3. Where an order is being considered for, or applied for, on a young person between the ages of 10 and 17, a representative of the YOT must be invited to the meeting.
8.4. In cases involving a young person, Case Management Meetings should routinely include representatives from Education and Social Services. An assessment of the young person should be undertaken and may happen in parallel with the application.
8.5. Local authorities have a duty under Section 47 of the National Health Service and Community Care Act 1990 to assess any person who may be in need of community care services. If there is any evidence to suggest that the person against whom the order is being sought may be suffering from drug, alcohol or mental health problems, then the necessary support must be provided by social services and other support agencies. Such support should run parallel with the collection of evidence and application for an order, where an application for an order is deemed necessary.
8.6. A defendant will often receive advanced warning that s/he is being considered for an ASBO, either via a warning letter from the local ASB partnership or group, or by YOT for an assessment of needs. Potentially therefore the defendant has an opportunity to influence the decision-making process by giving reasons for his or her behaviour or providing assurances about future conduct. If the group proceed with an application for an ASBO without hearing the defendant, this may provide grounds for attacking the process as a whole.
8.7. In cases where the police are likely to be the lead agency, contact will be made with the Legal Services Department early on. It will be the Legal Services Department (L.S.D) role to advise the Case Management Meeting on the legal position of the application if this is required.
9. Case management meeting
9.1. A Case Management Meeting is a formal meeting between the police, the local authority and representatives from other relevant agencies.
9.2. The primary objective of Case Management Meetings should be to identify and implement appropriate measures to protect communities from anti-social acts.
9.3. Any agency should be able to request a Case Management Meeting.
9.4. The objectives of the meeting are to:
- Identify a lead agency to co-ordinate action and provide witness/complainant support;
- Assess the anti-social behaviour of the individual;
- Show previous action taken in connection with the individual;
- Assess future action to prevent further anti-social behaviour, particularly the use of an ASBO;
- Monitor individual cases subject to an ASBO.
9.5. During the meeting the following should be considered:
- Whether sufficient evidence already exists, or further evidence is required for an application;
- If subject present, ensure he/she fully understands the purpose of the meeting and any outcomes;
- The evidence to be presented and witnesses to attend when making the application;
- A media strategy (if appropriate) using our media department or nominating an interagency spokesperson;
- A procedure for victim care and witness support;
- How the ASBOS should be served on the subject and notification to other parties;
- Who should be told about the nature and content of the ASBO once obtained;
- The need to hold a subsequent Case Management Meeting to review progress;
- The location of the case papers;
- A review/monitoring process for a successful application;
- Enforcement plan for the Order.
9.6. Section 115 of the Crime and Disorder Act 1998 gives a power to share information in any case where the disclosure is necessary or expedient for the purposes of any provisions of the Act. Where personal data is being considered for disclosure the principles of the Data Protection Act 1998 and the common law duty of confidentiality will be followed. The rights of all parties involved that are enshrined in The Human Rights Act 1998 must also be maintained and the release of any police data must be ‘justified’ and ‘proportionate’ under this legislation and such justification/proportionality recorded. It is recommended that the Justifiable, Appropriate, Proportionate, Auditable, and Necessary (JAPAN) decision considerations are used for this purpose. The record will be kept with the relevant file. In such circumstances the Kent and Medway Crime and Disorder Information Exchange Protocol will apply.
9.7. Security of data is important for all agencies and systems should be in place to safeguard the security of information. All agencies must ensure data is fairly and lawfully processed and used only for the purpose for which it is supplied.
9.8. In such circumstances the Kent and Medway Crime and Disorder Information Exchange Protocol will apply.
9.9. The Lead Officer should record the action points of each Case Management Meeting.
10. Lead agency
10.1. The lead individual should be appointed to manage and co-ordinate the involvement of other agencies so that they add value by contributing their own specialist knowledge and expertise. The lead individual is also responsible for instructing solicitors, witness liaison and support, co-ordinating service of summonses, communicating developments to partners and ensuring the appropriate monitoring arrangements are in place to facilitate the enforcement of any orders granted.
