FAQs
Select a category from the list below to jump to questions and answers on that topic:
- Acceptable Behaviour Contracts (ABCs)
- Antisocial Behaviour Orders (ASBOs)
- ASB Strategies
- Closure of Premises
- Community Wardens
- Disclosure and Information Sharing
- Dispersal of Groups
- Environmental Offences
- Firearms
- Housing
- Miscellaneous
- Noise
- Parenting Orders
- Private Landord Registration & ASB Warning Notices
- Seizure of Vehicles
- Practitioners Advice Line
See the section on Guidance on Specific Issues for expanded answers relating to the Antisocial Behaviour etc Scotland Act.
Acceptable Behaviour Contracts (ABCs)
Q. Do you have some information on acceptable behaviour agreements/contracts?
A. An ABC/ABA, is a written agreement between a person who has been involved in anti social behaviour and one or more agencies whose role it is to prevent further anti social behaviour, i.e. a Housing Association, Local Authority, Police, School etc. They are generally used for young people but can also be used for adults.
The contract/agreement is agreed and signed at a meeting with the individual and the lead agencies. Where the person (whose behaviour is antisocial) is a child or young person, their parents/guardian should also attend the meeting where the ABC/ABA is signed.
The contract/agreement should list incidents of antisocial behaviour in which the person has been involved in and which they agree not to continue doing. Where possible the individual person should partake in drawing up the terms of the contract/agreement. Any other support should also be put in place for them with other agencies.
Legal action in the form of an Anti Social Behaviour Order or Possession order should be stated in the contract/agreement if these are going to be considered as a consequence of a breaching the contract/agreement. These consequences need to be explained during the meeting that breaking this agreement can result in this further action being considered/taken.
It is not a legally binding document but can be referred to in court for an application for a Possession order or in support of an Anti Social Behaviour Order. The contract/agreement normally lasts for a period of six months although it can be longer, based on the level of ASB and it being proportionate.
Here is an example of an Acceptable Behaviour Contract/Agreement.
Acceptable Behaviour Contract/Agreement (Word doc 25K, download @ 56K under 60 seconds)
Q. We want to agree an ABC with a 16 year-old, do we need the signature of a parent or guardian?
A. Once a young person is 16 years old, it is not necessary to have the agreement of the parent or guardian in signing the ABC, though if possible it would be helpful to have an adult 3rd party signature from, for example, their social worker. A young person of 16 years plus may be approached directly, and if a parent/guardian obstructs access, this can be used as evidence against them in any subsequent legal action.
If the child were under 16, however, you should always secure the agreement and signature of their parent/guardian.
Antisocial Behaviour Orders (ASBOs)
Q. Who can apply for ASBOs?
A. In Scotland a local authority or RSL may make an application for an ASBO, if it appears a person aged 12 years or over has acted in an antisocial manner or pursued a course of conduct that caused or was likely to cause alarm or distress.
Q. How does the new Act change ASBOs?
A. It introduces ASBOs for under 16s:
- When an ASBO application for an under 16 is made the Sheriff will consider the views of the Reporter before deciding whether to grant an interim ASBO. The Sheriff must also seek advice from a Children’s Hearing before establishing whether a full ASBO is appropriate and should be granted.
- When granting an ASBO against an under 16, Sheriffs have the power to refer the young person to a Children’s Hearing for consideration of what wider help and support the person needs to help them change their behaviour.
- When granting an ASBO for an under 16, Sheriffs will also have the power to grant a parenting order.
- When an ASBO is granted against an under 16 and this is breached, this will be a criminal offence and will be reported jointly to the Procurator Fiscal and Children's Reporter. It will be for the PF in discussion with the Reporter to decide on what action should be taken according to the circumstances of the case. If a case is referred to court, possible sanctions do not include imprisonment where no other offences are involved.
- When an interim or full order is granted, copies of the Order must be given to both the offender and the Local Authority. Local authorities must maintain a record of these orders and make this information available to relevant parties such as the police and other local authorities.
- An ASBO is not necessarily any longer limited to the boundaries of the local authority area.
- A power of arrest is attached to breach of an ASBO.
- ASBOs can be made by Sheriffs when convicting for criminal offences.
Q. What are interim ASBOs and how long do they run for?
A. Interim ASBOs are available to provide more immediate protection from antisocial behaviour. An interim order can be made at an initial court hearing held in advance of a full hearing and can impose the same prohibitions and has the same penalties for breach as a full ASBO. The interim order will not normally specify how long the conditions should apply for and will last until the application for the full order has been to court.
Q. If there is evidence and incidents of anti social behaviour being presented to court that have occurred before and after 28 October 2004 which Act should be cited in the ASBO application?
