Community punishments for graffiti and fly-posting
After section 43 of the Anti-Social Behaviour Act 2003 (c.38) insert
43A Community punishments for graffiti and fly-posting
(1) Where an authorised officer of a local authority has reason to believe that a person has committed a relevant offence in the area of that authority, he may give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by the completion of a community service punishment in accordance with the notice.
(2) But an authorised officer may not give a notice under subsection (1) if he considers that the commission of the offence
(a) in the case of a relevant offence falling within section 44(1)(c), also involves the commission of an offence under section 30 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated criminal damage), or
(b) in the case of any other relevant offence, was motivated (wholly or partly) by hostility
(i) towards a person based upon his membership (or presumed membership) of a racial or religious group, or
(ii) towards the members of a racial or religious group based on their membership of that group.
(3) In the case of a relevant offence falling within section 44(1)(f), an authorised officer may not give a notice to a person under subsection (1) in relation to the display of an advertisement unless he has reason to believe that that person personally affixed or placed the advertisement to, against or upon the land or object on which the advertisement is or was displayed.
(4) Where a person is given a notice under subsection (1) in respect of an offence
(a) no proceedings may be instituted for that offence (or any other relevant offence arising out of the same circumstances) before the expiration of the period of 14 days following the date of the notice, and
(b) he may not be convicted of that offence (or any other relevant offence arising out of the same circumstances) if before the expiration of that period he agrees in writing to undertake the community punishment in accordance with the notice.
(5) A notice under subsection (1) must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.
(6) A notice under subsection (1) must also state
(a) the period during which, by virtue of subsection (4), proceedings will not be instituted for the offence,
(b) the number of hours which the person is required to work, which shall not exceed 24,
(c) the period during which the hours must be worked, provided that it shall not commence more than two months from the date on which the notice is agreed to under subsection (4)(b), and
(d) the officer of a provider of probation services or, in the case of a person aged under 18, the member of a youth offending team to whom the person must report, and the time by which he must so report.
(7) The authorised officer issuing the notice under subsection (1) must give a copy of the notice to the officer specified in accordance with subsection (6)(d) to whom the person must report and any other information relating to the case which he considers likely to be of assistance.
(8) A notice under subsection (1) must be in such form as the appropriate person may by order prescribe.
(9) The provisions of section 47 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (obligations of person subject to community punishment order) shall apply in respect of a community punishment notice.
(10) For the purposes of this section a police officer or police community support officer shall have the same powers to issue notices..(Paul Holmes.)
I beg to move, That the clause be read a Second time.
The essence of the new clause is in the first paragraph: that an authorised officer of a local authority who has reason to believe that a person has committed the relevant offencethat is, graffiti or fly-postingcan give that person the opportunity of discharging any liability to prosecution and conviction if they undertake community-service punishment to rectify the damage they have caused, to remove the graffiti or the fly-posting to make it good.
There are two purposes in suggesting this. The first is that it is a reflection of the well known and well debated broken-window theory, which became fashionable in New York, for example, in the early 1990s when the new mayor suggested seizing back public places and getting the police to tackle what had been regarded as trivial in the past when they had had to concentrate on more serious things. The theory was that if the abandoned cars, litter, fly-posting and graffiti were dealt with, it would help to reduce more serious crime. Arguably, in New York it had that effect, although analysts point out that the number of police also doubled, which was already higher per head of population than in European countries. Another factor was that the population was getting older and, of course, a lot of this type of crime is committed predominantly by young people who grow out of that pattern of low-level criminality. There are all sorts of reasons why it might have worked but it is certainly argued that the New York example could signpost the way.
Anyone who has served on a local council or worked with one will know that the same principle applies. If the council tackles outbreaks of graffiti promptly it is much less likely to continue or recur in that area. Whereas, if it is allowed to perpetuate it creates a vicious cycle. As a teacher would know, exactly the same applies with regard to graffiti on displays of workthe sharper the school cracks down on it, the less it happens.
