Isabella Sankey and Katie Johnston gave evidence.

Welcome to the evidence session.

Q 44

Do you not welcome the Government’s watering down of legislation to tackle antisocial behaviour?

Isabella Sankey: Thank you for that question. Of course, there has been a political debate, we understand, over whether this legislation does indeed water down the current regime or toughen it up. I think it does both in different ways, although I realise I am not going to please anyone on the Committee by saying that.

Can you explain that?

Isabella Sankey: By removing the criminal conviction for breach, in some senses the sanction is less than the one that currently exists. That said, more sanctions have been created to fulfil this slightly odd hybrid situation we now have of the criminal justice system being pushed into the civil law, such as sanctions relating to young people specifically and the new mandatory eviction power introduced by the Bill. In some ways the sanctions are arguably harsher.

In addition, the huge relaxation of threshold types of behaviour to be covered, and so on, means that the system will most likely apply to many more people for a much broader range of activity. From that angle, it is a tougher regime because it captures more behaviour. I do not think you can characterise it as tough or less tough. I would characterise it as largely similar, though.

Q 45

I was reading your article of February 2011 in The Independent about what you called “Gangbos”, in which you say that gang members need support rather than to be criminalised. Do you take that view in relation to people who display antisocial behaviour—that perpetrators need support rather than being criminalised?

Isabella Sankey: I do not think that is a precise quote taken from the article, but I take your broader point. It is important to recognise that Liberty, as an organisation, will understandably have principled concerns about civil liberties and human rights infringements. That is not to say that we are in favour of antisocial behaviour or criminal activity, whether low or high level. Our critique of the current regime, and the one the Bill perpetuates, is that a potentially progressive, clever way of trying to divert people away from the criminal justice system, and deal with the misery that antisocial behaviour causes, has a fundamental illogicality at its heart. What ends up happening in practice is that people who already have behavioural problems and are causing nuisance, etc., are then set up to try and abide by a more stringent set of rules than the average person has to: personalised penal codes. We worry—this is borne out by the high breach rates—that somebody can breach their antisocial behaviour order by being in a place they are not supposed to be, whether or not they are engaging in antisocial behaviour there. They have been set a much higher set of criteria to abide by, thereby making it more likely that they will fall foul of them, resulting in, at present, automatic criminalisation, but under the proposed system quite heavy sanctions.

In trying to target the category of behaviour that falls short of criminal activity but is none the less problematic and causes misery in our communities, targeted interventions are needed, combined with support and resourcing for the individuals concerned, rather than this almost lazy approach, where the Home Office is in charge and orders are slapped on people, hoping that the problem will be solved.

We welcomed the ASBO review that was announced by the Home Secretary in 2005. We were hoping for a much more substantive critique of how the policy has worked, not just producing statistics but producing analysis of where it has been found to work or fail. Instead, we got a quite ideological approach, which stated that there is too much bureaucracy and red tape and that it needed to be streamlined. We do not think that has been evidenced by the practical experience.

Q 46

Okay. Do you ever think about the victims when you are formulating your views?

Isabella Sankey: Absolutely. Liberty is a human rights organisation, and we care very much about the rights of everybody in society, whether vulnerable people being harassed and intimidated or people who find themselves involved in such behaviour and who have not had the proper support and diversion. I should say, in response to that question, that another problem with the regime as it stands and as it will be perpetuated is that there is an unsatisfactory position, whereby the broad nature of the antisocial behaviour definition may mean that activity that is criminal per se—hate crime, as we saw in the tragic case of Fiona Pilkington—is not properly dealt with by the police, because they are following the antisocial behaviour model in how they deal with reported incidents. That means that vulnerable people—victims—are being less protected because we have diverted the police into thinking about these behaviours as antisocial, rather than just straightforward serious criminal activity.

Q 47

I will just make the point that “victim” is not a four-letter word, but you had not used it until I raised it. I wonder if your emphasis is strong enough in terms of representing victims better. Could you give us a couple of quick examples of where you have put the victim first in terms of your proposal?

