Developments in Response to Youthful Anti-Social Behaviour
| Author | Nigel Stone |
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| DOI | 10.1177/147322540500500305 |
| Subject Matter | Articles |
Developments in Response to Youthful Anti-Social
Behaviour
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies,
Elizabeth Fry Building, University of East Anglia, Norwich NR4 7TJ, UK.
Email: n.stoneVuea.ac.uk
Abstract
This Commentary seeks to provide an update on a range of statutory initiatives to regulate
and contain young persons that have recently been subject to tempering judicial
interpretation.
1. Dispersal Areas: Child Removal Powers
As widely reported at the time, the High Court in July 2005 restrictively interpreted the
powers in respect of young persons given to the police under the dispersal powers of
s.30 of the Anti-Social Behaviour Act (ASBA) 2003.1 The test case of R (on the application
of W.) v Commissioner of Police for the Metropolis and Others [2005] EWHC 1586 Admin
concerned a district within the London Borough of Richmond that had experienced
low level anti-social behaviour arising from young people congregating there and
engaging in binge drinking. With the consent of the Borough the Commissioner had
designated certain affected locations as dispersal areas during the summer months and
Christmas period of 2004. Among the consequent powers thus given to his officers,
s.30(6) specifies that if a uniformed constable finds a person in any public place within
the designated locality and has reasonable grounds for believing that person (a) to be
aged under 16, and (b) not under the effective control of a parent or a responsible
person aged 18 or older:
he may remove the person to the person’s place of residence unless he has reasonable grounds for
believing that the person would, if removed to that place, be likely to suffer significant harm.2
It should be noted that there is no requirement or eligibility criterion that the young
person has either already behaved or is likely to act in an anti-social manner, or that
1 This provision empowers a senior police officer (of at least Superintendent rank), having reasonable grounds for believing (a)
that any members of the public have been intimidated, harassed, alarmed or distressed by the presence or behaviour of a group
of two or more persons (of any age) in public within a particular locality, and (b) that anti-social behaviour is a significant and
persistent problem in that locality, to authorise uniformed officers to exercise powers that include (s.30(4)) giving directions that
persons in groups should disperse and should not return during a specified period (not exceeding 24 hours).The overall period
during which these powers may be exercised shall not exceed six months (s.30(2)).
2 Though often described, somewhat loosely, as a ‘child curfew’, this power should be distinguished from the provisions in the
Crime and Disorder Act (CDA) 1998 s.14 for curfew schemes in respect of children aged under ten. The 1998 powers were not
addressed in the W. judgement though it should be noted that CDA 1998 s.15 provides a power of removal akin to s.30(6). It
is understood that no applications have to date been made under s.14 and the Home Office has indicated its anticipation that
ASBA 2003 s.30 powers would be used in place of s.14.
Youth Justice Vol. 5 No. 3
195
any member of the public has felt alarmed by their presence. This authority is extended
to community support officers (CSOs) by s.33.
The W. case concerned the meaning of ‘removal’, terminology already familiar under
the Children Act (CA) 1989 s.46 that empowers a constable to remove a child to suitable
accommodation if having reasonable cause to believe that the child would otherwise
be likely to suffer significant harm. For example, what if a child resists exercise of
s.30(6) powers?
Application for judicial review was pursued by the organisation Liberty on behalf of
W., a 14 year old boy who lived within the dispersal area and had become aware of the
relevant provisions when he was returning home one evening after a school trip and had
encountered a CSO who informed him of the scheme and its implications and warned
him about his apparently suspicious behaviour. Though he had not on that occasion
been made subject to s.30(6) powers, W. and his parents were upset and concerned to
learn of these measures, W. was concerned that he would not be able to go out
unaccompanied in the evening, whether to visit the cinema, to attend band practice, visit
a friend living nearby or to call at a local shop. He feared that he might be picked out by
the police and he did not want to experience the embarrassment or ignominy of being
escorted home. He felt that he was old enough to undertake such options without adult
chaperonage. He believed with some trepidation that s.30(6) gave the police power to
use reasonable force to remove him to his home against his will, as did the
Commissioner’s Director of Legal Services in preliminary exchanges with Liberty.
Giving judgement for the Divisional Court Brooke LJ interpreted the sub-section
not in the light of the European Convention on Human Rights,3 but by principles of
statutory interpretation in the context of our right to walk the streets without police
interference unless they have clear statutory or common law powers to stop us. He
noted that s.30(6) does not create an express power to use force and considered
whether this was nevertheless a ‘necessary implication’, posing the key question: is this
power of removal coercive or merely permissive? Counsel for the Home Secretary
maintained that Parliament had deliberately based s.30(6) upon CA 1989 s.46, which is
clearly coercive, thus implicitly indicating its similarly coercive nature. Brooke LJ
disagreed. While power under the 1989 Act enables the police in emergency contexts
to remove a child from their parents against the parents’ (and/or the child’s) wishes,
using reasonable force if required, the context in which s.30(6) permits removal is
‘completely different’, being exercisable without any emergency or any need for the
constable (or CSO) to be satisfied that the child would otherwise suffer significant
harm. While ‘remove’ might suggest ‘taking away’, using physical force if necessary, the
Court noted that in guidance accompanying ASBA 2003 the Home Office (2004) had
referred to power to ‘return’ a child, a word without that connotation.
Further, the Court expressed reluctance to attribute to Parliament the intention to
regard all children as potential sources of anti-social behaviour or to assume that it
intended to ignore ‘this country’s international obligations to treat each child as an
3 One obvious line of argument had concerned the potential application of Article 8 provisions governing respect for a young
person’s right to a private life without...
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