Powers of entry

Section 74: Powers of entry for the purpose of complaints or appeals

149.     This section gives local authorities and the appeal authority powers to enter the neighbouring land in order to carry out their functions under the Bill. They must give 24 hours' notice of their intended entry and, if the land is unoccupied, leave it as effectively secured as they found it. Intentionally obstructing a person exercising these powers is an offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale.

Enforcement powers etc.

Section 75: Offences

150.     Failure to comply with a remedial notice is a criminal offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale. There is also provision for daily fines if the requisite work remains outstanding following a court order.

Section 76: Power to require occupier to permit action to be taken by owner

151.     This applies section 289 of the Public Health Act 1936 with modifications to allow the owner of the land where the hedge is situated, rather than the occupier or another person with an interest in the land, to comply with a remedial notice.

Section 77: Action by relevant authority

152.     This section gives the local authority power to enter the neighbouring land and carry out the works specified in the remedial notice, if the owner or occupier of the land fails to comply with its requirements. It will be open to the authority to exercise these powers whether or not criminal proceedings are brought under section 75. The costs of this work can then be recovered from the owner or occupier of the land. Any unpaid expenses would (until recovered) be registered as a local land charge. When exercising these powers, the local authority must give 7 days' notice of their intended entry on to the land.

Section 78: Offences committed by bodies corporate

153.     Where offences are committed by bodies corporate, proceedings may, in certain circumstances, be taken against individual officers as well as against the body corporate.

Supplementary

Section 79: Service of documents

154.     This section explains how documents referred to in this Part should be delivered to the recipients.

Section 80: Documents in electronic form

155.     This deals with delivery of documents in electronic form. In particular, it prevents the use of electronic communications for sending copies of a remedial notice (under section 69).

Section 81: Power to make further provision about documents in electronic form

156.     This section gives the Secretary of State and the National Assembly for Wales power to make regulations amending the provisions about the delivery of documents in electronic form.

Section 83: Power to amend sections 65 and 66

157.     This section gives the Secretary of State and the National Assembly for Wales power to extend the scope of complaints covered by this Part (under section 65) and to alter the definition of 'high hedge' (in section 66) through regulations. Such regulations are subject to the affirmative resolution procedure.

Section 84: Crown application

158.     This section applies the provisions to the Crown. Crown employees (but not the Crown itself) will be liable to prosecution for a criminal offence under this Part. A local authority will be able to investigate and determine complaints about high hedges on Crown land, for example a hedge on land owned by a Government Department may be affecting neighbouring domestic property.

PART 9: SANCTIONS ETC.

Section 85: Anti-social behaviour orders

159.     This section amends section 1 of the Crime and Disorder Act 1998 (the 1998 Act). Section 1 of the 1998 Act (as amended by the Police Reform Act 2002) permits the police, the British Transport police, local authorities and registered social landlords to apply for anti-social behaviour orders (ASBOs). Magistrates' courts can issue orders to persons over the age of 10 years who have acted in an anti-social manner, where the order is necessary to protect others from further anti-social acts. Section 1 of the 1998 Act defines an anti-social manner as that which causes or is likely to cause harassment, alarm and distress to one or more persons not of the same household as the person against whom the order is made. An ASBO prohibits that person from doing anything described in the order. Equivalent orders are available in the county court and in the Crown Court under sections 1B and 1C respectively of the 1998 Act.

160.     Subsection (2) amends section 1(1A) of the 1998 Act by adding housing action trusts (HATs) and English county councils to the list of relevant authorities who can apply for an ASBO or an order in county court proceedings. The addition of HATs and county councils to the list also makes them subject to the requirement in section 1E(4) of the 1998 Act to consult the police and the local authority for the area in which the person resides or appears to reside. Subsection (3) amends section 1(1B) of the 1998 Act. The effect is that applications by HATs are limited to applications for an order which would protect from anti-social behaviour persons who reside in or who are in the vicinity of premises provided or managed by HATs and applications by county councils are limited to applications for an order which would protect from anti-social behaviour persons within the county of the county council.

161.     Subsection (4) inserts new subsections (10A) and (10B) into section 1 of the 1998 Act. Section 1(10A) will allow a local authority to prosecute for breach of an order where it is the relevant authority which obtained the order or where the person subject to the order resides or appears to reside in the authority's area. The Crown Prosecution Service will retain discretion to prosecute in relation to breach of an ABSO; this section confers a concurrent power on local authorities.

