RK051802 - 2 Assignments

1 Implementing the community trigger

The Anti-social Behaviour, Crime and Policing Act 2014 Implementing the community trigger

Guidance

2 Implementing the community trigger

Contents

Foreword 4

Introduction 5

Setting up local review procedures 6

Relevant bodies 7

Defining ‘anti-social behaviour’ 8

Setting the case review threshold 8

Qualifying complaints 10

Hate incidents 11

Establishing a point of contact 12

Setting timescales 12

Data-sharing 13

Publishing procedures 14

Approaching case reviews 15

Receiving and reviewing case review requests 15

Assessing risk and vulnerability 16

Communicating whether or not to proceed 17

Case reviews 18

3 Implementing the community trigger

Outcomes and escalation 20

Review outcomes 20

Escalation and appeal 20

Persistent or vexatious complaints 21

Communication 22

Raising awareness 22

Contact with the victim 23

Reporting on local activity 24

Further information and support 26

Appendix 1: Boston Borough Council pilot online trigger application template 27

Appendix 2: Avon and Somerset online trigger application form 28

Appendix 3: Process map used during the Manchester pilots 29

Appendix 4: Process map used in Avon and Somerset 30

4 Implementing the community trigger

Foreword

Despite major advances in policy and practice over the past 15 years, anti-social behaviour (ASB) continues to be highlighted by residents as one of the key issues blighting the lives of communities. As a result, councils, police forces and police and crime commissioners continue to identify ASB as a priority.

Left untreated, ASB can have a devastating impact on communities and individuals. Tragic cases have demonstrated the need for agencies to share information better and better understand vulnerability when dealing with victims of ASB.

The Anti-social Behaviour, Crime and Policing Act 2014 seeks to place victims at the heart of local responses to ASB and, through the introduction of ASB case reviews (known as the ‘community trigger’), provides another mechanism to help deliver a safety net for the most vulnerable.

Local councils and their partners already play a key role in tackling local ASB and work hard to support those affected by it. The community trigger will offer an opportunity to review those responses where problems continue, to make sure they have done all they can to intervene and take further action where needed.

What’s more, for the first time victims will have the power to scrutinise local bodies’ collective responses to ASB, rather than challenging individual agencies in turn.

A number of areas piloted the community trigger during recent Home Office trials, and many others are well on their way to putting their processes in place ready for implementation in October 2014. This guidance looks to build on their experiences and suggest issues for local areas to consider as they develop and introduce their own procedures.

It remains to be seen to what extent the trigger will be used by local residents once case reviews become live. However the outcomes from the pilots suggest that they have been a positive experience for those involved whilst helping to ensure that opportunities to support vulnerable victims are not missed.

Cllr Anita Lower Anti-social Behaviour Champion, LGA Safer and Stronger Communities Board

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Introduction

The Anti-social Behaviour, Crime and Policing Act 2014 will mean significant changes to the way local authorities respond to anti- social behaviour (ASB), introducing new tools and powers to replace existing provisions, including the introduction of ASB case reviews, also known as the ‘community trigger’.

The trigger introduces a right for victims, or victims’ representatives, to ask local agencies to review how they have responded to previous ASB complaints and consider what further action might be taken where the behaviour persists.

The aim is to offer a ‘safety net’ for vulnerable victims and to help avoid individuals being passed between agencies without resolution.

The community trigger will become fully operational on 20 October 2014. Certain parts of the Act came into force on 13 May 2014, which have enabled agencies to begin putting their local community trigger procedures in place.1

Formal Home Office trialling of the trigger took place from June 2012, initially in Manchester, Brighton and Hove, West Lindsey with Boston, and Richmond upon Thames, with other trials following since. Many other areas have begun to consider how they will introduce the trigger locally.

1 The ‘Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 2, Transitional and Transitional Provisions) Order 2014’ brought the provisions in sections 104(2)(a), (3), (5) and s105 into effect.

The legislation recognises that anti-social behaviour, and how agencies respond to it, provides different challenges in different areas. While the Act therefore provides a framework for implementing the new arrangements, much of the detail is for the ‘relevant bodies’ under the Act and other agencies to agree locally.

This guidance seeks to set out the statutory requirements for the relevant bodies and explore how local partners might implement the trigger in their own areas.

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Setting up local review procedures

The new provisions included in the Anti-social Behaviour, Crime and Policing Act 2014 are aimed at focussing responses to anti-social behaviour (ASB) on the needs of victims. ASB case reviews, or the ‘community trigger’, are presented as an opportunity for victims (both individuals and those acting on behalf of a group) to challenge local responses to ASB, giving them the power to demand a review of these responses where certain criteria have been met.

This is intended to encourage a collaborative problem-solving approach amongst bodies dealing with persistent cases of ASB in order to identify whether any further action can be taken.

