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Response
to the Police Service Northern Ireland’s Consultation
on the Draft procedures and Guidance on Anti-Social Behaviour
Orders and Acceptable Behaviour Contracts
Children’s Law Centre
October 2005
Contents
Introduction
3
Consultation
3
Legislative Context
4
International Standards
4
Legislative Framework in Northern Ireland
8
Specific Comments on the PSNI Draft Guidance and Procedures
9
Conclusion
16
Introduction
The Children’s Law Centre is an independent charitable
organisation established in September 1997 which works towards
a society where all children can participate, are valued,
have their rights respected and guaranteed without discrimination
and every child can achieve their full potential.
We offer training and research on children’s rights,
we make submissions on law, policy and practice affecting
children and young people and we run an advice/ information/
representation service. We have a dedicated free phone advice
line for children and young people called CHALKY and a youth
advisory group called Youth@clc.
Our organisation is founded on the principles enshrined in
The United Nations Convention on the Rights of the Child (UNCRC),
in particular:
• Children shall not be discriminated against and shall
have equal access to protection.
• All decisions taken which affect children’s
lives should be taken in the child’s best interests.
• Children have the right to have their voices heard
in all matters concerning them.
From its perspective as an organisation, which works with
and on behalf of children, both directly and indirectly, the
Children's Law Centre is grateful for the opportunity to make
this submission to the Police Service Northern Ireland (PSNI)
and to offer assistance and comment on the Draft procedures
and Guidance on Anti-Social Behaviour Orders (ASBO’s)
and Acceptable Behaviour Contracts (ABC’s). Our comments
relate to the applicability of ASBO’s and ABC’s
to children and young people under the age of 18.
We wish to state our belief that ASBO’s and ABC’s
are a clear breach of children’s rights and the UNCRC
and we note the two cases pending in the European Court of
Human Rights. We also note the report published on 8 June
2005 by Mr Alvaro Gil-Robles, Commissioner for Human Rights,
Council of Europe. We refer to pages 34-37 of same and recommendations
19-23 which are particularly pertinent to this consultation.
He states that ASBOs are, “particularly problematic”
and states that,
“The ease of obtaining such orders, the broad range
of prohibited behaviour, the publicity surrounding their imposition
and the serious consequences of breach all give rise to concerns.”
We would respectfully submit that the PSNI should give full
consideration to this authoritative report before proceeding.
Consultation
We are grateful to the PSNI for allowing us to prepare this
response following the ruling in the recent judicial review
hearing which relates to the operation of ASBO’s. We
realise that this has resulted in a somewhat extended deadline
and we are pleased to have had the opportunity to await the
outcome of the judicial review so that we are in possession
of all the current information to inform this response. We
note that early indications are that the Applicant in the
aforementioned case has publicly declared his intention to
appeal the decision in his case. This may have implications
for consultation and giving effect to these procedures and
guidance.
We would be grateful if you would provide us with details
of how you have or intend to consult directly with children
and young people as the group likely to be impacted upon most
by the implementation of the ASBO’s and ABC’s
procedures and guidance. Such consultation is essential not
only in ensuring compliance with section 75, but also in ensuring
the Government’s compliance with Article 12 of the UNCRC,
one of the principles of the Convention - Respect for the
views of the Child. In examining the government’s compliance
with Article 12, the UNCRC Committee recommended that the
government, “...take further steps to promote, facilitate
and monitor systematic, meaningful and effective participation
of all groups of children in society”. (Para 30 CRC/C/15/Add.188)
We would also be grateful if you would also respond with details
of the system which you intend to use to analyse responses
to this consultation process including the degree of weight
which will be attributed to both individual and organisational
responses. This is a vital element to drawing conclusions
from responses and progressing with identified areas for immediate
action or otherwise. For this reason, we would appreciate
information both on the system itself and on its operation
for the purposes of analysis.
Legislative Context
International Standards
It is our view that discussion about “tackling anti
social behaviour” which impacts on children and young
people should be set within the framework of the UNCRC, the
European Convention on Human Rights as incorporated by the
Human Rights Act, the Beijing Rules, the Riyadh Guidelines
and also should take into consideration all relevant recommendations
of the United Nations Committee on the Rights of the Child.
The UNCRC is a set of non-negotiable and legally binding minimum
standards and obligations in respect of all aspects of children’s
lives which the Government has ratified. The United Kingdom
Government has therefore given a commitment to implement the
terms of the Convention by ensuring that United Kingdom law,
policy and practice relating to children is in conformity
with UNCRC standards. The UK Parliamentary Joint Committee
on Human Rights in its recent report on the UNCRC described
the obligations the Convention places on government as follows;
“It should function as a set of child- centred considerations
to be used by all departments of government when evaluating
legislation and policy making”
We are disappointed to note a complete lack of reference to
the UNCRC in the draft guidance and procedures, in spite of
the fact that ASBO’s will disproportionately adversely
impact on children and young people, in particular, young
males and ABC’s are designed for use mainly on children
and young people. As reported in ‘The Guardian’
on 14th October 2005, according to figures in June 2005, in
England and Wales, 4,649 ASBO’s have been issued since
their introduction in 1999, of which 2,057 have applied to
children aged 10 to 17. We wish to see the UNCRC included
as the underpinning standards in the production of the final
draft of the procedures and guidance to ensure that government’s
obligations to uphold children’s rights under the UNCRC
are met.