162.     New subsection (10B) will give applicant authorities a right to attend ASBO breach hearings in the youth court. Section 47(2) of the Children and Young Persons Act 1933 sets out the persons who have a right to attend a hearing at a youth court and section 1(10B) extends this automatic right of attendance to one representative from the relevant authority who obtained the order. This will enable the authority to monitor the proceedings and report back on the outcome to colleagues, as well as to support witnesses and victims as necessary.

163.     Subsection (5) inserts new subsections (3A), (3B) and (3C) into section 1B of the 1998 Act. These provisions enable relevant authorities to apply to have a person:

• who is not a party to the principal proceedings in the county court, but

• whose anti-social behaviour is material to those proceedings,

to be joined to the proceedings so that an order can be applied for against that person. Subsection (8) enables the provisions inserted by subsection (5) to be piloted for a specified period and to be commenced on different dates in relation to different age groups.

164.     Subsection (6) extends section 1B(5) of the 1998 Act to allow an individual against whom an order has been made, subsequent to his being joined to proceedings in the county court, to apply to the court which made the order for the variation or discharge of the order.

165.     Subsection (7) amends section 1E of the 1998 Act to remove the requirement for a county council making an application for an ASBO to consult the council for the area in which the person who is the subject of the application resides in a case where there is no district council for that area. In such a case, the county council is the only relevant council. The amendment prevents a county council from being required to consult itself.

166.     Subsection (8) inserts a new subsection (1B) into section 9 of the 1998 Act to require a court making an ASBO against a person under the age of 16 to make a parenting order against the parents of that child if it is satisfied that the relevant condition contained in section 8(6) of the 1998 Act is fulfilled (or, if it is not so satisfied, to state in open court why it is not). The condition under section 8(6) is that the parenting order would be desirable in the interests of preventing repetition of the behaviour which led to the ASBO.

Section 86: Certain orders made on conviction of offences

167.     Subsection (1) amends section 1C of the 1998 Act to make clear that a court may make an order on conviction either at the request of the prosecutor or of its own volition.

168.     Subsection (2) inserts new subsections (3A) and (3B) into section 1C to clarify that the court may consider evidence from the prosecution and defence when deciding whether to make an order. It also allows for evidence not admissible in the criminal proceedings to be presented for the purpose of deciding whether to make an order.

169.     Subsection (3) inserts new subsection (9A) into section 1C to allow the local authority where a person subject to an order resides or appears to reside to prosecute for breach of that order. Subsection (3) also inserts new subsections (9B) and (9C) to remove automatic reporting restrictions from the order on conviction stage of a hearing against a juvenile in the youth court. Under new subsection (9C)(b) the court retains discretion to apply reporting restrictions.

170.     Subsection (5) inserts new subsections (3A) and (3B) into section 14A of the Football Spectators Act 1989 to clarify that the court may consider evidence from the prosecution and defence when deciding whether to make an order. It also allows for evidence not admissible in the criminal proceedings to be presented for the purpose of deciding whether to make an order. Subsection (6) inserts new paragraph (fa) into section 3(2) of the Prosecution of Offences Act 1985 to allow CPS prosecutors to conduct applications for orders on conviction for anti-social behaviour and football banning orders on conviction.

Section 87: Penalty Notices for disorderly behaviour by young persons

171.     This section amends the Criminal Justice and Police Act 2001 which introduced a penalty notice scheme for disorderly behaviour. Subsection (2) extends the scheme to 16 and 17 year olds and subsection (3) provides a power, by affirmative resolution procedure, to extend it to a lower age group. If so extended, there is also a power to make provision for a parent or guardian of an under 16 year old to be notified that a penalty notice has been given and for the parent or guardian to be liable to pay the penalty. Subsection (4) permits different levels of penalty to be set for different age groups. For the present, it is not intended to have a different level of penalty in respect of 16 and 17 year olds.

172.     The extension of the scheme to 16 and 17 year olds will be piloted and supplementary guidance will be issued to the police on the use of their discretion. The power to extend the scheme to a younger age group at this stage will be revisited in the light of the outcome of these pilots for 16 and 17 year olds.

Section 88: Curfew orders and supervision orders

173.     This section introduces Schedule 2 which amends the existing provisions relating to supervision orders and curfew orders. Curfew orders and supervision orders are both community sentences. Supervision orders are available only for offenders aged under 18. Curfew orders require the offender to remain for specified periods at a specified place. This may reduce the risk of further offending. A curfew order can be monitored electronically. A supervision order can include a range of requirements, such as a requirement to participate in specified activities or a requirement to make specified reparation. A supervision order lasts for at least 6 months but not more than 3 years.

