Thinkpiece: Behaviour Control Orders

Manifesto Club Thinkpieces put our campaigning in broader perspective, exploring the underlying dynamics behind the state regulation of public spaces and informal life.

This Thinkpiece on Behaviour Control Orders explores this new form of state control of individual and public conduct. It coincides with the launch of a Working Party report by JUSTICE on this subject, to which we contributed. The report found that behaviour control orders have been associated with a fall in legal standards over time, and a ‘criminalisation creep’ such that anodyne or innocent actions can for certain people be a criminal offence.

What are Behaviour Control Orders?

Behaviour Control Orders began over 20 years ago with the anti-social behaviour order (ASBO). The order means that officials can subject particular individuals to personalised legal restrictions, outside of the normal criminal law.

There are over 33 Behaviour Control Orders, including Dispersal Orders (which give police officers powers to bar you from a particular public space), Closure Orders (which give police and council officers powers to ‘close’ residential or business premises), Knife Crime Prevention Orders (a power to issue instructions to a person who has carried a ‘bladed article’ in a public place), Public Spaces Protection Orders (allowing councils to ban particular activities in public spaces), Community Protection Notices (which give officers power to issue personal legal orders to individuals), as well as the new protest-related Serious Disruption Prevention Orders.

A new kind of state control

Behaviour Control Orders are quite different to the traditional approach to law-making. Traditionally – since the law codes of ancient Mesopotamia – laws create crimes, which prohibit certain domains of activity. The format is usually ‘thou shalt not’, or ‘if you do x, you will receive y punishment’. The codification of crimes was part of a state attempt to introduce order and regularity, with standardised rules and punishments for their violation.

By contrast, the Behaviour Control Order does not create crimes: it gives officials or state bodies powers to impose restrictions upon particular individuals or particular public spaces. It is a ‘power to order’. These orders are generally issued on the civil standard of proof, and allow hearsay testimony, and so are subject to fewer safeguards than the ordinary criminal law. And yet the violation of these orders is a criminal offence, which in some cases can include imprisonment.

Liberty has said that these orders create a ‘personalised legal code’; an action that is perfectly legal for most people is a crime for the recipient of a behaviour control order. People have received Community Protection Notices ordering them to close their front doors more quietly, not to wear a bikini in their front garden, or not to look at their neighbours.

Behaviour Control Orders give an unprecedented role for official discretion, to decide who should receive an order, and what to put on it. The tendency over time has been to give officials an increasingly free hand in deciding how and when to use these powers.

Lowering the legal standard

Over the past few years, these orders have become broader and with lower standards of issue: they are issued on the basis of broader or vaguer conditions, have fewer procedural requirements or safeguards, and the recipient has fewer rights to defence.

The ASBO required conduct causing ‘harassment, alarm or distress’; the Community Protection Notice, which in practice has replaced the ASBO, merely requires conduct that has a ‘detrimental effect on the quality of life’. The ASBO had to go through a court, with a right to legal aid, but the CPN can be issued on the spot by police officers and a range of local authority officers, including county park guardians, street scene officers, community wellbeing service officers and neighbourhood pride managers.

Whereas Closure Orders used to apply for premises that produced or supplied Class A drugs, now they can be imposed on premises where there is merely disorderly behaviour or serious nuisance.

Sexual Risk Orders are another example of how orders are becoming increasingly broad. They can be applied for where an individual has been found, upon a civil standard of proof, to have carried out an ‘act of a sexual nature’. Acts ‘of a sexual nature’ are not defined in either the legislation or the accompanying guidance. The guidance states that ‘the term intentionally covers a broad range of behaviour. Such behaviour may, in other circumstances and contexts, have innocent intentions. It also covers acts that may not in themselves be sexual but have a sexual motive and/or are intended to allow the perpetrator to move on to sexual abuse’.

Positive conditions

Another change is that behaviour control orders increasingly allow positive as well as negative conditions, which can be potentially more coercive. The JUSTICE report notes that Sexual Risk Orders were recently amended to allow positive as well as negative conditions. Knife Crime Prevention Orders (KCPOs) – which in most cases are imposed on black males – do not only ban someone from carrying a knife, but lay down a swathe of positive conditions. Here are some recent Met Police KCPOs:

The defendant must engage with (organisation – name redacted) within 7 days of this order being granted to take part in a diversionary course called (name redacted). A 5x session course involving Drug awareness, Grooming and exploitation awareness. Details of attendance dates will be provided on first contact. Contact details to be provided at Court.

