On Liberty (11 page)

We went to a community centre on one of the more deprived estates in Blunkett’s constituency. We sat at a large table with residents, mostly mums, who each introduced themselves by name and with an identical declaration of support for government policy. Almost ‘AA style’ they began: ‘My name is X and I support the ASBOs.’ Blunkett then introduced me, making a point that I was up from London and that people should be nice and polite to me. I felt completely set up for a fall, until the real conversation began.

It quickly became clear that the residents of the estate in question had been terrorized by a group of young men threatening them with machetes to have their way and create havoc.
My response was – and is – that this does not fall under the definition of anti-social behaviour but of serious violent crime. It’s fair to say that people in more affluent areas of the country would not be satisfied with a civil ‘stay away’ injunction if they and their children experienced this kind of treatment. Nothing short of criminal prosecution for these men would and should do. It quickly dawned on my fellow mothers what I was trying to say: that these quick fixes are unfair to mistakenly suspected offenders, but they can also do terrible injustice to the victims of crime. Then one woman completely departed from the script. ‘I have been a victim of crime,’ she said, ‘but I also have a son in the system.’ At that point, she broke down. She needed no lectures from me or anyone else on the need for empathy with all of the ‘children of the poor’.

When, in the summer of 2010, the new coalition government announced a review of the system of civil injunctions for anti-social behaviour, it seemed the ASBO, the Gangbo (injunctions designed to tackle gang related violence), the VOO (Violent Offender Order, intended to protect the public from an offender who is ‘a current risk of inflicting serious harm’) and the ever-expanding list of civil responses to behaviour ranging from the puerile to the seriously criminal were finally in the firing line. Sadly, Liberty’s hopes were quickly dashed when, the following year, the Home Office revealed its intentions. While showcasing some alarming statistics about the failures of that whole regime, the consultation document, which eventually found expression in the Anti-Social Behaviour Crime and Policing Bill, lacked any kind of genuine new thinking on the subject. Preoccupied by the perceived bureaucracy, complexity and centralization of the system, together with the claim that penalties for breach were not tough enough, the Home Office was more concerned to streamline the process and to make the now inevitable noises about being seen to be tough on crime, rather than to tackle the fundamental issues surrounding ASBO-type legislation. Unsurprisingly, misdiagnosis
led to bad medicine. The coalition government unveiled a simplified system containing fewer individual orders but framed to cover even wider categories of behaviour and activity. Another flurry of acronyms emerged: the Crimbo (Criminal Behaviour Order), the Public Space Protection Order or PSPO, issued in cases where ‘activities carried on or likely to be carried on in a public place will have or have had a detrimental effect on the quality of life of those in the locality’, and the IPNA (Injunction to Prevent Nuisance or Annoyance). The IPNA effectively replaced the ASBO. Now, sanctions could be imposed not just on anybody involved in activity perceived to be causing ‘harassment, alarm and distress’, but for any kind of behaviour seen to be causing ‘nuisance and annoyance’ – a full-spectrum definition if ever there was one.

Such a sweeping definition might feasibly allow an IPNA to be imposed on everyone from queue jumpers to noisy children, carol singers to trick-or-treaters. If I find an unthinking politician a ‘nuisance and annoyance’, should I be able to take out an ASBO against him? The coalition’s great review of responses to anti-social behaviour had simply spawned a new generation of injunctions that were broader, easier to obtain, harder to comply with and carried harsher penalties than ever before. As the 2013 report of Parliament’s influential Home Affairs Select Committee concluded, with more than a hint of exasperation:

Each time successive Governments have amended the ASB regime, the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened. This arms race must end. We are not convinced that widening the net to open up more kinds of behaviour to formal intervention will actually help to deal with the problem at hand.