10.2. Where the police are the lead agency, the decision to authorise an application for an interim ASBO will be made by the Officer In the Case (OIC) /ASBO officer and the representatives of the Local Authority. The court must be satisfied that the required consultation has taken place.
11. Further evidence gathering
11.1. Following the Case Management Meeting there may be a need to gather more evidence.
11.2. Although the proceedings are civil, the evidence required will be to the criminal standard of proof i.e. ‘beyond all reasonable doubt’. Hearsay evidence may be admissible but advice should always be sought from the Legal Services Department if this evidence forms a substantial part of the case.
11.3. The evidence in support of an ASBO application should prove:
- That the defendant acted in a specific way on specific dates and at specific places and;
- That these acts caused or were likely to cause harassment, alarm or distress to one or more persons not in the same household as the defendant;
- In addition there should also be evidence to show that an order is necessary to protect persons.
11.4. The list below suggests ways in which evidence can be gathered in support of an application:
- Nuisance incident diaries;
- Professional witnesses to observe misconduct at first hand;
- Use of CCTV;
- Audio recordings.
11.4.1. Police action in relation to evidence gathering may be at risk of infringing Article 8 of The Human Rights Act (Respect for Private and Family Life). It is advisable that staff use the JAPAN principles at all stages of this process. Records generated will be kept locally for 2 years then archived for a further 4 years (see policy B09 Document Retention).
11.5. When covert evidence gathering is being considered, due to potential Regulation of Investigatory Powers Act 2000 (RIPA) implications, the advice of the Divisional Intelligence Co-ordinator must be sought.
11.6. Where evidence obtained during an investigation into criminal conduct is sufficient to secure an ASBO, this may be used following consultation with the Force Solicitor.
11.7. The storm record will be assessed by the Force Control Room (FCR) and may be tagged for the attention of the Crime Reduction Co-ordinator (CRC).
11.8. Where the police are the lead agency an OIC will be identified to compile a case using MG forms. Once an ASBO case file has been completed the OIC will send the file directly to the L.S.D. who will issue it with a reference number and advise the OIC by return memo of the reference. Further evidence will be submitted to the L.S.D. using an MG20 form, available as hard copy on Division.
12. Nuisance incident diaries
12.1. The Nuisance Incident Diary is intended to be used by people who are affected by incidents of anti-social behaviour so that they may record evidence and information on the incident. The information gathered in the Nuisance Incident Diary could form the basis of an important piece of evidence in court, potentially stopping the nuisance.
12.2. The following is guidance for police officers on the completion of the diary:
- Notes for evidential purposes must be recorded contemporaneously, or as soon as possible after the incident, when the writer has a clear recollection of the facts recorded;
- No pages will be torn out, nor blank spaces left, nor erasures made, nor writing between the lines;
- For all alterations, cancel the error by drawing a line through it to leave the original visible;
- Statements are to be made in direct speech;
- The diary is a chronological description of what happened and should not include hearsay;
- It is to be emphasised that the diary is purely a record of incidents made by the witness. A witness should not be asked to do anything more than this or they could be carrying out actions that contravene the Regulation of Investigatory Powers Act 2000. If in doubt consult the Divisional Intelligence Co-ordinator for advice.
12.3. Officers will explain to the author / user of the Nuisance Incident Diary how to complete it and court implications (see user notes with Diary).
12.4. Completed Nuisance Incident Diaries will be retained on Division for a minimum period of six years unless a specific request has been made to retain it for a longer period.
13. Application for an interim ASBO
13.1. Interim Orders are available under section 1D of the Crime and Disorder Act 1998 in both the Magistrates and County Courts. This is an order made at an initial court hearing held in advance of the full hearing.
13.2. The Interim Order can impose the same prohibitions and has the same penalties for breach as a full ASBO.
13.3. The Interim Order:
- Will be for a fixed period;
- Can be varied or discharged on application by the defendant;
- Will cease to have effect if the application for an ASBO is granted, withdrawn or refused;
- May extend over any defined area of England and Wales.
13.4. The benefit of the Interim Order is that it enables the courts to order an immediate stop to anti-social behaviour and thereby protects the public more quickly. The scope for witness intimidation is also reduced and removes any incentive for delaying the proceedings on the part of the perpetrator.