The principles of the UNCRC are all relevant to this discussion
of the operation of ASBO’s and ABC’s in Northern
Ireland. The Government needs to ensure the rights of all
children not to be discriminated against (Article 2), their
best interests are upheld (Article 3), and they are able to
meaningfully participate in all aspects of their lives (Article
12). More specifically, Article 40 states that:-
“1. State parties recognize the right of every child
alleged as, accused of or recognized as having infringed the
penal law to be treated in a manner consistent with the promotion
of the child’s sense of dignity and worth, which reinforces
the child’s respect for the human rights and fundamental
freedoms of others and which takes into account the child’s
age and the desirability of promoting the child’s reintegration
and the child’s assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions
of international instruments, State Parties, shall, in particular,
ensure that:
a) No child shall be alleged as, be accused of, or recognized
as having infringed the penal law by reason of acts or omissions
that were not prohibited by national or international law
at the time they were committed;
b) Every child alleged as or accused of having infringed the
penal law has at least the following guarantees:
i) To be presumed innocent until proven guilty according to
law;
ii) To be informed promptly and directly of the charges against
him or her, and, if appropriate, through his or her parents
or legal guardians, and to have legal or other appropriate
assistance in the preparation and presentation of his or her
defence;
iii) To have the matter determined without delay by a competent
independent and impartial authority or judicial body in a
fair hearing according to law, in the presence of legal or
other appropriate assistance, and unless it is considered
not to be in the best interests of the child, in particular,
taking into account his or her age or situation, his or her
parents or legal guardians;
iv) Not to be compelled to give testimony or to confess to
guilt; to examine of have examined adverse witnesses and to
obtain the participation and examination of witnesses on his
or her behalf under conditions of equality;
v) If considered to have infringed the penal law, to have
this decision and any measures imposed in consequence thereof
reviewed by a higher competent independent and impartial authority
or judicial body according to law;
vi) To have the free assistance of an interpreter if the child
cannot understand or speak the language used;
vii) To have his or her privacy fully respected at all stages
of the proceedings.
3. State parties shall seek to promote the establishment of
laws, procedures authorities and institutions specifically
applicable to children alleged as, accused of or recognized
as having infringed the penal law and, in particular,
a) the establishment of a minimum age below which children
shall be presumed not to have the capacity to infringe the
penal law
b) whenever appropriate and desirable, measures for dealing
with such children without resorting to judicial proceedings,
providing that human rights and legal safeguards are fully
respected.
4. A variety of dispositions, such as care, guidance and supervision
orders, counselling, probation, foster care, education and
vocational training programmes and other alternatives to institutional
care shall be available to ensure that children are dealt
with in a manner appropriate to their well being and proportionate
both to their circumstances and their offence.”
The UNCRC Committee’s concluding observations in 2002
recommended that the government should ensure that the, “...best
interests of the child should be the paramount consideration
in all legislation and policy affecting children and young
people, notably in the justice system.” (Para 26, CRC/C/15/Add.188)
The Committee also recommended that the government should
take steps to ensure that legislation governing procedure
in courts and administrative proceedings ensured that children
capable of forming their own views had the right to express
those views and that they would be given due weight (para
30, CRC/C/15/Add.188).
The Committee welcomed the youth justice initiatives which
had introduced restorative justice and other constructive
community based disposals for juvenile offenders, but noted
with concern the low age of criminal responsibility. The Committee
also expressed concern about the privacy of children involved
in the criminal justice system which was not always protected
(para 59, CRC/C/15/Add.188).
The Committee recommended that the government should establish
a youth justice system which fully integrates into its legislation,
policies and practices the provisions and principles of the
Convention, in particular articles 3, 37, 40 and 39 and all
other relevant international standards. In particular the
Committee recommended that the government should significantly
raise the age of criminal responsibility and ensure that the
privacy of all children is protected when they come into conflict
with the law in accordance with article 40 (2) UNCRC (CRC/C/15/Add.188).
There is an obvious lack of consideration of both the UNCRC
and the UNCRC Committee’s concluding observations in
the development of these draft procedures and guidance on
ASBO’s and ABC’s. The operation of ASBO’s
and ABC’s in Northern Ireland is clearly incompatible
with both the UNCRC and the UNCRC Committee’s recommendations.
We submit that that in progressing with the implementation
of ASBO’s and ABC’s in Northern Ireland, the PSNI
is in breach of its obligations under the UNCRC.