Isabella Sankey: Absolutely. Liberty conducts litigation in the courts. We have a number of cases live. In recent cases we have represented victims’ interests using the Human Rights Act, that brilliant piece of legislation, which contains positive obligations to protect vulnerable people. Using article 2 of the Human Rights Act, we sought an inquest into the death of Naomi Bryant, who was killed by somebody released on parole who had a dangerous track record. We secured an inquest and a narrative finding in that case, which would not have been possible without the Human Rights Act and without our intervention. The inquest found that there had been huge failings on the part of a number of public bodies to communicate properly about the risk that the individual posed and their past behaviours, which led to an inappropriate early release. That is very clearly a case in which a victim was entirely let down by the system and we used human rights protections to try to ensure that lessons were learned and that that kind of failing would not happen again.

As you may have seen in the Supreme Court yesterday, a case has been brought on behalf of military personnel who were not properly protected on the battlefield. That is another example of how the Human Rights Act applies to protect people who put themselves in a vulnerable situation. I could go on and on. I am very happy to provide further written briefing on how human rights protect victims, and also on how we work to protect victims.

Q 48

On the same theme of victims, we met the PCCs earlier; they will have victim support services working with them to provide support at local level. What do you think can be done to better support the PCCs in providing those services, and for the best and most effective approach to helping the victims?

Isabella Sankey: I should probably start by saying that our position is that those support services should not be handed over to the PCCs—not at this stage, at least. We have very deep and principled concerns about the role of police and crime commissioners. Practical experience to date has not exactly shown a happy start for their role, particularly in their choices regarding allocating resources.

On the particular point about victims, there is some really flawed thinking in the decision that victims’ services should be left completely to local decision making. It is our understanding that although the experience of victims of course varies, depending on a number of factors, those factors are probably more likely to be to do with the individual concerned, the nature of the crime that they have suffered, and a whole host of things that are not really dependent on local circumstances or which particular region they are from, or whether it is urban or rural. It is much more likely to be about factors that can read across the country, so we think that it is a mistake to give the responsibility to the PCCs, particularly at this early stage of that experiment in policing.

Q 49

Okay, but given that there is a high probability that they will be given the responsibility—that is the Government’s proposal—what support should be given to the PCCs to enable them to do the job properly? You may not like it, but they are going to be given the responsibilities, so what can be done to enable them to do the job well?

Isabella Sankey: I imagine that a good set of learning and experience has been developed by the main provider of victims’ services, Victim Support. That should be made available as far as possible to PCCs. There could be guidelines on how they go about contracting out victims’ services. One thing that we have seen with the roll-out of the scheme so far is that a lack of standardised procedures means that contracts have been awarded purely on the basis of personal relationships, rather than on qualifications for doing the job. We have seen that with the appointment of certain assistant commissioners and so on. There should be a set of quite robust standards setting out the bare minimum that PCCs should ensure when they are organising services.

Turning to a different subject, I have a question on port and border controls. Do you acknowledge that terrorists travel to plan, raise money and recruit? They take part in activities that are terrorist by nature and can cause untold damage to innocent victims. In relation to that, do you think that your proposals for  significantly reducing the powers in schedule 7 would detract from the ability of the police and other authorities to detect terrorists, and would hinder those important efforts?

Isabella Sankey: Thank you. Of course we accept that terrorists travel, that the terrorist threat we face is international in scale, and that appropriate powers and resources must be made available to the police and our intelligence services to deal with it. It is our experience, particularly in the field of counter-terrorism work, that the most successful powers are those that are targeted. The best way of dealing with a terrorism threat is through the targeted use of powers, resources and legislation. The best results occur where work is intelligence led, rather than using a blanket power, as schedule 7 is, and as the former section 44 of the Terrorism Act 2000 operated. In relation to section 44, powers to stop and search without suspicion failed to catch a single terrorist, yet they led to many young men—particularly men of black or Asian origin—being stopped and searched routinely on our streets.

One argument that is incredibly valid in this context is that if you apply powers in that way and routinely stop innocent people, particularly from communities that you think you need to gain intelligence from, you will cut off good will and the intelligence that you need. With schedule 7, we know that you are 42 times more likely to be stopped under that power if you are of Asian origin than if you are white. It is not hard to see how that kind of harassment can lead to alienation and lack of trust in the authorities. Indeed, we have seen that in that particular community.