174.     Schedule 2 increases the maximum length of a curfew order for an offender aged 10 but under 16 from 3 months to 6 months. The Schedule makes it clear that a curfew order and a supervision order may be imposed at the same time. It increases the maximum period during which the offender may be required by a supervision order to comply with specific directions of the supervising officer or specific requirements of the court as to activities etc. from 90 days to 180 days.

175.     Schedule 2 also enables the court to include in a supervision order a requirement that the offender live with local authority foster parents for a specified period of not more than 12 months (extendable for up to 18 months.). This new requirement is available only in the case of an offender who would otherwise meet the criteria for a custodial sentence and whose offending is to a great extent due to his home circumstances.

Section 89: Extension of powers of community support officers etc.

176.     The Police Reform Act 2002 created the new civilian role of community support officer. A community support officer is a uniformed police authority employee under the direction and control of a chief officer of police who can be designated by that chief officer with a specific range of police powers set out in Part 1 of Schedule 4 to that Act.

177.     The Police Reform Act also enables a chief officer of police to establish and maintain a scheme that accredits suitably skilled and trained non-police employees involved in the provision of community safety with powers to undertake specified functions in support of the police. For example, a chief officer may accredit neighbourhood wardens employed by the local authority or a social landlord, with powers to address antisocial behaviour. Regulations will be in place to enable the chief constable of the British Transport Police (BTP) to maintain a railway safety accreditation scheme, which will be similar to those of Home Office police forces.

178.     Subsections (3) and (6) of this section amend the Police Reform Act 2002 by adding to the powers that can be conferred on community support officers and accredited persons. They have already been given the power to issue fixed penalty notices for cycling on the pavement. This amendment makes it easier to enforce this power by conferring power to stop cyclists. It only applies when the community support officer or accredited person believes that an offence of cycling on the pavement has been committed. Failing to stop a cycle when required to do so is an offence under the Road Traffic Act 1988 and is liable to a fixed penalty notice of £30.

179.     Subsection (5) adds the power to issue fixed penalty notices for disorder under the Criminal Justice and Police Act 2001 to the powers that can be conferred on suitably trained persons who are accredited under either a community safety accreditation scheme or a railway safety accreditation scheme. This power is already available to community support officers. Accredited persons will be given the power to issue fixed penalty notices under this scheme but subsection (5) excludes two offences where the offender must be drunk for the offence to apply. The excluded offences are being drunk in a highway, other public place or licensed premises and disorderly behaviour while drunk in a public place.

180.     The offences for which accredited persons will be able to issue notices are:

• Use of insulting or abusive behaviour to cause harassment alarm or distress.

• Throwing fireworks in a thoroughfare.

• Trespassing on a railway

• Throwing stone etc at trains or other things on railways

• Buying or attempting to buy alcohol for consumption in a bar in licensed premises by a person under 18

• Knowingly giving a false alarm to the fire brigade

• Wasting police time or giving a false report

• Consumption of alcohol in a designated public place

• Using a public communications system for sending messages known to be false in order to cause annoyance.

181.     Section 1(2) of the Criminal Justice and Police Act 2001 allows the Secretary of State to add to or remove from the list of offences in section 1 by order. Subsections (4) and (7) give the Secretary of State power by order to provide that any offence for the time being included in section 1 should not be one in respect of which community support officers or accredited persons can issue fixed penalty notices. New section 15A(2) and new section 9A(2) have the effect that any such order would be subject to the affirmative resolution procedure.

Section 90: Report by local authority in certain cases where person remanded on bail

182.     This section inserts a provision into the Children and Young Person Act 1969 following section 23A. Section 23A provides that where a court does not grant bail, remands and committals of a child or young person charged with or convicted of an offence must be to local authority accommodation.

183.     Section 23(4) of the Children and Young Persons Act 1969 gives the court the power to impose a security requirement when remanding a child to local authority accommodation. However, by section 23(5) of the Children and Young Persons Act 1969 the court may not impose a security requirement in respect of a child who has not reached the age of 12.

