Summary
This report analyses local authorities’ use of the Community Protection Notice power in the year between November 2015 and October 2016, following on from our previous report on the use of the power in its first year.
Our FOI requests to all English and Welsh councils with powers to issue CPNs, found that between November 2015 and October 2016, 4376 Community Protection Notices were issued. These orders have been used to impose highly unreasonable restrictions upon individuals, such as that they must not swear, they must not have any visitors to their home, or that they may not drink alcohol in their home. Homeless people have received orders banning them from the town centre, from begging, or accepting charity donations.
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, or an environmental enforcement officer. This means that certain council officials now have the power to act as legislator, judge and jury in relation to the conduct of private citizens.
As would be expected, this is resulting in severe injustice. We have been in contact with several people who have received CPNs based on inaccurate or false accusations, often as the outcome of a dispute with a neighbour or council officer. In other cases, people are being penalised merely because their activities are disliked by some other individuals.
This report is an outline of the current problems with the CPN power, and a call for its reform.
1
What are CPNs?
Community Protection Notices (CPNs) are powers contained in the Anti-Social Behaviour, Crime and Policing Act 2014, which allow local authorities to issue written notices 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 the notice, 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. The template could be a standardised CPN (for example, for messy gardens or waste in front gardens), or it could have boxes to be filled in on spec by the officer, who defines the nature of the detrimental conduct and the measures that must be taken.
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 ASBO and the current civil injunction, with a key difference: the CPN does not have to go through a magistrates’ court, and the standard of proof is significantly lower (the civil injunction requires conduct that is causing harassment, alarm or distress).
CPNs therefore give council officials unprecedented powers to direct the behaviour of particular individuals, backed up by the force of the criminal law. CPNs can also impose measures which are expensive and burdensome, such as carrying out renovations to a property or disposing of materials in a particular manner.
2
How has the power been used?
Our FOI requests have found that, in the year between November 2015 and October 2016, 125 councils issued 4376 CPNs. This is an increase on our previous FOI requests for the period between 1 November 2014 and 31 October 2015, when 107 councils issued 3943 notices.
See full Dataset: CPNs issued between November 2015 – October 16. (obtained from our FOI requests issued to all 346 local authorities in England and Wales with the power to issue CPNs).
In many councils, CPNs can be issued by simply filling in a form. There is a box in which the council officer writes the ‘prohibition/requirement/action’ required, and another box in which the council officer states a ‘timescale for compliance/completion’. Some councils have a structure of oversight for the issuing of CPNs, with an authorising senior officer, while others have no established structure and have left it to individual officers to issue orders as they see fit.
Many councils seem to lack proper systems for considering the evidence upon which a CPN is based, or considering the defendant’s side of the story. CPNs are often issued on the basis of hearsay or a report from one party, without the council investigating any further into the matter and finding out whether the accusations are true. One student in Nottingham received a CPN for a ‘bin on the street’, although the bin in question wasn’t actually her bin. The issuing officer visited her property, and discussed the issue, but did not check with her to clarify which was her bin before issuing the order.
In some cases, the CPN appears to be driven by a neighbour or council officer with a gripe. One woman in North-East England received a CPN on the basis of ‘loud music and gatherings at your address that have continued until the early hours… (and) resulted in Police having to be called’. She says that this is untrue: she works in the week and so goes to bed early, and the police had never been called to her flat. She believes that the CPN was issued by a council officer whom she has known since she was a child, and who doesn’t like her. She called the council and explained, and received a letter saying that the CPN would be scrapped. A few months later, she did have to call the police to her flat, because she was the victim of a domestic violence incident. After this incident, she received a letter saying that the CPN had been violated and a fine would be issued.
This procedural lawlessness and irregularity is not surprising, given that councils do not have investigatory departments, and that there are no requirements on them to formally present the evidence upon which CPNs are based.
Councils’ use of CPNs varies dramatically, with some councils issuing hundreds of CPNs (Newham issued 769, and Leeds issued 530), while others have issued CPNs in the single figures or not at all.
Police authorities are also able to issue CPNs, but they are generally not keeping data on how this power is being used. Out of 43 police authorities in England and Wales, only eight were able to tell us how many CPNs they had issued. These eight had issued a total of 148 CPNs in the year November 2015 – October 2016, for street drinking, begging, neighbourhood disputes, and ASB. In some cases, police authorities are working closely with local authorities, so that a police CPN could be issued in collaboration with council officers, or vice versa.
The subjects of CPNs also vary dramatically, including 4 councils issuing CPNs for rough sleeping, two for loitering, five for drugs, 40 for untidy gardens, and 6 for Japanese knotweed. See below for a breakdown of the activities targeted by CPNs.