A. Where incidents are being presented that occurred before and after 28th October 2004 then the application for an ASBO can be made under both Acts, the Crime & Disorder Act 1998 and Antisocial Behaviour (Scotland) Act 2004.
Q. If an ASBO is granted under the 1998 Act and has subsequently been breached (since the 2004 Act came into force) which Act should the breach be charged under?
A. A breach of an ASBO granted under the 1998 Act would not be proceeded against under the 1998 Act.
The relevant part of the 1998 Act, s.22, has now been repealed (see Schedule 5 of Antisocial Behaviour (Scotland) Act 2004) so it is not competent to prosecute someone under the 1998 Act for a breach of an ASBO committed post repeal even if the original order was granted under the earlier legislation. It is competent, however, to proceed against someone for breach of an ASBO under s.9 of the 2004 Act in these circumstances.
Q. Do the police have a statutory power of arrest when an ASBO is breached?
The Police also have powers to make an arrest under common law for breach of orders granted under the Crime & Disorder Act 1998.
Q. Do the police have the statutory power of arrest under the 2004 Act to arrest an under 16 year old for breach of their ASBO where there are no criminal offences involved?
A. There is nothing in the Act to suggest the police cannot arrest an under 16 year old for breach of an ASBO. Therefore, if an under 16 year old breached their ASBO and did not commit any other offences they are liable to being arrested and the police can use their statutory power (under s.11 of 2004 Act) to arrest them.
Q. Can an ASBO be applied for against a person behaving in an anti social manner but where it is known they have alcohol/drugs dependency, or where there are possible mental health issues?
A. Before applying for an ASBO you need to establish that the person has capacity to understand right from wrong and also that you have tried to put any relevant support in place.
If someone perpetrating ASB has alcohol/drugs dependency you need to try and engage with them and offer them support through drugs and alcohol referral teams to try to help them with their addiction so this is not then contributing to the anti social behaviour. If there are also underlying mental health issues it is recommended that you obtain a medical report to determine the extent of this and whether the person has the capacity to understand right from wrong.
Where you have tried to get the person to engage with relevant agencies, support has been put in place and tried, you have warned the person about their behaviour, it has been identified there are no mental health issues, and they are continuing to perpetrate ASB, you can apply for an ASBO against them.
Throughout this process you need to be liaising with other agencies and identifying any other support that needs to be put in place and this support can then run alongside an ASBO.
Q. Does granting an ASBO affect housing status?
A. Yes – the granting of an ASBO can affect a tenancy as the following case illustrates:
Miss K was the secure tenant of a council house in Paisley, and resided there with her twin sons, Jamie and Kenneth E and her young daughter.
Renfrewshire Council obtained Anti-Social Behaviour Orders against Jamie and Kenneth E. As a result of these Orders being granted by Paisley Sheriff Court, Miss K's secure tenancy was converted to a Scottish Short Secure Tenancy in terms of Section 35 and Schedule 6 of the Housing (Scotland) Act 2001 with effect from 28th October 2003.
As a tenant under a Scottish Short Secure Tenancy Miss K had only limited security of tenure. She could not purchase the house nor could anyone succeed to this tenancy following her death.
Miss K was served with Notices, namely a Notice to Quit and a Notice of Proceedings for Recovery of Possession bringing her tenancy to an end, with effect from 28th October 2004.
Miss K instructed solicitors, who wrote on her behalf asking the Council to reconsider its decision to have her removed from the tenancy.
The Department of Housing & Property Services wished to recover the house. Miss K. refused to remove from the house on 28 October 2004 and, as a result, an action for recovery of possession was raised against her at Paisley Sheriff Court.
At Paisley Sheriff Court on 18 February 2005 a Decree was granted against Miss K. Her solicitors advised the court that their client now appreciated that she had no defence to the action.
Q. Can a tenancy be demoted to a SSST when an interim ASBO is in place?
A. No the tenancy cannot be demoted. If demoting a tenancy to a SSST due to ASB and an ASBO being in place against the tenant or member of the same household it has to be a full ASBO that is in place before demotion can go ahead, rather than an interim ASBO.
ASB Strategies
Q. How is the implementation of ASB Strategies being measured?
A. Scottish Government funding to local agencies from 2005 onwards to tackle antisocial behaviour is tied to antisocial behaviour outcome agreements. These will give local agencies the flexibility to spend money according to local needs and priorities. But, in return, local agencies will be expected to deliver change, and will be required to report annually to the Government on their progress and achievement of outcomes. Progress towards all outputs and outcomes should be monitored regularly, with multi agency meetings involving all parties involved in the original Strategy document.
Further information can be found in the Monitoring & Evaluation section of this website.
