EHJ June 2005, page 26-27

Enforcement policies that are breached more than they are observed are not doing what they are intended to do, argues Julie Barratt. In this month's column, she explains why local authorities should revisit and amend them if this is the case

Regular readers of this column will recognise an old hobby horse of mine - the value of enforcement policies. I have previously advocated the use of enforcement policies as a mechanism for ensuring consistency and transparency of decision-making. They are also key in rebutting scurrilous allegations of prejudice and human rights abuse and for advising and informing decision makers, when deciding about proposed proceedings, about what course of conduct is the most appropriate.1 Given the way in which concordats, and codes of guidance and the like have proliferated in the recent past, it is a truism to say that such documents are valuable.

It is also a truism to say that such documents actually have to be used to be valuable. A neat and tidy row of codes of practice, memoranda of understanding, concordats and other such similar aids are only useful guides to decision making and policy formulation if they are opened and referred to. The mere presence of them may give officers a warm glow when they can put a tick in the "got it" box during a review, but they have to be used.

Before cries of "stating the obvious" rise up across the land, can I please point out that this is not just my view, it is one shared by the Court of Appeal. In the case of R-v- Adaway2, the Court of Appeal was critical of the way in which a local authority had disregarded its own enforcement policy. The policy stated that a prosecution would only be commenced if one or more of two specific factors were present. On the facts of the case, as presented, neither of the two factors were present. The Court of Appeal ruled that bringing the case in the absence of either factor was oppressive, and that the judge at first instance should have stayed the proceedings.

What does this mean for EHPs in practice? It means that if you have an enforcement policy (and I am not going to revisit all of the reasons I have advocated that you should have one here, as space does not permit) you are bound by it.

In the interests of transparency, most local authorities publish their enforcement policies, and even if they have not, they can be found by using the Freedom of Information Act. Any defence solicitor wanting some guidance as to why proceedings have been instigated against his client should be able to discover the reason by referring to the prosecuting council's enforcement policy. He should also be able to understand why different types of action may have been taken against different defendants in the same case and should have a basis for determining how the council will act should his client be found to be involved again in a similar matter to one for which he was prosecuted previously. He will be able to see, as in the case of Adaway what factors should be present to provoke the instigation of proceedings, and to satisfy himself that those factors are indeed present.

More dangerously, for the local authority, the defending solicitor will be able to see where there has been a deviation from the stated policy. This will entitle him to ask the local authority questions in order to establish why they have deviated from their stated policy, and to consider whether the reasons given are reasonable or not.

Plainly, if the reasons given are reasonable, he has nowhere to go. However if they are not, he may consider that he should challenge the decision to bring proceedings. He could do so either by raising the issue at the magistrates court and inviting the bench to stay the proceedings, as the Court of Appeal indicated should have been done by the judge in Adaway.

Alternatively, he could seek judicial review of the decision of the local authority to act against its own policy, claiming the decision to be Wednesbury unreasonable.3

In either event the local authority will have to justify before a court its reasons for acting contrary to its stated policy, and runs the risk of having its decision either returned to it for reconsideration and meeting the defendant's costs, or having the action stayed in the court. Neither outcome is good for the credibility of the authority.

Policies are there to be used and adhered to, and should be. Once the local authority has nailed its colours to the flag it must abide by what it has said, unless there are very compelling reasons not to.

In instances where an enforcement policy is being more breached than observed it is clearly not doing what it was intended to do, and should be revisited and amended. Use, not abuse, must be the rule.

1. Prosecution Protocols - EHJ October 2002.
2. R -v- Adaway T.L.R .22.11.04
3. Associated Provincial Picture Houses Ltd. -v- Wednesbury Corporation [1948] 1KB 223

Julie Barratt is director of CIEH Wales

CRASBOS - DEBATING HUMAN RIGHTS

Heather Lunney EHO at Greenwich LBC outlines her recent experience when applying for an Asbo on conviction, or Crasbo

When we first applied to the magistrates court for a Crasbo in August 2004 we did not anticipate reluctance to grant such an order. The experience was a valuable lesson. Greenwich LBC's noise team thought we knew what to expect in our second attempt. Little did we know that we would become embroiled in a lengthy debate on the exact wording of the Crasbo and the human rights implications of each suggestion.

