Chief Legal Officer:
Mirza F.N. Ahmad MBA LLM Barrister
11-14 Cannon Street,
Birmingham B2 5EN
BRIEFING NOTE :CRIME & DISORDER - Anti-social behaviour
4. Recent legal development work during 2002 in respect of crime and disorder outside of housing estates and within the wider Birmingham Community is breaking new ground, which does not fall clearly within the function of any individual Council Department. Funding is therefore not readily available through the usual mechanism of Service Level Agreements between Legal Services and Council Departments. Accordingly a funding application was made to the Community Safety Partnership. This will provide an opportunity for the new Crime and Disorder Reduction Strategy 2002/05 to secure some rapid and visible gains by engaging with a set of persistent and high profile issues, outlined in this briefing note.
2. New Legal Work
2.1 Traditionally the police have invariably instituted proceedings in the criminal courts for breaches of the criminal law in liaison with the Crown Prosecution Service. While local authorities also have significant responsibilities for law enforcement in the criminal courts, for example trading standards and health and safety, this does not usually extend to prosecutions in respect of public order offences and offences against the person.
2.2 Local Authorities on the other hand have many specific functions and powers, which may properly involve law enforcement action in the civil courts.
2.3 So far as crime and disorder is concerned, law enforcement has been limited to court injunctions against inappropriate behaviour within Council housing estates and, since 2000, the use of anti-social behaviour orders in respect of conduct causing alarm and distress to the public, often by young perpetrators, both within housing estates and the wider community.
2.4 Legal work which is now being pioneered involves the use of civil injunction proceedings in a wider range of situations. The use of the civil courts has certain advantages in appropriate circumstances. Firstly, the standard of proof required in the civil courts is "on the balance of probability"; secondly, the defendant 'perpetrator' is not criminalised, witnesses may be more willing to attend court and 'hearsay' evidence may be admissible; and thirdly, those who breach injunction orders in the civil courts render themselves liable to imprisonment following appropriate warnings, for contempt of Court.
2.5 Powers exist to undertake this legal work by virtue of s222 Local Government Act 1972 and s2 Local Government Act 2000.
3. Liaison with the Police
3.1 The possibility of local councils taking successful civil proceedings to tackle crime and disorder is greatly enhanced through partnership working with the police. Local councils will often be faced with insufficient witness evidence coupled with problems of perpetrator identification. Legal remedies in this area of law are also not widely used and therefore relatively untested.
3.2 The Community Safety Partnership (Health Authority, Police, Probation, Voluntary Sector and City Council) and the Council's Crime and Disorder Reduction Strategy have opened up new possibilities for collaboration. Civil proceedings become possible in partnership with the police, since they invariably have both the available evidence and the ability to identify perpetrators.
3.3 The current proposals involve the Legal Services Office issuing civil legal proceedings in the name of the City Council, preparing the case for trial, with evidence and witness support from the police and council officers where appropriate. Victims and the local community will need to be consulted at all stages.
3.4 Inter-agency partnership working will also be of paramount importance in most if not all types of case if underlying causes for crime and disorder are to be properly addressed and longer-term prevention measures implemented. Thus legal action is but one method to ameliorate the consequences of crime and disorder and the fear of crime within local communities.
4. Types of Disorder
(a) Anti-Social Behaviour in Housing Estates
4.1 Legal work with Housing Services has continued and current joint initiatives include the development of a more detailed Service Level Agreement as well as new joint protocols and method statements for legal work associated with anti-social behaviour. The Housing Department has given greater priority to this issue and the Legal Services Office will provide full legal assistance. It is likely that the number of legal interventions will rise from a very low base level in 2000 to around 300 matters in 2003.
(b) Crime and disorder in the wider Community
4.2 Legal Services is currently considering remedial action in respect of street prostitution, domestic violence, noise, racial incidents, and street crime. The possibility of civil legal proceedings for each of these issues is being explored and may be developed in conjunction with the police and voluntary sector organisations. Partnership activity may assist to ameliorate the immediate adverse effects upon local communities and facilitate the development of longer-term solutions for specific types of crime and disorder. The following issues have no particular priority; they simply came to the attention of the Legal Services Office in the following order.
4.3 Following Full-Council in December 2001 an inter-agency Partnership Action Group was formed chaired by Penny Smith (Assistant Director) reporting to the Member level Street Prostitution Panel. The Partnership Group has met monthly and implemented a wide range of measures designed to address the adverse effects of street prostitution upon local communities generally and within the Edgbaston/Ladywood area of the city in particular.
4.4 A Legal Proceedings Chart detailing legal action against kerb crawlers, pimps and street prostitutes has been developed by the Group in collaboration with the Police, Probation Service and Birmingham Magistrates Court. This has now been submitted to the Home Secretary with recommendations for changes to the law in relation to the sentencing of kerb crawlers.
4.5 In 2002 kerb crawling became an arrestable offence and this has had a significant effect. The experience of the police in Birmingham is that those men arrested and brought before the Court have not re-offended. However, the penalty of a relatively small fine is not believed to have sufficient deterrent effect to prevent others from kerb crawling and hence the approach to the Home Secretary to propose enhanced sentencing penalties.