Closure of Premises
Q. How long does an order last?
A. The premises can be closed for 3 months with a possible extension to 6 months.
Q. How do I get a closure order?
A. Step by step guide on closure.
Q. Is it right that the serving of a closure notice only gives the person on whom it is served a short time to prepare evidence before the court hearing?
A. Yes – the Police have to make their application on the first court day after the date on which they serve the closure notice. However, in some previous cases the court has deferred the hearing of the application to allow the defence more time to prepare their case. The sheriff can adjourn the hearing for a period of up to 14 days.
Q. What if vulnerable people stay there?
A. The Sheriff is required to take into account of the ability of anyone living in the premises to get alternative accommodation and the vulnerability of those within the household.
Q. Do you have a draft template to show what information should be included in a closure notice?
A. Yes. You can download the draft closure notice below and then adapt this for your relevant area.
Draft Closure Notice (PDF, 84Kb)
Q. When applying for an extension to a closure order is there a specified time limit that this has to be done by?
A. Yes, you must apply for an extension at least 21 days before the original order expires.
Q. Who pays rent during the period of closure?
A. This will be assessed on a case-by-case basis. Discussions need to take place with housing benefit administration about the length of closure and if housing benefit will be paid or suspended. The vulnerability of the person(s) living at the property will also be considered.
Q. Is it necessary to give the Closure Notice to the alleged perpetrator?
Q. Is it an offence to attempt to enter premises which are subject to a closure order?
A. Under section 37 of the 2004 Act it specifies a person is guilty of an offence if they "remain" or "enters premises" in contravention of a closure notice or in respect of a closure order, which has effect. However, no specific mention of an offence of attempted entry is mentioned under this section.
A further piece of legislation should be considered here –
section 294 of the Criminal Procedure (Scotland) Act 1995 which states
the following:
(1) Attempt to commit any indictable crime is itself an indictable crime.
(2) Attempt to commit any offence punishable on complaint shall itself be an offence punishable on complaint.
Therefore, any attempt to commit a crime is a crime, therefore
attempting to enter premises subject to a closure order is an offence
and this offence can be proceeded for under section 37 of the Act.
Community Wardens
Q. What are Community Wardens?
A. Community Wardens are uniformed teams of people working to improve the quality of life for communities. Warden schemes funded by the Scottish Government contribute to one or more of the following broad aims:
- Reducing crime (including youth crime) or the fear of crime
- Reducing anti-social behaviour
- Improving environmental quality.
Wardens can undertake a variety of tasks, but what they do depends on the needs and priorities of the community they serve. This could include patrolling ASB hotspots, reporting vandalism and dealing with littering. They can provide a reassuring presence in the community, and improve the look and feel of a neighbourhood, making it a place where people want to live, not move away from. In most cases wardens are managed by the Local Authority. All wardens should be properly trained, with disclosure checks carried out before they can work with the public.
A pilot scheme that ran in Renfrewshire showed that between 2002-2003 there was a 43% reduction in vandalism costs (compared to the previous year). There was a 44% reduction in new reports of antisocial behaviour. And there was an average 23% reduction in reported acts of vandalism in the areas where wardens operate.
Disclosure and Information Sharing
Q. What information can I share?
A. There are two main categories: depersonalised which does not identify an individual (usually needed to map hotspots and identify trends) and personal information about an individual (usually when gathering/confirming incidences of antisocial behaviour).
Note: Section 139 of the 2004 Act is designed to offer protection to agencies that disclose information as part of their duties under the Act. Paragraph 308 of the Explanatory Notes (to the ASB Act 2004) explains this purpose as follows:
"Section 139 makes provision on the disclosure to and sharing of information with a relevant authority. It provides a legal protection for those who disclose information to a relevant authority where the disclosure of information is necessary or expedient for the purposes of any provision of the Act, or any other enactment the purpose of which is in connection with, antisocial behaviour or its effects. However, a person disclosing information and relying on this protection will have to consider other potentially relevant rules of law."
Q. How do I share information?
A. Create an information sharing protocol with relevant partners. There is a model protocol in the Scottish Government guidance on information sharing as well as lots of detail on what you can and cannot do.
Q. We are currently developing a protocol for sharing information and are in consultation with other agencies, which agencies should sign up to this protocol?
Q. What is RIPSA – will it prevent me investigating antisocial behaviour and sharing information?
A. Regulation of Investigatory Powers (Scotland) Act provides for and regulates the use of/range of investigative powers by the Police and Local Authorities. In the antisocial behaviour context it is most likely to be applied by Specialist Antisocial Behaviour Investigation Teams. The aim of the legislation is to regulate the use of investigative techniques like covert surveillance and the interception of communications. You are advised to develop a policy and guidelines on surveillance. A good example has been developed by Renfrewshire Council.
Q. Does someone have to disclose information to prospective buyers on any problems they have with neighbours and ASB when selling their house?
