Introduction
In an attempt to inform the consultation on anti-social behaviour reform (Home Office 2011), this essay will focus on questions pertaining to the Crime Prevention Injunction that will carry the civil burden of proof without criminalising under 18s for breach, and the Direction Power that will give police the power to disperse individuals causing or likely to cause anti-social behaviour (ASB), away from an area and to confiscate personal items.
It will be prudent however to explore how and why social justice for children (e.g., equality of opportunity) might be best safeguarded within these reforms. Therefore, the central tenet of this essay supports the rights of the child as set out by the United Nations Convention on the Rights of the Child (UNCRC) (1989) as ratified by the UK Government in 1991, whilst understanding that people across all age groups and vulnerabilities are entitled to feel safe in their communities.
To contextualise, issues pertaining to the author’s own locality of Mablethorpe will be included to show a correlation between the lack of opportunities for post-16s and ASB. The long-term outcomes for children should be of paramount importance when considering rapid responses to community problems, therefore, the term ‘early intervention’ for the purpose of this essay is child-centred rather than community-centric.
Young People with Neurological Conditions and Anti-social Behaviour
The Home Office reforms should be mindful of children with learning disabilities and conditions such as ADHD, these individuals may have trouble controlling their behaviour and can be seen as anti-social. To illustrate this point, Bennett et al. (2004) found ASB is associated with ADHD symptoms and Williams and McGee (1994) discovered reading disability at the age of 9 years was likely to predict conduct disorder at age 15. Behaviours associated with the aforesaid conditions may cause alarm and distress to people of low tolerance.
Thus, “acting in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household”, as defined in the Crime and Disorder Act 1998, can lead to complaints and censorships against children with disabilities. For example, the British Institute for Brain Injured Children (2005) reported an excessive use of police custody for breaking curfews. Furthermore, Docking, Grace and Bucke (2008) stated 11,517 people were detained under s.136 of the Mental Health Act 1983 (amended 2007) across 43 police forces in England and Wales during 2005-6, and that only 5,900 were detained in more suitable clinical settings (Table 2.1 p.11). Police cells were the most common place of safety, which is a cause for concern in rural areas with limited health services for children with neurological conditions.
A Local Focus: Social Justice For Young People in Mablethorpe
The impetus for this inclusion comes from two sources:
(a) The Neighbourhood Profile (Lincolnshire Police 2010b), and
(b) a comparative review of three Lincolnshire wards, Narrowing the Gap in Deprived Areas of Lincolnshire (Lincolnshire County Council 2010). The former report shows the demographic in Mablethorpe to be within the twenty-five per cent most deprived areas of England (p.8) with a high fear of crime (p.9). The latter report states that the gap has widened for young people due to too much variability in service effectiveness (p.5).
According to these reports, there are two major factors which should cause concern. First, there is the fear of crime and ASB amongst a predominately older population. The age range of the population is: 17.5% under 16s and 3.5% 16-19 compared to 35.2% 30-59 (Lincolnshire County Council 2010, p.39). Secondly, there is educational segregation at the 11-plus examination stage.
Moral panic, a term first introduced by Stanley Cohen in his book Folk Devils and Moral Panics (2002) may explain the relationship between the fear of ASB and young people. New Labour and mass media have tended to label young people as disrespectful yobs (McDowell 2007), fuelling hostility towards youth sub-cultures, particularly where behaviour appears to deviate from mainstream society.
The power of mass media should not be understated, Gerbner and Gross (1976) found a correlation between the fear of victimisation and the amount of violence shown on TV. The cultivation of a false reality, a feeling of insecurity, was associated with heavy exposure to violence shown on the news and in films. This relationship was disputed. According to Doob and Macdonald (1979), the correlation between violence on TV and the estimation of perceived neighbourhood danger becomes non-significant once the incidence of neighbourhood violence is controlled. They found people in low crime-rate areas tend to watch less violent TV and people in high crime-rate areas tend to watch more. There was parity between the amount of TV violence and violence in real life; hence, there was less fear.
From deduction, retired people may have more free time, leading to increased exposure to TV violence, which may explain the disparity between fear of ASB and the number of reported instances in quiet rural areas such as Mablethorpe. Young people here are in minority numbers so hanging with friends in the street is ‘different’ and might be misconstrued as being anti-social.
In Mablethorpe, opportunities begin to diminish at 10 because the 11-plus examination segregates children from less well-off families so gaps in education may be seen as opening up too early. Students receiving free school meals, with special educational needs and disabilities are under-represented in the grammar school (Ofsted 2007). Conversely, better-off families are more able to give specific support, such as sustained 11-plus coaching, which helps children do well (Bunting & Mooney 2001). The grammar school is the designated further education college but places are limited. In 2010, there were 1434 students in the three local secondary schools with only 127 students in the grammar school sixth form (Lincolnshire Police 2010b, p.7).
The DCSF claimed that leaving school with no qualifications increases the likelihood of being involved in crime, 63% of young people who offend leave school with no qualifications (ibid, p.8). The Communications Trust estimate 60% of young offenders have literacy difficulties (Sentence Trouble 2010). Despite these factors, ASB in this region was 31.9% lower in 2009 than in 2008 (Lincolnshire County Council 2010, p.41) with local crime mapping showing an increase from 15 to 16 incidents (6.7%) between September and November 2010 compared to the same period in 2009 (Lincolnshire Police 2010a).