The European Convention on Human Rights, as incorporated by
the Human Rights Act 1998 is also relevant to this discussion
and while we note reference to the possible engagement, which
we view as the inevitable engagement, of a number of articles
within the European Convention on Human Rights (ECHR), namely
Articles 6 - Right to a Fair Trial, 8 – Right to Respect
for Private and family Life, 10 – Right to Freedom of
Expression and 11 – Right to Freedom of Assembly, we
also wish to highlight the failure to have regard to Article
14 of the ECHR – Right to the Enjoyment of Rights and
Freedoms Without Discrimination. The operation of ASBO’s
and ABC’s is clearly discriminatory in the enjoyment
of the rights and freedoms of young people and young men in
particular, thus breaching Article 14 by discriminating on
the grounds of both age and gender.
The United Nations Standard Minimum Rules for the Administration
of Justice (The Beijing Rules) state that,
“4.1 In those legal systems recognising the concept
of the age of criminal responsibility for juveniles, the beginning
of that age shall not be fixed at too low an age level, bearing
in mind the facts of emotional, mental and intellectual maturity
Commentary
The minimum age of criminal responsibility differs widely
owing to history and culture. The modern approach would be
to consider whether a child can live up to the moral and psychological
components of criminal responsibility; that is whether a child,
by virtue of his or her individual discernment can be held
responsible for essentially anti social behaviour. If the
age of criminal responsibility is fixed too low or if there
is no age limit at all, the notion of responsibility would
become meaningless.”
“5.1 The juvenile justice system shall emphasise the
well being of the juvenile and shall ensure that any reaction
to juvenile offenders shall always be in proportion to the
circumstances of both the offender and the offence”
“7.1 basic procedural safeguards such as the presumption
of innocence, the right to be notified of the charges, the
right to remain silent, the right to counsel, the right to
presence of a parent or guardian, the right to confront and
cross examine witnesses and the right to appeal to a higher
authority shall be guaranteed at all stages of the proceedings”
“8 The juvenile’s right to privacy shall be respected
at all stages in order to avoid harm being caused to her or
him by undue publicity or in the process of labelling.
In principle, no information that may lead to the identification
of a juvenile offender may be published”
“11.1 Consideration shall be given, wherever appropriate,
to dealing with juvenile offenders without resorting to formal
trial by the competent authority.
11.2 The police, the prosecution or other agencies dealing
with juvenile cases shall be empowered to dispose of such
cases, at their discretion, without recourse to formal hearings,
in accordance with the criteria laid down for that purpose
in the respective legal system and also in accordance with
the principles contained in these Rules.
11.3 Any diversion involving referral to appropriate community
or other services shall require the consent of the juvenile,
or his or her parents or guardians, provided that such decision
to refer a case shall be subject to review by a competent
authority, upon application
11.4 In order to facilitate the discretionary disposition
of juvenile cases, efforts shall be made to provide for community
programmes such as temporary supervision and guidance, restitution
and compensation of victims.”
Similarly, the Riyadh Guidelines emphasise the importance
of preventative strategies and programmes to divert children
and young people away from offending behaviour and emphasise
the importance of education, family support and community
based services which respond to special needs, problems, interests
and concerns of young people. It is recommended in these guidelines
that communities should provide, and strengthen where they
already exist, a wide range of community based support measures
and educational opportunities for children and young people,
including community development centres, recreational facilities
and services to respond to the needs of children and young
people who are demonstrably endangered or at social risk.
We believe that the operation of ASBO’s and ABC’s
in Northern Ireland is in breach of all of the above International
Standards and recommend that the PSNI reviews its draft procedures
and guidance on ASBO’s and ABC’s in light of its
international obligations to ensure compliance.
Legislative Framework in Northern Ireland
The Criminal Justice Review, after detailed consideration
of the youth justice system in Northern Ireland and widespread
consultation, recommended the development of restorative justice
approaches for juvenile offenders.
“We believe that restorative justice might be particularly
useful in dealing with juvenile offenders without a long history
of criminality but whose offending is a matter of real concern
to local communities.” (Para 9.53, Review of The Criminal
Justice System in Northern Ireland March 2000)
It was recommended that restorative justice should be integrated
into the juvenile justice system and its philosophy in Northern
Ireland, using a conference model (youth conferences) based
in statute, available for all juveniles (including 17 year
olds once they come within the ambit of the youth justice
system) subject to the full range of human rights standards.
The implementation of these restorative approaches is evident
in the provisions of Part 4 of the Justice (NI) Act 2002 which
provides a statutory basis for youth conferences, reparation
orders and community responsibility orders, all of which,
it is submitted are restorative approaches. The restorative
approach is also evident in the Youth Diversion Scheme introduced
by PSNI in September 2003. As stated on the PSNI website,
the scheme,
“...draws upon the philosophy and principals of restorative
justice. Its aims are built on the premise that children and
young people commit crime and anti-social behaviour for a
variety of reasons... Youth Diversion where possible having
identified those children and young people who are at risk
in terms of their safety / well-being or becoming involved
in anti-social behaviour, but initially those who come into
contact with police for non-offence reasons, they divert them
away from further involvement in the criminal justice system,
so as to reduce the likelihood of them re-offending.”