A person must disclose such information if specifically asked about
it by a prospective buyer (under the Property Misdescriptions Act 1991)
or by their legal representative. However, if a person is not asked to
disclose this information they are under no duty to disclose such
information of their own accord.
Dispersal of Groups
Q. What does Dispersal involve?
A. The power to disperse gives the police an additional tool to deal with antisocial behaviour trouble spots. A senior police officer (of superintendent rank or above), in consultation with the Local Authority, can designate an area, where significant, persistent and serious antisocial behaviour has occurred, and the presence or behaviour of groups is contributing to the problems.
Q. How do I get a Dispersal order?
A. Step-by-step guide on Dispersal of Groups.
Q. How long will an order last?
A. An area can be designated for up to but no longer than three months. This cannot be extended, however the police can submit a new authorisation notice for another three months and they would also need to re-publicise this notice.
Q. Is it true you can’t disperse someone from the street they live in?
A. Individuals who live within an affected area can still be ordered to disperse but can't be required to leave the area completely. Any associates/gang members who don’t live in the area can be required to leave and not return for 24 hours therefore isolating gang members who do live there.
Q. Is it an offence to refuse to give name/details to police officer when requested when they are directing you to leave an authorised area under dispersal powers?
A.The Act does not require the police officer to get the person’s
name/details when asking people to leave the area therefore it is not
an offence to refuse to provide this. Furthermore, a person is not
committing an offence by being in the area, the offence is committed if
the person does not leave the area when directed to do so by the police
and they are then entitled to take down their name and address.
If a person claims to live within the authorised area, the police
officer would need details to confirm this is the case therefore it
could be an offence to refuse to provide these details in this type of
situation.
Q. Can British Transport Police get a dispersal?
A. No, they should go via the local police.
Q. At what level does consultation with the local authority take place?
A. Chief Executive or such Senior Officer in each Local Authority as may be agreed with the Chief Executive in advance, such as Chief Social Work Officer in relation to incidents involving young people (see Dispersal Guidance para 25).
Q. How big should a dispersal area be?
A. This is a decision for the local police and will be taken based on the circumstances in each area. Account should be taken of the police resources available, relative to the size of the area being considered.
Q. Will the police share information on who they have dispersed i.e. would they tell a Children’s Panel that a particular young person had been dispersed three times?
A. Although there isn’t anything set down in legislation or guidance after you have dispersed the same young person three times it is good practice to make a formal referral by letter to the Reporter (and it might be appropriate to consider an ABC/restorative justice/ASBO).
Environmental Offences
Q. What are the new measures?
A. Greater use of fixed penalty notices (FPNs)
- Litter: Police now have power to issue FPNs for littering (local authorities already had this power)
- Fly-tipping: FPNs can also be issued for this
- Graffiti: Local authorities now have powers to serve grafitti removal notices.
Q. At what age can a FPN be issued for littering?
A. The Act does not actually specify an age (unlike Part 11 (FPNs) which specifies over the age of 16) however it is to be interpreted as applying to those of an age of criminal responsibility which is 8 years + in Scotland.
{Note: There may be issues regarding gathering payment of the FPN from children and if they do not pay they are unlikely to be referred to PF but may be referred to the Children's Reporter. Before the level of an FPN was raised to minimum of £50.00 by the 2004 Act (previously £25.00) Angus Council had some success in issuing FPN's to 12-16 yr olds with their parents paying these.}
Q. Can Graffiti Removal Notices be served in relation to houses or shops?
A.The powers to issue notices to remove graffiti relate specifically
to those responsible for street furniture, statutory transport and
educational institutions.
With regard to private shops and houses, Local Authorities may wish
to consider alternative enforcement action in terms of working with the
Police and Community Wardens to identify and take action against the
persons responsible for the graffiti.
Q. Can a FPN for dog fouling be issued to an under 16 year old if they are the person in charge of the dog? If so and the FPN is not paid by the childcan their parents be held accountable for payment of the FPN?
A. Technically there is no restriction placed by the Dog Fouling
Act 2003 on the age of a person that can be issued with a FPN for an
offence of dog fouling. It is similar to FPNs for littering which
can also be issued to
under 16s. Guidance was issued to Local Authorities/dog
warden teams by the Government after the Dog Fouling Act came into
force (on 22/10/03) and paragraph 22 of this guidance is relevant. It
states that there are practical difficulties issuing FPNs to under 16
year olds and the young person doesn't often have the resources to pay
the FPN. Where these are not paid the parent cannot be held
responsible or liable for the payment of that FPN.
