We are testing a new beta website for gov.scot go to new site

Housing and Anti-Social Behaviour: The Way Ahead

Housing and Anti-Social Behaviour: The Way Ahead

ANNEX A

LEGAL REMEDIES

NOISE

Public Health (Scotland) Act 1987 - Section 16: this gives local authorities powers to deal with a variety of general nuisances, including noise. It allows local authorities to inspect premises, serve notices on proprietors for the removal of nuisance and for fines to be levied if notices are not complied with. In practice noise nuisance is very rarely dealt with under this legislation.

Control of Pollution Act 1974 - sections 58 and 59: these deal specifically with the powers available to local authorities or the occupiers of premises in Scotland to deal with noise nuisance. Section 58 allows local authorities to serve notices requiring the abatement of noise, where it is satisfied that noise amounting to a nuisance exists. Section 59 allows the occupier of premises to apply to a Sheriff for an order to abate nuisance or to prohibit or restrict its recurrence. These powers were extended on 5 January 1994 when certain provisions of the Noise and Statutory Nuisance Act 1993 came into effect. This amended the relevant sections of the 1974 Act by extending controls over noise from vehicles, machinery and equipment into the road.

Civic Government (Scotland) Act 1982 - Section 54: this allows a uniformed police constable to require the perpetrator of a noise "so as to give any other person reasonable cause for annoyance" to desist from doing so. If the noise persists after this warning, the perpetrator can be charged and equipment can be confiscated for use as evidence in any subsequent court proceedings.

Environmental Protection Act 1990: Part III of this Act, as amended, deals with statutory nuisance, including noise, and came into effect in Scotland on 1 April 1996. It replaces the existing provisions of the Public Health (Scotland) Act 1897 and the Control of Pollution Act 1974, and gives local authorities certain additional powers to deal with a variety of nuisances, including noise.

DOG FOULING, PETS AND ANIMALS

Dogs and other animals are often the subject of complaint in neighbour nuisance cases. The following are some of the legal remedies available to deal with such complaints. For more detail and references on law on animals see Collins and O'Carroll (1997).

Civic Government (Scotland) Act 1982 - Section 48: this makes it an offence for anyone in charge of a dog to allow it to deposit its excrement in certain public places including footpaths, footways, children's play areas and other local authority areas which are used for sporting and recreational purposes. Any person who allows it to do so is liable on summary conviction to a fine not exceeding £500.

Civic Government (Scotland) Act 1982 - Section 49: this provides that any person who suffers or permits any creature in his charge to cause danger or injury to any other person who is in a public place or to give such a person reasonable cause for alarm or annoyance shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 2 (currently £500).

Section 49 also provides that a district court, if satisfied that any creature kept in this vicinity of any place where a person resides is giving that person reasonable cause for annoyance, may make an order requiring the person keeping the creature to take, within such period as may be specified in the order, such steps (short of destruction of the creature) to prevent the continuance of the annoyance as may be so specified. Any person who fails to comply with the order is guilty of an offence and liable to a fine not exceeding level 3 (currently £1,000).

Collaring of Dogs

Under section 13 of the Animal Health Act 1981, as amended by section 151 of the Environmental Protection Act 1990 and under the Control of Dogs Order 1992, SI 1992/901, all dogs must be collared whilst on a highway or in a 'place of public resort'. Failure to do so is a criminal offence and the dog may be seized by the police or local authority and treated as a stray. These provisions may be executed and enforced by officers of the local authority as well as the police.

Dangerous Dogs Act 1989 and 1991

The Dangerous Dogs Act 1989 and 1991, allows the police to take action against the owners of dangerous dogs not complying with the Act.

Other Animals

Under section 49(2) of the Civic Government (Scotland) Act 1982 a district court may make an order to control (but not destroy) any creature where that creature is giving a neighbouring resident 'reasonable cause for annoyance'. 'Any person' can apply for such an order, but this will not include a local authority acting either as a public health authority or on behalf of neighbouring residents.

HOUSING

Housing (Scotland) Act 1987 - Section 320: this provides that anyone who wilfully, or by culpable negligence, damages a house or any appurtenances of a house shall be guilty of an offence, liable on summary conviction to a fine without prejudice to any remedy for recovery of the amount of the damage.

