The Community Protection Notice (CPN) is a unprecedentedly ‘blank-cheque’ power, which is open to being abused or misused. Over the years, the Manifesto Club has worked with dozens of members of the public who have received unfair CPNs. This guidance was produced in collaboration with some of those CPN recipients, seeking to rectify the major problems that occurred in their cases. We also collaborated with local authority professionals and ASB policy experts.
The aim of this guidance is to ensure that powers are used fairly, impartially, and proportionately. We urge local authorities to consider adopting this guidance.
Guidance should apply equally to Community Protection Warnings (CPWs) as to CPNs. There is a tendency for authorities to issue CPWs very lightly, and yet they can have severe consequences for the recipient and should be subject to the same due process.
This guidance emphasises some important protections in the Home Office statutory guidance that are unfortunately not generally respected. It also draws on the Chartered Institute of Environmental Health guidance, which includes additional protections, as well as recommendations made by a Sheffield Hallam University research project into CPNs.
1. The ‘detrimental effect’ of somebody’s actions should be an objective test and not a subjective opinion.
A CPN can be issued if a person’s contact has a ‘detrimental effect…on the quality of life of those in the locality’. The ‘detrimental effect’ of someone’s conduct should be significant, in terms of the harm and nuisance caused. It should not be something that is merely annoying or disliked (*). The CPN recipient’s actions should be unreasonable, and something that they can reasonably affect. Just because a complainant says that they are negatively affected by somebody’s actions does not mean that it meets the threshold for a CPN (**).
CPNs should not be used to enforce council policies, or to make an area ‘nicer’. Nor should CPNs be issued on the basis of an officer’s subjective opinion, such as their view on what qualifies as a ‘messy’ garden or activity. Councils should contact a representative sample of the community to confirm that the actions targeted for a CPN have had a significant negative affect the community as a whole.
(*) 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. (Home Office Statutory Guidance)
(**) Investigating officers must form an objective opinion of the conduct, excluding possible exaggeration, prejudice or unusual sensitivity; and they should remain uninfluenced by their own norms. (CIEH Guidance)
2. The issuing officer should speak to the alleged perpetrator before issuing a CPN, to take their account into consideration, and also to verify the basis of allegations against them.
It is basic due process that both sides in a case be heard before deciding to proceed with a legal order. It may be that both sides of a dispute consider themselves to be ‘victims’; therefore, it should not be assumed that the initial complainant is necessarily in the right. Local authorities should be aware of the possibility of malicious allegations and avoid taking sides.
The officer should show the alleged perpetrator the evidence against them, rather than just saying ‘we have evidence against you’. The officer should be willing to receive evidence and accounts from both sides in a dispute, not only from one side.
Officers assigned to a case should have appropriate knowledge and experience. For example, if the complaint relates to bird feeding or pigeon keeping, the officer should have some knowledge of birds or pigeons, so as to judge what would be reasonable conduct, as well as to judge the veracity of allegations.
3. CPNs should should be avoided when the recipient is vulnerable – for example, if they are experiencing street homelessness, have mental health problems, autism, or other relevant disabilities (*).
In these cases, the stress of the CPN can make a person’s life more difficult and compound the underlying problems that are causing behavioural difficulties. Legal threats are generally not an effective or humane response to mental health problems or to social problems such as homelessness.
(*) ‘Particular care should be taken to consider how use of the power might impact on more vulnerable members of society.’ (Home Office Statutory Guidance)
4. In cases of neighbour disputes, local authorities should explore mediation rather than CPNs.
CPNs and CPWs can aggravate neighbour disputes rather than solve them. These disputes can continue for years at great cost to all parties, including local authority time, with no positive resolution. Mediation is a much better option in cases of disputes that involve allegations being made by both sides.
It is arguable that ASB tools are not lawful in cases of neighbour disputes, since the ‘detrimental effect’ of one party’s actions affects only one other person or household, rather than ‘the locality’ more broadly.
5. CPNs should not be used when a more targeted law or power could be used, for example statutory nuisance powers, or other parts of the criminal law.
CPNs should not prohibit activities that are already criminal offences, for example drug taking, violence or domestic abuse. CPNs should not be used in preference to more targeted legal powers simply because they have a lower standard of evidence and are easier to issue.
6. CPNs should not criminalise activities that are not in themselves harmful, such as walking down a particular street, looking at a neighbour, or entering a particular area.
The prohibited activity should target the significant nuisance or harm that is being caused, and the restriction should be necessary and proportionate to prevent this nuisance or harm.