It may be encouraged that dog wardens take an educational approach
and therefore speak to/write to the parents outlining the issues and
asking them to ensure their child behaves responsibly when in charge of
a dog. If the dog fouling continues and is persistent then by all
means a FPN can be issued, however need to be aware that there are
issues recovering the amount of the FPN and the case could not proceed
for prosecution for the unpaid amount. This would be a very
difficult situation which would probably result in no real action being
taken and the FPN remaining unpaid.
Q. Is the evidence of one witness sufficient grounds to proceed for a offence under the Dog Fouling Act?
A. Section 1(4) of the Dog Fouling (Scotland) Act 2003 explicitly states that in "any proceedings for an offence under this section it shall be lawful to convict the accused on the evidence of one witness". Therefore it is clear from the legislation itself that the court should be satisfied with evidence from only one person.
Firearms
Q. Are there any provisions relating to firearms in Scottish ASB legislation?
A. There is nothing in the Antisocial Behaviour etc (Scotland) Act 2004 to cover firearms, however part 5 of the Antisocial Behaviour Act 2003 covers firearms, and is the only part of that Act that covers Scotland.
These provisions came into effect on 20th January 2004. The main areas that the 2003 Act makes amendments to are in relation to the possession of firearms in a public place, air weapons age limits and prohibition of certain air weapons.
Section 37 of the 2003 Act adds to the list of firearms covered by the offence in s.19 of the Firearms Act 1968 of carrying a firearm in a public place without lawful authority or reasonable excuse. That offence previously applied to loaded shotguns, loaded air weapons or any other firearm (whether loaded or not) together with its ammunition. Subsection 1 of section 37 adds to this unloaded air weapons and imitation firearms.
Housing
Q. Does a tenant who is signed up to a short Scottish secure tenancy have the right to buy their council property?
A. No, a tenant signed up to a SSST does not have the right to buy their property. If however their tenancy converts to a SST they would then be able to buy their property.
Q. If a tenant has been on a SST for 20 years then is demoted to a SSST before being reinstated on a SST after 6 months do they lose their 'right to buy history'?
A. The tenant would not lose their 'right to buy history' as long as they had held the tenancy for a continuous time (even if this involved periods on an SSST).
Q. Where a tenant is being demoted to a SSST as a result of an ASBO, which notice should be issued to the tenant?
A. A notice under Section 35 of the Housing (Scotland) Act 2001
should be issued. This notice converts a Scottish Secure Tenancy
(SST) to a Short Scottish Secure Tenancy (SSST) when the tenant or
another person in the tenancy is subject to an ASBO. This is the
notice that must be served on a tenant rather than a Section 34 notice,
which should only be served on prospective tenants where a landlord is
creating a new tenancy for a new tenant who is to be put on a SSST.
There is no statutory notice provided by a Statutory Instrument to
convert a tenancy under s.35, unlike a s.34 notice (which is provided
for by SSI 2002 No.315). However, there are certain things that must be
contained within a s.35 notice. The following must be stated:
- state that converting from a SST to a SSST
- at which property this applies to
- grounds for conversion i.e. an ASBO (see under Sch.6, 2 of Housing (Scotland) Act 2001. Note: this has been amended by Sch.4, 6(3)(b) of ASB Act 2004).
- state when SSST commences and the termination date.
- mention right to appeal
Q. We have demoted a tenancy to an SSST after the tenant was given an ASBO. We would now like to bring the tenancy to an end on the grounds that the behaviour has continued, can we do this at any time? How do we do this?
A. An SSST can be brought to an end at any stage during the tenancy, using a Notice of Proceedings for Possession, under Section 36 of the Housing (Scotland) Act 2001. The format of the Notice is provided by SSI 319 - The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002.
Once the notice is served on the tenant, the landlord must wait at least 2 months before starting court proceedings. Once at court, the landlord must have evidence to show that the antisocial behaviour has been ongoing. Proceeding for Possession is a measure of last resort, so the landlord must be able to demonstrate that all reasonable steps (supports etc) have been tried to try to address the anti social behaviour.
Q. A person presents themselves as a new or returning tenant to a
Local Authority and they previously had an ASBO against them (which has
now been revoked). They were not evicted from their previous tenancy
for causing ASB and just terminated this tenancy. Can they still
be put on a SSST, even though the ASBO is no longer in force?
A- Where a tenant applies for housing their application should state whether they have been evicted from a previous tenancy within the last 3 years for ASB. In this case the ASBO previously granted against the person is no longer in place and it is established they were not evicted because of ASB during the previous 3 years. Therefore they should be signed up to a SST, unless they fulfil any of the other circumstances set out in 1- 7 of schedule 6 of the Housing (Scotland) Act 2001. If they do fulfil any of these other criteria then the Local Authority should sign them up to a SSST.
Q. A council tenant is refusing to sign a SSST that the Local Authority are placing them on as a result of an ASBO being granted against them, do the Local Authority require the tenant's signature to enable the tenancy to be demoted from a SST to a SSST?
