CPNs: 20,000 new ‘busybody ASBOs’ issued in past 4 years

The Community Protection Notice power has been dubbed the ‘new Asbo’, and is used to target everyday acts of perceived anti-social behaviour. This report analyses local authorities’ use of Community Protection Notices, in the period between November 2016 and October 2018.

We have found that these orders have been used to impose highly unreasonable restrictions upon individuals, including that they must not beg or sit on pavements, that they must tidy up a ‘messy’ garden, or remove cat deterrents from their garden, or must not keep chickens. Other individuals have been issued with legal orders preventing them from swearing or shouting.

These orders are not issued through a court, with an obligation on the council to provide evidence, and offering the recipient of the order a right to defence. Instead, the CPN is written and issued by a council official such as a neighbourhood officer, a housing or community safety officer. This means that certain council officials now have the power to act as prosecutor, judge and jury in relation to the conduct of private citizens.

As would be expected, this is resulting in severe injustice, with orders issued on the basis of flimsy evidence after minimal investigation, or preventing people from acting in ways that are harmless and otherwise entirely legal. We are calling for the scrapping or substantial modification of this power, in order to prevent its further abuse.


1

What are CPNs?

Community Protection Notices (CPNs) are contained in the Anti-Social Behaviour, Crime and Policing Act 2014. A CPN is a written notice banning an individual from doing things that the authority believes to have a ‘detrimental effect on the quality of life of those in the locality’. CPNs can also require an individual to do specified things, or to take steps to achieve specified results.

It is a criminal offence to fail to comply with a CPN, which can be punished by an on-spot fine of £100, or on prosecution a fine of up to £2500 (for individuals) or £20,000 (for businesses).

The notices can be issued by local authority officers, police and community support officers, and officials designated by the local authority. It is left to local authorities to establish their own procedures for the issuing of CPNs. Some councils provide street wardens with template CPNs that can be filled out on the spot: the decision to issue a CPN is therefore that of the warden alone.

There are some procedural restrictions on the issuing of CPNs, but these are limited. The council officer must issue a written warning to an individual about their conduct before issuing a CPN (however, the Statutory Guidance allowed that this warning could also be ‘a pre-agreed form of words that can be used by the officer on the spot’). The individual’s conduct must be persistent and continuing, but the Statutory Guidance gives the example of a busker refusing to stop playing as an example of persistent and continuing activity.

The CPN therefore in some ways covers a similar terrain to the former Anti-Social Behaviour Order (Asbo) and the current civil injunction, with key differences: the CPN does not have to go through a magistrates’ court, and the standard of proof is significantly lower (both the civil injunction and Asbo required conduct causing ‘harassment, alarm or distress’).

 


2

How many CPNs?

We contacted all 347 councils in England and Wales about their issuing of CPNs; 304 councils responded and were able to provide this information.

These FOI responses show that CPNs have reached unprecedented levels, with a total of 5730 issued in the year November 2016- October 2017 (issued by 182 councils), and 6234 in the year November 2017- October 2018 (issued by 192 councils).

This means that there has been a 58% increase in CPNs since the year 2014-15. In total, 20,283 CPNs have been issued since the penalty was first created on 20 October 2014.

Year (Nov-Oct) No. of CPNs No. of councils issuing CPNs
2014-15 (previous Manifesto Club FOI)

3943

107

2015-16 (previous Manifesto Club FOI)

4376

125

2016-17

5730

182

2017-18

6234

192

TOTAL CPNS

20,283

The top issuers of CPNs in 2017-18 were Durham Council which issued 1027 notices, followed by Leeds City Council which issued 520, and Waltham Forest Council which issued 466.

Download full FOI results.


3

Regulating the home

CPNs were applied to restrict people’s activities in their homes. The most common issue was building waste on land, where people were carrying out works, or storing second-hand items in their gardens. Some councils, such as Durham, targeted gardens that were ‘untidy’, while Leeds, Leicester and Hyndburn were among the 12 councils that issued CPNs for ‘overgrown vegetation’ or ‘overgrown gardens’, ordering people to trim hedges or cut their grass.

These CPNs do not always treat vegetation that is causing a public nuisance, but merely that which a council officer finds to be untidy. The Manifesto Club has worked with several recipients of ‘messy garden’ CPNs: these people were unclear as to which part of their garden was supposed to be messy, or which was the offending tree or vegetation. Some councils appear to be effectively running a ‘gardens police’, issuing legal orders that may target nothing more than a person’s preference for verdant vegetation.