In authoritarian times, it always seems to be the children who get the roughest end of the stick. For just as the so-called
‘respect’ agenda created a false distinction between the ‘worthy’ and ‘unworthy’ poor, it seemed to play into and exacerbate a deep-seated ambivalence towards the nation’s young. We do so many things so well in the United Kingdom. For all our troubles, I would still for the most part rather be non-white here than in so many other countries that lack the richness and complexity of ethical, cultural and national differences that go back before the various imperial and post-imperial migrations of the nineteenth and twentieth centuries. Yet how many times have you heard someone from another continent or country point out Britain’s strange, and at times still almost Victorian attitude towards its young? If my speech is free and yours expensive, the equation becomes even more fraught in the context of our own, as opposed to other people’s children.

The concept of a ‘spoilt child’ conjures up the image of an object that can be treasured or ‘spoilt’ like a possession. We have a tendency to view our own kids as little angels who can do no wrong, while those of our neighbours are all too easily the ‘hoodies’ from hell. This tension in perception becomes even greater in a world of mobile communities and extended families and with an ageing population including many isolated older people, who can begin to see children and younger people as almost inherently threatening and for whom their own youth is a distant memory. People are always taken aback when I say that, at Liberty, we receive more angry correspondence for standing up for the rights of children than those of terror suspects. As if ‘human rights’ weren’t frightening enough, the idea of children having rights is even more terrifying and challenging to our own communities, behaviours and responsibilities. If Eleanor Roosevelt was correct that rights begin in ‘small places close to home’, for some people at least, that is a little too close for comfort.

Professional teenager that I am now that I make a living out of saying ‘that’s not fair’ to figures of authority, I feel anger on their behalf when I think of the legacy that my generation
is in danger of leaving young people. They didn’t crunch the credit or warm the planet. Nor did they start wars – real and metaphysical – at home and abroad. But their futures are precarious: they will most likely work longer and harder for less and with fewer benefits in order to support my generation into a longer and increasingly difficult old age.

It doesn’t seem too much to ask that in relation to the young in particular, we try to understand what might lie behind disorderly behaviour. More important perhaps, that we try to ensure that young people’s early encounters with the state might not come in the form of police officers. In addition to the near inevitability that general anti-social behaviour powers are disproportionately used against the young, two further toxic by-products of ASBO-style measures are worth highlighting: one a creature of the statute book and the other of technological ingenuity and commerce.

In addition to the power to arrest the young for suspected criminal behaviour, there have long been powers to remove young and vulnerable children to places of safety if they appear to be inappropriately at large in a way that puts them at risk. To this you can add offences and powers relating to compulsory school attendance and truancy. Indeed, in his pre-Home Office role as Education Secretary, the ASBO champion David Blunkett managed to make ‘failing to secure’ a child’s school attendance an imprisonable offence. But where was the need for new legislation that allowed local authorities to effectively create a power to arrest and ‘escort home’ any under-sixteen-year-old found at large in the curfew zone between 9 p.m. and 6 a.m., even in the height of summer?

There was no need for suspicion that a young person was involved in anti-social behaviour even according to the broad and vague definition discussed earlier. The Anti-Social Behaviour Act of 2003 already provided local authorities with blanket powers that led to the creation of over 1,000 ‘dispersal zones’ – designated areas where the police can, among other things,
disperse groups of two or more people – in England and Wales between January 2004 and April 2006. How on earth did these powers provide children with a lesson in respect, let alone responsible behaviour, when they weren’t even behaviour-related?

Back in 2005, Liberty successfully challenged the curfew measures by bringing a test case on behalf of ‘W’, a fifteen-year-old boy and ‘model student’ from the leafy London Borough of Richmond who was affected by a local curfew which would see unaccompanied under-sixteens forcibly removed to their homes if out between 9 p.m. and 6 a.m. With the aid of the interpretative power in section 3 of the Human Rights Act, the following year the Court of Appeal effectively emasculated the curfew measures by ruling that the police could only use force to remove children who were actually involved in or at risk from actual or imminently anticipated bad behaviour.

