‘Respect Orders’ have been trailed by the Labour Party for over two years, as a way of getting ‘tough’ on ‘hooligans’ and tackling ‘the virus that is anti-social behaviour’. These powers have finally been published in the Crime and Policing Bill. The Manifesto Club finds that Respect Orders replicate the defects and injustices of the current Civil Injunction, and will increase these injustices. Our response is below.
Respect Orders are almost identical to the current Civil Injunction power. Like Civil Injunctions, Respect Orders can be issued on application by various state bodies to the High Court or county court, and can impose prohibitions as well as positive requirements. The test for issuing an order is if the court is satisfied (on the balance of probabilities) that a person has engaged in, or threatens to engage in, anti-social behaviour (with anti-social behaviour defined as ‘behaviour that has caused, or is likely to cause, harassment, alarm or distress to any person’). The injunction can be applied for ‘without notice’, which means that the recipient will not be informed of the application or be present at proceedings.
The Respect Order is therefore a very broad power that can be applied on the low standard that someone’s behaviour ‘is likely to cause’ harassment, alarm or distress to any person. The power is stacked towards the prosecution, especially given that a person is often not represented at a hearing, and that they may not even be present or know about that hearing.
Respect Orders differ in a few respects to Civil Injunctions:
1. Violation of a Respect Order is a criminal offence that can lead to imprisonment for a period up to two years, or a fine, or both. Breach of the Civil Injunction is not a crime; however, breach is considered as Contempt of Court, which can also lead to imprisonment for a period up to two years, and hundreds of people have been imprisoned for breach of a Civil Injunction. Therefore, it is likely that the Respect Order will increase the rate of imprisonment that has been seen under Civil Injunctions.
2. Respect Orders extend the role of the ‘supervisor’ to oversee the recipient’s compliance with positive requirements in the order. The ‘supervisor’ will be named as part of the Respect Order, and can be a person or an organisation. There is no requirement that this person or organisation be independent, and could presumably be someone from the applying organisation. This supervisor has significant control over the life of the Respect Order recipient: the recipient must report to them regularly, and notify them about any changes of address. The supervisor will ‘promote the respondent’s compliance with the relevant requirements’; they have a duty to issue written warnings if they consider there has been a breach, and will report the recipient if they believe they have ‘failed to comply with a relevant requirement’. The supervisor is therefore allotted a large responsibility to supervise a person’s day-to-day behaviour: the Respect Order recipient must report their compliance with ‘any instructions given by the supervisor from time to time’. The supervisor also existed for Civil Injunctions, but they are given a more active role with Respect Orders, and including the new power of issuing formal written warnings when they consider there has been a breach.
3. Respect Orders require a ‘risk assessment’ to be carried out as part of an application. This must consider the risks of the person causing anyone to be harassed, alarmed or distressed; it must also consider any vulnerabilities of the recipient, and any alternative means of preventing the person from engaging in anti-social behaviour. This element is perhaps intended as a check on Respect Orders being used against groups such as the homeless or mentally ill, but it is doubtful whether it will resolve this problem with the power. A risk assessment is not a substantial legal check, and does not compensate for the lack of rights or representation for the defence. The risk assessment is a free-form bureaucratic exercise, which could be framed as desired by the applying authority; it is a paternalistic consideration carried out by the prosecution. It does not replace a person being given an equal right to represent themselves, or a burden upon the prosecution to show that an order is absolutely necessary.
Finally, it must be noted that Respect Orders do not replace the current Civil Injunction in housing contexts, which are issued on the lower standard of conduct capable of causing ‘nuisance or annoyance to any person’. These housing-related injunctions account for a significant portion of imprisonments for ASB Injunctions, and are mainly applied for by housing authorities. Therefore, the current use of this housing-related part of the Civil Injunction power will continue as before.
In conclusion, Respect Orders are largely a replica of the Civil Injunction power, and the respects in which they differ will only amplify the problems with that power. There is no reason to assume that Respect Orders will be used in a dramatically different way to Civil Injunctions, and the main difference will be a greater likelihood of a penalty of imprisonment for breach.