Activity Targeted by CPN
| Subject of CPNs | No. of councils issuing CPNs |
|---|---|
| Untidy gardens | 40 |
| Dogs (barking dogs/straying dogs/dog fouling) | 25 |
| Noise/shouting | 17 |
| ASB | 16 |
| Begging | 15 |
| Verbal abuse/obscene language | 8 |
| Feeding birds/roosting pigeons | 8 |
| Bin on street/incorrect recycling | 6 |
| Japanese knotweed | 6 |
| Cannabis/drugs | 5 |
| Problem parking | 5 |
| Drinking | 5 |
| Rough sleeping | 4 |
| Neighbour nuisance | 3 |
| Bonfires | 3 |
| Harrassment | 2 |
| Loitering | 2 |
| Busking | 1 |
We have obtained texts of many of these CPNs. Some CPNs appear to impose reasonable and specific requirements, such as Amber Valley Council’s targeting of a disused industrial premises, which requested that these premises be made secure; or a Harborough CPN, which required power hammering to cease. In these cases, the order targeted a severe public nuisance, and required this specific public nuisance to stop.
However, in many other cases, orders impose vague and unreasonable restrictions. Several CPNs order that someone must not permit a dog to bark in a manner which causes annoyance to neighbouring residents. Short of destroying the animal, it is difficult to prevent a dog from barking at any time. Hull Council issued one CPN banning ‘Engaging in any conduct that is likely to cause nuisance to any person within Hull’, a very vague restriction which would be easily violated.
Such vague orders can have a severe affect on people’s lives. One woman, who received an order from an East London council banning her from causing ‘harassment, alarm and distress’ to her neighbours, said that she resorted to running a continuous audio recording in her flat in order to prove that she was not causing annoyance. She received one breach notice for having flashing fairy lights in her garden (which she admits); and for repeatedly banging the back door (which she denies). She says: ‘I’m frightened to do anything; I just tiptoe around. I don’t play music, I don’t have friends around’.
It may be that, in some cases, these CPNs deal with genuinely persistent and severe nuisance behaviour. But in other cases, as with the East London lady above, it is merely a question of a long-running neighbourhood dispute between two parties, where one party (in her case, a neighbour who is a housing barrister) has the ear of the council.
The CPN is being used in everyday disputes between neighbours about pets, overhanging vegetation, or the appearance of somebody’s garden. It appears to be the complainant who gains the benefit of the doubt. One lady received a CPN, from Maldon Council, requiring her to destroy or re-house her free-roaming peacocks, after certain neighbours took a dislike to them. The council backed the complainants, but did not listen to the views of the many residents who supported the peacocks and had a demonstration and petition calling for them to stay.
Many CPNs are imposing restrictions that target, not harmful behaviour, but behaviour that is essentially benign and would otherwise be perfectly legal. CPNs often target an activity associated with a problem, rather than the problem itself. One order from Hull council states: ‘You must prevent your children from socialising with other youths you know to be responsible for anti-social behaviour’. The crime here is not the anti-social behaviour of the other children, but the fact that a mother allows her children to socialise with them. Another order from the same council prohibits ‘Allowing any resident/visitor of your address to use abusive language to any person within Kingston Upon Hull’, which would make you personally responsible for any swearing by your visitors.
3
The home
These orders can impose severe restrictions on people’s freedom of movement and action in their own homes. They have been used to ban people from feeding the birds in their gardens, or using their garden to repair bicycles. CPNs have restricted the time and location of barbecues in a garden, they have banned people from having visitors, and even banned someone from being visibly naked in their own home or garden. These represent a severe restriction on people’s privacy in their own home, and target behaviour that – while it may be annoying to some – does not present a significant nuisance to others.
A selection of CPNs targeting the home include:
‘Not to have more than two adult visitors to stay at property overnight’ (CENTRAL BEDFORDSHIRE)
‘Not to keep animals or livestock including chickens at address’ (CENTRAL BEDFORDSHIRE)
‘To not drink in your home or allow others to drink in your home’; ‘Comply with requirements to refrain from any intoxicants (including alcohol) personally at your property or all visitors to your property to drink alcohol’ (TAMWORTH)
‘Not to be under the influence of alcohol at any time’ (NORTH DEVON)
‘Cease scattering and placing food in the front and rear garden to feed birds’ (BIRMINGHAM)
‘Not to allow any visitors to attend xxxx and the block itself, with the exception of professional staff.’ (HACKNEY)
Ban on ‘Being naked in a place that is open to public view such as your garden’; ‘Being naked in your home where your genitalia are visible to persons in a public place’ (TONBRIDGE AND MALLING)
No ‘allowing vegetation to become overgrown and unsightly’ (DONCASTER)
‘Ensure you know the correct identities of any person that you associate with or allow to visit’ (HULL)
‘all barbecues to be finished and out by 8pm (all seasons)’; ‘Do not put oil onto food items when they are on BBQ’ (CRAWLEY)
‘Cut back all brambles, shrubs from front and rear gardens and remove within 21 days’ (CRAWLEY)
Do not ‘use offensive language inside or outside XXX Close or the surrounding areas so as other residents can hear it’ (CRAWLEY)
No doubt, in some cases, some of these individuals’ conduct was causing a genuine public nuisance for their neighbours. And yet these orders targeted a far bigger area of conduct, which falls within the normal range of behaviour, and therefore the CPN would have implications for a person’s ability to live a normal life. Rather than targeting somebody’s noise or disorder, for example, the CPN prohibited all alcohol or all adult visitors. It is shocking that such restrictive orders can be imposed without judicial oversight, or formal obligations to provide evidence or consider the defendant’s account of events.