13.5. The Interim Order can, with leave of the Justice’s Clerk, be made ex parte (without notice of proceedings being given to the defendant).
13.6. When the Interim Order is granted ex parte it is expected that the court will usually arrange an early return date. An individual who is subject to an ex parte Interim Order will have the opportunity to respond to the case at the full hearing.
13.7. The orders can be made at the outset of proceedings for an application for an ASBO if the court considers it just to make such an order. The application for an Interim Order should be made at the same time as submitting an application for a full order.
13.8. The court will determine the application for an Interim Order on the question of whether the application for the full order has been properly made and where there is sufficient evidence of an urgent need to protect the community. The court will be aware that it may not be possible to compile the evidence required for a full ASBO at this stage.
13.9. If the order is granted it should be served personally on the defendant together with the application for a full order and a summons giving a date for the defendant to attend court. The order will not take effect until it is served.
14. Application for an ASBO
14.1. Where it is decided that the police will lead an application for an ASBO, close liaison will be maintained with the L.S.D. who will draft the complaint and summons for the application to the Magistrates Court.
14.2. The prohibitions sought should:
- State that the defendant should not cause alarm harassment or distress;
- Restrict the anti-social behaviour;
- Be in the negative - there is no power to compel the subject to do something only to stop them doing something.
- Specify times and places (if necessary using a map);
- Include a provision on inciting/encouraging behaviour by others;
- Reflect the wishes of the victim(s) regarding their safety.
14.3. ASBOs can be sought for persons aged ten years or over.
15. Post conviction ASBOs
15.1. Criminal courts – the Magistrates’ Court, the Crown Court and the Youth Court are able to make orders against an individual who has been convicted of a criminal offence. This offence should be one that meets the definition of ASB as 5.2 above and an ASBO must be necessary to protect persons from ASB by the defendant.
15.2. The officer in the case should prepare the application but the applicant will always be the Crown Prosecution Service (CPS) who must have approved the application in advance.
15.3. The order on conviction is considered during a civil hearing and made by the court after the verdict in the criminal case. It is not part of the sentence the offender receives for the criminal offence and can only be made in addition to a sentence or discharge.
15.4. The order will be granted on the basis of the evidence presented to the court during the criminal proceedings, any relevant previous convictions and any additional evidence provided to the court after the verdict.
15.5. The court may make an order on conviction of its own volition. Alternatively the order is requested by the prosecutor or local authority who may make representations to the court in support of the request.
15.6. The order on conviction is a civil order and has the same effect as an ASBO made on application.
15.7. If the offender is detained in custody the court may order that some or all of the prohibitions are suspended pending release.
16. Intelligence led approach
16.1. ASBOs obtained following conviction in criminal proceedings provide a useful method for controlling an individual’s future behaviour and activities.
16.2. In order to achieve the most effective and efficient use of these powers it is recommended that an intelligence-led approach is adopted, whereby appropriate individuals are nominated through the Tasking and Coordinating Process. This may form part of a pre-planned and targeted approach or a spontaneous or ad-hoc scenario, for example overnight charge.
17. Pre planned and targeted approach
17.1. The role of the Tasking and Co-ordinating Group (T&CG) is key in nominating offenders who may eventually be charged and convicted of criminal offences and whose future behaviour would be modified by means of an Anti-Social Behaviour Order.
17.3. The Officer in the Case should work closely with colleagues from the Neighbourhood Policing Unit in order to devise a draft application containing appropriate prohibitions. Applications should only be submitted to the Crown Prosecution Service when the Crime Reduction Co-ordinator has checked the application. Examples of good practice are accessible on the Home Office Respect website. Respect - Homepage
17.4. The Crime Reduction Co-ordinator will ensure that the Anti-Social Behaviour Co-ordinator or equivalent employed within the Local Authority is informed of the proposed course of action.
17.5. When a draft application has been checked by the Crime Reduction Co-ordinator, the application should be forwarded initially by email to the Specialist Prosecutor (if unavailable, the application should be forwarded to the nominated prosecutor within the relevant Crown Prosecution Service Unit).
