Moira Macfarlane is a director at ACA Law in north London, with an extensive experience of defending clients who have received Community Protection Notices. In this interview, she says how CPNs are being issued as a ‘tick-box exercise’, and gives advice on legal aid for CPN appeals.
What is your experience defending clients with CPNs?
I regularly deal with CPNs at both the police station and court. It tends to be that I see the same people repeatedly. For example, one of my clients was recently dealt with for breach of a Criminal Behaviour Order (CBO), he had been found with a cup which the police had taken as evidence he was begging. The CBO arose from a CPN. The CBO had the same condition as his original CPN: not to beg. The officer had refused to remove the CPN and had applied for a CBO without informing us and the client stated that he was unaware of it also.
From my experience CPNs are on the whole not being used correctly: they were designed prevent criminality, but from the majority of what I have seen the actions they are preventing are not actions that are associated with criminality. For example, preventing a homeless person from sleeping in a particular place where there has been no complaint or criminal allegation associated with that person/place. Hostels charge 15 pounds a night which isn’t affordable for most people let alone the homeless!
Another issue I see is local councils issuing CPNs. These are often done without specialist training and are often not warranted. I represented an elderly lady with knotweed in her garden. She could not afford the £10,000 fee for the plant to be treated and was in fear of the police and council turning up at her door which was seen as non-engagement. A CPN was issued and breach proceedings instigated. This was unnecessary and withdrawn at court once the lady was able to access someone to represent her, to put her account across and to negotiate a solution which she felt incapable of doing herself.
Are CPNs being used to target the homeless population?
This is particularly prevalent in the area I practice, North London. The police know where people congregate. The homeless have areas they often feel safe and where there are local services such as soup kitchens and medical services. It has become apparent that police operate stop and searches in these areas. I often represent people that have been given a CPN or are in breach of a CPN as a result of that search. Predominantly this is for possession of drug paraphernalia that is concealed. A portion of the homeless have drug issues. In North London a popular drug centre was closed, causing issues for its users. In the interim period while prescriptions were being transferred there were issues and people used street drugs and had to carry their own paraphernalia for which they were arrested. These people were not seen to be taking drugs in public or in possession of drugs when stopped and yet they were still criminalised.
What impact can CPNs have on people’s lives?
They can have a huge impact, and a lasting one. A CPN is a restriction on people’s liberty, their human rights, and has a big impact on a day to day basis. The thought of having an order hanging over your head is a punishment in itself. There is a lot of unnecessary fear created by CPNs.
The effect of a CPN can also cause health issues, for example people sharing drug paraphernalia so that they are not in possession of needles if they were to be stopped and searched. This can cause disease transmission. Another example is a homeless person being effectively barred from a borough. It displaces them from places of safety they may have found while on the street and from their local and known agencies that can assist them with basic food and treatment.
I also have experience of people’s liberty being deprived when they are remanded from the station to appear at court for what is a fine-only offence, meaning they have effectively served a custodial penalty.
What problems do people have getting legal appeals?
Getting Legal Aid in the first instance is difficult as a CPN is punishable by a fine only; it is also difficult for appealing a CPN which has not been breached. Without a risk of liberty it is very difficult to obtain legal aid in the current climate. There has to be a complex legal issue or an incapacity to represent yourself which has to be put forward. This is often beyond the knowledge of a lay person. I think there should be access to justice for all. Council-issued CPNs are also difficult to obtain legal aid for, as they are often not associated with criminal behaviour and a stronger explanation of the complexity is required to obtain legal aid.
What is the key to getting legal aid for CPN appeals?
For legal aid, there are two parts of a test – one is that it is in the interests of justice, the second is means. For the first part, with CPN appeals, I will consider whether the person has issues that mean they are incapable of representing themselves, or it is a complex legal issue. For example, they would be unable to reference case law to support their submissions. It is often beyond their knowledge and beyond their capability to obtain, for reasons such as not having access to paid for legal websites. Legal aid for a CPN breach is much easier because it becomes a criminal offence. By that stage it’s reached a criminal court.
What would happen if everybody had a proper legal defence for CPNs?
The system as it currently stands is difficult without legal advice. If you are a member of the public acting on your own, you don’t know the protocol the body must follow to give you effective notice or the formulation for a CPN and the basis for its imposition. The case law giving guidance is also often not referred to or known. There are also court processes many people don’t know, such as obtaining papers or court etiquette.
A frequently seen issue is that if you are self-representing and email on the court day to say you aren’t well, it takes 5 days to go through the system and you must obtain a medical certificate. The court may deal with your matter without you having had your say as they are unaware of the reason you have not attended.
In my estimation 9 out of 10 CPNs could be overturned/varied with a proper legal defence. Most CPNs are often issued by people not given legal training on their imposition and use. They can be issued in the street, and can be a tick-box exercise, meaning they are not given the consideration they deserve.