(Youth Diversion, http://www.psni.police.uk)
We firmly submit that ASBO’s and ABC’s did not
form part of the recommendations of the Criminal Justice Review,
nor of the subsequent Implementation Plans or implementing
legislation (the Justice (NI) Act 2002). We do not believe
that ASBO’s and ABC’s, which are essentially punitive
in nature, sit easily within an overarching preventative/restorative
justice framework for children and young people and feel that
their operation run entirely contrary to the intention and
recommendations of both the Criminal Justice Review and the
restorative justice approach assumed in the PSNI’s Youth
Diversion Scheme.
In addition to this, the operation of ASBO’s and ABC’s
are clearly in breach of section 75 of the Northern Ireland
Act 1998. The Children’s Law Centre and ten other organisations
lodged a complaint under Schedule 9 of the Northern Ireland
Act, stating that the NIO, upon introducing the legislation,
did not discharge its section 75 obligations correctly. The
Equality Commission, in its decision approved on 27th April
2005, found that the NIO did not apply its screening criteria
correctly, did not carry out an Equality Impact Assessment
despite recognising the potential for differential impact
on the grounds of age and gender and did not record any reasons
for its decision not to carry out an Equality Impact Assessment,
failing to properly ‘consider’ as required by
para 3.2 of its approved Equality Scheme. The Commission recommended
that the NIO must, in order to comply with its approved Equality
Scheme, undertake an Equality Impact Assessment of the ASBO
policy and legislation in relation to its potential impact
on children and young people. Further, there was a total failure
by the NIO to consult on the overarching guidance for the
operation of ASBO’s developed by the NIO, the PSNI,
the Northern Ireland Housing Executive and the Councils. The
Commission’s decision was found to be lawful in Justice
Girvan’s ruling in the Matter of an Application by Peter
Neill for Judicial Review 2005 No.21782.
Specific Comments on the PSNI Draft Guidance and Procedures
We refute the claims in the draft procedures and guidance
that ASBO’s offer ‘advantages’ in terms
of enforcement and that both ASBO’s and ABC’s
are aimed at stopping problem behaviour, rather than punishing
the offender. We are extremely worried about the way in which
anti-social behaviour has become synonymous with youth and
see no advantages in the demonisation of children in our society
with the inevitable criminalisation of children for what may
be annoying behaviour to adults but is not criminal. This
is particularly worrying given the lack of evidence to suggest
that ASBO’s and ABC’s are actually effective.
We note Mr Alvaro Gil-Robles’ report on his visit to
the United Kingdom in November 2004 which states that,
“...determination of what constitutes anti-social behaviour
becomes conditional on the subjective views of any given collective”
leading to as he stated to circumstances where,
“...such orders look like personalised penal codes,
where non-criminal behaviour becomes criminal for individuals
who have incurred the wrath of the community.” (Para
110, CommDH(2005)6)
The experience in England and Wales has been that ASBO’s
have had the effect of punishing young people, with the Youth
Justice Board (YJB) concluding that approximately 15% of all
ASBO’s against young people end in custody. According
to YJB statistics, 36% of ASBO’s taken out against young
people between June 2000 and December 2002 were breached,
with 41% of those breached resulting in custodial sentences.
(Youth Justice Board written evidence to the Home Affairs
Select Committee on Anti-Social Behaviour) This is rather
shocking when compared with the 3.8% overall percentage of
young people who receive custodial sentences as a result of
conflict with the law. Youth Justice Board figures show that
nearly 50 young people were in custody for breaching an ASBO
in any month in 2004. That compares to an average of three
young people a month between 2000 and 2002. (Youth Justice
Board, ‘Youth Justice Annual Statistics 2003/04’)
This is in direct contravention to the stated primary aim
in the draft procedures and guidance which says that, “The
primary aim must always be to divert children and young people
from the Criminal Justice System.” (11.1 Children and
Young Persons (10 -16 Years)
We note that the draft procedures and guidance state that
ASBO’s are not intended to punish the offender, but
to protect the public by prohibiting the person from acting
in a manner that is anti-social or likely to lead to anti-social
behaviour, i.e. to protect from behaviour that causes or is
likely to cause harassment, alarm or distress. We are concerned
to note that at no stage in the draft procedures and guidance
are any examples given as to what might constitute anti-social
behaviour. Examples from England and Wales which seem to reinforce
the subjective and arbitrary nature of anti-social behaviour
and run contrary to the assertion that ASBO’s do not
punish innocent people include the case of Daisy, a 17-year-old
profoundly deaf girl who was served an ASBO in September 2004
for spitting in public. She ended up in prison because she
appears not to have been able to comply with the order. Her
instinctive response, when distressed, is to spit. Dale Carroll,
a 16-year-old was served with an ASBO which banned him from
wearing a hooded top for five years. Caroline Shepherd, a
27-year-old woman was served an order in March 2005 after
her neighbours claimed she was goading them by walking around
her home in her underwear. If she is seen "wearing only
her undergarments" at her window, her front door or in
her garden the mother-of-two faces jail. On 30 March she pled
not guilty to two charges of breaching the order. (ASBOwatch,
http://www.statewatch.org) While these cases are extreme they
serve to highlight both the absurd nature and arbitrariness
of what constitutes anti-social behaviour and also the seriousness
of any potential breach of the orders. We cannot reconcile
examples of cases such as these with the protection of the
public at large, nor do they reflect the draft procedures
and guidance which states that the prohibitions imposed by
an ASBO should be “reasonable, proportionate, realistic
and practical”. We urge the PSNI to follow its own guidance
in relation to the prohibitions sought and imposed by an ASBO
and to take cognisance of the examples in England and Wales
which have, more often than not, been anything but “reasonable,
proportionate, realistic and practical”.