No doubt some of the CPNs were issued for genuine public nuisances, but many seem to restrict people’s freedom to live as they please in their own home. North Norfolk district council issued a CPN against someone for installing cat deterrents in their garden; a matter that should be within their rights, if they wish to keep cats from fouling their property or harassing birdlife. Meanwhile, 10 councils issued CPNs against people for feeding the birds. Eight councils issued CPNs against people for barking dogs, a matter over which people often have little control.

Three councils (Leeds, Vale of White Horse, North West Leicestershire) issued CPNs for smoke from bonfires, and one (Hinckley and Bosworth) issued a CPN for smoke from a domestic chimney. West Lindsey issued an order because it judged that someone’s hedges were too high.

Several councils issued CPNs banning people from keeping certain animals. Charnwood issued a ban on ‘cockerel disturbance’, while Wealden targeted ‘noise from a rooster’ – in both cases effectively barring people from keeping the birds, since cockerels cannot be prevented from crowing in the morning. Calderdale banned someone from ‘keeping chickens’, and East Dorset banned someone from ‘keeping pigs’.

In other cases, people were issued with legal orders targeting parts of their property that were judged to be unsightly: North Warwickshire council targeted a ‘dilapidated shed’, and Norwich targeted a caravan.

Seven councils, including Broxtowe and Bolton, issued CPNs to people for Japanese knotweed.

The Manifesto Club has supported an 81-year woman from Stockport, who was issued with a CPN banning her from wearing a bikini inside her own home (if near the windows), and also from looking towards her neighbour’s property. The CPN was issued after a row with the adjoining nursery over building works: it is very common for CPNs to be issued after a neighbourhood dispute, although the restrictions in the CPN often bear little relationship to the substance of the dispute.

We have also worked with a lady who received a CPN warning ordering her to keep her free-range chickens in a pen. She had kept the birds without incident on her rural smallholding for 7 years: the CPN was the result of a complaint by a single neighbour, who had been feeding the chickens and tempting them across the road.


4

Regulating the street

Councils also used CPNs to ban a number of activities in public places, including some significant restrictions upon freedom of expression.

Wolverhampton issued CPNs to people for busking, and Leicester issued CPNs for street entertainers. Five councils issued CPNs for swearing or foul language, including Dartford for ‘foul language'; and South Norfolk, Manchester and Braintree for ‘swearing’.

Haringey issued CPNs for A-boards, for street gambling (‘chase the lady’), and for barbecues in a car park. York is using CPNs to crack down on ‘gag mag’ selling (joke books sold by the unemployed).

Hastings Council also issued a CPN ordering someone to take down a handwritten note pinned to their property, in which the person referred to a dispute with the council and accused the council of malpractice. The person was ordered to:

Stop displaying the hand written poster detailed above. Remove the poster detailed above from view. Desist from making, creating, producing and / or publishing any defamatory written statement relating / referring to any employee of Hastings Borough Council.

This CPN represents a significant restriction on freedom of expression, and particularly on the right of a resident to publicly criticise the conduct of council officials.

Another restriction on freedom of expression comes in the use of CPNs and CPN warnings against local groups for putting up posters in public places. Birmingham City Council said that it had issued 317 CPN warnings to people for putting up posters, including some to religious and community groups. Meanwhile, Hackney Council said that it had issued a CPN warning to a charity for putting up a poster.


5

Regulating the homeless

One of the main uses of CPNs is imposing conditions upon the homeless. These conditions can include: restrictions on begging; banning from town centres; ban on drinking in public; ban on sitting or lying on pavements, or sleeping in public areas; or bans on ‘unauthorised encampments’. Of the councils that were able to give the subject of the CPNs, 32 authorities were using these against the homeless.

These councils included Blackpool, which issued 95 (out of a total of 144) CPNs against people begging. West Devon only imposed one CPN in two years, and this was against a homeless person, ordering them ‘Not to sleep/leave items in public toilets; not to enter disabled toilets’. Windsor and Maidenhead also only imposed one CPN, banning a homeless person from: ‘shouting/swearing in Maidenhead high street; no begging or shouting “spare pound?”; no leaving clothing/bedding outside M&S fire escape’. Fylde Council imposed CPNs that banned ‘asking for money/food’, and ‘sitting/crouching/lying in pavements’. North Hertfordshire Council issued CPNs that ordered someone ‘Not to sit on the floor, not to ask for money or free items’. Hastings Council issued an order to ‘Stop loitering with any article so as to reasonably give another person the impression you are begging or intending to beg, in any public open spaces within a restricted area.’

Councils that used CPNs to target ‘rough sleeping’ included Tower Hamlets, York, and Tonbridge and Malling.

