Anti-social behaviour injunctions are a great unknown

Persistent anti-social behaviour in the form of harassment, threats or noise disturbance can wreck lives and disrupt close-knit communities. But revelations this week from an investigation by The Bureau of Investigative Journalism that mentally ill and vulnerable people are being sent to prison for continuing to feed pigeons or play dominos in public raise serious questions as to whether a key legal tool introduced to tackle it is working effectively.

Anti-social behaviour injunctions (ASBIs) were introduced in England and Wales in 2015 under legislation passed the year before. They replaced the infamous anti-social behaviour orders (ASBOs) and give the police, local authorities, housing associations and other specific public agencies the right to seek county court (and youth court for under-18s) injunctions against individuals engaged in 'conduct that has caused, or is likely to cause, harassment, alarm or distress to any person'.

An injunction can include prohibitions or requirements on defendants designed to prevent future anti-social behaviour and a breach is considered a contempt of court punishable by a fine or up to two years in prison.

Yet despite the widespread use of ASBIs across the country there is next to no publicly available data to scrutinise their impact. We simply don’t know how many injunctions are applied for, how many are issued and breached, and what happens to those individuals judged to have breached them. Particularly concerning is the lack of information that exists about the impact of injunctions on people who are vulnerable, such as those experiencing poor mental health.

That’s why the investigation by The Bureau of Investigative Journalism (TBIJ) published this week is so important, and why The Legal Education Foundation was so keen to support it. By combing through hundreds of individual judgments over the last three years, the bureau show how mentally ill people, often without legal representation, have been sent to prison for breaking rules they are often unable to follow, and even if their actions are deemed to have caused no real harm.

People jailed included a homeless man who was given six months in jail for breaching an injunction that ordered him to stop begging and another man sentenced to 15 weeks for failing to stop feeding pigeons from his balcony. In one instance a woman was moved directly from a mental health hospital to a six-month prison term.

This serious piece of work helps shine a light on a system that has been shrouded in darkness for too long. But it’s not the first report to highlight serious weaknesses.

Two years ago, a Civil Justice Council working party chaired by the now High Court judge Barry Cotter and involving experts from the law, police and local authorities found that most ASBIs granted by the courts had 'failed to directly address the underlying causes of anti-social behaviour'. It cast doubt on the capacity and ability of the civil courts to deal with the often complex issues involved and concluded that 'the overall picture remains unsatisfactory and can be legitimately viewed as failing to achieve the 2014 Act’s stated aims and to adequately assist victims, and perpetrators, of anti-social behaviour'.

Cotter’s report was also scathing about the serious data gap. It said: 'Little, if any, thought appears to have been given as to how data should be recorded' and that the lack of systematic approach meant that 'there can be no adequate empirical overview of how the legislation has worked or its "effectiveness".' It described this dearth of data as a serious omission that 'must be immediately rectified'.

Despite the stark warnings, there has been little or no response from the Ministry of Justice or the Home Office in the two years since the Civil Justice Council report was published. The bureau’s work should cause the government to look again at the operation of ASBIs. As a minimum, it must commit to collect the appropriate data so we can see clearly how they are being used and the impact they are having both on individuals and on the wider problem of anti-social behaviour.

For more than two decades, policymakers have looked to the civil law to tackle what is a serious social problem of high public concern, not least because of the perceived inability of the criminal justice to deal effectively with persistent harassment and nuisance.

But, as with any innovation, we need to be able to measure its impact, and to scrutinise and debate its effectiveness. If it is truly committed to tackling anti-social behaviour in communities across the country, the government will now act quickly to collect the data needed to do so.

Dr Natalie Byrom is research director of the Legal Education Foundation