4.6 Impounding of vehicles, endorsement of driving licences and community punishment orders are under consideration and assistance is being provided by the Local Member of Parliament, Gisela Stuart. Proposed amendments to the law are currently being drafted by the Legal Services Office.
4.7 The likelihood of successful criminal proceedings against pimps is often not high having regard to evidential difficulties faced by the police. The possibility of civil proceedings is therefore being explored.
4.8 While it may not be immediately or demonstrably obvious that pimps are causing a public nuisance it is believed that they are the prime cause of the problem of street prostitution. If the unlawful activities of pimps could be prevented then it is believed that many street prostitutes might exit from this activity and, as a consequence, the alarm and distress caused to local residents would thereby be greatly reduced.
4.9 Legal action in the civil courts is underway against street workers in Edgbaston/Ladywood. Appropriate warning letters are being issued and every effort is being made to involve all partners including the Health Service and organisations active in the voluntary sector. Street workers may themselves be seen as 'victims' and action is being taken to help them avoid legal proceedings by inviting their voluntary referral to appropriate agencies.
4.10 The civil legal proceedings are based on the little known 'public nuisance' cause of action and were issued in the Birmingham County Court during December 2002 with a hearing date in February 2003. This is a test case and the likelihood of success therefore remains an open question.
4.11 Ongoing discussions with Police Occupational Command Unit F2 have also opened up the possibility of much closer co-operation with legal enforcement action in respect of domestic violence. This has been explored further with the City Council (Equalities Unit, Community Safety Team and Social Services) as well as the voluntary sector (Women’s Aid and Family Service Unit) with agreement in principle that the initiative should be explored and tested. An inter-agency Partnership Group has been established during 2002 to consider appropriate cases for civil action. Both the police and the voluntary sector organisations have expressed particular interest in this development as it raises the possibility of effective action in a number of difficult cases where criminal prosecution has proved impossible.
4.12 The current proposals involve the Legal Services Office issuing immediate legal proceedings following police or community sector intervention. Proceedings will be considered in the name of the City Council. The Legal Services Office will prepare the case for trial, with evidence and witness support from the police and/or community sector organisations. Women affected will need to be consulted and assisted at all stages.
4.13 Inter-agency partnership working will also be of paramount importance in most if not all types of case if underlying causes of domestic violence are to be properly addressed and longer-term prevention measures implemented. Legal action is but one method to ameliorate the consequences of domestic violence and the proposals put forward are designed to assist implementation of the Council’s Gender Equality Strategy. The Partnership will need to ensure that issues of confidentiality, data protection and the safety of victims and children of the family are carefully considered.
4.14 The first meeting of the Partnership was held in October 2002 and it will now meet monthly thereafter. The first Court hearings are scheduled for Spring 2003.
4.15 More recent discussion with Police Occupational Command Unit F1 has led to proposed civil proceedings against aggressive and ‘walking' begging in the City Centre. This appears to be on the increase and is the cause of distress to a significant number of people including young people many of whom are also alarmed by this behaviour. Criminal prosecution leads only to a small fine and ASBO applications are not considered immediately appropriate.
4.16 Once again, inter-agency partnership working will be of paramount important if underlying causes of street begging, often drug related, are to be properly addressed and longer-term prevention measures implemented.
4.17 Warning letters here have been issued during December 2002 to some 20 aggressive beggars in the City Centre and legal proceedings issued thereafter in early 2003.
4.18 The Legal Services Office is also working with the Youth Offending Team and the police to develop legal responses to crime and disorder and gang culture among young people in Birmingham. The first test cases are being identified and will be prepared for legal action over the coming months.
4.19 During 2003 other legal developments will be pioneered in respect of racial incidents. Consultation and discussion is currently taking place with the Community Safety Team. The likely partnership to consider civil legal action is the Racially Aggravated Violence Theme Group established under the Crime and Disorder Reduction Strategy.
4.20 The Legal Services Office will also seek to act jointly with Housing and Environmental Services to develop noise reduction strategies. Noise is the main cause of complaints by the Council’s tenants and although much has been achieved by Environmental & Consumer Services the extent of the problem requires further action by the Council.
5. Local Strategic Partnerships
5.1 Finally, action at ward level (Local Strategic Partnerships) is increasing largely through the Council's policy of devolvement of powers to local level. High on the agenda for local residents are issues of crime and disorder. Legal Services is seeking to engage with these developments in order to offer advice and assistance that will enable crime and disorder to be firmly addressed within the emerging Council mechanisms and support systems in partnership with the police and other relevant agencies.
6.1 Civil legal proceedings are not seen as an alternative to prosecution where crimes have been committed. The Police and other enforcement agencies, including the City Council, will continue to institute criminal proceedings where this is appropriate and practically possible.
6.2 Nevertheless, a range of circumstances do lead to practical difficulties in mounting criminal prosecutions. In these circumstances civil proceedings will be considered and the examples given in this briefing paper may be seen as a pilot project operating during 2002/03 under the umbrella of the Birmingham Community Safety Partnership.