The following four options for wording the order were discussed and myself and the other noise officer present found we had to argue each option with our solicitor, the defence barrister and the clerk of the court - with the district judge coming back into court expressing views over each option.

1. Nuisance - our original draft Crasbo simply "mirrored" the abatement notice and prohibited further nuisance. The court considered this too subjective, not precise enough and difficult for other agencies such as the police to assess.
2. A decibel limit - the court suggested a limit of 10dB. Without noise officers present to debate this, the result would have been a nonsense.
3. No noise at all - the tenant could use headphones to listen to music. But then what about watching TV with friends, using a vacuum cleaner or DIY activity? This was considered a breach of the defendant's human rights.
4. Not audible outside front door - eventually, the wording of the final order was that the defendant is prohibited from using any electrical equipment to generate noise which can be heard outside the front door of his premises between the hours of 8pm and 6am.

In retrospect, we would have preferred the final order to have simply specified inaudibility outside the defendant's flat. In our opinion, this would have better protected the surrounding flats. So next time, we will be better prepared to debate or "haggle" over the wording of the order. Good news for the noise team here at Greenwich though, as this is our first one.

GENERAL RULES TO KEEP IN MIND

A Crasbo must be specific about the person, the place and the type of behaviour. It will be for the court to decide the exact wording of the order, but the local authority will help to inform that decision by setting out prohibitions.

Prohibitions must relate to actions already committed, but not necessarily directly linked to the offence the defendant is convicted of. This means, for example, that a conviction for noise nuisance could result in a Crasbo which tried to tackle underlying alcohol-related behaviour, or perhaps prohibited further threats or other antisocial behaviour against neighbours. Prohibitions must be:

• necessary,
• proportionate,
• realistically practical,
• clear, concise and accurate,
• specific about matters of time and place,
• not mandatory - ie worded to compel the defendant to do specific actions (they can only prohibit actions),
• not confined to acts which are already criminal, but may prohibit actions eg a prohibition on entering a shop rather than on shoplifting,
• possible to be complied with ie must not be such that the defendant is bound to breach them.

Throughout this process, do not lose sight of the need to protect the rights of the victims, the wider community and the defendant. Any interference with the defendant's rights sought in the Crasbo must be necessary and proportionate. The rights of the victims must also be added into the equation which can be a difficult balancing act.

POSSIBLE CRASBO CONDITIONS

Possible prohibitions will be as wide as the types of antisocial behaviour. For example, you could prohibit the defendant from behaving in a manner that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as themselves. Other prohibitions may include: not using or inciting others to use threatening behaviour, prohibiting defendants from assaulting, threatening or intimidating residents of or visitors to a specified area and prohibiting defendants from approaching witnesses (or officers of the council, or social landlords).

A few examples of particular noise prohibitions used successfully are listed below:

• not to cause noise nuisance by (give example) etc
• playing amplified entertainment at an excessive volume so as to cause nuisance to neighbouring properties (this was one of the prohibitions used on a Crasbo gained by Rochdale MDC in June 2004)
• playing amplified entertainment between the hours of 11.00pm and 7.00am on Sunday night to Thursday night inclusive and midnight to 8.00am on a Friday night to a Saturday night inclusive (also used by Rochdale MDC on the same order as above)
• playing or permitting to be played amplified music or musical instruments at such a volume so as to cause a nuisance from noise or causing or permitting to be caused noise or vibration from human noises (this was the only prohibition used in an order by Hammersmith and Fulham LBC on 6/6/04).

Further examples can be found in the publications listed below. Remember that you must specify the area applicable. Avoid double negatives that may change the prohibition eg you must not - not consume alcohol in a public place. One other important point. Unless you can prove it is the named person playing the music, the order should also include the wording permitting music to be played.

A Guide to Antisocial Behaviour Orders and Acceptable Behaviour Contracts, Home Office Code of Guidance, 12 November 2002.

Antisocial Behaviour Orders - A Special Bulletin 2nd Edition, Anesh Pema and Sharon Heels, pub. Jordans 2004. www.crimereduction.gov.uk