Introduction
- The Scottish Government published a consultation document this month concerning “anti-social behaviour orders” (“ASBOs”). As the name suggests an ASBO is an order made by a court to stop someone from behaving in an anti-social way. The main source for the legislation is the Antisocial Behaviour etc. (Scotland) Act 2004 (“the 2004 Act”).
- The consultation document does not propose anything radical in the way of changes to the régime. As the document says: “ … the changes suggested in this consultation are largely technical changes.” So the aim of this Note is not to discuss the possible changes as may result from the consultation but to treat the consultation document as a catalyst for reviewing in outline the ASBO régime.
- As often with legal matters it’s easy to get bamboozled by the terminology and the proliferation of acronyms. The following are all inter-connected but different things:
- “anti-social behaviour orders” (“ASBOs”);
- “anti-social behaviour notices” (“ASBNs”); and
- noise control warning notices and fixed penalty notices (“FPNs”).
1. ASBOs
- “Anti-social behaviour” in relation to ASBOs is defined in the 2004 Act as follows:
“For the purposes of this Act … a person (“A”) engages in antisocial behaviour if A–
(a) acts in a manner that causes or is likely to cause alarm or distress; or
(b) pursues a course of conduct that causes or is likely to cause alarm or distress,
to at least one person who is not of the same household as A.”
- An ASBO is an order, given out by a court, to stop a person’s antisocial behaviour. It is a civil court order: it is not a criminal conviction and so does not give a person a criminal record. However, someone who has an ASBO registered against them may be prosecuted under the criminal law if they breach its terms.
- ASBOs contain specific terms and conditions that say exactly what the person cannot do, or where they cannot go. The conditions might apply for a limited period or indefinitely. The terms of each ASBO will be unique in being directed to a particular individual in particular circumstances.
- Only a local authority (or a registered social landlord) can apply to the court for an ASBO. This is not something the individual who is suffering the anti-social behaviour may do “off their own bat”. A person suffering anti-social behaviour can request the local authority (or registered social landlord) to apply for an ASBO but they cannot be required to do so.
- Nevertheless, local authorities have a duty to investigate anti-social behaviour and have to have systems in place for doing. For example, Glasgow City Council now has a 24-hour telephone line to provide advice to those affected by anti-social behaviour. In any event, it is important to report any problems to the local authority so they have a record of all incidents.
2. ASBNs
- ASBNs are different from ASBOs. An ASBO applies to the person who is behaving anti-socially. An ASBN applies only to private landlords whose tenant is behaving anti-socially.
- The local authority can send a landlord of a private tenancy an ASBN if one of their tenants (or someone else living in or visiting the tenant’s home) is behaving antisocially, and the landlord has not done anything to try and stop them. (There is scope for a landlord to require a formal review of the ASBN if they feel they have done what they can to stop the anti-social behaviour.)
- The ASBN will tell the landlord what they have to do to stop the antisocial behaviour and the landlord must comply within a specified time.
- If the landlord doesn’t do what the notice says, the council can apply to the court for a range of sanctions. In particular however, if a landlord fails to comply they shall be guilty of an offence and, on conviction, liable to a fine not exceeding £5,000 (s. 79 of the 2004 Act and s. 225 Criminal Procedure (Scotland) Act 1995). It is however a defence for a landlord charged to show that there was a reasonable excuse for the failure in question.
- It’s worth remembering that the local authority can also take direct action against the tenant who is behaving antisocially e.g. by applying for an ASBO against them.
Noise control provision – warning notices and FPNs
- Part 5 of the 2004 Act contains provisions in relation to domestic noise. It gave local authorities powers to tackle the problems of noise coming from dwellings.
- If a local authority officer considers that the noise from a dwelling exceeds the permitted noise level s/he may issue a warning notice. The warning notice only has effect at least 10 minutes after it is served. Where the warning notice is not complied with the person responsible for the noise will have committed an offence. The officer may then issue a fixed penalty notice.
- Unsurprisingly, the permitted noise levels are determined in some detail (by the Antisocial Behaviour (Noise Control) (Scotland) Regulations 2005):
| 7 am to 7 pm in any day | 41 decibels, where the underlying level of noise does not exceed 31 decibels; or where the underlying level of noise exceeds 31 decibels, 10 decibels in excess of that underlying level of noise. |
| 7 pm to 11 pm in any day | 37 decibels, where the underlying level of noise does not exceed 27 decibels; or where the underlying level of noise exceeds 27 decibels, 10 decibels in excess of that underlying level of noise. |
| 11 pm on any day to 7 am in the following day | 37 decibels, where the underlying level of noise does not exceed 27 decibels; or where the underlying level of noise exceeds 27 decibels, 10 decibels in excess of that underlying level of noise. |
- The Act provides local authorities with the discretion to adopt a service, according to local needs, and to set the times and days over which such a service operates. In this regard, the Glasgow City Council website provides:
“Land and Environmental Services provide a comprehensive noise control service both during and outwith office hours.
…
We aim to visit or telephone you to discuss your complaint on the day the complaint is received.
We will keep you informed throughout all stages of our investigation.
…
We will aim to visit you at suitable times to witness the noise. You will be offered a minimum of three visits to this end.
…
Where appropriate we may approach the person complained of and attempt to find a solution.
We will use noise monitoring and/or recording equipment, where necessary.
We will issue Warning Notices and Fixed Penalty Notices or use other enforcement powers as appropriate however we will notify you prior to taking any legal action that may require your attendance at court.
We will offer advice on alternative actions.”
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email paul@mitchells-roberton.co.uk