Respect Orders: Old Wine In New Bottles?

Introduction

On 22 November 2024, the Government announced¹ plans to introduce new ‘Respect Orders’ as part of a renewed commitment to “take back our streets”². These Orders will feature in the forthcoming Crime and Policing Bill and will be piloted, prior to national rollout, in selected areas in England and Wales throughout 2025. Whilst the proposal is at an early stage and therefore, we can only hope, subject to revision, the details revealed at the outset merit keen attention and discussion. Three guiding questions emerge:

1. What are Respect Orders exactly?
2. How do they, at this stage, differ from the current Anti-Social Behaviour Injunctions (ASBIs)?
3. What practical problems arise in the context such orders/injunctions?

What are Respect Orders?

The purpose of Respect Orders is to address widespread reports of anti-social behaviour (‘ASB’) within towns and cities across England and Wales by equipping the police with broader powers to respond more rapidly to instances of ASB³. According to the Office for National Statistics, around 1 million incidents of ASB were recorded by police in June 2023 – June 2024⁴.

The Home Office has outlined, in a Press Release, how Respect Orders will aim to meet its manifesto pledge to crack down on anti-social behaviour⁵. In summary, these are as follows:

• Respect Orders will impose tougher restrictions on persistent offenders of ASB.
• Such restrictions will include the power to ban offenders from town centres; from drinking in public areas; and to mandate drug or alcohol treatment, or anger management courses.
• Police will no longer have to issue a warning before seizing off-road bikes and other vehicles used in an anti-social manner.
• Failure to comply with Respect Orders will be a criminal offence. The perpetrator may face up to two years’ imprisonment, an unlimited fine or a community order.
• A power of arrest will automatically attach to such Orders.
• Respect Orders will partially replace existing civil injunctions for Anti-Social Behaviour (known as ASBIs), for adults.

How do they, at this stage, differ from the current Anti-Social Behaviour Injunctions (ASBIs)?

ASB is defined in section 2(1)(a) of Antisocial Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’) as “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”. A Court may grant an ASBI if two conditions are met. First, the Court must be satisfied, “on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour”. Second, it must be “just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour” (section 1(1)-(3)). The Government has indicated that the definition of ASB will remain unchanged⁶ and that “the same legal tests” (i.e. the civil standard of proof), currently in place for ASBIs, will apply to applications for Respect Orders⁷.

Accordingly, there appears to be a notable departure from the current ASBI regime in two respects. Presently, a power of arrest should not be attached “as matter of course” to ASBIs (Swindon Borough Council v Abrook [2024] EWCA Civ 230, paragraph [110]). Under section 4(1) of the 2014 Act, a power of arrest “may” be attached if the court thinks that,

“(a) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or

(b) there is a significant risk of harm to other persons from the respondent.”

However, Respect Orders will now include an automatic power of arrest available for all suspected breaches. The Minister for Policing, Fire and Crime Prevention explained the rationale underlying the change of approach, stating that:

“if [civil injunctions] are breached by someone behaving antisocially in a town centre or on a high street, the police have to go to court to prove the breach. That is the issue. They cannot be arrested, and the antisocial behaviour cannot be stopped at that point. There is a process that has to be gone through. With the respect orders, there will be an automatic arrest for breach, which means action can be taken far more quickly. That is the key point.”⁸

Secondly, failure to comply with a Respect Order will not be punishable as contempt of court (as is the case for ASBIs) but will constitute a separate criminal offence. In this way, Respect Orders are reminiscent (and perhaps a repackaging) of the old anti-social behaviour orders, or ‘ASBOs’, breach of which was also a criminal offence⁹. Notably, ASBOs were replaced with ASBIs and Criminal Behaviour Orders (CBOs) in 2014. The Minister has suggested that a Respect Order “combines the flexibility of the civil injunction with the teeth of a criminal behaviour order”¹⁰. However, it is important to note that whilst breach of the latter is a criminal offence, a CBO can only be imposed upon conviction, whereas Respect Orders may be imposed in the absence of any proven conviction¹¹. The upshot of this distinction is that two procedural protections of 2014 Act will seemingly be removed.