17.6. The application will then be reviewed in accordance with the Code for Crown Prosecutors. Provided that there is a realistic prospect of the Order being granted and that an Order is in the public interest, the draft application and order will be placed in the case file pending arrest and charge of the target offender.
17.7. When a target offender is charged with a criminal offence the OIC will notify the CPS nominated prosecutor in the relevant CPS Unit.
18. Spontaneous or ad hoc
18.1. As the title suggests this guidance takes account of those circumstances in which an offender has not been identified by the T&CG process as a target offender. The emphasis in such cases rests with the Evidence Review Officer (ERO) within the Case Investigation Team, Custody Officer and Duty Manager. Early identification of individuals who in the normal course of events would have been allocated to a designated case officer is paramount.
18.2. The ability to gain the requisite authorisation for a draft application may be problematic, however, officers involved in these cases should attempt to adhere to the protocols for pre-planned orders.
19. Commencement and service of an order
19.1. Where a defendant is present in court, a full order commences at the time the court makes the order.
19.2. Where a defendant is not present in court, a full order does not commence until service is effected.
19.3. When an Interim Order is made, it does not commence until service is effected irrespective of whether the defendant is present in court or not. This must be done within seven days of the Interim Order, which will lapse otherwise.
19.4. In all cases:
- The order must be served in person on each defendant. Exceptionally, where personal service is not possible or is frustrated, service may be made by first class post to the defendant’s last known address. Recorded delivery must not be used.
- The person serving must complete a certificate of service (or pocket notebook entry signed by defendant if possible) and section 9 statement as proof of service. These documents must be retained with the casefile. The Lead Officer will send a copy of such certificate or statement to the Local Authority.
19.5. Where a child or young person is concerned, his/her parent/guardian must also receive a copy of the Order. Care should be taken at all times that the subject is properly identified by name.
20. Genesis and the Police National Computer (PNC)
20.1. It is essential that officers are able to identify persons subject to an Anti Social Behaviour Order and are aware of the conditions of the order so that the necessary action can be taken in case of a breach, for which a power of arrest exists, providing that it can be justified, and subject, on conviction, to five years imprisonment.
20.2. On receiving a copy of an order the Intelligence Unit in the police area in which the Order was made will undertake the following actions to ensure that the Genesis, Police National Computer (PNC) and Anti-social Behaviour Return databases are updated –
- Attach a copy of the Order to 5 x 5 x 5 and update Genesis locally on Division with the terms and duration of Order.
- Fax a copy of the Order to Force Intelligence Bureau (FIB) for PNC update. The Subject of the Order will be shown as wanted /missing marker. FIB Staff will enter PNC reference onto the Anti-Social Behaviour Return Database.
- Inform Chief of Staff for briefing purposes.
- Notify Divisional Media Officer to prepare appropriate press release.
21. Administration of the order
21.1. The OIC will wherever possible be present at the hearing and where an Order is granted he/she will complete a 5x5x5 Court Order Information Report detailing which agency applied for the Order, the prohibitions, the expiry date, the method of service, and where relevant, details of the officer, service and the location of the original Order.
21.2. This will be forwarded to the Divisional Intelligence Unit. The Genesis nominal record, including a weed date, will then be updated. A warning signal ASBO will appear on the nominal record.
21.3. A copy of this will then be faxed to PNC Bureau as a priority.
21.4. PNC Bureau will update the details of the ASBO on PNC before the end of the current shift as a priority as an Order could now apply across the whole country and update the Force ASB spreadsheet.
21.5. Divisional Liaison Officers will be able to access a list of current ASBOs via the force ASB spreadsheet.
21.6. Each Divisional Liaison Officer will update the ASB spreadsheet with any changes or additions to ASBOs as soon as practicable.
22. Breach of an order
22.1. Breach of an ASBO (including an Interim Order) is an offence that is triable in the magistrates or crown court. The maximum sentence on conviction is 5 years and where necessary a power of arrest exists. The standard of proof will be the criminal standard, beyond reasonable doubt. CPS will undertake prosecutions in Police led cases.