In other cases, however, the behaviour in question is not a public nuisance at all, but merely something that is not to someone else’s taste. The fact that some other people do not like the roaming peacocks, barbecues, or the garden birds, is seen as justification enough for the imposition of a CPN, thereby making these things a criminal offence.
The fundamental problem here is the original Anti-Social Behaviour, Crime and Policing Act 2014, which criminalises actions that have a ‘detrimental effect on the quality of life’. This low, subjective benchmark draws the criminal law into questions of taste. This is why someone could receive a criminal order to make their garden less ‘unsightly’. ‘Unsightly’ is not a word in the criminal lexicon: it is a matter of taste, of preference, which would not have been thought sufficiently severe to warrant criminal sanction and the use of the coercive powers of the state.
4
Public spaces
CPNs have also been used to impose conditions on people’s actions in public spaces, particularly homeless people. Some CPNs have been used to bar certain homeless people, permanently, from particular public spaces: if they enter this place they are committing a criminal offence. Such orders include:
‘Not to enter Leighton Town Centre as shown on map’ (CENTRAL BEDFORDSHIRE)
‘Not to enter Dunstable Town Centre as outlined on map’ (CENTRAL BEDFORDSHIRE)
‘Leave the Crawley town centre within 10 minutes of completing reasonable and legitimate activities eg purchasing an item from a shop’ (CRAWLEY)
Other orders restricted homeless people’s activities, such as begging, sitting or sleeping on the pavement, loitering, swearing, or even their accepting of charity donations. Oxford City Council issued a CPN to homeless people, ordering them to remove their belongings from a doorway. These orders include:
‘You are required to cease begging outside Tesco and at any other location in the Royal Borough of Greenwich with immediate effect’. (GREENWICH)
‘Not to beg within the borough of Corby’ (CORBY)
‘Not to sit or sleep on the pavement, doorways or fire exits in the Crawley Town Centre’ (CRAWLEY)
‘Not to loiter within the highlighted area’ (HACKNEY)
‘Do not take charitable donations or other items from the rear of shops within the Borough of Crawley’ (CRAWLEY)
‘You must not sit on the floor outside any retail premises in such a way as to appear to be begging or to encourage the gathering of alms’ (WAVERLEY)
These CPNs target a range of behaviour much broader than anything that could be called ‘anti-social’; instead, they are targeting somebody’s very existence as a homeless person. To ban a homeless person from the town where they are based, or to prohibit them from receiving charitable donations that are necessary for them to live: such orders represent a grotesque penalisation of people who are already in a destitute position. It is also the case that homeless people are very unlikely to have access to legal support or advice, and so would have few means to appeal these orders, however unjust.
5
Supplanting the criminal law
In a few cases, CPNs are used to prohibit acts that already criminal, such as illegal drugs or theft – which means a supplanting of the established criminal law and the ordinary processes of prosecution and punishment. Five councils used CPNs to target the use of cannabis or other illegal drugs. For example, Salford ordered that someone ‘ensure that there is no emission or cannabis odour emanating from your property’, while North Devon ordered that someone ‘Not be under the influence of illegal substances in a public place’. Crawley council included in an order that someone was ‘not to commit acts of theft’.
This shows how CPNs are also being used in preference to more precise, established powers, as a quick-fix. When used in this manner, they are the penalty of the lazy: the officer who would rather fill in a form issuing an ‘order’, than prepare a case and sit before a judge.
Here we see a blurring of the distinction between crime and non-crime: the same penalty is issued for drugs offences and theft, as for peacocks and barbecues. A wide variety of actions are becoming subject to the imposition of a paper order – regardless of the severity of the act, and whether it is criminal or not. This indicates a loss of perspective on the question of what is, and what is not, meriting the state’s powers of coercion and criminal sanction.
Recommendations
It is our view that the CPN power is deeply problematic and should be scrapped. All genuine offences and acts that cause public nuisance and harm are already covered by other powers, with the possible exception of waste clearance.
However, in the interests of suggesting possible changes, it is our view that the following measures could do something to reduce the lawlessness of this power:
- A CPN should only be used in cases that are not already covered by other powers, or the criminal law.
- A CPN should only be used in cases where there is significant public harm or nuisance, and not simply where a behaviour is annoying or irritating to others.
- A CPN should target the behaviour causing the public harm, rather than something that is related to it. It should only impose necessary restrictions, targeting the harmful behaviour, and should not interfere with a person’s ability to live a normal life.
- Councils should install procedures governing the issuing of CPNs, which consider the evidence impartially and ensure that the issuing of the CPN is based on substantial evidence, and fair consideration of both sides of a case. CPNs should not be issued on the basis of hearsay or unverified evidence. The council should consider the recipients’ arguments and defence before deciding to proceed to a CPN. Councils should not allow single officers to issue CPNs without oversight.
Josie Appleton is director of the Manifesto Club, and author of Officious – Rise of the Busybody State