Housing (Scotland) Act 1987 - sections 47-51: these provide for recovery of possession of a house let on a secure tenancy, with grounds 2, 7 and 8 of Schedule 3 to that Act being most relevant to behaviour which is anti-social. Grounds 2 and 7 have been extended under the provisions of section 23 of the Crime and Disorder Act 1998. Ground 2, as amended, allows for the possession of a house where the tenant, a person residing or lodging in the house with the tenant, or a person visiting the house has been convicted of using the house or allowing it to be used for immoral or illegal purposes; or of an offence punishable by imprisonment committed in, or in the locality of the house.

The new, extended, ground 7 allows for the possession of a house on the ground that the tenant, a person residing or lodging in the house with the tenant, or a person visiting the house has acted in an anti-social manner.

The new Ground 7 defines "anti-social" as meaning, in relation to an action or course of conduct, "causing or likely to cause alarm, distress, nuisance or annoyance". It also provides that "conduct" includes speech and a course of conduct must involve conduct on at least two occasions.

Rent (Scotland) Act 1984 - Section 11 and Schedule 2:

*Housing (Scotland) Act 1988 - Section 18 and Schedule 5:

) Provisions similar to
) sections 47-51 of the
) 1987 Act for private sector
) tenancies


*Section 23 (4) of the Crime and Disorder Act extends Ground 15 of Schedule 5 to the Housing (Scotland) Act 1988 for assured tenancies in the same way as it extended Grounds 2 and 7 of The Housing (Scotland) Act 1987 for secure tenancies.

Civic Government (Scotland) Act 1982 - Section 93:

This requires the occupiers of premises with common stairs or other common means of access to keep such means of access free of any combustible substances and of anything which might obstruct egress from, and access to, the property in the event of fire. It empowers an authorised officer of the fire authority to enter common property to determine whether the provision is being complied with, and to do anything which may be considered necessary to remove an immediate risk of fire likely to endanger life. Failure without reasonable cause to comply with a notice served requiring action to be taken is an offence punishable on summary conviction with a fine not exceeding level 3 (currently £1,000). The 1982 Act also covers dropping litter and keeping the common close clean.

By-laws for regulation of local authority's houses

Section 18 of the Housing (Scotland) Act 1987

A local authority may make by-laws for the management, use and regulation of houses held by them for housing purposes. These could be used to tackle nuisance and anti-social behaviour.

Local authority powers to take criminal proceedings

Section 189 of the Local Government (Scotland) Act 1973 gives Scottish local authorities powers to "institute, or defend or appear in any legal proceedings" where they consider it expedient for the promotion or protection of the interests of the inhabitants of their area.

These powers can be used to enable officials to act as professional witnesses and where the authority has title and interest, to seek interdict where this is necessary to protect or promote residents interests.

Lawburrows

Lawburrows is an ancient Scottish remedy against anticipated physical harm to a person or damage to property. To obtain an order for lawburrows, the applicant must show that he has reasonable cause to believe that the respondent will cause bodily harm to him, his family or property.

PUBLIC NUISANCE AND DRUNKENNESS

Civic Government (Scotland) Act 1982 - Section 47: this provides that any person who urinates or defecates in circumstances so as to cause, or be likely to cause, annoyance to any other person shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 2 (currently £500).

Civic Government (Scotland) Act 1982 - Section 50: this provides that any person who is, while not in the care of a suitable person, in a public place, drunk and incapable of taking care of himself shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 (currently £500).

It also provides that any person who is drunk in a public place while in charge of a child under the age of 10 or while in possession of a firearm (including a crossbow, air gun, air rifle or air pistol) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 (currently £500).

Social Work

Social Work (Scotland) Act 1968 and Mental Health (Scotland) Act 1984

Powers for the care and support of people who have mental health problems.

Children Act 1989 and Children (Scotland) Act 1995

Social work powers to provide support, and make care or supervision orders on children.

Protection from Harassment Act 1997:- Sections 8-11

This gives individuals the right to be free from harassment and allows them to bring an action of harassment in the civil courts. Remedies available are:

  • Interdict (or interim interdict)
  • Non-harassment Order
  • Damages (including for any anxiety or financial loss)

A Non-harassment Order can also be made in the criminal court where a person is convicted of an offence involving harassment.

Breach of a Non-harassment Order made either by a civil or criminal court in Scotland would be a criminal offence punishable on indictment by imprisonment for up to 5 years and/or an unlimited fine, or summarily by up to 6 months' imprisonment and/or up to a £5,000 fine."

Public Order Act 1986

Section 18 of the Act provides that the use of words or behaviour or display of written material intended to stir up racial hatred is an offence, although no offence is committed where the accused and the victim are in the same or another dwelling. This is an arrestable offence, without a warrant. A maximum prison term of six months can be imposed and/or a fine of £5,000. The Act also gives the police powers to tackle criminal damage, including offensive graffiti.