The draft procedures and guidance state that it is not necessary
for all other remedies to be exhausted before applying for
an ASBO and that ASBO’s are not necessarily a last resort.
ASBO’s first came into being through the Crime and Disorder
Act 1998 in England and Wales. Contrary to this, guidance
was issued with the Act suggested that ASBO’s would
be used as a measure of last recourse and that they would
be used, ‘mainly against adults.’(Section 1 “Crime
and Disorder Act 1998: Introductory Guide” Home Office)
Under the proposals to introduce ASBO’s in the Republic
of Ireland, the Irish Republic’s Justice Minister, Michael
McDowell stated that,
“An important overriding explicit principle will be
that an application for and ASBO will be a last and not a
first resort.” (7th July 2005, “The Irish News”)
We do not agree with the use of ASBO’s as anything other
than a last resort for all of the reasons given in this response
and we urge the PSNI to revisit this statement and exhaust
all other remedies and interventions before applying for an
ASBO, as PSNI representatives previously verbally stated that
they would be.
Another consideration is the cost of ASBO’s. Home Office
figures put the average cost at £5,350, but a Liberty
report, “Liberty’s Evidence to the Home Affairs
Committee on Anti-Social Behaviour” suggests this may
be a conservative estimate and has called for a cost and effectiveness
analysis. If an order is breached, and more than one in three
are, Metropolitan Police estimates are as high as £100,000.
In Northern Ireland, the Armagh Community Safety Partnership
has claimed that the cost of multiple orders will be too much
for any public body to bear. In covering this story the “Belfast
Telegraph” (“Cost doubt on crime move - ASBOs
'too dear to be a solution here,” February 2005) referred
to a case in Manchester which was appealed both at the High
Court and the Court of Appeal at a cost to the council of
£187,700. This case is currently before the European
Court of Human Rights and will incur further costs. We contend
that this vast sum of money could surely be better spent addressing
the root causes of "anti-social behaviour" and finding
solutions to the problem of poor behaviour in society that
are actually effective.
We also note the statement in the draft procedures and guidance
that,
“There must be a balance between the rights of the defendant
and those of the victims of the anti-social behaviour and
any interference must be both justified and proportionate.”
(4. Human Rights)
There is a distinct lack of consideration of the disproportionate
impact both ASBO’s and ABC’s will have on children
and young people, including other children of a family with
a child against whom an ASBO is sought, which is exacerbated
when one considers that ASBO’s are made for a minimum
of two years, but many are being issued in England and Wales
for between five and ten years. This is an extremely long
period of time in the life of a child and it does not allow
for maturation. In terms of proportionality and fairness,
NACRO note that,
“... a five year order for a ten year old is 50% of
their life; for a 40 year old 12.5 per cent.” (NACRO’s
submission to the House of Commons Home Affairs Committee
on Anti-Social Behaviour)
We also note that the draft procedures and guidance make reference
to the prioritisation of areas/ persons/ problems which need
to be addressed. (7. National Intelligence Model). This is
particularly worrying given that areas identified as a priority
are likely to be the most deprived areas in society with an
already high degree of socio-economic disadvantage. This will
have particular consequences for this jurisdiction given the
over-representation of one religious and political group in
the areas of highest social need by New TSN area. A Howard
League for Penal Reform report into social deprivation and
rural youth crime, “Social Deprivation and Rural Youth
Crime, “ (March 2005) found that young people were often
regarded as a threat. As well as replacing ASBO’s with
community projects, the report demanded more transport and
leisure facilities. Many of the young people surveyed complained
of a lack of anything to do, with 40% saying they would "hang
around" in streets or public places three or more times
a week. And 77% of those questioned agreed with the statement
"adults in my community see young people as a problem".
Most cited lack of facilities for young people as their biggest
obstacle. The lack of things to do other than hang around
in public spaces sometimes led to "offending behaviour",
the study concluded - 22 of those surveyed were currently
in prison after committing a variety of minor offences. This
scenario will undoubtedly be replicated in Northern Ireland,
particularly in areas of highest disadvantage. In Northern
Ireland, this lack of provision of services for young people
will be further exacerbated by the recent funding cuts in
education, leisure centre and library closures and the loss
of after school and youth club services as a result of recent
funding cuts.