The Act sets out the statutory framework for ASB case reviews, but the ‘relevant bodies’ (as defined in the Act – see below), will need to work together to agree local processes and procedures and ensure they meet the needs of their communities. Essentially, however, the process will include:

• an ASB case review request, received from the victim or someone acting on their behalf

• a decision taken as to whether or not the request meets local review criteria, including a trigger threshold test

• if the threshold is met, information is shared and a review of the case is undertaken, with recommendations for further action where appropriate

• outcomes are communicated with the complainant(s) involved

• where necessary, the case is escalated, or the complainant appeals.

The community trigger should sit alongside existing processes and practices for responding to ASB and managing risk and vulnerability. Experience from the pilots shows that it is easy to make the trigger processes complicated to operate.

Keeping processes clear, simple and easy to use will not only help the relevant bodies to navigate through reviews and follow-up issues more easily, but also help victims to understand the process and likely outcomes.

Procedures should be kept flexible to allow thresholds to be reviewed and amended to reflect changing local needs and operational experiences; under Schedule 4 of the Act (Part 1, s4) the trigger procedures must include a process for reviewing the effectiveness of these procedures and how they might be revised. Local areas can therefore be assured that should initial processes present problems, these can be addressed later on.

In Brighton and Hove the initial trigger threshold was set very low. After reviewing their experiences during the pilots it was agreed that this was too ambitious and the threshold was changed.

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Relevant bodies Effective multi-agency working is key to tackling ASB and developing joint local plans for implementing the trigger will be dependent on, and strengthen, those relationships. The Act sets out a number of ‘relevant bodies’ which must be involved in the trigger process, including:

• setting up and operating the local trigger

• agreeing the local threshold

• reviewing trigger activations

• agreeing review actions where necessary

• reporting on the local use of the trigger.

It is worth noting that ‘relevant bodies’ are distinct from the responsible authorities as set out in the Crime and Disorder Act 1998; responsibility for the community trigger therefore does not sit with community safety partnerships (CSPs) per se. Early involvement of all relevant partners in establishing local procedures can help to secure their engagement and assist with developing processes that are both realistic and workable across all organisations.

Under s105 of the Act, the relevant bodies which must be involved are defined as:

• the relevant district or unitary council in England, or the county or county borough council in Wales

• the police

• the Clinical Commissioning Group (CCG) in England, or the Local Health Board (LHB) in Wales

• local registered social housing providers who are co-opted onto this group.

The role of the police and crime commissioner is referenced under Schedule 4 of the Act (see below).

Under the Act, housing providers are defined as private registered providers of social housing that:

• in England, grant tenancies of dwelling houses in that area, or manage a house or property in that area

• in Wales, a body registered as a social landlord under section 3 of the Housing Act 1996 that grants tenancies of dwelling houses in that area, or manages a house or property in that area.

Councils, the police and CCGs/LHBs will need to be proactive to ensure that social housing providers are involved. The involvement, or ‘co-option’, of providers into the relevant bodies is expanded on under Schedule 4 of the Act. Social housing providers will play a central part in the community trigger: they must be consulted when making and revising review procedures; must be consulted about and cooperate with case reviews; and will have an important role to play in sharing information on cases and receiving complaints or trigger requests.

The Act does not specify which local housing providers should be co-opted into the procedures; larger housing providers may be able to develop and review the trigger procedures on behalf of the local sector, or there may be an established working group or housing organisation which can carry out this role. Smaller housing providers may need to be involved only in case reviews concerning one of their tenants. However, even housing providers who only have a few properties in an area, and may be involved in very few community triggers, should be fully informed of the local processes and how to activate the trigger when appropriate.

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Schedule 4, Part 1 s1(1) requires local bodies to consult with their police and crime commissioner (PCC) (or, in London, the Mayor’s Office for Policing and Crime) when making or revising their review procedures. The extent and nature of this process is not however prescribed in the legislation and may therefore be agreed locally. In many cases, PCCs have already indicated a preference for a consistent threshold to be applied across the force area.

The relevant bodies across city regions, force areas, or the county may alternatively wish to work together to identify a consistent threshold, for example covering the whole of their area. Schedule 4 of the Act (Part 4) allows for different authorities to establish joint review procedures covering two or more areas; in Avon and Somerset consistent processes have been agreed across the entire force area, while West Yorkshire has agreed a common local threshold. The Act also allows for additional flexibility under Schedule 4 s9, so that different procedures, or arrangements with social housing providers, are in place in different parts of an area.

Defining ‘anti-social behaviour’ For the purposes of the community trigger, anti-social behaviour is defined under s105(4) of the Act as “behaviour causing harassment, alarm or distress to members or any member of the public”. It is useful to note that this is a higher threshold for ASB than is set out elsewhere in the Act, for example regarding the use of injunctions (s2(1)) and does not therefore necessarily include behaviour which is regarded as a nuisance or annoyance.