184. This provision is designed for serious or persistent 10 and 11 year old young offenders in cases where the court might have considered remanding a child to secure accommodation if they were aged 12 or over. The provision of a report by the local authority will enable the court to be aware where the child would be placed if the court decided to remand the child to local authority accommodation. In particular this would allow the court to see if the local authority would use their discretion to send the child home. If the court was satisfied with the local authority's initial report, it could, either remand the child into local authority accommodation if it thought that this placement would be best for the child's welfare, or continue bail if it was satisfied that there were no difficulties with the child remaining with his parents. If the court was not satisfied with the local authority's initial report, it could then direct the local authority to make investigations under section 9 Children and Young Persons Act 1969. The results of any such investigations would be taken into account at the sentencing stage.

185.     Subsection (6) allows the Secretary of State to extend this provision by order to 12-16 year olds who met the criteria for a secure remand, and whose behaviour was due, to a significant extent, to their home circumstances.

Section 91: Proceedings under section 222 of the Local Government Act 1972: power of arrest attached to injunction

186.     Section 91 is a new provision. It allows a local authority to request a power of arrest to be attached to any provision of an injunction obtained under section 222 of the Local Government Act 1972 where the injunction is to prohibit behaviour which is capable of causing nuisance or annoyance to any person.

187.     Section 222 of the Local Government Act 1972 gives local authorities a general right to institute legal proceedings in their own name to promote or protect the rights of inhabitants of their area. It also enables a local authority to appear in civil proceedings for the purpose of protecting public rights where the authority is not prosecuting or defending those proceedings.

188.     The court may attach the power of arrest if there is the use or threat of violence, or a significant risk of harm to any person. Consequently a power of arrest will be available in cases where there is a significant risk of harm even if there has been no actual or threatened violence. Significant risk of harm is defined in new section 43(4). It could include emotional or psychological harm. This could apply, for example, in cases of racial or sexual harassment.

PART 10 :GENERAL

Section 96: Extent

189.     This section provides that Part 5 and Part 10 of the Act extend to England and Wales, and Scotland. The rest of the Act extends to England and Wales only.

SCHEDULES

Schedule 1: Demoted Tenancies

190.     Schedule 1 makes amendments to the Housing Acts 1985 and 1996 relating to demoted tenancies.

191.     Paragraph 1 inserts new Chapter 1A into Part 5 of the Housing Act 1996. New section 143A of the Housing Act 1996 sets out the conditions for a demoted tenancy to which new Chapter 1A applies:

• the landlord must be a local housing authority or housing action trust;

• the tenant must occupy the dwelling-house as his only or principal home, or, where there are joint tenants, each must be an individual and at least one of them must occupy the dwelling-house as his only or principal home; and

• the tenancy must have been created by a demotion order.

New section 143B sets out the duration of a demoted tenancy. A demoted tenancy will normally remain a demoted tenancy for one year, at which point it will become a secure tenancy. However, if the landlord issues a notice of proceedings for possession during the first 12 months of the demoted tenancy, the tenancy will remain a demoted tenancy beyond the initial 12-month period until one of the events in subsection 143B(4) occurs. Specific provisions also apply if either of the first or second conditions in section 143A is no longer satisfied or the tenant dies. For example, if the tenant no longer occupies the property as his only or principal home, it will cease to be a demoted tenancy and will become a non-secure public sector tenancy which may be ended by a notice to quit.

192.     New section 143C makes provision for a change in the status of a demoted tenancy if, during the demotion period, the landlord's interest in the housing stock of which the dwelling-house forms part is transferred and the new landlord is neither a local housing authority nor a housing action trust (HATs). New sections 143D to 143F describe the process by which a demoted tenancy can be ended. The court must award possession, unless the landlord has failed properly to follow the procedure set out in sections 143E to 143F. The procedure is similar to that for ending introductory tenancies as set out in the Housing Act 1996.

193.     The landlord must first serve a notice of proceedings on the tenant. The notice must contain the information prescribed in subsections 143E(2) and (5). The court will not hear proceedings begun on or before the date specified in the notice.

194.     New section 143F requires the landlord to review a decision to seek possession if asked to do so by the tenant within 14 days from the date when the notice of proceedings for possession was served. The Secretary of State is given the power to make regulations with regard to the review procedure to be followed. After the review has taken place, the landlord must inform the tenant of its decision (giving reasons) before the date stated by the landlord's notice on which possession proceedings may be begun.

195.     New section 143G allows possession proceedings to be continued if, for example, there is a change of landlord. It also provides that a demoted tenant will not have the right to buy unless the proceedings are determined and the tenant is not required to give up possession. In this case the tenant would become a secure tenant and so the right to buy would apply.