We have very serious concerns about the standard of proof
and admissibility of hearsay and professional evidence in
ASBO hearings. The case of R (Mc Cann and Others) v Crown
Court at Manchester (2002) UKHL 39 addressed the issue of
burden of proof. This case is currently before the European
Court of Human Rights where further clarification on the issue
of burden of proof is expected. As ASBO’s are civil
orders, hearsay evidence can be admitted and the court can
rely on expert witnesses. However, there is a distinct blurring
of the civil and criminal law in that if an ASBO is granted,
and 98.32% in England and Wales have been (Home Office Statistics
1 April 1999 – 31 March 2004, Issued September 2004),
and subsequently breached, a child can receive a custodial
sentence for behaviour that is not criminal, without ever
having the protections of the criminal justice system and
being denied the right to a fair trial under Article 6 ECHR
as incorporated by the Human Rights Act 1998. Another inevitable
breach of Article 6 is if a child or young person is not given
the opportunity to participate in her/his ASBO hearing or
to challenge the evidence against her/him. It is a well established
principle that article 6 ECHR applies to certain civil as
well as criminal proceedings. The European Court of Human
Rights in the case of T & V v UK (in the context of criminal
proceedings) found that in order for children and young people
to have a fair hearing they must be able to participate in
and understand the proceedings in which they are involved.
It is suggested from recent case law from the European Court
of Human Rights that the twin concepts of understanding and
participation as essential factors in the guarantee of a fair
hearing for children should be read across into all judicial
and administrative proceedings relating to children and young
people. This is also clearly a breach of Article 40 of the
UNCRC which states that a child in conflict with the law has
the right to treatment which promotes the child’s sense
of dignity and worth, takes the child’s age into account
and aims at reintegration into society. The child is entitled
to basic guarantees and appropriate legal or other assistance.
(See pages 5 and 6 above for full text of Article 40) These
are very serious breaches of human rights and we urge the
PSNI to take full consideration of such implications when
deciding to make an application for an ASBO. In the context
of the pending European Court cases, we strongly advocate
that the PSNI avoid applications for ASBO’s.
The draft procedures and guidance states that officers should
consider the use of warning letter before applying for an
ASBO, but also states that such warnings may not necessarily
be issued in every case. Consideration should also be given
to whether or not this warning should be delivered in person
so that it can be explained. We believe that further, more
conclusive guidance is required to determine how the correct
level of consideration is shown and the elements to be considered
in making these decisions. We also argue that it is fundamental
that such warning letters be issued in person for the so that
they can be explained, particularly when a notice is being
served on a child or young person. This is particularly important
in complying with section 75 of the Northern Ireland Act 1998
which provides for the provision of information in accessible
formats and Articles 12 and 13 of the UNCRC which confer on
children and young people the right of access to ‘child-friendly’
information.
We also note that the draft procedures and guidance state
that after this stage, if it is considered that an ASBO is
a necessary means to prevent further anti-social behaviour,
the process for seeking an ASBO should be commenced. Again,
there is no explanation given as to the level of consideration
required or what exactly this consideration should entail.
Without much more precise guidance as to when an ASBO is deemed
necessary and who should take such a decision, we will run
the risk of arriving at a situation in Northern Ireland similar
to that in England and Wales whereby ASBO’s appear to
be granted on a postcode lottery basis. In the first six months
of 2004, 155 people were subject to an ASBO in Greater Manchester
compared with just 27 in Merseyside. (Home Office Statistics
1 April 1999 – 31 March 2004, Issued September 2004)
This has added significance in Northern Ireland when one considers
the over-representation of young, Catholic males in the criminal
justice system. There must be clearer, more stringent guidance
given as to when it is ‘necessary’ to apply for
an ASBO to avoid allegations of gender, age and religious
discrimination in an already divided community and also to
avoid breaches of human rights and equality protections. Without
clearer guidance, the draft procedures and guidance will reflect
the highly unsatisfactory arbitrary and subjective nature
of the ASBO legislation.
While we welcome the statement in the draft procedures and
guidance that all available remedies and diversionary measures
should be considered at an early stage in relation to children
and young people, we note that this applies only to children
aged 10 – 16. The UNCRC states that ‘children
and young people’ should include all children under
the age of 18 and Recommendation 171 of the Implementation
Plan of the Criminal Justice Review which came into effect
on 31st August 2005 brought 17 year olds within the ambit
of the youth courts. We recommend that this section be amended
to reflect this. We also note that this statement is contrary
to an early statement in the guidance which says that ASBO’s
are not necessarily a measure of last resort, we wish to see
clarification throughout the guidance which states that ASBO’s
are an absolute measure of last resort in relation to children
and young people under the age of 18. We are concerned to
note that the PSNI’s commitment to meet with other agencies
in relation to children and young people is qualified by the
statement that if other agencies decline to get involved in
the process, it must not be allowed to unduly delay the process.
We disagree with this qualification and believe that it is
vital that all children and young people receive appropriate
support from the relevant authorities. The provision of support
far outweighs the inconvenience of a delay in the process.