The defendant must attend and engage with a (Charitable Provider Name Redacted) foundation programme to help find work within the painting and decorating trade.

It therefore becomes an offence for a particular person not to seek employment in the painting and decorating trade, or to fail to attend a series of awareness courses. Orders are being used in a coercive manner to direct individuals’ behaviour towards what officials think is a ‘good’ course of conduct.

Lack of central state oversight

Behaviour control orders used to be monitored and assessed – both ASBOs and dispersal orders were subject to regular data collection and government assessment. Now government often doesn’t have basic records on the use of these powers. The Manifesto Club has collected the only national data on the use of PSPOs and CPNs for the past 9 years, and the Home Office has shown limited interest in the results of this research.

The Civil Justice Council criticised this bureaucratic negligence, recommending in 2020 that the Home Office and courts service collect data on the use of powers, and that legal aid be expanded to ensure that no one faces the prospect of being sent to jail without proper legal advice. The JUSTICE Working Party report recommended strongly that ‘The Home Office must work with HM Courts and Tribunals Service, the Office of National Statistics and enforcement bodies to rapidly improve data capture’.

The inflation of powers

The increase in behaviour control orders appears to be an inexorable trend. There is a common official view that every social problem or criminal act could be solved with the addition of another power. Labour recently suggested ‘Respect Orders’ to end ‘anti-social behaviour’, while the Conservatives proposed to amp up PSPOs and CPNs and create new powers to move on homeless people.

Any inadequacy of enforcement, or persisting social problem, is seen as the result of powers that are too ‘cumbersome’ and ‘slow’ to use. Again and again, officials argue that there must be a new ‘proper’ power, which has fewer procedural requirements and a lower benchmark for issue; a new power that can be issued faster or in more circumstances, which gives more room for officer discretion, and for which there are higher penalties and fewer rights of appeal.

There are several assumptions here. 1. That the increase in powers of state agents to act as they please is the route to efficient enforcement, as well as being the solution to many social problems. 2. That procedural safeguards and requirements, such as requirements to gather evidence, or to prove a case in court, are merely inefficiencies that slow down effective action. 3. That rather than lay down general laws, it is far better for government to deal with problems at a ‘local level’ or a ‘case to case basis’.

The handing down of responsibility

Behaviour Control Orders are intended to give the impression of forcefulness and decision. In fact, however, they are the opposite of decisiveness. Powers are often created to give the impression of ‘doing something’, while avoiding responsibility for whatever is done. A new crime is a state-ordained line in the sand, and whoever created it is accountable for the results. By contrast, a new power is a means for officers or local authorities to give personalised instructions as and when they see fit. Central government can ‘do something’ then wash its hands of the matter.

Because they come with so few procedural requirements, new powers appear to be ‘cheap’ and involve no substantial investment.

Behaviour Control Orders allow a chain of passing down responsibility to the officer on the street. Some councils are using PSPOs to give its officers open-ended powers to issue orders to people in a wide range of circumstances. Rather than bring through a law saying ‘no busking’, the PSPO says ‘no busking after an official has asked you to stop’, or ‘no swimming or cycling or drinking after an official has asked you to stop’. This means that the council is not responsible for the results of its PSPO. The PSPO gives discretion to a police or council officer to ask a member of the public to cease a wide range of activities, and if this person refuses then they are committing a criminal offence.

The anarchy of official discretion

Ancient crimes and legal codes, though often harsh, were a means of ordering society, laying down lines so that everybody knew where they stood. By contrast, the current move towards behaviour control orders undermines stable rules: nobody knows if they will be subject to an order, or what will be on it. Anybody could receive a Community Protection Notice or a Sexual Risk Order, so broad are the issuing conditions. A Knife Crime Prevention Order could ask you to get a particular job or ask you to not talk to a particular person; it all depends on the volition of the officer.

Under the Behaviour Control Order, crime has a new and dangerous meaning: it amounts to nothing more than your disobedience of official instructions. In the name of tackling ‘disorderly behaviour’, successive governments are fostering disorder in the heart of the state, such that the whim of officials is becoming the only law of the land.