Independent Working Group on Antisocial Behaviour: review report

Definitional Challenges

The legislation includes definition of what constitutes antisocial behaviour and is deliberately broad, recognising that what constitutes an antisocial act or behaviour will vary from incident to incident based on a range of factors, and will likely have a range of impacts on those affected, including on sense of safety and wellbeing.

At the core of discussion in relation to the definition of antisocial behaviour is whether the current definition is too broad and therefore open to - too wide an interpretation. For some, the broad definition leads to difficulty in describing those acts and behaviours that would meet a defined threshold for criminal conduct. The contrary view however is that the broader definition allows for intervention tailored to the behaviours and the impact of these.

Providing a more detailed and specific definition may make recognising criminal acts and behaviour easier for all, arguably it would lead to many situations where opportunities for earlier, and less punitive, interventions delivered through local authority and diversionary activity were reduced or removed entirely. This could lead to a situation where wider public service is unable to provide the strategic collaborative approaches as intended through the 2004 Act. Notwithstanding this, it is important to recognise that inconsiderate, annoying behaviour may not be antisocial behaviour and will generate a different response.

More recent development in public policy has recognised the importance of advancing a rights-based approach to the provision of public services. This supports a continued broad definition of those acts and behaviours which may be considered antisocial, recognising that there is a broad spectrum from behaviours which could be considered inconsiderate or uncivilised to those where repetition and cumulative impact may deem these to be criminal.

Antisocial behaviour legislation does not supersede primary legislation that defines explicit criminal acts, such as those that constitute criminal damage, threatening or abusive behaviour intended to stir up hatred, supply and use of controlled drugs, etc. A pattern of these complaints or any one of these crimes may also constitute antisocial behaviour, in that the Court would or has concluded that a person acted in a manner that has caused or would likely to cause alarm and distress, thus satisfying the Court that an Antisocial Behaviour Order (ASBO) is necessary.

The risk in using such a broad definition, however, is that many acts and behaviours that could constitute antisocial behaviour are not reported or recorded as such, leading to under-recording of this social issue and therefore a lack of coordinated and collaborative action to address it.

The shortcoming in the current collation of related data is highlighted above. Although current recorded data demonstrates a stable or downward trend in reported antisocial behaviour in Scotland, through a range of engagements undertaken by partners and stakeholders, we know that anecdotally this is not the reality, with accounts of many individuals and communities not reporting antisocial behaviours they experience. This was reinforced through engagement undertaken by the Working Group with communities and individuals leading to a risk that a narrower definition of antisocial behaviour may further conceal that reality.

Although the Antisocial Behaviour etc (Scotland) Act 2004 is regarded as the primary legislation to tackle antisocial behaviour, due to antisocial acts encompassing such a range of issues such as noise, harassment, property damage, littering, fly-tipping or graffiti, this has been supplemented by various other legislation including (but not exhaustively) Housing (Scotland) Act 2001, Housing (Scotland) Act 2010; Housing (Scotland) Act 2014; giving Housing Providers additional tools to tackle antisocial behaviour. Additionally, the following Acts also give Local Authorities and partners powers to tackle antisocial behaviour outwith the 2004 Act - Misuse of Drugs Act 1971; Psychoactive Substances Act 2016; Civic Government (Scotland) Act 1982; Environmental Protection Act 1990, Regulation of Investigatory Powers (Scotland) Act 2000 and also reflect taking cognise of the Adult Support and Protection (Scotland) Act 2007; Children (Scotland) Act 1995 and Equality Act 2010 to ensure those with protected characteristics are not disadvantaged and given additional support and protections. The fact that this legislative framework crosses multiple policy areas and includes reserved matters (the Misuse of Drugs Act 1971), renders more complex and challenging the task of creating new and more effective policies for tackling antisocial behaviour.

Action:

• The current legislation, definition and guidance requires to be reviewed and revised. This review should consider what support, and training will need to be provided and how any new legislation will be implemented.