Young people are resilient to adversity; Mooney and Young (2006) made this point when comparing the Labour Government’s Respect campaign to the highest fall in crime since the British Crime Survey began in 1981. They cite an argument made by Curtis (1998) that the reduction in crime was most likely due to sub-cultural changes in youth, revulsion against crime by the young, rather than government intervention. There is scope to build on this resilience, to be mindful of children in deprived areas such as Mablethorpe. Furthermore, service providers should note the UNCRC, particularly, Articles 28 and 29 (Education) and Articles 2, 3, 6 and 23 (Respect and Freedom).
Social Justice, Criminal Justice and Early Intervention
Abolition of Anti-Social Behaviour Orders (ASBOs) that criminalise children’s behaviour for breach is a positive step, but families will need better support.
A child’s right to be healthy is enshrined in Article 27 of the UNCRC where every child has a right to a standard of living adequate for their physical, mental, moral and social development. Therefore, to avoid painting socially inadequate families as anti-social then prescribing ineffective Family Intervention Plans, for example (Gregg 2010), mental health problems, alcoholism and learning disabilities should be met with appropriate and proportionate support.
Early interventions should support an emerging understanding that behavioural problems are transmitted across generations, with roots deeply embedded in childhood (Gerhardt 2004; Perry & Szalavitz 2008; Allen 2011). Crisis measures may stem the tide in the short-term but to give every child the right to have social and emotional capabilities, health and education, social care and youth justice agencies need to work in partnership with families.
Youth Justice could link into the proposed multi-agency care plan and single assessment process for children with special educational needs and disabilities (DfE 2011, pp.28-40). Another possible solution is to develop a model of intervention whereby schools become the hub for multi-agency working. A change in attitudes is needed to find ways of engaging with parents and children with mental health problems that do not stigmatise. GP consortia and Health and Wellbeing Boards could develop a local strategy for improving the capacity of Children’s Services to support mental health. Child and Adolescent Mental Health Services could then respond more effectively to children’s needs at local level.
The Home Office consultation has taken direction from the survey by MORI (2010) that excluded people below the age of 16. Of 5699 randomly selected ‘victims’ who reported anti-social behaviour to police, 87% were White British and there was an under-representation of Black and ethnic minorities. For a balanced review of fear of victimisation and prevalence of ASB, future research could ask the bigger question as to why the majority of respondents are mostly White British. Children from the age of criminal responsibility should also be included as they too may be victims of bullying or parental abuse.
To blend social justice with criminal justice, a social contract, truly inclusive to children, free of the social construction of childhood, could consider children’s needs as they develop as distinct from self-interests of parents. John Rawl’s A Theory of Justice (cited in Bojer 2000, pp.30-38) includes children more fully; it assumes a veil of ignorance has descended upon policymakers to accept a fair position as equals whilst still being aware of the tools of democracy. The point is, parents can make bad decisions for their children whilst being unaware or incapable of meeting their needs; therefore, fair justice should deal with children as victims born into situations rather than criminals at ten years of age.
Family interventions need to start early, as a child’s developmental score at 22 months is known to influence outcomes in adulthood (Allen 2011). Injunctions, parental contracts and orders are late interventions which tackle symptoms rather than causes. They may work in the short-term, but over 3.5 million reported incidents of ASB in the general population (Home Office 2011) show that more needs to be done sooner.
The Prevention of Crime and Anti-social Behaviour
It is acknowledged that crime and anti-social behaviour are major causes of unhappiness in the UK. Her Majesty’s Inspectorate of Constabulary intends to put victims first. There are two proposals for doing so. The first is a rapid response to nip ASB in the bud and the second is early intervention (HMIC 2010, p.11).
It could be more widely acknowledged in this reform that children can be victims too; there are few references to this in the consultation and associated reports. For example, Our Vision for Safe and Active Communities (Newlove 2011) talks about parents taking responsibility for their children but excludes children’s opinions. However, to prevent cases such as Fiona Pilkington’s, whose torment and failure of services to respond to her family’s victimisation prompted her to kill herself and to take the life of her disabled daughter, means that doing nothing about ASB should not be an option. Areas such as mental health affect victims as well as their perpetrators in low socio-economic neighbourhoods (Gregg 2010). To break the cycle, intervention should tackle the root causes of social inequalities.
Potential for the Crime Prevention Injunction to address the cumulative impact of many incidents and to overcome witness intimidation is significant. It appears less invasive because a breach will not result in a criminal offence and there are proposals for positive requirements, though these are less clear. There are, however, caveats attached to this tool.