A. When demoting a tenancy to a SSST (due to an ASBO) you do not
require the tenant's signature to demote the tenancy. The tenancy is
converted automatically by service of the Section 35 notice, and there
is no need for the tenant to agree to this.
It may be appropriate when issuing a s.35 notice to include a
letter explaining that their tenancy is being demoted, what rights they
now have on a SSST and what rights they no longer have (i.e. the right
to buy), as well as outlining what supports will be provided as part of
being on a SSST to try and sustain this tenancy.
Q. Should a tenant's right-to-buy be suspended if they are served with a Notice Of Proceedings For Possession?
A. Yes, any application to purchase submitted after service of the
Notice should be suspended until all proceedings related to possession
have been completed. This is dealt with in Section 47 of the
Housing (Scotland) Act 2001. However, Section 47(4) of the Housing
(Scotland) Act 2001 states that, "Nothing in this section affects an
application to purchase served prior to service of the notice referred
to in subsection (1)" (a Notice of Proceedings for Possession).
Therefore, an application for purchase can only be suspended if it is
submitted after the Notice Of Proceedings For Possession has been
served.
Q. Can a Scottish Secure Tenency be demoted to an SSST as a result of an ASBO that contains prohibitions relating only to behaviour in a town centre rather than the vicinity of the person’s property?
A. Yes. The fact that the ASB for which the person was served an ASBO was not at or near the property they lived in is not relevant. The serving of an ASBO is sufficient for demotion, regardless of the content of the prohibitions and where the anti social behaviour took place.
Q. Can a tenancy be demoted to a SSST when an interim ASBO is in place?
A. No the tenancy cannot be demoted. If demoting a tenancy to a SSST due to ASB and an ASBO being in place against the tenant or member of the same household it has to be a full ASBO that is in place before demotion can go ahead, rather than an interim ASBO.
Q. There is a house on our street that has been left derelict and
overgrown. The owner refuses to do anything about it, is there
anything we can do?
A. The Town & Country Planning (Scotland) Act 1997 contains a section that may be appropriate to deal with this or a similar situation. Section 179 (Land dversely affecting other land), allows for a notice to be served upon a person whose land is not in keeping with the area (a blight on the landscape) and is therefore adversely affecting that area.
Miscellaneous
Q. Can a person set up CCTV to monitor their car (which has been subject to vandalism) which is not parked on their driveway and the CCTV views an area which also includes a communal pathway?
A. It is acceptable for a person to train a camera and monitor their own property, it cannot however view a neighbour's property or any communal areas. Furthermore, a person is not permitted to record an area that includes a communal pathway even if it is also to monitor their car, as there are privacy issues relating to other individuals that need to be considered.
Q. Is there any legislation in Scotland to deal with high hedges?
A. The Antisocial Behaviour etc (Scotland) Act 2004 did not introduce any legislation to tackle problems relating to high hedges and there is currently no specific legislation in Scotland. The approach that should be taken to deal with these types of problems should be through mediation in an attempt to resolve issues as neighbour disputes, and dealing with any related behaviour problems (eg intimidation or harassment) by using other appropriate legislation if necessary.
Noise
Q. What are the measures?
A. Briefly, Local Authorities have the option to apply noise control provisions to specific areas on certain days and at certain times. If the authority takes up the provisions it can do so 24 hours a day, 7 days a week.
Q. In practice how will this work?
A. As follows:
- Officers of the council or the police are empowered to investigate noise complaints
- Maximum levels of noise permitted and the approved measuring devices have now been determined by Scottish Ministers in SSI No. 43 (The Antisocial Behaviour (Noise Control) (Scotland) Regulations 2005).
- If an officer believes noise from a domestic dwelling exceeds or may have exceeded the permitted level, s/he may issue a warning notice
- If noise then continues a Fixed Penalty Notice of £100.00 can be issued
- If paid no further action.
- If not paid within 28 days Local Authority can proceed to prosecution through PF.
- Local authorities keep the FPN proceeds.
- Powers have been extended to allow local authority officers to seize noise making equipment.
Q. What else can be done about noise?
A. Police have a power under Civic Government (Scotland) Act 1982 and extended by the Crime and Disorder Act 1998 to seize noise making equipment. They can keep it for 28 days and charge storage costs. They do not have to charge with an offence.
Q. What can be done about barking dogs or other noisy animals?
A. Noise created by barking dogs can be dealt with under Section 49 of the Civic Government (Scotland) Act 1982. Section 49 provides that a district court, if satisfied that any creature kept in the 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. In this case the "annoyance" would be the dog barking, and the order could require the owner to take steps to prevent the barking continuing to cause annoyance.