Of course, the police must be able to stop and search when they have suspicion of wrongdoing. Let us not forget that search powers are already available at ports and borders—you go through scanners and have your bags searched—and are exercised routinely against everybody, so it is not as if search powers do not exist in this context. But we would argue that if you detain someone for an extended period of time—currently it is nine hours; the Bill reduces it to six, but it is still a good amount of time—you must at least be forming a suspicion that the person has broken the law, or you believe that they are breaking the law.

Q 50

In Liberty’s written evidence on the draft Bill to the Home Affairs Committee, it said that its concerns about the use of ASBOs were well documented. Its principal concern, as I understand it, was that ASBOs dangerously blur the distinction between serious criminal activity and nuisance. Given that, surely the one thing in the Bill that Liberty must welcome is the fact that ASBOs will disappear and antisocial behaviour will be dealt with in the civil courts, which will not lead to a criminal record, rather than in the criminal courts. I ask this, Ms Sankey, because Liberty always appears to be against absolutely everything that any Government come forward with that public want to protect them and make their lives better—I think that was the line that Mr Danczuk was going down with his questions on whether you ever stand up for the victims.

I want to know two things. First, do you welcome the absence of the criminalisation of young people in particular by the removal of ASBOs? Secondly, why do you not start standing up for victims—the constituents we represent —a little bit more?

Isabella Sankey: I utterly refute that we do not welcome anything that the Government do. As I already illustrated, we are huge fans of the Human Rights Act and the European convention on human rights—Winston Churchill’s legacy in Europe—and we actively seek to promote those pieces of legislation, to celebrate them and to try to unpack to the public how they work, contrary to what the public will hear from many of their elected representatives.

We support many pieces of legislation that the Government bring forward; not least, most recently we supported the equal marriage Bill. We are not always the awkward squad, I assure you. I absolutely recognise what you are saying about removing the criminal sanction. That is something that we welcome wholeheartedly.

Q 51

Let us concentrate on antisocial behaviour. Given that you welcome the removal of the ASBO and the fact that these matters will be dealt with in a civil court, not in a criminal court, what is wrong with the proposals in the Bill?

Isabella Sankey: The problem that remains, in our view, is that this widens the category of behaviour to which it will be applied so that it is more likely to be used inappropriately. We have already seen the current regime being used inappropriately. I am sure that you all have read—[Interruption.]

Q 52

I do not want to stop you, but is that not simply a matter of opinion? You think that it is used inappropriately, but it is used lawfully in accordance with what Parliament said can happen. If this Bill passes, it will be what Parliament says can happen in relation to the behaviours that this Bill is targeted at. What you really mean when you say that is that it can be used in a way that Liberty does not like.

Isabella Sankey: Not at all. Of course, if the legislation passes, it will be used as Parliament has set out, but the question that we are discussing here is what is appropriate in terms of public policy. I would argue that nuisance and annoyance is too broad a category to be caught in this proposed regime, given that we are all capable of causing nuisance and annoyance to one another, but that does not mean that we should be sent off to the county court for it. In our experience, particularly over the last 10 years, as the powers that have been granted by Parliament have become wider and wider, you are entrusting a huge amount of discretion to the individuals exercising those powers—sometimes too much discretion.

We have had police officers and other public bodies tell us the very same thing: one effect of over-broad legislation is that the buck essentially passes to these bodies, giving them quite unrealistic goals in terms of how they enforce the law. Everyone understands the law of unintended consequences. It is a matter of common sense that when something is over-broad or the threshold is too low, it will be used, by anyone’s standards, in an inappropriate way. Of course some of the tests are subjective, but as a matter of public policy, surely the goal must be to set the legislation in a reasonably tight way so that the interventions are targeted and you are not over-burdening police and local authorities.

Let us leave it there.

Q 53

It is funny that that is precisely the discussion that I wanted to move on to in terms of community protection notices. When we had the local authorities and housing associations here on Tuesday, I asked them what checks and balances they would put in place, because not only the police will be able to issue community protection notices; housing and local authorities will be able to as well. If you do not comply with such notices, it is a criminal offence. When I asked the question on Tuesday, we were interrupted by a Division and I did not really get an answer, so I will ask the question now. What protection needs to be in place to stop local authorities issuing notices inappropriately?

