‘Postcode lottery’ in councils’ use of new ASB powers

The Manifesto Club has partnered academics at Sheffield Hallam University to publish new research that shines a light on Community Protection Notices (CPNs).

CPNs are unprecedentedly open-ended powers given to council officials and police officers to impose legal restrictions upon individuals, without going through a court, based only on the judgement that a person’s conduct is having a ‘detrimental effect’ upon others.

These two reports authored by Sheffield Hallam researchers have investigated recipients’ experiences of CPNs and the procedures used for the issuing of these notices.

The first report, ‘What is it like to be issued with a Community Protection Notice?‘, by Dr Vicky Heap, Dr Alex Black, and Zoe Rodgers, analyses CPN recipients’ experiences of the process based on in-depth interviews. This report is based on a peer-reviewed article by the authors, published online in January 2021 in ‘Punishment and Society’ entitled ‘ Preventive justice: exploring the coercive power of Community Protection Notices to tackle anti-social behaviour ’. Findings include:

Two thirds of interviewees detailed difficulties when attempting to communicate with the issuing authority to discuss the contents of the notice. For example, there were accounts of phone calls, emails and letters left unanswered, as well as reports of feeling that they were being pushed from one authority to another.

CPN recipients were often unaware of the evidence of their perceived anti-social behaviour and said that no evidence was provided when they were issued with their CPW/CPN. They said that there was no opportunity for dialogue with the issuing authority to suggest an alternative version of events. ‘Richard’, who received a CPN for walking a dog off the lead, said ‘The police have refused to review my GPS tracking data that evidences that I was not anywhere near the claimed locations on the times and dates stated in both the [CPW] and the CPN.’

CPN recipients felt that not enough time was given to take the necessary action required in the notice. The amount of time allocated is at the discretion of the issuing officer and, within this study, varied between ‘immediately’ to 14 days. ‘Monica’, who received a CPW ordering her to install fencing to stop escaping chickens within 14 days, said that this was a ‘ridiculously short timescale’ to carry out substantial works.

Interviewees also detail difficulties of appealing the notices in court. ‘Trudy’, who received a CPN in relation to a neighbour dispute, says: ‘I’ve got two masters degrees, and for each of those I had to prepare 20,000 word documents, but I’ve had to do as much for this appeal which I’ve won as I did for one or two of those dissertations. That hard work is exhausting, it’s made me ill and it’s almost destroyed my life.’ Another CPN recipient, ‘Bernard’, said that he withdrew his appeal for fear of the council’s ‘very expensive lawyers’ and the potentially high court costs he would have to pay if he lost the case.

Some CPN recipients said that it was difficult for them to comply with the imposed conditions of the order. ‘Agnes’ received a CPW from the local council requiring her not to feed birds in her garden, garage roof or vicinity of the property. She says: ‘I’m going to be criminalised if I fail to comply, but how can you comply with something like this, it’s not possible … The birds live in the trees in the wood next to me. I get all sorts of birds, so as they’ve said to me you have to comply not to feed any birds at all anywhere in the vicinity of my property, which could mean 5 metres on each side of my fence.’

The vast majority of CPN recipients interviewed stated they did not have any contact with council officials before the receipt of a Community Protection Warning (CPW). ‘Olivia’, who received a CPW from the council for an overgrown hedge at her student house, said: ‘I think it was quite unreasonable for them to just issue a warning without actually speaking to us first’. ‘Steve’ – issued with a CPW for an untidy front garden – received a CPW letter through the door without any prior indication that there was an issue. He said: ‘I haven’t been brought up to expect council officials (to) threaten you with court for having an untidy garden….if a neighbour had complained then I would have preferred that the complaint had come to me directly from the neighbour’.

The second report, ‘How do local councils administer Community Protection Notices?’ by Isabela Dima and Dr Vicky Heap, analyses councils’ procedures for the use of this power, and is based on FOI requests to all England and Wales local authorities. Findings include:

Councils lack formal procedures to guide their use of CPNs. Only 7.9% of councils have a policy in place that specifically deals with CPNs and CPWs. 21.8% of councils are currently issuing CPNs without a policy to guide their use.

Encouragingly, 70.8% of councils indicated that there is some system of oversight in the issuing of CPNs, most commonly that the CPN is reviewed by a senior officer. However, 15 councils (4.4%) indicated that there is no system of oversight to ensure that CPNs are being used correctly, meaning that discretion is left entirely to individual officers.

The majority of councils used pre-printed templates for the issuing of CPNs, which as the report argues means a danger that CPNs could be ‘issued in haste’. Only 23.9% of councils said that new documents are generated for the issuing of CPNs.

Councils employed very different thresholds for the issuing of a CPN, with 19.5% using ‘harassment, alarm and distress’, 32.8% allowing officers to judge on a case by case basis or on the basis of evidence/circumstances. Other councils used much lower thresholds: 3.8% of councils (13 councils) used a ‘negative impact’ on the area as a threshold, and 2.6% of councils (9 councils) issued CPNs when a person’s conduct ‘could encompass annoyance and inconvenience’. The researchers concluded that ‘the threshold for issuing a CPN is not equal across the citizenry’ and that ‘people undertaking the same behaviours have the potential to be sanctioned differently based on where they live’.

Council officers issuing CPNs have varying levels of training. 66% of councils reported some level of training for issuing CPNs, although this varied from a BTEC Level 3 qualification to ‘on the job’ training, or the vaguely defined ‘internal and external training’. 22 councils (6.4%) reported that no specific training is provided, which leaves the interpretation of the legislation to the individual officer.

The report concludes that ‘there is a postcode lottery’ of CPN practices currently being undertaken, and that flexibility ‘should not be at the expense of standardised processes to ensure these sanctions are being applied fairly across England and Wales’.

Dr Vicky Heap, reader in Criminology at Sheffield Hallam University, commented:

Despite being available to authorising bodies since 2014, there is very little evidence about how Community Protection Notices are utilised and consequently experienced by recipients. Our research begins to address this gap in understanding by exploring both the issuing process and perceptions of recipients. We uncovered great variations in issuing practices, which could lead to an uneven application of the powers across England and Wales. Furthermore, our work with recipients highlights the need for greater procedural safeguards to reduce disproportionality and bolster due process. Ultimately, our findings suggest that more extensive research is required to better understand the use and impact of these coercive powers.