This process can be lengthy and involves the complainant attending court at the same time as the person responsible for the dog. The Antisocial Behaviour etc. (Scotland) Act 2004 introduced Fixed Penalty Notices (FPNs) for noise nuisance, which may allow for a more rapid resolution. However, FPNs are only applicable where the dog (or other noisy animal) is in the relevant property (as defined in Section 53 of the ASB Act, which includes gardens etc). The 2004 Act also gives powers to seize noise-making equipment, which could apply to animals.
Q. Does RIP(S)A apply to monitoring of noise complaints for part 5 of the ASB Act?
A. RIP(S)A only applies to covert "directed" or "intrusive"
surveillance. Noise monitoring would normally be always done covertly.
RIP(S)A defines directed surveillance as surveillance that is
"likely to result in the obtaining of private information about a
person". The monitoring of noise would not normally result in obtaining
private information, unless a recording device was used. Therefore, if
a device that simply measures the level of noise is used, RIP(S)A does
not apply.
RIP(S)A defines intrusive surveillance as surveillance that is carried out by a person or device, actually inside the offending property. It is unlikely that noise monitoring would ever be carried out in this way for the purposes of Part 5 of the ASB Act.
Q. Can noise-making equipment be seized at the same time as issuing an FPN for noise nuisance?
A. As with serving an FPN, the condition for seizing noise-making equipment is that a warning notice has been served, and that (over ten minutes later), the noise from the relevant property continues to exceed the levels specified in the notice. Therefore an FPN can be served at the same time as seizure, if this is deemed necessary to deal with the issue.
The serving of the FPN gives the perpetrator the opportunity to discharge their liability for the offence, and avoid proceeding to court. The safety of the officers should always be considered when seizing equipment, so the presence of a police officer is recommended.
Parenting Orders
Q. What are the new powers?
A. The local authority or the Children's Reporter can apply to the Sheriff for an order. There are 3 grounds:
- The child has been engaged in antisocial behaviour and the order is to prevent further antisocial behaviour
- The child has engaged in criminal conduct and the order is in the interests of preventing further criminal conduct
- In the interests of the improved welfare of the child.
Q. What resources are being made available to support the implementation of parenting orders?
A. £1 million was made available for start up costs in 2004-05. £2 million per annum will be available for local authorities during the pilot phase. This new money will build upon existing resources available for parenting support.
Q. Why is implementation by way of a national pilot?
A. By having a national pilot we will allow all areas the opportunity to plan and develop local parenting service with additional resources and compel parents to use them through a parenting order if need be. The feedback we receive from across Scotland will help us evaluate parenting orders and refine the guidance we offer to local authorities/Children's panels.
The pilot will take place over a three year period ending in March 2008 and is being externally evaluated.
Q. Who can apply for a parenting order?
A. The Reporter or local authority may make an application on the grounds that the child has engaged in antisocial behaviour or criminal conduct and that the order is desirable in the interests of preventing a recurrence. The Reporter may also apply on the ground that the order is desirable in the interests of improving the welfare of the child. The Reporter and the local authority are required to consult each other before making an application. Local authorities should also ensure that the appropriate internal consultation is carried out.
Q. Will children's hearings be able to make a parenting order?
A. A parenting order is a civil court order and not suitable for a children’s hearing. If a hearing considers that a parenting order is appropriate in an individual case, the Act makes provision for it to direct the Reporter to consider whether to apply to the court for a parenting order.
Q. What are the penalities on breach?
A. Imprisonment would be a last resort, only open to courts if a parent had failed to comply with the terms of the order, failed to pay a fine and failed to comply with a supervised attendence order. In determining sentence, a sheriff must also take account of the best interests of the child/children involved.
Q. Section 102(1)(b) provides that a court may not make a parenting
order unless it has been notified by the Scottish Ministers that the
Local Authority has put in place the necessary arrangements for the
operation of parenting orders in that area, therefore are all courts in
Scotland currently able to make parenting orders?
A. All courts have received formal notification as required by
s.102(1), and therefore sheriffs across Scotland are able to make
parenting orders.
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Private Landord Registration & ASB Warning Notices
Q. When do these measures come into force?
A. The measure, which are under parts 7 & 8 of the 2004 Act, come into force at the end of April 2006.
Q. Do Property Agents need to register?
A. Any person or organisation that owns property that they rent out to tenants will need to register. However, there may be some Property Management companies or Agents that do not themselves own properties. They would not be required to register as landlords. However, a landlord must declare any such agents they use on their application for registration, and these agents must be judged “fit & proper”for this application to be successful. Therefore agents that do not themselves own property will still be subject to the “fit & proper” test.
Q. Who does the ultimate responsibility lie with in dealing with ASB in privately rented property?
A. If agents are involved, it is still ultimately the responsibility of the landlord to tackle ASB. If agents have been contracted to fulfil this role and are failing to do so, it is up to the landlord to change agents. However, the agent will also risk losing their “fit & proper”rating.