What practical problems arise in the context of such orders/injunctions?

Notwithstanding the above, systemic issues continue to contaminate the enforcement of these types of ‘Hybrid Behaviour Orders’ (so called because they are granted under civil evidential rules, breach of which is a criminal offence¹²), as well as the current ASBI system. Two recent reports highlight significant deficiencies¹³ which do not appear to be addressed in the implementation of the new Respect Orders.

First, a lack of funding and the absence of sufficient monitoring mechanisms have led to, and are likely to still result in, inconsistent and inappropriate enforcement practices¹⁴. The Home Office does not publish data relating to Orders centrally, which makes it very difficult to assess their effectiveness. In fact, evidence indicates that Orders do not, in and of themselves, tackle the underlying causes of ASB at all¹⁵. Further, they tend to operate in “a highly discriminatory manner”, disproportionately impacting the homeless, members of the Gypsy and Traveller community, as well as those experiencing mental ill health¹⁶.

Second, although civil injunctions are typically framed as preventative measures, their practical effect is often punitive¹⁷. For instance, there is no minimum or maximum term for an ASBI injunction, so a Court may decide that conditions restricting an individual’s daily activity be imposed for an indefinite period¹⁸. As Respect Orders are intended to, at least partially, replace ASBIs, their punitive elements raise concerns as to their lawfulness under Article 6 of the European Convention on Human Rights (the right to a fair trial). Recently, in Jones v Birmingham CC and Secretary of State for the Home Department [2023] UKSC 27, the Supreme Court dismissed an appeal arguing that the higher criminal standard of proof must be applied in the context of applications for civil gang injunctions. In reaching this conclusion, Lord Lloyd-Jones (with whom the Court unanimously agreed) relied on the current procedural safeguards, including that a gang injunction has a maximum two-year time limit, breach of which is not a criminal offence (see paragraph [64]). In light of these safeguards, the Supreme Court considered that the right to a fair trial was secured. I am not sure the same can be said for the proposals as they stand.

As identified above, Respect Orders will not contain the same statutory safeguards which would suggest applications for Respect Orders should attract the criminal standard of proof. (A similar approach was advanced for the granting of ASBOs in the House of Lords decision in R (on the application of McCann) v. Manchester Crown Court, Clingham v. Kensington and Chelsea RLBC [2002] UKHL 39, paragraph [37]).

Third, there is strong evidence to suggest that rather than diverting individuals out of the criminal justice system, it would counterintuitively funnel more people into criminal courts that are already suffering from substantial backlogs, without addressing the root causes of ASB in the process¹⁹. For comparison, an average number of 1,749 adults were sent to prison per year for breach of an ASBO under the Crime and Disorder Act 1998²⁰. This figure is particularly instructive given the similarities to the ASBO regime. Additionally, the Civil Justice Council has highlighted the emergence of “advice deserts”, noting that,

“although legal aid may technically be available, there are areas of the country where it is extremely difficult (if not impossible) to find solicitors who will accept instructions to advise and represent in relation to injunction applications or committals under the 2014 Act”21.

Against this backdrop, the introduction of Respect Orders is all the more alarming.

Conclusion

Given that Respect Orders will allow the imposition of possible criminal sanctions on the civil threshold, we are significantly concerned that it will lead to an erosion of individuals’ rights and the over-criminalisation of vulnerable people, with limited impact on the causes of ASB. Further, in light of the systemic problems in current enforcement practices, and the persistent failure to address the underlying contributing factors of ASB, the introduction of Respect Orders, rather than a panacea, risks perpetuating and exacerbating these issues. To that end, we would echo one of the key recommendations of the JUSTICE Report that the Government must conduct an urgent review into the function, efficacy and impact of these Orders²².

We watch and wait with interest.

If you or someone you know has been subject to ASBIs or other types of behaviour Orders and you believe that this was unlawful or in breach of your rights, you can contact our legal experts by calling 0330 822 3451 to speak with one of our civil liberties solicitors.