Given that most of the Anti-Social Behaviour, Crime and Policing Act 2014 is not yet in force, including the provisions which empower the Secretary of State to issue statutory guidance, it seems slightly odd that statutory guidance which purports to have been issued under sections 19, 32, 41, 56, 73 and 91 of the Act (none of which have been commenced) was issued last month. It has the utilitarian title: Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers Statutory guidance for frontline professionals.
In many ways the document is unsurprising, setting out the various powers – community trigger, community remedy, civil injunction, criminal behaviour order, dispersal power, community protection notice, public spaces protection order, closure power and new absolute ground for possession – with which we will all no doubt become familiar over the next few months and years, as the ASBO, the ASBI and the other many and various interventions fade from memory.
The Guidance very much continues the mantra we have heard from the Coalition government of “putting victims first”: “The right response will depend on a range of factors, but most importantly, on the needs of the victim and the impact the behaviour is having on their lives.” While the case of Fiona Pilkington vividly illustrated what can go wrong when victims are not heard, to my mind there is not enough concern with weighing the evidence and not necessarily taking evidence of victims (perhaps a more neutral term would be “complainants”) at face value. The only mention of evidence relates to the new civil injunction where in relation to hearsay evidence the guidance states:
“Hearsay and professional witness evidence allow for the identities of those who are unable to give evidence due to fear or intimidation, to be protected. This is especially important as cases can involve anti-social behaviour in residential areas where local people and those targeted by the behaviour may feel unable to come forward for fear of reprisals. Hearsay evidence could be provided by a police officer, healthcare official or any other professional who has interviewed the witness directly.”
There have been enough examples of criticisms of both local authorities and housing associations as to their use of hearsay evidence (Moat Housing Group (South) Ltd v Harris[2005] EWCA Civ 287 springs readily to mind), that I would have thought that greater guidance on what is appropriate evidence and how cases should be investigated with an open mind would have been appropriate.
Connoisseurs of the debates on Art. 8 defences will also be interested in the guidance on the new absolute ground for possession. (Strictly speaking this is not statutory guidance as there is no power to issue such guidance under Part 5 of the Act.) This states that tenants of “public authorities or landlords carrying out a public function will be able to raise any available human rights defence, including proportionality against the proceedings.” This is the only place in the document to refer to landlords in these terms (elsewhere they are referred to as local authorities, housing associations or private landlords) – so I presume the authors of the guidance did not want to even admit that housing associations were necessarily subject to this defence or indeed the potential horizontal effect on private landlords. Further it is only human rights defences which are conceded, not other possible public law defences. No doubt these are all points to be tested once the ground starts to be used. We can only hope that landlords heed the advice in the guidance that: “The new absolute ground is intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively”.