Six years later, however, things took a further and more explicit turn for the worse. In Tottenham on 4 August 2011, Mark Duggan was shot and killed by the Metropolitan Police, who believed him to be carrying a gun. Rioting followed throughout London and several other English cities. The unrest spread like wildfire in our modern world of twenty-four-hour news coverage and social media such as Facebook, Twitter and BlackBerry Messenger. This strife might have been avoided but for a completely incompetent and inadequate response to community concern from both the police and the Independent Police Complaints Commission. Liberty had campaigned for the creation of the IPCC, but it failed in speed and robustness in every major test of confidence, most significantly the shooting of Jean Charles de Menezes in July 2005. De Menezes was a Brazilian man killed by police at Stockwell tube station after he was misidentified as a terror suspect.

In 2011, an all-too-familiar debate ensued in the months that followed the riots. It felt like the harsh and divisive 1980s all over again. Some politicians and public figures called for
more lethal weapons and political direction over the police instead of more understanding for the delicate relations between poor people and their police in our inner cities and the underlying causes of social unrest.

Some isolated voices suggested that the young and poor were not only or even primarily to blame for the riots of summer 2011. It was a right-of-centre journalist, the
Daily Mail
and
Telegraph
writer Peter Oborne, who put it best, pointing a finger at the rich and powerful for setting a bad example in the form of MPs’ expenses, phone-hacking and a general lack of social awareness while wagging their authoritarian forefingers at the less fortunate: ‘The culture of greed and impunity we are witnessing on our TV screens stretches right up into corporate boardrooms and the Cabinet. It embraces the police and large parts of our media. It is not just its damaged youth, but Britain itself that needs a moral reformation.’

Other responses were less reflective. Take the example of the London Borough of Wandsworth. One night in September 2011 I returned home from a speaking engagement and turned on the local news. A powerfully articulate Wandsworth resident was speaking of her imminent eviction by her local authority from council housing. Her near-adult son had been arrested for opportunistic looting during the riots and she was to be punished for it by being turfed on to the street.

Make no mistake, I understand how fragile the rule of law can be and how frightening its disappearance can be too. It is understandable that a minor theft during a riot might be punished more seriously than one in ordinary circumstances for fear of complete social breakdown otherwise ensuing. But that is surely no excuse for the double punishment of the poor?

Say that yours truly, a bourgeois liberal lawyer from South London, had come across an unsecured and unattended shop at the height of the riots. If I had been spotted helping myself to a bottle of wine from the already ransacked shelves and was
arrested, I would no doubt be prosecuted for the crime. And were I found guilty, any subsequent sentence might be harsher than usual, in order to make an example of me. Arguably that makes sense, on account of my knowing better; on account of my privilege and quite possibly on account of my hypocrisy in daring to suggest how others should behave (not least on these pages) and in general as a human rights and rule of law campaigner. However, my prosecution and sentence would be once only and in the criminal courts to appropriate standards. Even if I went to prison, having served my term I would still be able to return to my private home (assuming that my mortgage was paid while I was inside). Why then should someone poorer, in social housing or private rental accommodation, suffer the double punishment of subsequent homelessness, not even for their own criminality but that of a family member or dependant? What if they are responsible for other family members – older parents or younger children, for instance – in addition to the errant teenager? What social objective is achieved by deliberately making people with problems homeless? I have rarely felt so impassioned as I did on watching the eloquent Maite de la Calva, a fervent Christian who had given considerable service to her community, taking on Wandsworth Council on the news. My late night email to Liberty staff insisting we help must have been met with exhausted groans by my long-suffering colleagues. Yet when I arrived at work at eight thirty the next morning my wonderful colleague the campaigning lawyer Emma Norton was already on the case.

After getting in touch with Maite we discovered she had been served with a Notice of Seeking Possession on 12 August 2011 stating she was likely to be in breach of her tenancy agreement and would be evicted if her son was convicted. Maite also has a young daughter, another innocent, wholly unconnected to her brother’s crime, whom Wandsworth Council would also see punished. Some months later, even after the
conviction of Maite’s son, Wandsworth was persuaded by Liberty’s public and legal campaign not to make Maite and her family homeless.