The broken-window theory is well known although it had never really been scientifically and rationally researched. However, an article in Science magazine published on 12 December 2008 describes a number of controlled field experiments in a European country that tested the theory. For example, an alley was made pristine but it did not have a litter bin. To get rid of litter one would have to take it away or throw it on the floor. When the alley was clean people would almost universally take the litter away with them. When the alley was already littered they almost universally dropped the litter on the floor. A series of experiments was carried out. In another, a letter clearly containing €5 was left on the floor near a postbox. When the surrounding area was clean the number of people who stole the envelope rather than push it into the postbox was tiny. When the postbox and the small amount of money hanging out of the letter were in an area that had been deliberately graffitied, the number of people taking the envelope and the money rose considerably. The researchers did about five different experiments that led to the same result.
The research concluded that there is a clear message for policy makers and police officers: early disorder diagnosis and intervention are vital in fighting the spread of disorder. Signs of inappropriate behaviour such as graffiti and broken windows lead to other inappropriate behaviour such as littering and stealing. The result is a decline in social norms and accepted standards, which leads to an escalation in littering, crime and so on. That suggests that there is hard evidence that the broken-window theory works, which backs up the famous New York example and the anecdotal evidence that we can all give from personal experience. That explains one purpose of the proposal.
The second purpose is to take a stance that criminalises fewer people. England and Wales send a higher proportion of the population to jail than any other European country. Is that effective? Most people who do graffiti and fly-posting are under the age of 18, although not all. England and Wales jail more children than any other western European country and 76 per cent. of those children reoffend within one year of being released. Clearly that policy is not working.
I have visited the prison systems in Norway and Canada, which are held up as models of the opposite approach. An approach that does not criminalise children early on for relatively minor offences has a more beneficial effect alongside other measures such as intervention, counselling and help. I am told that 40 per cent. of under-25s have a criminal record of some kind, although most are quite trivial. The evidence is that the more people are criminalised through court proceedings, the more criminal they tend to become. It is a self-feeding cycle.
As well as helping to tackle the broken-window theory, the second purpose of the proposal is to take a less criminalising approach with people undertaking restorative justice, which all three main parties have talked much about over recent years. Some good experiments around the country have shown how that can work.
People can be told that we have the evidence for an antisocial behaviour order or court proceedings, but that we are giving them a chance to clear up the mess they have made. They could thereby discharge any liability or prosecution. A magistrate friend of mine said that that would bypass the magistrates court. That is the whole point. At the early, low-level stage we should try not to put people in the criminal system and get them to clean up the mess they have made.
Does the proposal give too much power to local authority officials? Again, the point is that if the offender says that they do not want to clean up the mess, the evidence can be used under the normal legal procedures. If the individual says that it was them and that they will rectify the vandalism, graffiti or fly-posting, there is restorative justice for the community, the broken-window theory is tackled and the person is kept off the first rung on the ladder of criminality.
I am sure that the Minister will be able to pick holes in the proposals. I do not have the banks of Government draftsmen who could produce a far superior version. I would be delighted if the Minister said that the proposal will not work, but that he will take the idea and come back with something better. I do not intend to press the clause to a vote, but I am interested in the Ministers response.
The hon. Gentlemans point about the importance of focusing on graffiti is relevant. There is a debate about designing out crime. So much can and should be done to make our communities look cleaner, such as ensuring that they are well lit. Aspects of design can assist in ensuring that areas are safer and that less crime is committed. He is right that we should consider the concept of the broken-window society. If an area looks unsafe or unkept, in some ways the problem becomes self-perpetuating and the crime arises. Sadly, we have obviously seen this in many different communities that we have had involvement with.
There are two points. There is also the cost to businesses and small shops that perhaps have their shutters or their buildings continually defaced by graffiti. That highlights that graffiti is not an insignificant crime. So many businesses really struggle, because after the first occurrence they perhaps cannot get the insurance to pay to deal with the problem. The viability of certain secondary or tertiary shopping areas, including the shops that have had to withstand some of these problems, becomes quite marginal. Those shops feel the direct cost, particularly when local authorities understandably say, Well, you havent cleared this up and were going to issue you with a notice to clear it up, because it is contributing to the area feeling less safe. That puts real pressure on a number of those businesses. I am sure that many hon. Members will have experienced that situation in their own community.
I understand and recognise the points that the hon. Gentleman makes about the importance of not criminalising young people and not drawing them into the criminal justice system at too early a stage. However, if someone is going round tagging and creating graffiti, that is really quite important, because it can be the precursor to other offending. By simply saying that an officer of the local authority would effectively deal with graffiti, there is a risk that these offences will be viewed as less serious if they are taken outside of their current remit. In no way am I suggesting that the hon. Gentleman is making that point, because he is not.