CPNs should not impose vague ‘catch-all’ conditions that would be hard to meet, such as a requirement not to cause offence or nuisance to any other person in the locality.
Where CPNs impose significant restrictions upon a person’s liberties – for example, prohibiting them from certain public spaces – it would be more suitable to use the Civil Injunction, to allow for a more significant legal test and court scrutiny of the application (*).
(*) ‘While restrictions and requirements (of a CPN) may be similar to those in a Civil Injunction, more onerous conditions, such as attendance at a drug rehabilitation course, would clearly be more appropriate to a court issued order.’ (Home Office Guidance)
7. Local authorities should establish thorough procedures for issuing CPNs, including systems of oversight by senior officers to ensure that the CPNs are necessary and in the public interest.
Senior officers should have responsibility for ensuring that the power is being used in a targeted and proportionate manner. Individual front-line officers should not be left to issue CPNs according to their own discretion. ‘On-the-spot’ CPNs (filled out on the street) should not be issued, since these are more open to impulsive and inappropriate use.
Local authorities should be aware that there is a danger of officer bias in the issuing of CPNs. Local authorities should ensure that they have procedures in place for monitoring officer conduct and considering complaints about officers. Authorities should also ensure that a witness is not given undue favour because he or she has connections with the issuing officer.
8. Local authorities should establish a process for considering written requests to amend or withdraw CPNs, either prior to legal appeal, or after the deadline for legal appeal has passed.
This procedure was recommended in the case Stannard v CPS (*). It would allow CPN recipients to contest their notice in a sphere that is less intimidating and financially risky than the Magistrate’s Court. It would also allow the local authority to double-check that issued CPNs are proportionate and fair.
The officer considering written submissions should be an independent officer, not directly involved in the case (eg the issuing officer) or with professional connections to the issuing officer (eg their line manager). Local authorities could assign the job to the independent officer(s) required to determine appeals made by tenants issued with notices to end an introductory/starter tenancy, or those assigned to consider ‘ASB case review’ applications.
Local authorities should put in place similar procedures to consider requests to withdraw CPWs (**).
(*) (T)here is a power for an authorised person to revoke or vary a CPN, as well as issue one. If an affected person sends written representations to such an authorised person with a reasoned case that the CPN is inappropriate, on ordinary public law principles, the authorised person will have to consider those representations when considering the exercise of his discretion as to whether to retain, or revoke or vary, the notice…. It is not for this court to tell authorised persons how to go about their decision-making, but we would think it a minimum that such persons should operate a system for receiving and adjudicating requests for variation or discharge of CPNs; and that relevant information should briefly be given with any CPN about how to seek a variation or discharge…. (Judgement in Stannard vs CPS)
(**) Provision should be in place for a recipient to query the basis of a written warning, despite there being no route in the ‘2014 Act’ to do so. The issuing authority can rescind a written warning at their discretion, therefore contact details of a senior officer with oversight of the process should be made available on the written warning itself and the authority’s website. Local systems of review are encouraged. (Home Office Statutory Guidance).
9. CPNs should state clearly how to submit a Magistrate’s Court appeal.
This information should include contact details of the court, and detailed information on how to submit the appeal, for example the email address and the information that must be sent by email, and any fees that must be paid.
CPNs should also state how to submit a written request to review or withdraw the CPN (*). The issuing of the CPN should follow basic due process, for example it should be delivered by hand to the person, or at least signed for delivery, rather than just sent in the general mail. The 21-day limit for appeal should begin on the date the person receives the CPN, rather than the date that it was written. If a person is ill – for example, they are in hospital – then the appeal deadline should be extended until they have returned to health.
(*) SAMPLE TEXT: ‘You can apply to vary or discharge this CPN. In order to make such an application you should write to (NAME AND ADDRESS), setting out the reason why you are asking for the CPN to be varied or discharged. We will deal with your request in accordance with our enforcement policy which can be found on our website at (WEB ADDRESS).’
10. Local authorities should consider whether there is a practical solution to the dispute or problem.
Although a CPN or CPW may be easy to issue, if the document has to be defended in court it could cost thousands of pounds and take up many hours of officer time. It may be that some disputes have simple solutions – for example, changing a gate to stop an escaping dog, or helping an elderly resident spray their Japanese knotweed. In some cases, common sense problem solving and negotiation may be far more effective, and cheaper, than the recourse to CPNs.
Local authorities should be aware that CPNs often have a very detrimental effect on the mental health and quality of life of the recipient, and any benefits of intervention should be balanced against these effects.