In all the recent blogging around the ‘Respect Agenda’ (Justin and TP have been particularly good), one point that hasn’t been made is that all this is nothing new. Or rather, it’s nothing new to New Labour. This government has passed huge amounts of law-and-order legislation, much of which has been devoted to taking responsibilities away from the courts and giving them to the police. (And to Community Support Officers, but that’s another story.) Here are some of the highlights.
When this government came in, there was a fairly clear distinctions between charge, arrest and caution. A suspect could be charged, with a view to subsequently issuing a court summons; this was the standard procedure for crimes attracting a penalty of less than five years’ imprisonment at the first offence. In some situations a suspected offender could be arrested pending prosecution: this option was available for more serious crimes and for the prevention of a breach of the peace, as well as for the purpose of enabling a summons to be served (for instance, if a suspect attempted to abscond or refused to supply a valid name and address). Finally, a suspect who was charged with and admitted an offence could be ‘let off with a caution’ in lieu of court proceedings. A simple caution is not a conviction and does not carry any penalty; it does, however, represent an admission of guilt and remains on the offender’s criminal record for five years.
Pretty much all of this has changed. Successive pieces of legislation passed since 1997 have classed a number of less serious crimes as ‘arrestable’, particularly in the area of public order; the 2003 Criminal Justice Act clarifies the increasingly arbitrary boundary between arrestable and non-arrestable offences by the simple expedient of making all offences arrestable.
Since 1998 young offenders are no longer cautioned, but given a ‘reprimand’ at a first offence and a ‘final warning’ at a subsequent offence. A warning will generally be coupled with a referral to the local Youth Offending Team (YOT), who will be charged with developing a programme of activities to address the offender’s behaviour; in some cases a reprimand will also include a YOT referral. While a YOT programme is not a criminal penalty and is not compulsory, the effect is to couple a police caution with an official sanction. This principle is followed by the recent introduction of the ‘conditional caution’ for adult offenders: a caution may be coupled with a programme of restitutive or rehabilitative activity. If the offender does not comply with the programme, a prosecution for the original offence may follow.
The 2001 Criminal Justice and Police Act introduced penalty notices for disorder (PNDs): a type of fixed penalty notice (FPN). An FPN — previously used primarily for traffic offences — is not a penalty for the offence. Rather, the recipient is served notice that he or she may be prosecuted for the offence, but that the liability can be discharged by paying a set fine. PNDs are given primarily for drunk and disorderly behaviour. A 2004 study of a pilot scheme suggested that between half and three-quarters of PND recipients were ‘new business’, i.e. individuals who wouldn’t otherwise have been cautioned, arrested or charged.
The use of ‘vanilla’ FPNs has also been extended. The 2002 Police Reform Act introduced a range of minor offences, generally associated with ‘anti-social behaviour’, for which FPNs can be issued by locally-accredited Community Support Officers as well as by police officers. The range of offences involved has subsequently expanded — under the 2002 Act and by provisions in the 2003 Anti-Social Behaviour Act — from three to 20. Community Support Officers (who go out on the beat after six weeks’ training) have no power of arrest, but can detain a suspect until the police arrive. There has been talk of empowering CSOs to escort truanting children back to school; the power to escort adults to the local nick is probably not far behind.
ASBOs have been around since 1998. An anti-social behaviour order (ASBO) is a court order, which must be obtained from a magistrate (and may be requested by a range of agencies other than police forces – a range which looks set to expand). An ASBO is an injunction to refrain from specified activities, which can be obtained on the grounds that the offender has engaged in these activities as part of a pattern of ‘anti-social behaviour’. The criminal sanctions associated with ASBOs relate to the offence of breaching a court order, rather than to the actions involved. These actions may in themselves be entirely legal; they may not even be ‘anti-social’ if carried out in other circumstances, in other locations or by other individuals. (ASBO provisions have been used to bar individuals from riding bicycles, wearing gloves, etc.)
Then there are measures relating to property. The 2002 Proceeds of Crime Act relates to the confiscation of assets gained through crime or used for criminal purposes; it enables the courts to seize the property of suspects committed for trial in a crown court (not, necessarily, convicted offenders). There is also a provision in the act for the immediate seizure of cash which a police officer believes to be crime-related. The threshold for this type of seizure was set in the act at £10,000; it was subsequently lowered to £5,000 and is about to be brought down again to £1,000. (That’s inflation for you.) The 2003 Anti-Social Behaviour Act, finally, enables the police to obtain a court order closing and sealing premises which they believe to be used for drug offences (the ‘crack house’ provision). There is no requirement to prove that drug offences have taken place at the premises, or been committed by anyone using the premises. This is the provision which the government is planning to extend to cover noisy neighbours.
Some of these interventions relate to behaviour which is not in itself criminal; others broaden the range of criminal offences which are in practice sanctioned, or heighten the sanction applied (as in the case of the extension of powers of arrests). What all these measures have in common is that they erode the distinction between police intervention and penal sanction.
I don’t think there’s any grand plan behind these developments. The police forces of England and Wales are an institution, and like all institutions they would rather have more power than less. What’s extraordinary is the government under which this has happened. Back in the 1980s (hey, you young people…) scary people like Peter Bruinvels would get up at the Tory Conference and talk about giving the police the support and the resources they need – and Thatcher herself would let it be known that she thought James Anderton had it about right – but things never changed all that much. (At any rate, things never changed this much.) Perhaps this was because there was a good solid layer of permanent-government bureaucracy between the Thatcher circle and the places where laws were drafted; perhaps it was because Thatcher faced a Labour opposition. Neither condition obtains now. Or perhaps – saddest thought of all – the reason why Thatcher didn’t give the police lobby everything it wanted was simply that she had ideas of her own.