22.2. Documentation prepared for the original ASBO application may need to be disclosed in criminal proceedings. Where the police made the original civil application for the Order, documentation should be examined and disclosed in accordance with the Criminal Procedure and Investigations Act 1996.
22.3. Where an agency other than police obtained the Order they will hold information relevant to the original civil application. The OIC investigating the Breach of the Order must advise the agency of the investigation and that relevant material used to support the original application must be retained as they may receive a request for its disclosure. When completing the MG6 the OIC must inform the CPS that the agency holds this information.
22.4. In cases of doubt over an issue of disclosure the advice of the CPS and the L.S.D. must be sought. In cases where there is no clear admission of a breach these must be referred to the CPS for authority to charge.
22.5. A breach of any ASBO is a criminal offence and should be investigated as such, including an interview with the defendant which must:
- Ascertain whether the defendant accepts that they are subject of that order
- Ensure that the defendant is told which prohibitions they are alleged to have breached
- Obtain details of any defence on which the defendant may rely.
22.6. Other offences committed at the time of the breach of the Order will be investigated and dealt with in the normal way.
22.7. Where an ASBO is breached by the commission of a separate criminal offence the presumption is that the defendant will be charged with both the breach and the further offence(s).
23. Variation, discharge and appeal
23.1. A variation may be required if the protection of relevant persons from anti-social acts by the person subject to the order would be more appropriately effected by changing the order. If it is no longer necessary to protect relevant persons from anti-social acts by the person a discharge may be applied for.
23.2. It is good and effective practice to review ASBO’s granted against young people every 12 months.
23.3. Variation or discharge of an Order is by way of civil application to the Magistrate’s Court. Applications can be made by either the original lead agency who sought Order or the subject. The lead agency will co-ordinate variations or discharge applications and will consult with other agencies before making or agreeing to an application by the defendant. This may involve a further Case Management Meeting. In the case of orders made on conviction an application for variation or discharge can only be made by the defence.
23.4. Varied Orders and their contents should be passed to those who received copies of the original Order and its contents.
23.5. An Order cannot be discharged within two years of its service without the agreement of both the agency making an application and the defendant.
23.6. Appeals against Orders are to the Crown Court in the first instance. The Appeal is by way of a re-hearing. The Lead Agency will co-ordinate the Appeal.
23.7. On receipt of notification from the Court that an Order has been varied, discharged or is the subject of a successful appeal the Lead officer will ensure the following are updated:
- Individuals likely to be affected by such a change;
- Agencies/individuals notified of the existence of the Order;
- Divisional Intelligence Unit (to update Genesis).
24. Information recording
24.1. The Crime and Disorder Act 1998 advocates the recording of incidents of ASB to inform and support local crime reduction strategies.
24.2. Local agencies should agree common procedures for recording and monitoring both their successful and unsuccessful applications. Details of orders granted should be sent to the local Crime and Disorder Reduction Partnership, ASB co-ordinator, local authority as well as other agencies involved with the offender (including the local Youth Offender Team if the offender is under 18 years old).
24.3. To assist this process the following information in respect of all ASBO applications should be recorded as a minimum:
- The original application (or details of the prosecution and hearing for the order in the case of an order on conviction) including the name, address, date of birth, gender and ethnicity of the defendant;
- The order itself including, where applicable, the map showing the exclusion area;
- Date and details of any variation or discharge of the order;
- Action taken for any breach.
The following information could also be recorded:
- Name, address, age, gender and ethnicity of subjects/victims – or a statement that the case involved no identified victim;
- Details of the person or persons who complained of the behaviour;
- Details of any contributory issues e.g. drugs/alcohol misuse and/or mental health problems;
- Details of any aggravating factors e.g. racial motivation;
- Assessment of outcome in terms of whether or not the anti-social behaviour ceased.
24.4. Consistency of information will help to assess the effectiveness of orders and inform future local audits and crime reduction strategies. Documentation is to be retained for six years following the incident, or six years after any juvenile who has had an application made against them has reached the age of eighteen years or six years after the youngest of a group which has had an application made against them has reached the age of eighteen years.