196.     New sections 143H to 143J set out what happens to the tenancy if a demoted tenant dies during the demotion period. If the tenant was a successor in relation to the secure tenancy which preceded the demoted tenancy (or to the demoted tenancy itself) there is no further right of succession. If the tenant was not a successor then there may be one succession to a person qualified to succeed under new section 143H(3). New section 143J defines "successor" for these purposes.

197.     New section 143K provides that a demoted tenancy cannot be assigned apart from by an order of the court in specified matrimonial or family proceedings. New section 143L ensures that demoted tenants may benefit from the right to repair as set out in section 96 of the Housing Act 1985.

198.     New section 143M gives demoted tenants the same rights to information published by the landlord as secure tenants. New section 143N provides that the county court has jurisdiction to determine proceedings brought before it regarding demoted tenancies. If a person decides to take proceedings in the High Court that could have been heard in the county court under new section 143N, that person is not entitled to recover any costs related to that action.

199.     New section 143P describes who counts as a member of a person's family for the purpose of succession to a demoted tenancy. The concept of an enduring family relationship includes established heterosexual, lesbian or gay unmarried couples.

200.     Paragraph 2 of Schedule 1 makes consequential amendments to the Housing Act 1985.

201.     Paragraph 2(2) amends section 105 of the Housing Act 1985 to give demoted tenants the same rights as secure tenants to consultation on matters relating to housing management.

202.      Paragraph 2(3) amends section 171B of the Housing Act 1985 to remove the preserved right to buy on demotion.

203.     Paragraph 2(4) amends Schedule 1 of the Housing Act 1985 to add demoted tenancies to the list of tenancies that are not secure tenancies.

204.     Paragraph 2(5) amends Schedule 4 of the Housing Act 1985 to ensure that if a demoted tenant subsequently becomes a secure tenant and thereby entitled to the right to buy, time spent as a demoted tenant will not count towards the qualifying period for the right to buy or towards the level of discount to which he is entitled under the right to buy provisions.

Schedule 2: Curfew orders and supervision orders

205.     Paragraph 2 of this Schedule amends section 37 of the Powers of Criminal Courts (Sentencing) Act 2000 so as to increase the period for which an offender aged 10-15 may be made the subject of a curfew order from up to 3 months to up to 6 months. It also specifies that the supervisor of a young person subject to a supervision order should also act as the responsible officer for the curfew requirement.

206.     Paragraph 3 allows a court to make a separate curfew order in respect of an offender even if it is also making a supervision order in respect of him.

207.     Paragraph 4 (1) to (3) amends Schedule 6 of the Powers of Criminal Courts (Sentencing) Act 2000 to increase the length of time for which the offender may be required to comply with specified directions of the supervisor or with requirements of the court from up to 90 days to up to 180 days. The directions or requirements may require the offender to live at a specified place and report to specified people at specified places and times. They may also require the offender to participate in activities identified by the supervision officer, such as offending behaviour programmes. The court requirements can also include one to make reparation. Paragraph 4 (4) repeals the paragraph of Schedule 6 which relates to night restrictions as this is no longer required.

208.     Paragraph 4 (5) inserts a new paragraph 5A in Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000. New paragraph 5A creates a new requirement which may be imposed by the court in a supervision order. It allows the court to require an offender to live for a period of up to 12 months with a local authority foster parent, subject to certain conditions being specified. Paragraph 5A (2) sets out these conditions. They are that the offence must be one which is imprisonable in the case of an adult, and that the offence or combination of offences were so serious that the court would normally have imposed a custodial sentence, or a custodial sentence would have been appropriate in the case of a 10 and 11 year old persistent offenders had they been aged 12 or over. In addition the court must be satisfied that the offending was due in large part to the home circumstances, and that the fostering requirement would help with the offender's rehabilitation.

209.     Paragraph 5A (3) allows the court to designate the local authority in whose area the offender resides as the one with the responsibility for placing the offender with foster carers, in line with their obligations under the Children Act 1989.

210.     Paragraphs 5A(6) and (7) set out the circumstances in which the court may make a fostering requirement if the offender is not legally represented. Paragraph 5A (8) allows the court to impose other requirements available with a supervision order as set out in Paragraphs 2, 3, 6 and 7 of Schedule 6 of the Powers of Criminal Courts (Sentencing) Act when imposing a fostering requirement. Paragraph 5A (9) ensures that the local authority has the necessary powers to place the child in other local authority accommodation in an emergency.