It appears that some councils are using these powers to clear homeless people out of town and city centres, often not on the basis of anti-social behaviour but for the mere fact of being homeless. This includes several cases where the homeless people were supported by the local population, as was the case for a homeless couple in Bristol, issued with a CPN and then an injunction, although the business they lived outside supported them.

It is notable that homeless people are also largely unable to defend themselves against CPNs, since they do not have legal advice or access to the internet or other resources. If they do not appeal an order, then can then be prosecuted for its violation, even if the order is unreasonable. For example, if they have been barred from the centre of town, they need only to be found in town in order to be prosecuted. After prosecution for the CPN violation, the council can apply for a Criminal Behaviour Order, the violation of which is an imprisonable offence. As a result, homeless people can be issued with large fines, or imprisoned, for nothing more than begging or being found in the town centre.

 


6

Who can issue CPNs?

We also asked councils about which officers had the power to issue and enforce CPNs. 193 councils were able to provide this information; in total, 3686 council officers have been empowered to issue CPNs, and to issue fines for perceived non-compliance.

These officers included: county park guardians, community officers, street scene officers, community safety officers, environmental health officers, consumer services, community wellbeing service officers, neighbourhood pride managers, streetscene managers, town centre wardens, anti-social behaviour officers, housing trust officials, neighbourhood problem solving advisors, and early help and wellbeing officers.

No doubt these officers have important jobs to do in keeping streets tidy and dealing with local issues; however, it is extremely unwise that they be invested with the power to write and enforce legal orders, which in effect means acting as prosecuting solicitor, judge and jury.

Download full FOI data: officers with the power to issue CPNs.

One of the major problems with the CPN power is the lack of guidance over who may use this power, and how it may be used. As a result, local authorities have given the power to officers with limited training and resources; and CPNs can often be issued merely by filling in a form. There is no obligation upon officers to investigate allegations to ensure the accuracy of claims, or to hear the other person’s side of the story, or to have the CPN checked and signed off by superior officers within the authority.

We have worked with several recipients of CPNs who have received mispelled or unintelligible CPNs, with errors of fact and date, or based on false accusations that have not been investigated. Given the serious nature of a CPN as a legal order – and the cost and practical difficulties associated with appealing them in court – this gives great cause for concern. Such loose and undisciplined use of legal power brings law enforcement agencies, and local authorities, into disrepute.

 

 


7

The consequences of unjust CPNs

Unjustly issued CPNs can have devastating effects upon the lives of recipients. We have worked with many people whose lives have been severely affected – including losing jobs, suffering stress and worry, and spending thousands of pounds on legal costs.

The means of appealing CPNs in Magistrates’ Courts appears simple enough, but there is no legal aid available, and so those who are not able to defend themselves must pay for a lawyer. In addition, defendants could be liable for council legal costs, a risk many people are not willing to take. As a result, very few CPNs are being challenged within the legal window available.

Once a CPN has been issued, people can then be prosecuted for its violation, even if the original CPN was unreasonable. A person who was successfully prosecuted would receive a criminal record and a fine.

Our FOI request to the Ministry of Justice found that in 2018 there were 1087 people prosecuted for the offence of violating a CPN (where the CPN prosecution was their principal offence). This is a significant increase from an earlier 12-month period, between October 2016-September 2017, where there were 641 people prosecuted for the same offence (this is from an FOI submitted by the BBC’s Victoria Derbyshire show, June 2018).

 


8

Conclusion

This research shows that councils’ current use of CPNs presents a significant threat to the protection of basic liberties in the UK.

It is our view that the use of CPNs goes against the new Statutory Guidance, which recommends that the power should not be used against vulnerable members of society such as the homeless; and also that CPNs should only target conduct that is causing nuisance and harm to others:

Agencies should have sufficient evidence to satisfy themselves that the behaviour in question is genuinely having a detrimental effect on others’ quality of life, in terms of the nuisance or harm that is being caused to others, rather than being a behaviour that others may just find annoying.

It is also our view, however, that the problems with the use of CPNs is not entirely or even principally the fault of councils, but instead the inevitable result of the CPN power, which is absurdly broad and lacking in basic legal protections.

We think that there is a good argument for scrapping CPNs entirely, since most serious instances of nuisance or harm would already be covered by statutory nuisance powers or established criminal offences, which would be subject to a higher standard of evidence and proof and would provide rights for the defence.

Councils and government may want to consider bringing through more vigorous procedures for the issuing of CPNs, to ensure that these orders are issued in cases of genuine nuisance and are based on tested evidence.

Until changes are made, CPNs will remain a ‘cowboy’ area of criminal justice, with many orders issued unfairly or for trivial incidents, imposing unreasonable restrictions on people going about their daily lives.