24.5. Within Kent Police, ASBO data will be entered from respective areas into the ASB spreadsheet and monitored through bi-weekly TT&CG (Tactical Tasking & Co-ordinating Group) meetings. The Central Analyst Team, Headquarters, will collate this information centrally. By recording and collecting data the force can monitor the effectiveness of its use of ASB tools, fully justify its actions and become more accountable ensuring that the force is not discriminatory. Closure notice/orders are civil actions against the premises and will not be recorded on the PNC (for more information see policy K18.
25. ASBOs – use of publicity
25.1. The Home Office Respect website www.respect.gov.uk provides up to date guidance and case law which is comprehensive, regularly maintained and can be easily accessed. It will not be repeated here but should be referred to as a single point of current best practice. In cases where you are unsure you can contact L.S.D. or the CPS Specialist Prosecutor.
25.2.1. The following principles and guidelines are those given by the Government and thus have backing at the highest level. Kent Police will adopt these as standard practise.
- Publicity is essential if local communities are to support agencies tackling anti-social behaviour. There is an implied power in the Crime and Disorder Act 1998 and the Local Government Act 2000 to publicise an order so that the order can be effectively enforced.
- ASBOs protect local communities. Obtaining the order is only part of the process; its effectiveness will normally depend on people knowing about the order.
- Information about ASBOs obtained should be publicised to let the community know that action has been taken in their area.
- A case-by-case approach should be adopted and each individual case should be judged on its merits as to whether or not to publicise the details of an individual subject to an ASBO - publicity should be expected in most cases.
- It is necessary to balance the human rights of individuals subject to an ASBO against those of the community as a whole when considering publicising ASBOs.
- Publicising should be the norm not the exception. An individual who is subject to an ASBO should understand that the community is likely to learn about it.
25.3. Main objectives and benefits of publicity
25.3.1. Publicity is not intended to punish the individual. An ASBO is a civil order, which restrains future anti-social behaviour: it is not a punishment.
25.3.2. The benefits of publicity include:
- Enforcement of the order - by informing local people of the prohibitions imposed by the order, they are able to identify and report breaches to the police, or to local authorities, social landlords or other bodies who can pass the information to the police for investigation;
- Public reassurance about safety – publicity is often central to witness support strategies. Victims and witnesses know that action has been taken to protect them, and to protect their human rights in relation to safety and/or quiet enjoyment of their property. Making local people aware of an order that is made for their own protection can make a real difference to the way in which they live their lives, especially when they have suffered from antisocial behaviour themselves or lived in fear of it;
- Public confidence in local services – local people are made aware that local agencies will take action to protect them from anti-social behaviour, that they should not tolerate anti-social behaviour, and that local agencies will respond to reports of anti-social behaviour;
- Deterrent to the subject of the order – the perpetrator is aware that breaches are more likely to be reported because details of the order are in the public domain;
- Deterrent to other perpetrators – publicity sends out a message that action will be taken against those who deliberately destroy the quality of life of others, and therefore can act as a deterrent to others who choose to act in an anti-social manner.
25.4. The decision to publish
25.4.1. There are no automatic reporting restrictions on ASBOs made in any court. The presumption is that an ASBO can be reported. A court is now required to give reasons if it decides to impose such restrictions.
25.4.2. Section 141 of the Serious Organised Crime and Police Act 2005 ( http://www.opsi.gov.uk/acts/acts2005/ukpga_20050015_en_1 ) amends the Crime and Disorder Act 1998 by inserting (S1(10D)) which removes the automatic reporting restrictions on breach proceedings involving juveniles. A court is now required to give reasons if it decides to impose such restrictions (S1(10E)). However, courts retain a discretion under section 39 Children and Young Persons Act 1933 to impose reporting restrictions on any or all of the details of the case.
- Where an ASBO is made on conviction in the youth court the details of the criminal conviction and sentence remain subject to automatic reporting restrictions;
- Breach of an ASBO is a criminal offence and in the case of under 18s will normally be heard in the youth court. Reporting restrictions do not automatically apply. However, courts retain a discretion under Section 39 of the Children and Young Persons Act 1933 to impose reporting restrictions on any or all of the details of the case.