Misuse of Drugs Act 1971

Powers to tackle the production or supplying of controlled drugs, or possession with intent to supply.

There are a number of powers relating to conduct related to motor vehicles:

Motor Vehicle Regulations Act 1986

Provides powers to deal with obstructions caused by parking on pavements, grass verges and in front of private driveways.

Road Traffic Act 1988

Covers a range of offences including leaving vehicles in a dangerous position and driving vehicles elsewhere than on the road.

Crime and Disorder Act 1998

Includes provisions for the introduction of Anti-Social Behaviour Orders which would be made by a civil court on application by a local authority and would restrain particular individuals from engaging in specific behaviour in a specified locality or in a relevant local authority area in general. The Order would apply equally to local authority and private tenants and to home owners and failure to comply with the terms of the Order would be a criminal offence leading to the possibility of imprisonment. Other measures brought in under the Crime and Disorder Act 1998 include a new offence of racial harassment, drug treatment and testing orders, sex offender orders, police powers of seizure of sound-producing equipment, and extended powers of eviction to cover visitors and criminal acts in the vicinity of a dwelling house and to facilitate the use of professional witnesses. (See also section 12)

COMMON LAW

Under common law almost all offences which cause public disturbance are a breach of the peace and the police should be involved.

Intimidation: Scots common law recognises an offence of making "criminal threats", which may be charged where serious injury is threatened. In other circumstances, intimidatory behaviour may be charged as a breach of the peace. The penalty for a common law crime is only restricted by the sentencing powers of the court in which the case is tried. For example, a sheriff sitting with a jury may impose up to 3 years imprisonment and/or an unlimited fine.

Harassment: Harassment may be charged as a breach of the peace in Scotland, since breach of the peace is defined as behaviour likely to cause alarm or annoyance to the public. Breach of the peace is a common law crime, the maximum penalty is only limited by the sentencing powers of the court in which the case is tried.

Interdict: This is a remedy, obtained by an order of the civil court, to prevent wrong, harm or injury being done to a person or his or her property. It also would be available where a person anticipates that wrong, harm etc may be done to him or her or to his or her property. The conduct on which the complaint is based must amount to some appreciable wrong, harm or injury (not necessarily physical injury). Reasonable grounds for fearing such conduct is sufficient. If the court grants interdict, it must state precisely what acts it is designed to prevent. Interdict may be obtained on an interim basis to preserve affairs in their existing state pending a decision of the court. The remedy is not available if some statutory remedy, which would achieve the desired end, is available.

NEW LEGISLATIVE MEASURES

Crime and Disorder Act 1998

Sections 19-22 of the Act create two new civil orders - the anti-social behaviour order and the sex offender order.

Anti-social behaviour orders

This is an order which can be applied for by the local authority in consultation with the police against an individual whose behaviour is anti-social (i.e. causes alarm or distress to one or more people not in the same household as himself). The order will prohibit the person from doing whatever is considered necessary to protect people in the area from further anti-social acts by the person.

Applications can be made by the local authority against owner-occupiers; private sector tenants; and tenants of public sector landlords, including local authorities. Orders can only be made against those aged 16 or over. Applications will be made to the sheriff court acting in its civil capacity. Allowance is made for co-operation across neighbouring police and local authority boundaries.

Breach of an order without reasonable excuse is a criminal offence with a maximum penalty on indictment of five years in prison.

Sex Offender Orders

The police can apply for an order against anyone with a conviction for a sex offence whose present behaviour in the community gives the police reasonable cause for concern that an order is necessary. The order will prohibit the person from doing whatever is considered necessary to protect the public from serious harm.

Applications can only be made against a person who is aged 16 or over at the time of the application. But convictions for sex offences imposed before the age of 16 can be relied on in the application. Applications are to the sheriff court acting in its civil capacity. The orders require sex offenders to register under the Sex Offenders Act 1997 while they are in effect.

Breach of an order without reasonable excuse is a criminal offence with a maximum penalty on indictment of five years in prison. The Act defines sex offenders and provides for the orders to apply to offenders who have been convicted abroad.

Anti-Social Behaviour as ground of eviction

Section 23 of the Act extends the grounds available to public sector and other landlords to repossess a house in cases of criminal conduct committed, or anti-social behaviour committed or likely to be committed, in the locality of tenanted property by the tenant, or someone residing or lodging with him, or by visitors to the property. This will enable tougher action to be taken against drug-dealers and other criminals, and will facilitate the use of professional witnesses.