To continue without such support structures in place is in
contravention of the principle of the best interests of the
child – Article 3 UNCRC.
One of our greatest concerns is in relation to the fact that
unlike criminal cases, there are no automatic reporting restrictions
with regards to ASBO proceedings. We are extremely worried
to note the statement in the draft procedures and guidance
which says that,
“...only in circumstances where it is considered that
(reporting) restrictions would be detrimental to the effectiveness
of the ASBO should the police challenge an application by
the defence to have reporting restrictions imposed. It is
important to consider what benefits full publicity would have
and to balance this with the safety and rights of the child
or young person.” (Para 11.1 Children and Young Persons
(10-16 Years)
We do not envisage a situation where the safety of a child
can be ever balanced with the ‘benefits’ of publicity.
This is particularly shocking in the context of Northern Ireland,
given the impacts of the conflict. Youth@clc’s report,
“Shout Out Soon” (2004) found that 16% (205) of
the children and young people who took part in the survey
stated that paramilitary and sectarian activity affected their
lives. One 14 year old male said that,
“Sometimes in my area I am afraid to hang about street
corners with my mates ‘cos people in paramilitaries
can approach you and tell you to stop what you are doing.”
The influence of non-state forces in Northern Ireland is still
keenly felt and past connotations with ‘anti-social
behaviour’ are very significant in terms of child protection.
During the period Northern Ireland’s ASBO policy was
being developed, 13 children were shot and 25 assaulted by
non-state forces for allegedly engaging in anti-social behaviour.
(1st April 2003 – 1st April 2004 Central Statistics
Unit, PSNI) To consider challenging an application for reporting
restrictions to be imposed in the current Northern Ireland
context is to propose to identify children to non-state forces
with an interest in ‘anti-social behaviour’ which
will have potentially grave implications for the child’s
safety. This will impact on a number of the most basic rights
which Government undertook to ensure for children and young
people through the ratification of the UNCRC, namely Articles
3 – the best interests principle, 6 – right to
life, survival and development, 16 – right to protection
of privacy and 37 – the right not to be subjected to
torture, cruel treatment or punishment. There is also the
potential for breaching Articles 2 and 3 of the ECHR –
the right to life and the right to live free from torture,
inhuman and degrading treatment. To consider challenging an
application for reporting restrictions to be imposed is contrary
to the court’s view in the European Court of Human Right’s
decision in T & V v UK (2000) where it was viewed as vital
to protecting the child’s rights given their age and
vulnerability. Also, the Children (NI) Order 1995 places strict
reporting restrictions on children’s cases and we would
expect similar standards to apply in all cases relating to
children and young people. For these reasons and in the interests
of the safety and protection of the child, we strongly argue
that there should never be an instance whereby the PSNI would
challenge an application for the imposition of reporting restrictions.
We recommend that the draft procedures and guidance be amended
to reflect this.
The above comments also relate to para 15.1 Who to inform?
We reiterate our concerns about the safety and protection
of the child and very firmly state that there can never be
a balancing exercise undertaken between the media and publicity
and the possibility of putting a child’s life in danger.
We note that in the Consultation section in the draft procedures
and guidance it states that,
“...if criminal proceedings are ongoing for behaviours
in which an application for an ASBO is being considered, it
might be more appropriate to consider an ASBO on conviction.”
(Para 11.2, Consultation)
We support the concerns of Mr Alvaro Gil-Robles, Commissioner
for Human Rights, Council of Europe which he raised in his
report in relation to the blurring of the boundaries between
the civil and criminal justice systems. The very inclusion
of provisions relating to ASBO, which the NIO describe as
civil orders, in criminal justice proceedings further blurs
the already near invisible line between ASBO’s and the
criminal justice system. He states that,
“I find the combination of a criminal burden of proof
with civil rules of evidence rather hard to square.”
(Paras 115-116, June 2005)
Guidance on how to proceed with an ASBO on conviction is also
contained in the draft document. This should state that an
ASBO on conviction should never be sought against a child
or young person. If a child has received a determination in
respect of a criminal offence to then impose an ASBO using
hearsay evidence and a lower standard of proof is to doubly
punish the child in a criminal court for something that is
not a crime using civil standards of proof, hearsay evidence
and “professional witnesses”. Also, the use of
ASBO’s on conviction leads to the nonsense that a child
for the purposes of their own protection would be afforded
anonymity in respect of a criminal act while the possibility
would then exist to be named and shamed for a non criminal
act. An equally absurd scenario is the potential of an imposition
of ASBO, which is a civil order given in a criminal court
for a non criminal act while the children enjoy the “protection”
of limited determinations in the same court for a criminal
act. There is a breach of natural justice in empowering a
court to protract proceedings after the matters in respect
of which the child was before the court, have been completed.