Katie Johnston: In our briefing, we have suggested amendments to most of the antisocial behaviour instruments in the Bill. These include tightening the definition of the behaviour that can trigger an order and raising the threshold back to the criminal burden of proof, which is the current burden to be met under ASBOs. As has been said, it is not only Liberty that has such concerns about the breadth and subjectivity of these definitions. Many of our amendments were also proposed by the Home Affairs Select Committee when it examined the draft Anti-social Behaviour Bill, the provisions of which are virtually identical to the ones proposed here.

In terms of community protection notices, IPNAs and criminal behaviour orders we proposed tightening the definition of the behaviour that that individual could commit to trigger one of these orders; raising the burden of proof; and also introducing tests for necessity and proportionality—not just in relation to the imposition of the order to begin with, but each of the requirements within the order itself. We think that those would make a real difference in providing safeguards.

Q 54

One thing that concerns me, especially with the community protection notice, is that the council can issue it, and if you do not think that that is a valid notice—it has been applied for bad reasons—it is then up to you to go to the magistrates court to appeal it. To me that sounds like you are turning justice upside down. You are guilty unless you go to court to prove you are innocent.

Isabella Sankey: Absolutely. I think pre-judicial authorisation is a must for a notice such as this.

Hello. Good afternoon. Katie, or Ms Johnston, I have in front of me the briefing that you sent to everybody on the Committee. I assume so, because it is addressed to “Dear Committee member”. It has a list of what you would ideally like to change in the legislation. Some things on the list are predictable. That does not mean that people cannot be for or against them, but I was surprised by some of them. For example, you think that the Committee should remove the new criminal offence of forced marriage from the Bill. Why do you think that that is a bad provision?

Katie Johnston: We would be more reserved than that. Our amendment is to ask the Government to make its case for criminalisation. The Home Office, the Foreign Office and the Government have carried out a number of consultations over the last 10 years on criminalising that and creating this new offence. Many of the submissions, particularly by organisations that work in this area,  such as the Southall Black Sisters who work with women and children affected by this phenomenon, have had serious doubts in the past about the value of criminalisation. Often the first question the victims ask when they come forward to seek help is, “Will my family be prosecuted?” Those organisations are rightly concerned that, if reporting these events will most probably lead to relatives spending time in prison or separation, it will deter victims from seeking help. We are not saying that we are opposed to criminalisation. If the Government can come forward and show us the evidence they have that, for example, the like criminalisation provisions in Scotland have been effective, or that the current civil orders are not effective, we would support the proposal. We want to see the evidence.

Q 55

I understand that there is always a difficulty with criminalising an activity that largely requires you to report your own relatives—probably your parents —to the police.

We heard evidence just before lunch from chief executives of two organisations—Karma Nirvana and Freedom—and one of the witnesses had personal experience of forced marriage. They said that there was not going to be a problem of driving it underground if it was criminalised because it was already a subterranean activity, if you like. Nobody went round advertising the fact that they were coercing their child into marrying someone they did not wish to. They did not appear to share your concerns. Given that this issue has been discussed for 10 years, surely we could get on with introducing a criminal offence, unless Liberty has an aversion to criminalising anything ever.

Isabella Sankey: We certainly do not have an aversion to criminalising anything. We lobbied strongly for the criminalisation of forced labour, which the previous Government eventually introduced. As Katie outlined, our concern is not that an already underground activity will continue to be so, but the reporting by individuals who are affected.

It is safe to say that the best organisations to speak to are those that deal with the vulnerable people affected. We understand that some of them have concerns about criminalisation, not because we do not want to send a message about how wrong the activity is and that it should not be practised, but more the pragmatic consideration of whether it will affect reporting. We understand that the Government have changed their position, initially not supporting criminalisation, but now coming round to supporting criminalisation. We are interested to know what has caused that shift.

There does not seem to be much evidence or commentary from the Government on how they think the current system is working and how it might be failing. I think there were 65 protection orders issued in 2011 and only a minor number of those were breached. That indicates that the present system, which is more nuanced, is actually working relatively well. Of course, you can never be sure. We would just like to see some further information from Government on how they think the present system is working and their assessment of the issue of unintended consequences.