25.4.3. Each individual case should be judged on its merits as to whether or not to publicise the details of an individual subject to an ASBO. There should be a correlation between the purpose of publicity and the necessity test: that is, what is the least interference with privacy that is possible in order to promote the purpose identified.
25.4.4. Decisions to publicise ASBOs must be recorded without it being an onerous, lengthy task but merely a way of recording the process they go through to arrive at a published document.
26. Alternatives to anti-social behaviour orders
26.1. The following approaches are open to deal with any anti-social behaviour before recourse to an ASBO:
26.2. Joint Family Management Programme. This is a programme designed to help multi-agency partnerships develop ways of working with families whose anti-social behaviour has a disproportionate impact on the communities in which they live.
26.3. Mediation. Mediation schemes may be used by some Local Authorities to informally resolve local neighbourhood problems.
26.4. Acceptable Behaviour Contracts. An Acceptable Behaviour Contract (ABC) (also known as Acceptable Behaviour Agreement) is an intervention designed to engage an individual in acknowledging his or her anti-social behaviour and its effect on others, with the aim of stopping that behaviour. An Acceptable Behaviour Contract (ABC) is a written agreement made between a person who has been involved in anti-social behaviour and their local authority, Youth Inclusion Support Panel (YISP), landlord or the police.
26.5. Local authority powers (Housing). Local Authorities may operate Introductory Tenancy Schemes that operate for twelve months. Local Authorities can evict tenants during this initial period by Court Order without the need to provide reasonable grounds for possession.
26.6. Section 152 of the Housing Act 1996 gives Local Authorities powers to seek an injunction prohibiting any person, not just tenants, from engaging in conduct in residential premises which is causing or likely to cause nuisance and annoyance; using or threatening to use premises for immoral or illegal purposes or entering or being found in such premises. Injunctions can include a power of arrest.
26.7. Section 144 of the Housing Act 1996 allows Local Authorities to repossess tenanted property. Grounds include behaviour likely to cause nuisance or annoyance, or conviction for an offence triable either way or indictable only in the locality of the property.
26.8. Section 222 of the Local Government Act 1972, in cases of anti-social behaviour, local authorities can uses s222 to apply for injunctions to stop behaviour that can be shown to be a public nuisance.
26.9. Social and health care intervention. The Local Authority has a duty under the NHS and Community Care Act 1990 to assess any person who may be in need of Community Care Services. People with drug and alcohol problems are also subject to the Local Authority’s Community Care Assessment.
26.10. Environmental health
- Section 79 of the Environmental Protection Act 1990 places a duty on Local Authorities to inspect their area from time to time to detect statutory nuisances and to take such steps as are reasonably practicable to investigate complaints of statutory nuisance. Where nuisance exists or is likely to occur or recur the Local Authority must serve an abatement notice on the person responsible. Breach of an abatement notice can result in a fine. Alternatively the Local Authority may lay a complaint directly to a Magistrates Court without recourse to an abatement notice.
- The Noise Act 1996 grants local authorities an adoptive power to deal with noise from domestic premises in their area. If the power is adopted local authorities have a duty to investigate complaints of excessive noise between 11 p.m. and 7 a.m. A warning notice may be served by the authority requiring levels of noise to be reduced to a permitted level. Failure to stay below this level is an offence. The act also grants the power to enter premises and temporarily confiscate noise-making equipment if an offence has been committed.
26.11. Local education authority. Section 7 of the Education Act 1996 requires parents of children of compulsory school age to ensure that they receive a full time suitable education. Failure to ensure regular attendance can lead to parents being prosecuted.
26.12. Police/local authority powers2612.1. Section 1 of the Protection From Harassment Act 1997 creates an offence of pursuing a course of conduct of harassment of another. Actual or apprehended breach of Section 1 can result in damages and/or a civil restraining injunction on application of the victim. Section 4 creates an offence of causing fear, on at least two occasions, that violence will be used against a person.
26.12.2. The Public Order Act 1996 creates several criminal offences to address threatening, abusive and insulting words and behaviour.