It could be argued that effectively the child is being subjected
to a second trial and receiving a double punishment. We believe
Article 6 ECHR is engaged here and potentially Article 5 if
the child is arrested under warrant. International human rights
standards and best practices demand that children who are
processed through the criminal justice system are done so
speedily. Adjourning proceedings for the purposes of imposing
an ASBO on the back of criminal proceedings is we believe
breaching Article 40 (2) (b) (3) of the UNCRC especially in
the context of the current delay in the administration of
criminal justice as it relates to children. Therefore, we
advocate that an ASBO on conviction should never be sought
for a child or young person under the age of 18.
Also in the section on Consultation, we are pleased to note
the intention to work with all other relevant agencies to
support children and young people and to ensure that no conflicting
action is being taken. Again, for the purposes of child protection
we feel that it is vital that confidentiality measures are
agreed, adhered to and monitored to ensure compliance with
international child rights standards. We would like to see
the inclusion in this section of the intention to consult
with the child her/himself and also her/his parents to determine
the nature and level of support required and to ensure that
the child has a voice and that her/his views are taken into
account in this very serious decision in her/his life as per
Article 12 of the UNCRC.
In the section on ABC’s, reference is made to giving
consideration to whether an ABC is ‘suitable’.
This has not been elaborated upon and we are perplexed as
to when or on what grounds an ABC might be seen as a ‘suitable’
option. There is a need for much greater clarity and guidance
in this section as once again we run the risk of a postcode
lottery existing in terms of ABC’s as currently exist
in England and Wales. (See page 12, above) We are extremely
concerned by the proposal that the fact that a child or young
person has been subject to an ABC can be used in evidence
when applying for an ASBO and also if a person refuses to
engage in the process that this should be documented and can
be used as evidence in any further action, for example an
ASBO. ABC’s are allegedly voluntary agreements and evidential
issues arise when the non-engagement in or breach of a voluntary
agreement is used to incur potentially criminal liability.
This concern is heightened by the indefinite length of time
during which an ABC could be used as evidence upon which an
application for an ASBO could be used and the fact that the
proposal is that the ABC agreement will be drawn up with the
child and his/her parent. There is no provision for a legal
representative or advocate to be present and we recommend
that such provision be included in relation to these proposals
in order to comply with the obligations of Article 6 of the
ECHR – the right to a fair trial.
There should be much clearer guidance again about what is,
“reasonable, proportionate and appropriate” and
what type of behaviour qualifies as behaviour, “similar
to that for an ASBO” for which ABC’s may be used
(para 17.1) to ensure uniformity in decision making in relation
to the operation of ABC’s. We also have concerns about
the fact that the draft procedures and guidance state that
a draft ABC should be prepared prior to the initial meeting.
(Para 17.2 What is the process for initiating an ABC? Our
emphasis). This is directly contrary to the following section
– 17.4 The Contract - which states that the content
of the contract should reflect the engagement of the individual.
We have to query how genuine the nature of involvement of
the individual is when a draft of the contract will be pre-prepared
and the contract should be agreed and signed at the meeting.
Given the potential legal implications including loss of liberty,
it is vital that an independent advocate is present at such
a meeting and that the content of the contract is agreed by
all parties and also that the child or young person is given
enough time to digest and understand the terms of the contract
and the likely implications before signing it. We also have
concerns about the section on the location of the meeting
where it is stated that,
“The use of Police premises may help to reinforce the
seriousness of the behaviour...”
No consideration has been given as to the intimidating nature
on children and young people attending such a meeting with
the use of police premises. Moreover, it appears that the
intention is to intimidate and enforce the seriousness of
the issue. This approach will not result in genuine engagement
and meaningful consultation as per Article 12 of the UNCRC,
but rather will have the effect of imposing the archaic ‘strong
arm of the law’ on the most vulnerable in our society.
It also questions the ‘voluntary’ nature of the
ABC.
We note two examples of likely positive terms to be contained
in an ABC; engaging in a community group or attending school
regularly. When one considers that a breach of a ‘voluntary’
ABC may result in an ASBO being sought, which if breached,
could lead to a custodial sentence, it must be concluded that
this is a rather harsh course of action for a child refuses
to engage with the community or who plays truant. Training
on children’s and human rights, as well as child protection
training is essential for all those involved in this process.
We wish to query the level of child rights, child protection
and human rights training provision for the PSNI generally
and for individual officers who will be in effect the decision
makers.
Conclusion
The Children’s Law Centre welcomes the PSNI’s
consultation on the Draft procedures and Guidance on Anti-Social
Behaviour Orders (ASBO’s) and Acceptable Behaviour Contracts
(ABC’s). We wish to reiterate the grave need for the
PSNI to be extremely hesitant in making applications for ASBO’s
or progressing with ABC’s in Northern Ireland. We have
outlined a number of extremely serious breaches of human rights
which will inevitably result through the granting of ASBO’s.
We hope that the issues we have raised in this response are
helpful and will contribute to the further development of
this process. We wish to see the issues we have outlined addressed
and would welcome meeting with a representative from the PSNI
to discuss anything raised in this response and to prevent
the further erosion of the rights of children and young people,
the most vulnerable group in our society.
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