Q 56

May I ask about another on the list from Ms Johnston? Liberty would like Members to table an amendment—I am sure there will be members  of the Committee willing to table your amendments—that we should remove the provision to give elected police and crime commissioners power to arrange victim and witness services in their local areas. I do not understand why anyone would feel a deep level of hostility to an elected person arranging services for victims in the area that they are elected to serve. I am curious to know why you are hostile to that.

Katie Johnston: Isabella has already said that we objected on principle to having elected police commissioners. We have concerns about victim services. At present victim services are provided centrally by the Ministry of Justice, and a huge amount of expertise has been built up in that area. Our concern is that, if it is devolved to local regions, there is a risk of fragmentation, there will be inequality in victim services and it will become a bit of a postcode lottery.

In addition, PCCs are elected officials and victim services should not be dependent on political whims and fortunes. For an elected official, there is obviously a temptation to provide victim services for a particular constituency within their area or what is most popular, rather than targeting them on those most in need.

Q 57

So it is really an aversion to the idea of elected PCCs seeking to discharge their duties in a way that they think will meet the sympathies of the residents of that area?

Katie Johnston: In a way that affects particularly vulnerable people and in a particularly politically charged area of public policy. But our concern about fragmentation would hold good even if they were not elected. As I have said, the service has been administered centrally for years and a body of expertise that has been built up will be lost.

Q 58

Thank you. Another one of the bullet points is that we should prevent children from being detained for breach of an injunction. Quite a few people have made points about under-18s, criminal behaviour and the injunction. I am just curious to know what sanction you think should apply. For example, there is a 17-year-old who is widely thought to be causing unhappiness to many people in a community. An injunction is applied for against him and is successful. Then he, with a complete disregard for the injunction, carries on behaving exactly as he was before, so inflicting misery on people in that community. I am just wondering what sanction you think should apply in those circumstances if that person so flagrantly breaches the injunction.

Isabella Sankey: Traditionally, under contempt of court, if someone is found to be in contempt, they can be fined, asked to apologise to the court or imprisoned. Of course children cannot be imprisoned, which is why this Bill has to go to so many lengths to find new sanctions to apply to children. I think that there lies the rub, because when you start creating a novel regime and try to shoehorn it into the civil law when what you are really talking about is criminal sanction and punishment, you create a quite impossible situation. The list of sanctions available to be imposed on under-18s under this Bill is incredibly draconian. We are talking about curfew powers and requirements to be in a certain place—the positive obligations more akin to gang behaviour orders, control orders and terrorism prevention and investigation measures than antisocial behaviour orders traditionally.

Q 59

I am keen to maintain the distinction in law between an adult—18-years-plus—and those under that threshold, and I recognise that there are distinctions, which is partly why I am not in favour of 16-year-olds having the vote, although my party is. There is a line and the age of 18 is a reasonable place to draw that line, although I recognise that in my constituency, and I suspect that of every member of the Committee, there are groups of teenagers, many of whom are under 18, who can on occasions, particularly on hot summer evenings, cause a lot of distress to, for example, elderly people who worry about going outside their flat because the children are throwing things around or ringing their door bell in the night and distressing them in various ways. It feels to me that we have to have some sort of sanctions to underpin these measures in those circumstances otherwise the people who might be on the cusp of adulthood, 16 and 17-year-olds, and groups of 18 and 19-year-olds will not feel any obligation to cease to terrorise people in their neighbourhood. If you were a Member of Parliament and someone came to you and said that these groups of 16, 17-year-olds were making their life thoroughly miserable, what would you do in those circumstances?

Isabella Sankey: I think it depends very much on the behaviour. If the behaviour falls within the criminal realm, and the criminal law is quite extensive, there are already processes in place to deal with that, which include sanctions far less than imprisonment. The concern with this policy is that you fast track young and often vulnerable people into detention rather than the policy followed under the criminal justice model, which sees a sliding scale of sanctions being imposed. If the type of behaviour you are describing attracts a criminal sanction it would probably be along the community sentencing line rather than imprisonment. One thing that has to be borne in mind is that, of course, young people can commit heinous crimes, and when they do, imprisonment has to be an option, but it really must be only for the most serious offenders. If we believe in the rights of young people and children, we must accept that a different set of rules needs to apply to a certain extent, because of the very real implications for a young person who ends up separated from their family, in prison, rubbing shoulders with people who may have committed much more serious offences. It is that aspect that I think is lost in the Bill.