I absolutely agree that restorative justice can demonstrate to a community that somebody is paying for the crime that they have committed, that they are seen publicly in their community to be either repainting a building or clearing up litter, and that people recognise that somebody has received a punishment in those circumstances. However, I fear that an unintended consequence of what the hon. Gentleman is suggesting may be that graffiti is seen as less of a crime and less of a threat to a particular community, because it would obviously then be for the local authority to try to arrange the community punishments. That would take the local authority into a realm that it is perhaps not so familiar with, albeit that partnership arrangements could be established with youth offending teams and that whole aspect of the system.
There are significant issues and potential problems with what the hon. Gentleman is suggesting. Furthermore, if we recall the debate that we had this morning about gangs, some gangs may use tags as a mean of identifying territory, so that there is a more sinister aspect to the use of graffiti. We can talk about graffiti being a mark on a wall, but sometimes, as the hon. Gentleman will know, those tags mean something; they can have links to more serious offending. That is why the approach of involving the police, who often log these tags and have a database of them so that they can tie that graffiti to other offending, is quite important.
Does the hon. Gentleman accept that there is a quite clear distinction and it would be at the designated officers discretion to establish that distinction? He would be working with the community disorder reduction partnerships and the police. Clearly, if it is serial tagging, gang tags or that sort of issue, why would the officer adopt this approach, unless they thought that it was appropriate for somebody just to get involved? If it is somebody who has just been caught spray-painting or chalking on a wall for the first time that we know of, why start to go through the heavy-handed legal procedures? So the decision would be at the discretion of the relevant officer. Clearly, if it was a serious matter, such as a serial offender or repeat offender, this approach would obviously not be appropriate.
It is interesting that the hon. Gentleman talks about the discretion of the relevant officer in this situation. I would argue that there should be discretion for the relevant police officer in how they deal with community safety and with offences in their community. It may be the case that an officer in the circumstances that the hon. Gentleman has indicated might, on a one-off occasion because he knows the person responsible and is very familiar with them, seek to exercise discretion in a particular way. I am just suggesting to the hon. Gentleman that that might be a better route in terms of being reasonable and dealing appropriately with offences in the community. There needs to be discretion and judgment on the part of police officers in these circumstances and that may be an appropriate way to address this problem, through the increasing use of community policing and safer neighbourhood teams, which I wholeheartedly support, who have a clearer understanding of the communities and neighbourhoods that they are policing.
My reading of this, and one reason why I think that it would not work, is that it involves
an authorised officer of a local authority not a police officer, but a council officer. The person has to confess to the council officer that they have done it. It starts a new hare in the criminal justice system. That is why I have difficulty envisaging how a local council officer could be made to use a legal procedure such as this against a kid who is doing graffiti. It is an issue for the police officer, not the council cleaner.
I hear clearly what the hon. Lady says, but, as she should notice, I have talked about the discretion of police officers, working in conjunction with local authorities, which have a key role in the crime and disorder reduction partnerships that the hon. Member for Chesterfield alluded to. I have been to parts of the country where, for example, community police teams work hand in hand with council enforcement officers. Therefore, a combination of council-related issuesclear-up or using local environmental protection byelawsand working with the police creates a partnership approach. That is almost an alternative model that could be adopted and, in many ways, could achieve some of the elements that the hon. Gentleman seeks.
On the partnership approach, are hon. Members aware of the pretty widespread practice, not only in Chesterfield, but also across the country, of council officers working with the police on many issues? Sometimes, the council officers take the initiative. In Chesterfield, we have a system of rangers who go around the parks and housing estates tackling graffiti and working with the police on offenders. If the offenders are council tenants, they will serve notices or warnings on them. There are already working examples of council officers taking the initiative on such issues. The policethe beat officerand the council tenant liaison officer will visit a problem family together. The police will say, Well, if you dont get your act together, these are the legal outcomes and the tenant liaison officer will say, And you can be evicted as well. That double act works very well. This is not new ground; it is already happening to varying degrees.
I hear what the hon. Gentleman says, and I support close partnership working among the police, local authorities, probation teams and the NHS to address the issues in our communities. We see success where strong partnership elements are working. However, I question the necessity for the new clause in terms of where the relative responsibilities for dealing with the issues should lie. In my judgment, we are talking about criminal offences and if we want to debate young people in the criminal justice system, this is not necessarily the way to do it, although it is a valid point.
