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October 14, 2020

In praise of criminal courts

Sometimes I wish I was not so long in the tooth. Eight years ago I campaigned long and hard to improve the coalition government’s proposals to amend ASBOs. As deputy chair of the Standing Committee for Youth Justice, I worked with the Criminal Justice Alliance and colleagues in the sector to make a silk purse out of a sow’s ear. ASBOs were one of the worst creations of new Labour – an intervention designed to tackle a serious problem, but which did no such thing. A civil order which circumvented the legal safeguards available to criminal defendants. ASBOs were imposed on vulnerable adults and wayward teenagers, with ridiculous restrictions like not to commit suicide, or not to have noisy sex or not to play Country and Western music. People who needed help with mental health or substance abuse problems were too often set up to fail. And they did. Ending up in prison even though they had committed no crime.

ASBOs waned in popularity, probably because practitioners recognised that there were more effective ways of addressing anti-social behaviour. But the coalition government decided that civil orders were still the answer and needed to be tweaked. We campaigners suggested that civil law was a blunt instrument – that anti-social behaviour would be better dealt with through prosecuting real crimes and using restorative justice and diversionary programmes to deal with low level incidents. Labour viewed ASBOs as a success, so our campaigning fell on pretty deaf ears. One of the only concessions made to us was to legislate that the youth court should deal with under 18 year olds. Adult anti-social behaviour orders were to be transferred from the (criminal) magistrates’ court to the county court. The new ASBOs were called injunctions, and could be imposed for a range of challenging behaviour. If injunctions were breached, the respondent was to be admonished or imprisoned for contempt of court.

I would love to sit now with the civil servants and politicians we tried to sway – to ask them to read a new report by the Civil Justice Council on injunctions, and to discuss how and why things went wrong. For they have gone wrong, very wrong. I’ve seldom read a judicially led body being so critical of legislation. It transpires that those subject to injunctions have less access to justice than those subject to ASBOs, and that the punishment of those who breach is severe and pretty unaccountable.

Injunctions impose severe limitations on people’s lives – like preventing people being in a whole city or from begging. Unfortunately injunctions often appear to be imposed on vulnerable people who are not told of the imposition till after the court hearing. Even if they are informed of their court hearing, they will struggle to find a lawyer to do the work – in some areas there are no lawyers who can and will take on these cases. Once an injunction is imposed, many people find they can’t meet the conditions and are prosecuted for breach.

The Civil Justice Council complains with justification that there is no data on the number of injunctions imposed. I’d add there is no data on what effect they have, and whether they transform the behaviour of those subject to them. But there are some very sad stories in the report which indicate that their effect may be purely punitive.

“In Festival Housing v Baker the unrepresented respondent, who was described as “vulnerable” and “a fragile individual (who) has difficulty reading and writing; difficulty in understanding”, and “frankly, a pathetic individual who has not been able to stop herself” was given a 3-month immediate custodial penalty for admitted breaches of an injunction preventing begging (equating to a four and a half month sentence before credit for a guilty plea). Five months later, she was back before the court in respect of breaches which involved her asking for 50p on two separate occasions from local authority “Street Rangers”. The judge noted the “trivial” nature of the breach: “It has not been in an aggressive way. She has been told ‘no’ and she has not persisted”.”

Some of the saddest anecdotes are about prison sentences – some of which take ones breath away.  The poor woman who asked for 50p was given another six months in custody for this. In another case a woman was imprisoned for 6 weeks for shouting, in breach of an injunction prohibiting noise disturbance. These are much, much longer than would be received for a “equivalent” crime in magistrates’ courts. In addition, time on remand is not taken off the period of detention, and those sentenced are seldom told how to appeal these harsh terms.

The Civil Justice Council report refers frequently to the superiority of the criminal court in its processes and services – particularly the availability of liaison and diversion to assess mental health problems.  They recommend that these criminal processes should be replicated in the civil court for injunction cases. They heap praise on the youth court (a criminal court) in its approach to injunction cases. But the totality of their recommendations suggests more radical change is needed – to return anti-social behaviour cases to the criminal courts. Criminal courts are not ideal, and there is no evidence injunctions will ever work to curb anti-social behaviour, but at least magistrates’ courts are set up to offer some support (including legal representation) to vulnerable individuals at risk of losing their liberty. It takes quite a lot for me to praise criminal courts but this report has tipped me over that edge.

The real lesson? Tinkering with or creating new law seldom addresses the causes of, or prevents, crime and anti-social behaviour.

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