Seizure of Vehicles
Q. Who has the power to seize a vehicle and under what circumstances can this power be used?
A. Section 126 of the 2004 Act allows a police officer to issue a warning and seize a vehicle where a vehicle is being used in a manner which is causing or is likely to cause alarm or distress to the public and also contravenes either s.3 or s.34 of the Road Traffic Act 1988.
Q. What form should a warning take and is it issued on both the driver and the vehicle?
A. A verbal warning is acceptable. However, it would be appropriate to follow up on this verbal warning with a warning letter to the individual a couple of days later outlining the warning they have been given, why they were given it and the possible consequences (i.e. seizure). This ensures that there is a record of the warning, which may be useful if a warning or seizure of a vehicle is challenged.
When a warning is issued it should be issued against the individual using the vehicle and against the vehicle itself. Therefore, if the vehicle is used in a similar manner again but by a different person the vehicle can still be seized as it already has a warning attached to it. Likewise where a person has a warning attached to them and they use another vehicle in such a manner (with no warning attached to it) it too can be seized.
Q. Does a new warning need to be issued to a person (within the 12 month period) if they have already had a warning issued against them and a subsequent seizure has taken place?
If a driver had been warned and their vehicle was seized and they then went on to drive another vehicle in a reckless manner the driver should be issued with another warning unless their new vehicle already had received a warning against it. Once a seizure has taken place the warning on the person driving or vehicle seized should reset back to zero.
Q. What are the procedures for storage of seized vehicles and the charges that will be applied?
A. There is a relevant statutory instrument which covers these issues, SSI 2005 No.80 - The Police (Retention & Disposal of Motor Vehicles) (Scotland) Regulations 2005. This covers all the relevant regulations regarding seizure of vehicles. The regulations outline where the police will take the vehicle, how long they will keep it, the cost to get the vehicle back (£105 in respect of the motor vehicle's removal plus £12 for each period of 24 hours or a part thereof which the vehicle is held by the retaining authority) etc.
Q. We stopped a moped which was being driven in an anti social manner, the driver and the moped itself did not have a previous warning issued against them but one of the passengers (who is the owner) on the moped has a warning against them so can we seize the vehicle on this basis?
A. No. A warning has to have been issued against either the
motor vehicle or the person in control of the motor vehicle before it
can be seized. It is not enough that a warning has previously
been issued against one of the passengers (who is also the owner of the
moped). It is the person using the vehicle in the manner
mentioned that must have been warned rather than a passenger.
Q. Can a warning notice (under seizure of vehicle provisions) be issued as well as proceeding with charges for separate Road Traffic offences?
A. It is possible to charge someone with separate Road Traffic offences as well as issuing a seizure of vehicle warning notice in respect of s.126 of the ASB Act 2004, providing the relevant conditions have been met (contravention of s.3 or s.34 of the Road Traffic Act and the vehicle being used in an anti social manner).
The powers under the ASB Act enable the police to deal more immediately and effectively with nuisance and distress caused. Paragraph 5 of the Guidance on Seizure of Vehicles states that the 'powers contained within the ASB Act are not intended to be used as a first resort or isolation'. Ultimately it is what is reasonable in the circumstances, and it would be up to the officer involved whether they feel a warning notice for seizure is merited as well as charges for other offences. Furthermore, it may be that charges relating to other Road Traffic offences are passed to the PF but they may not necessarily be pursued and therefore at least a warning is in place or their vehicle has been seized.
Q. Where the police have issued a warning notice under s.126 to the
driver of a motor cycle can they also issue a warning notice to the
pillion passenger?
A. No. They can only give a warning notice to the person 'who is using the motor vehicle in the manner outlined in the Act', therefore this is the person in control of the vehicle and responsible for contravening either s.3 or s.34 of the RTA. ultimately it is the person in control/driving the vehicle who will be using it in an anti social manner and not the pillion passenger.
Q. If a vehicle has been driven antisocially but we are unable to
identify the rider/driver of that vehicle, can we still issue a warning
against the vehicle, where we have been able to identify the owner of
the vehicle?
A. Yes. A warning under the seizure of vehicle provisions should where possible be issued against both the driver and the vehicle. If it has not however been possible to identify the driver, a warning should still be issued against the vehicle. This can be done by contacting the owner of the vehicle who you have been able to identify.
Practitioners Advice Line
The advice line can also answer your questions. It is there to support those of you working directly with local people in the fight against antisocial behaviour. The advice line is a free service, staffed by specialists.
The advice line is open during office hours - Monday – Friday 9am to 5pm
Working together we can stand up to antisocial behaviour!
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