Going back to intelligence and potentially gang-related tags, the hon. Gentleman talked about the discretion of the officer, but, in reality, the police maintain the database of tags from photographic evidence and are better able to match them up. Would the local authority officer be in a position to make a judgment or use discretion? They would not necessarily have all the information at their fingertips. Equally, there is a cost impact on local authorities if they take on a new enforcement and community punishment role that is not currently envisaged for them.
The hon. Gentleman made an interesting point and, although I am not convinced, highlighting the impact of graffiti on our neighbourhoods and communities is relevant and valid, but I am not sure that this is the right way to approach it.
I thank the hon. Members for Chesterfield and for Birmingham, Yardley (John Hemming) for drawing this issue to the Committees attention, because this is an interesting amendment. When I discussed the proposal with my ministerial colleagues, we thought that there might be something in it. I cannot guarantee the hon. Member for Chesterfield that I will delight him, but I might give him a tiny bit of pleasure.
We have wide agreement on the broken-window theory, but I assure the hon. Gentleman, in view of his comments, that we all take those matters seriously, because graffiti and fly-posting are serious matters that can blight areas. It is right that the appropriate authorities react quickly to them and use enforcement powers when necessary. However, he begins to bring us into a more general debate on keeping young people out of the criminal justice system at an early stage, and he and I have some agreement on that.
I also agree with the points made by the hon. Member for Hornchurch on the need to be careful before going down that route. Making such a change or going too far down that route would send out a message to the individuals who might get involved in that kind of activity and the wider community. The community expects that graffiti and fly-posting will be put right by someone, and it is best put right by the perpetrators rather than at the expense of the council tax payer or anyone else. I want to say briefly where I think the Government are in that debate and reassure the hon. Gentleman of some of the things we are doing.
Before the Minister embarks on that explanation, which might be a direct answer to this question, I would like to say that we have already been in that territory to some degree in our debate on community payback. I remember visiting one group of people doing community payback in Chesterfield. One individual was in the army and his career would have ended if he had had to go to prison for those nine days, but the community payback allowed him to avoid that. There were other people in the group who would have lost their jobs if they had gone to prison for a very short spell, which actually has no beneficial effect with regard to crime and punishment. Several people I talked to in that group said community payback had been really helpful and avoided criminalising them. Those were adults rather than children or under-18s, so this is extending the same principle to an even lower level.
I remind the hon. Gentleman that restorative justice is already embedded in the youth justice system, and we are constantly looking at what more can be done to make it more widely available to avoid some of the scenarios to which he has rightly drawn the Committees attention.
With regard to the measures already in place, the Anti-social Behaviour Act 2003 introduced fixed penalty notices as an alternative to prosecution for certain types of environmental crime, including graffiti and fly-posting offences and, we believe, offers an effective and less burdensome alternative to prosecution. Fixed penalty notices for graffiti and fly-posting offences can currently be issued by local authorities, the police and police community support officers who have been designated by their chief officers.
One of the difficulties with the new clause and the further introduction of community service punishments is that it would have implications, not least for cost, a point to which the hon. Member for Chesterfield alluded. For example, what about the practical and funding problems for probation services or anyone tasked with ensuring that the community service was carried out? It also runs counter to the current focus on unpaid work in community service that is often directed towards highly visible work projects for offenders convicted of relatively more serious offences, and I use the word relatively because I do not underestimate how serious graffiti and fly-posting can be.
Other out-of-court disposals are available to address that kind of behaviour. For example, adult conditional cautions allow low-level, low-risk and mainly first-time offenders in uncontested cases to be offered a caution with conditions attached. The conditions must either be reparative, such as the payment of compensation to a victim or unpaid work, or rehabilitative, to address the root causes of the offending behaviour. Later this year, we will begin testing the youth conditional caution. The youth restorative disposal is also currently being piloted, which will allow low-level, low-risk, first-time young offenders to undertake reparation for those types of offences and similarly enable their conviction to be discharged if completed.
The idea brought forward by the hon. Member for Chesterfield is interesting. I am sure that we have not heard the last of it. I reassure him and other Committee members that we are satisfied that we have a comprehensive range of disposals available and do not need to go down this route. I hope that he will withdraw the clause.