Current housing legislation already provides discretionary grounds for eviction where the house is used for criminal or immoral purposes, or where the tenant or any person residing in the property conducts himself in a manner which causes a nuisance or annoyance to residents, either in the property itself or in the vicinity of the house. The provisions do not, however, extend to cover criminal acts committed in the locality of the house, or to cover the activities of visitors to the properties. The new clause will amend the provisions in these areas and will bring the Scottish provisions into line with those for England and Wales.

Additional police powers of seizure of sound-producing equipment

Section 24 of the Act brought in additional powers for the police to seize sound-producing making equipment which is disturbing neighbouring households. The new provisions will enable the police to confiscate equipment immediately for 28 days if someone fails to stop the noise when asked to do so by the police under the Civic Government Act provisions. The owner can then ask for the equipment to be returned to him, but will have to collect it in a way which suits the police and to pay whatever charge the police consider reasonable to cover their costs.

Drug Treatment and Testing Order

Sections 89-95 of the Act introduced a new non-custodial disposal, a drug treatment and testing order. It is aimed at those who are convicted of crime(s) which fund their drug habit. It allows the court, with the offender's consent, to make an order requiring the offender to undergo treatment for his drug problem. Mandatory drug testing is an integral part of the treatment.

The order is available for offenders aged 16 or over whom the court considers to be dependent on, or have a propensity to misuse, drugs and who are assessed as being suitable candidates for treatment. The order will last between six months and three years and must:

  • state whether the treatment will be residential or non-residential and identify the treatment provider;
  • specify the frequency of drug testing;
  • specify the local authority area where the offender will reside;
  • provide for the offender to be supervised by a supervising officer appointed or assigned by the local authority.

An explanation must be given by the court to the offender on the effect and meaning of the requirements of the order; the consequences of failure to comply; and the powers of the court to review the order. The order will be reviewed at intervals of not less than one month.

Extended Supervision for sexual and violent offenders

Sections 86-88 of the Act introduced extended post-release supervision for sexual and violent offenders. Courts can add a period of extended post-release supervision to the sentence it would normally impose on a person convicted of a sexual or violent offence.

The power can be used where the court considers that the sentence it would impose would not provide a period of supervision of sufficient length to protect the public from serious harm from the offender. For sex offenders the extension period may be up to a maximum of ten years and may be added to a determinate custodial sentence of any length.

For violent offenders the extension period is five years and may be added to a determinate custodial sentence of four years or more. The extension must be within the maximum penalty available for the offence.

Racially aggravated offences

Sections 33 and 96 of the Act introduce a new offence of racially aggravated harassment and provide an obligation for the court to take account of any established racial motivation in any offence as an aggravation when determining the appropriate sentence.

A person is guilty of racially-aggravated harassment if he-

  • follows a racially-aggravated course of conduct which amounts to harassment, either intended or where it would appear to a reasonable person that it would amount to harassment, or
  • acts in a manner which is racially aggravated and which causes or is intended to cause alarm and distress.

A course of conduct is defined as being racially aggravated if it is-

  • one motivated by racial hostility; or if
  • racial hostility was demonstrated towards the victim either at the time of committing the offence, or immediately before or after.

It covers cases where a person is attacked because of his relationship with a member of a racial group. Racial group is defined as a "group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."

The maximum penalty for racial harassment is six months' imprisonment or a fine not exceeding the statutory maximum or both on summary conviction, and on indictment, seven years' imprisonment or a fine or both.

Other Provisions

Other provisions in the Act which cover Scotland include new powers for the police to unmask potential violent offenders (Sections 25 to 27), provision enabling persons or organisations to disclose information to the police and local authorities for the purposes of the Act (Section 115), and provisions relating to certain life prisoners (Section 109) and further sentences on those released from custody from a previously imposed sentence (Sections 111 and 112).You are invited to respond to any or all of the issues raised in this document. Responses should be submitted by 31 January 2000 to:

Roddy Maclean
Housing Division 1
Scottish Executive Development Department
1-G
Victoria Quay
EDINBURGH
EH6 6QQ

or by e-mail to Roddy.Maclean@scotland.gov.uk

Responses to this paper will normally be made publicly available unless you clearly and specifically ask us not to.

Further copies of the paper are available from the above address. In addition, an electronic version is available on the Scottish Executive website at:
http://www.scotland.gov.uk