Q 60

Let me take you back to the issue of forced marriage. I have received the briefing, as I think every member of the Committee has. You urge us to take out the sections of the Bill dealing with forced marriage, and I want to be clear about your evidence. Liberty does not have any evidence that criminalisation will lead to fewer reports being made to the relevant authorities. Is that right?

Isabella Sankey: If I may, we do not urge the Committee to take it out. It is suggested as a probing amendment to ask the Government to explain—

Q 61

Forgive me—my iPad has just shut down—but I just re-read your briefing and you were telling us to take out the forced marriage provisions of the Bill.

Isabella Sankey: We said that we approached them with caution and that we have reservations. We defer absolutely to those organisations that do service provision  on the ground, but I think you will find from looking at the responses to the Government’s consultation that they were very split between those organisations.

Q 62

Slightly more wanted it criminalised than did not. I am concerned with the credibility of your lobbying on the Bill, because it seems to me that you are urging the Committee to take a course of action—namely, removing the criminalisation of the very serious problem of forced marriage from the Bill—off the back of absolutely no evidence. It is just a position that Liberty has taken, and I would, of course, say that it is because you are just the awkward squad.

Isabella Sankey: That is not the case at all. The evidence is there in the responses to the Government’s consultation. We are merely asking the Government to do some further investigation by talking to those who know best—which is not you, me or any member of the Committee; it is the organisations that work with very vulnerable people—to try and find out the extent of the problem and whether this is a real risk. We would not object, in principle, to criminalisation if we did not think that there is a chance that it may push this practice further underground. In this context, we care absolutely, and only, about the victims.

Katie Johnston: If I could assist you, in our briefing, we write: “We urge the Government to publish the evidence supporting the case for creation of a new criminal offence”—

Q 63

Do you want to read the e-mail, Ms Johnston, with the bullet point in it, which says, “We urge the Committee to remove the forced marriage provisions in this Bill and the criminalisation of forced marriage”? I am dealing with the e-mail.

Isabella Sankey: We will certainly go back to the e-mail and check, but to be absolutely clear—I want to provide complete clarity for the Committee—it is a probing amendment. We would like the Government to do further work and research in this incredibly important area.

Q 64

I do not want to unnecessarily gang up on you, but I have the e-mail. It is from “KatieJ@Liberty-human-rights.org.uk”, and it says, “Dear Committee member, please find attached Liberty’s Committee stage briefing on the Anti-social Behaviour, Crime and Policing Bill. While Liberty is supportive of a number of proposals in this lengthy and substantial Bill, we also have serious concerns about certain of its provisions. Accordingly, this updated briefing contains a number of amendments, including amendments to…remove the new criminal offence of forced marriage”.

Katie Johnston: It does contain that amendment, but we just want the Government to show us their evidence.

Isabella Sankey: In our briefing, we are clear that it is a probing amendment. Apologies if the e-mail was written in too much of a summary form, but to provide absolute clarity, we would just like some further information. We are not opposed in principle to criminalisation, but we think that it is an area where the Government should tread carefully, because of possible unintended consequences.

Q 65

Just a small point—you said earlier, a few minutes ago, that members of the Committee did not have enough experience to be able to comment on forced marriage. That is not the case. Some of my case work, in terms of being a Member of Parliament, has dealt with that very issue. I feel I do have some experience that is worth bringing to the Committee and contributing to the formulation of legislation on it. I just wanted to clarify that for you, Ms Sankey.

Isabella Sankey: Apologies. I did not mean to impugn the experience of anybody on the Committee. What we are merely asking for is that the range of people who have this direct experience are brought together to provide evidence in this way, and that it is not something that is done in a knee-jerk way by Government, without the proper evidence base.

Thank you for giving evidence this afternoon.