Anti-social behaviour in England and Australia: convergence or divergence

1. Anti-social behaviour in England and Australia: convergence or divergence? Caroline Hunter, Flinders and Sheffield Hallam Universities

2. Outline What has happened in England Housing Remedies in England ASB Remedies in England – focus on ASBOs Some criticisms from England The emergence of the issue in Australia Attitudes of practitioners in England and Australia Two salutary lessons

3. What has happened in England? Development of concern 1990s Housing Remedies – a concern with tenants of social landlords A broader concern with “yobbish” behaviour at large A series of ASB legislation introducing a range of measures including the ASBO

4. Some background information In the England: 70% owner-occupation 19% social renting (local authority and registered social landlord (RSL)) 11% private renting/other Social renters: Secure tenants (H.A. 1985) (local authority and some pre 1989 RSL tenants) or assured tenants (H.A. 1988) (RSL tenants post 1989) – limitations on eviction

5. Housing Remedies Strengthened grounds of possession (1996) Free-standing injunctions (1996, amended 2003, 2006) Introductory tenancies (1996) Demoted tenancies (2003)

6. Use of housing remedies Actual no’s evicted unknown ASB NOSP 4 times more likely to lead to possession than rent arrears NOSP 83% NOSPs do not lead to actual eviction 77% of housing providers used possession between April 2005-06 Only 30% used demotion Large increase from small base in use of demotion: 50 in 2004/05, 140 in 2005/06

7. Use of Injunctions Manchester CC – 521 in 2003 RSLs have shown some reluctance to use Lower % than LAs 10% of housing providers used more than 10 times April –March 2005/06, 58% used at least once Very high success rate: 95% granted 77% of landlords found them easy or quite easy to use Feature use of hearsay evidence

8. Numbers of injunctions

9. ASB Remedies Acceptable Behaviour Contract (voluntary) ASBO (1998, amended 2002, 2003, 2004, 2005, 2006) Dispersal Order (2003) Parenting Contract/Order (2003) Individual support order (2003) Crack-house closure orders (2003) Withdrawal of benefits (2006)

10. Who can apply for an ASBO? Ever widening list: Police Local Authorities (may delegate to ALMOs) RSLs Transport Police Environment Agency Transport for London Apply to anyone aged 10 or over

11. Where can an application be made? In the magistrates court (free-standing) In the magistrates’ or Crown court as part of criminal proceedings (CRASBO) In the county court as part of other civil proceedings e.g. possession Interim applications if “just to do so” – may be without notice

12. ASBO – qualifying conditions (1998 Act, s.1) the person has acted in an anti-social manner, defined as “in a manner that caused or was likely to cause harassment, alarm or distress” the harassment, alarm or distress must be caused to one or more persons who are not members of the same household as the person against whom the order is made the order is necessary to protect relevant persons (generally those within the area of the local authority or police area, or in the case of an application by an RSL or HAT residing in or who are within the vicinity of the landlord's properties) from further anti-social acts or conduct.

13. Evidence in cases Civil procedure applies but… Behaviour must be proved to the criminal standard Clingham v. Kensington & Chelsea R.B.C. and R. v. Crown Court and Manchester ex p. McCann [2002] UKHL 39

14. Use of ASBOs

15. Naming and shaming Publicity is the norm Upheld as proportionate in court case Effect on young people – badge of honour or shame? Can go horribly wrong – witness not defendant named

16. Criticisms Definitional problems (serious drug dealing to sunbathing nude to attempted suicide) Lack of clear figures on use or effectiveness Not all remedies used - huge geographical variation Criminalising behaviour of young people Targeting people with mental health/behavioural problems Disproportionate punishment Advocates always want more – constant tinkering ASBOs from last resort to first resort (and back again?)

17. The emergence of the issue in Australia What needs to happen for an issue to emerge and be acted upon? A convincing narrative needs to be deployed to tell a plausible story of a social problem. A coalition of support has to be constructed, and This coalition needs to ensure that institutional measures are implemented.

18. Is there a narrative? Press – gaining higher profile (SA) Politicians What is your social problem here? Does it differ from state to state? In NSW the term anti-social behaviour has currency

19. Coalitions of support? Enough in NSW to push through legislation – the ABA But resistance from practitioners – draw line between ASB and criminal behaviour Resistance to seeing problem as one of “behaviour” as opposed underlying problems No ABAs used – programme of consultation, preference for intervention Will there be a coalition of support in South Australia?

20. Salutary lesson 1 Moat Housing Association v. Harris (2005) Complaints about 2 families on estate Nothing done – complaints continue “Consultant” brought in Advises without notice application for injunction with exclusion order and possession Injunction granted, but exclusion not enforced

21. Decision of Court of Appeal It is hard to envisage a more intrusive “without notice” order than one which requires a mother and her four young children to vacate their home immediately An ouster order without notice was neither necessary nor proportionate For a child to become part of an “intentionally homeless” family …is such a serious prospect that every RSL should be alert to intervene creatively at a far earlier stage than occurred in the present case, in order to do everything possible to avert recourse to eviction …the experience of this case should provide a salutary warning for the future that more attention should be paid by claimants in this type of case to the need to state by convincing direct evidence why it was not reasonable and practicable to produce the original maker of the statement as a witness

22. Salutary lesson 2 Manchester City Council and the ombudsman (2007) – an ASBO case Mrs X – tenant for 30 years Mrs A complains about her: noise, abuse intimidation Apply for without notice interim ASBO (failed) Obtain on notice interim ASBO (only 3 days notice) At further hearing – 22 tenants support Mrs. X, no corroborative evidence of Mrs A’s complaints, interim ASBO discharged Case withdrawn – Mrs A has moved away

23. Decision of the ombudsman [The council’s] failure to follow its own procedures in this case was maladministration. It is extraordinary that the allegations were never put to Mrs X before the Council sought an ASBO against her, at first behind her back and then by serving papers on her just days before a court hearing. It is extraordinary too that it never sought corroboratory evidence from third parties even when some allegations, of loud music for instance, could have been verified by such enquiries. This was an abuse of power of nightmarish proportions. It should never be allowed to happen again. I call on the Council to review its practice and procedures in this important area of public administration.