Breaking up the gang
New powers conferred on the police, local authorities and the courts give them too much of a free rein and are overly prohibitive on respondents, says Jeannie Mackie
The Policing and Crime Act 2009 which received Royal Assent on the 15 November is a portmanteau act, carrying a wide variety of new legal regulation within its capacious interior. It includes new offences and regulations to do with alcohol abuse, police practice, sexual offences, extradition and arrest, travel banning orders for sexual offenders, proceeds of crime, football matches, aviation security, criminal records and their disclosure, etc etc.
The Act not only continues the trend towards regulation of behaviour via injunctions and ASBO type orders where no criminal offence has been detected or is prosecuted, but it also extends those powers into a new area: gangs. Part 4 of the Act, sections 34-50, are of particular importance to criminal practitioners because they are capable of being used against most of our younger clients. The government has identified that membership of gangs is a problem, and is particularly acute in urban and deprived areas. They have, as usual, responded by introducing new and extensive powers to 'criminalise' those who are or might be involved in them. Not 'criminalise' in the sense of introducing a new criminal offence with criminal sanctions through due process with criminal evidential standards, but criminalise in the modern manner: through the civil courts, with the civil standard, with criminal consequences.
The new powers are a step up from ASBOs in the magistrates courts. Section 34 gives the High Court or the County Court power to grant an injunction against a person if they are satisfied on a balance of probabilities that he or she has engaged in, encouraged or assisted gang-related violence. Gang-related violence is defined by section 34(5) as violence, or a threat of violence, which occurs in the course of or is otherwise related to, the activities of a group. The group must consist of at least three people, which uses a name emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and is associated with a particular area.
The police and local authorities can apply for an injunction. Under section 38 there is a consultation requirement, of a low rent nature. Before going for an injunction, the applicant has to consult any local authority or chief police officer that it thinks it is appropriate to consult, and any other body or individual it thinks is appropriate.
Mere illustrations
The consultation requirement does not apply in applications without notice, which are possible under section 39. In such a case, the applicant need not consult anyone; he can make the application and go to court for the first hearing without informing the respondent of the proceedings. The court then, under section 39(4), has to either dismiss the application, or adjourn the proceedings under section 39(4)(b) to a date for a full hearing. Only at that point must the applicant comply with the consultation requirement. But having applied without notice, without consulting anyone, the applicant can get an interim injunction at that stage. The injunctive powers of the court under section 34 are not only wide, but apparently unlimited by the Act. Section 35(2) states that: 'The prohibitions included in the injunction may, in particular, have the effect of prohibiting the respondent from'¦' followed by a list of possible prohibitions. It reads as if these are merely illustrations of what can be included in the injunction.
The suggestions are that the respondent can be prohibited from being in a particular place, being with particular persons, being in charge of a particular species of animal in a particular place, wearing particular descriptions of article of clothing in a particular place, using the internet to facilitate or encourage violence. So far so prohibitive '“ but section 35(3) permits mandatory instructions to be included in the injunction as well. The respondent can be ordered to notify the applicant of his address and of any change in that address; ordered to be at a 'particular place between particular times on particular days' (although not for longer than eight hours); present himself to a place where he is required to be at particular times; or, under section 35(d), to participate in particular activities between particular times on particular days. Under section 36 a power of arrest can be attached to any of the terms of an injunction, whether it is interim or final, other than a term which 'has the effect of requiring the respondent to participate in particular activities'.
Interim injunctions, as in domestic violence cases, last until the full hearing. If of course a respondent does not attend the full hearing, the injunction can be continued in his absence for a period of up to two years.
If any of the injunctive terms are breached, the respondent can be arrested without a warrant if a power of arrest was attached to the order. If there is no power of arrest, the court can issue a warrant for arrest if there are reasonable grounds to believe that a term of the injunction has been breached. Arrestees have to be brought before the court within 24 hours. The normal county courts rules as to penalties for breach must apply '“ commitment for contempt of course being the main sanction. However, section 45 gives the court an additional power to remand someone arrested for breach for a medical examination '“ for three weeks in custody, or four weeks if on bail. The county court judge is also, under section 45(5), given the specific Crown Court powers of remanding under section 35 of the Mental Health Act 1983 for a psychiatric report.
Untested evidence
In a worst case scenario, these measures allow a police officer, without consulting anyone, to get a prohibitive order, with power of arrest, against an absent and unrepresented respondent. The evidence can be minimal, and untested. There need be no particular reason why a without notice application is made '“ there is no statutory test of urgency or necessity. The terms can include an eight-hour curfew, requirements to report to the police, bans on movement, social activity, acquaintances clothing, and/or use of the media.
This amounts to a control order, under another name. And how respondents' eventual legal representation is funded is not yet disclosed; it would be ironic indeed if ring-fenced civil legal aid budgets were eaten up by these criminal regulatory measures.