26.12.3. Sections 28 to 32 and section 82 of the Crime and Disorder Act 1998 deal with racially aggravated assaults and these sections create offences, which if proved to be racially aggravated, incur higher penalties. They are based on existing offences under the Offences against the Person Act 1861; Criminal Damage Act 1971; Public Order Act 1986 and the Protection from Harassment Act 1997.
26.12.4. Section 30 of the Crime and Disorder Act 1998 refers to offences of racially aggravated criminal damage.
26.12.5. Section 31 of the Crime and Disorder Act 1998 provides three racially or religiously aggravated public order offences:
(a) An offence under section 4 of the Public Order Act 1986 (fear or provocation of violence);
(b) an offence under section 4A of that Act (intentional harassment, alarm or distress); or
(c) an offence under section 5 of that Act (harassment, alarm or distress).
26.13. Motor vehicle offences
26.13.1. The Road Traffic Act 1988 creates several offences of causing danger to other road-users (section 22a), obstruction (section 137), racing on the highway (section 12).
26.13.2. Section 137(1) of the Highways Act 1980 covers the offence of obstruction.
26.13.3. Regulation 103 Road Vehicles (Construction and use) Regulations 1986 covers offences of unnecessary obstruction by the use of motor vehicles.
26.13.4. Section 59 (1) of the Police Reform Act 2002 covers the seizure of motor vehicles being used carelessly or off-road while causing/likely to cause alarm, distress or annoyance.
26.14. Miscellaneous offences
26.14.1. Section 28 of the Town Police Clauses Act 1847 covers numerous offences relating to annoyance, danger or obstruction in the street. This includes possible anti-social behaviour such as repairing cars in the street, knocking on doors to the disturbance of inhabitants.
26.14.2. Section 62(1) of the Control of Pollution Act 1974 covers the use of loudspeakers in the street including car stereos.
26.14.3. Section 161(3) of the Highways Act 1980 covers the offence of playing football on a highway to the danger or annoyance of a use of the highway.
26.14.4. Section 64 of the Town Improvement Clauses Act 1847 covers offences of defacement to street signs or numbers of houses.
26.14.5. S1 Malicious Communications Act 1988
26.14.6. S43 or S127 Telecommunications Act 1986
26.14.7. S51 Criminal Justice Act & Public Order Act 1995 (Witness Intimidation)
26.14.8. S241 Trade Union & Labour relations Consolidation Act 1992 (Intimidation or annoyance by violence or otherwise)
26.14.9. Offences under the Obscene Publications Act 1959
26.14.10. Common Law – Public Nuisance, Breach Of The Peace, Outraging Public Decency.
26.15. Probation service. Certain conditions may be applied to prisoners on release from prison. It may be appropriate to place conditions on an offender to prevent them engaging in anti-social conduct against an individual or group if they were imprisoned for similar actions.
26.16. Child safety orders. A Child Safety Order is an order available to the Social Services or the Youth Offender Teams to help them deal with children under the age of ten engaging in crime or anti-social behaviour. The order may impose requirements that restrict the ability of the child to engage in further anti-social behaviour.
26.17. Parenting orders. A Parenting Order provides Local Authorities, Registered Social Landlords, Probation Services, Youth Offending Teams and the Courts with a mechanism to reduce crime and disorder by targeting parents through education and advice. This support is to develop better parenting skills through tailored guidance sessions and tasking them to ensure their child’s behaviour is not allowed to escalate and affect the family and the surrounding community in a negative way. A criminal sanction is available for those in breach of an Order. Parenting Orders can be made in support of a sentence of the court or when a child or young person has been made subject to an ASBO.
27. Retention and disposal of records
27.1. Documents mentioned in the above policy will be retained for the period specified in the Disposal Schedule.
28. Equality impact assessment
28.1. This policy has been assessed with regard with regard to its relevance to race and diversity equality. As a result of this assessment the policy has been graded as having a medium potential impact.
28.2. Attached is the latest equality impact assessment that forms part of the policy review process.
|Policy reference:||K05 Anti Social Behaviour Orders (ASBO)|
|Policy owner:||Chief Superintendent, Partnership and Crime Reduction, Area Operations|
|Contact point:||Policy Unit, 01622 654662|
|Date last reviewed:||17 November 2011|
|Document last saved:||15 October 2013