The combination of hearsay evidence and the proposed change to the legal definition in the 1998 Crime and Disorder Act for an ASBO, intended to be a civil order, to that of ‘conduct causing or ‘likely’ to cause ‘nuisance’ or ‘annoyance’ to a person not of the same household as himself’, as used for Anti-social Behaviour Injunctions (ASBIs) to help social landlords tackle ASB, may be quicker, but the distinction between crime and ASB is blurred. What is ‘nuisance’ and what is ‘annoyance’? And will ‘likely’ become a euphemism for risk aversion? These words may mean many things to many people, and their relationship to behavioural and moral issues may be subjective and therefore open to interpretation and victim disposition could affect perception of ASB (Miethe 1987; Stiles et al. 2003).
There also exists a potential for misuse, as this comment exemplifies:
“Vigilantes, that’s the answer; if the police do nothing the people should do it themselves. They must know who the culprits are…find them….deal with them….end of problem.” (Video2please 2009)
It could be difficult for the police to respond effectively to ASB due to the breadth of definition; people’s tolerance of diverse behaviours could vary in line with their particular culture and geography. For example, in quiet rural areas with less crime social standards may be higher so there could be less tolerance to deviation from the norm.
Definitional overlap between crime and ASB should be scrutinised – specifically, the circumvention of criminal doctrines, which require ‘beyond reasonable doubt’ for a guilty verdict, by civil orders that only require ‘on the balance of probabilities’ and draw on hearsay evidence.
Andrew Ashworth (2004), whilst acknowledging the aggregate effect of lesser crimes and their destruction of life quality, stands against civil proceedings which circumvent legal doctrines. He argues that criminal law is intended to safeguard people charged with offences and that it provides greater protection under the European Convention of Human Rights. However, his views on restorative justice, whereby perpetrators and victims are brought together with a community officer and mediator to decide on an appropriate course of action, appear to tip the balance away from any form of mediation. His literal interpretation of justice questions the validity of consent as a condition of court and the influence of victim involvement in deciding obligations. The benefits of restorative justice should not be avoided however, as it may help victims and communities to understand an offender’s behaviour and reduce the fear of crime.
It is noted that a breach of the injunction, unlike the ASBO on application, would not result in a criminal record and that prohibitions would be preventative. However, to set the injunction apart from an ASBO still further for under 18s it is suggested:
- a maximum term could be set on advice from childhood experts to avoid unrealistic compliance over too long a period;
- there should be media censorship to avoid vindictive accounts of breach, and children should be free to meet in public places (Article 15, UNCRC);
- injunctions should be heard in Youth Courts as magistrates are better equipped to deal with young people;
- a list of positive requirements should be available to magistrates to provide clear guidelines to counter for lack of training in children’s needs;
- before making an application for an injunction the authority should use a multi-disciplinary team of practitioners (Team Around the Child – TAC) within the Common Assessment Framework (CAF) to compile a full report on the child’s circumstances to aid the early identification of difficulties and to establish on a case-by-case basis the support required.
Deciding on which test to use for an injunction is less straightforward. Conduct causing or likely to cause nuisance or annoyance blurs the boundaries of what constitutes crime still further and could be viewed as an attempt to control the breakdown of society.
Alison Brown (2004) posits a new form of social control where social housing takes over from ineffective policing, insecure convictions and witness intimidation, where blurred boundaries prevent police from tackling ASB by groups they may perceive as not being fully adult, for example, children, the mentally ill and women with alcohol and drug problems.
On a local level, the merger between housing association Sadeh Lok and children’s charity Children’s Links in Lincoln (Brandon 2009) may confirm Brown’s thesis insofar as social landlords and children’s charities are aware of familial hardships and links to ASB. They are well placed to exert social control. This raises ethical questions on whether the needs of families in social housing will be as well met as those from better-off families receiving other services from partnerships such as this. Conversely, increased capacity could provide specialist opinion on child development in court proceedings. It would appear however that the Big Society free market initiative may empower the private sector more than individuals, which is cause for concern when considering the removal of top-down government protection.
The Direction of Power by police is in danger of infringing the civil liberties of children. The UNCRC gives all children the right to enjoy living in an environment where they are protected from discrimination (Article 2), and allows them to meet with their friends in public places (Article 15). Part 4 of the Anti-social Behaviour Act 2003 gives police the power to disperse groups of two or more people if they are “alarming, distressing, intimidating or harassing members of the public”.
However, it may be more prudent to address the underlying causes of such behaviour. Underage street drinking is an acknowledged concern for 30% of respondents in the analysis of the overall attitudes to levels of ASB (MORI 2010). It is also acknowledged that underage alcohol consumption can increase the risk of alcohol-related harm, that adolescent use of alcohol increases the risk of developing more serious alcohol disorders (DeWit et al. 2000). Therefore, it would be reasonable to assume that interventions at a young age may have far-reaching benefits, not only for communities in terms of reducing alcohol-related behaviours but also for individual outcomes.
In Summary
It is agreed that victims need a fresh approach to crime and ASB. However, it is recommended that inequalities of opportunity such as those brought about by educational division in Mablethorpe are considered as a root cause of underachievement which may affect behaviour.
To ensure that this is not a missed opportunity to adapt to an emerging understanding that behavioural problems are rooted deeply in childhood, intervention should perhaps be centred on vulnerable families and children as opposed to extending behaviour control. There is a need to be mindful of causes rather than symptoms in order to break the continuing cycle of intergenerational deprivation and anti-social behaviour.
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