Partner agencies involved in case reviews will need to be clear about what constitutes ASB in this context; this may need to be addressed specifically in local processes or staff community trigger training as often interpretations can vary across organisations. Similarly, it may be useful to highlight this when raising awareness about the trigger amongst residents.

When deciding whether the threshold is met however, agencies should also consider the cumulative effect of the incidents and consider the harm or potential harm caused to the victim (see also Approaching case reviews).

Setting the case review threshold Each area will be responsible for setting a local review threshold; trigger requests that meet this threshold must qualify for a case review. The threshold must comply with the statutory requirements as set out in the Act, but beyond this, local agencies will be able to agree their own baseline.

Manchester trigger request

The complainant was invited to enact the trigger following another family member contacting the ASB team on their behalf to request a review of action taken by their housing provider.

The ASB team spoke to the complainant who enacted the trigger using the online form, alleging three incidents within the last six months relating to loud parties.

A review meeting was held at which it was decided that the trigger did not meet the threshold as this was deemed to be behaviour causing nuisance and annoyance rather than likely to cause harassment, alarm or distress.

Following the review, the complainant was updated regarding the course of action taken by the housing provider and what further action may be taken if the nuisance were to continue.

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Under section 104(4) of the Act, the community trigger threshold for a case review must be regarded as met where:

• an application for an ASB case review is made, and

• at least three qualifying complaints (see definition below) have been made about the anti-social behaviour to which the application relates (or, if a different number is specified in local review procedures, at least that number).

The purpose of section 104(4) is to set a maximum threshold for the trigger. This is a simple test that a case review has been requested and at least three qualifying complaints (see below) have been made. It is important to note that the adequacy of any response to these complaints cannot be used to determine whether or not this threshold has been reached.2

Where the threshold in s104(4) is not met, section 104(5) of the Act provides the relevant bodies with the flexibility to decide if they want to activate the trigger nonetheless. In making this decision the relevant bodies may take account of:

• the persistence of the anti-social behaviour about which the original complaint was made

• the harm caused, or the potential for harm to be caused, by that behaviour

• the adequacy of the response to that behaviour.

The ability to take into account the adequacy of the response to the ASB means that even where there have been fewer than three complaints, relevant bodies can consider whether no, inadequate or incomplete action has been taken, and if this should be a relevant factor in determining whether the case should be reviewed in these circumstances.

2 It should be noted therefore that several of the thresholds used in the original community trigger pilots were different from the legislative requirements as now enacted.

Where this is the case, procedures should clarify whether ‘no action’ applies simply where no or insufficient action was taken by one or more agencies, or refers to the victim’s perception of events, where perhaps the more significant issue is around communicating effectively with the victim concerned about what has been done.

Although there are statutory requirements for the trigger threshold, relevant bodies may still wish to consider consulting their communities to help determine an appropriate threshold for their area, perhaps through existing community or tenants’ groups, or through community safety surveys or consultations.

This will also assist with assessing whether or not agencies have a true picture of local ASB victims and help gauge local ASB tolerance levels.

During trials in Kirklees and Leeds, examples of ‘no action’ included:

• The reported problems were not acknowledged – ie no-one contacted the complainant to advise what action would be taken.

• The reported problems were not appropriately investigated.

• The complainant’s vulnerability and/ or the potential for harm was not considered and this affected potential service delivery.

• Information was not shared between partners and this affected potential service delivery.

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Qualifying complaints The definition of ‘qualifying complaints’ is set out in s104(11) of the Act. This sets a default position, but the relevant bodies can vary the timescales in relation to circumstances where there are two or more complaints in their local review procedures, as long they do not lower the standard set out in s104(11) which is that:

• the complaint is made within one month from when the anti-social behaviour is alleged to have occurred

• the trigger request is made within six months from the when the complaint is made.

Unless the review procedures therefore specify different time periods then the three qualifying complaints that activate the trigger must be made within six months from when the complaint is made (although this could be seven months from when the first incident of anti-social behaviour happens, given the gap of a month allowed between the time the behaviour occurs and reporting it).

It is up to the relevant bodies when establishing their review procedures to specify different time periods in which a trigger request can be made or how long after an incident of anti-social behaviour a complaint has to be made. In the West Lindsey and Boston pilot they extended the time period, requiring the complainant to have made three qualifying complaints in 12 months.

Relevant bodies will undoubtedly want to consider what would best suit their communities if they choose to set a different period of time in which a request for a review must be made than in the legislation, and balancing that against their own resources to deal with the differing number of complaints they may receive.

ASB case reviews can be requested by an ASB victim, or a third party acting on their behalf (such as a carer, guardian, family member, MP or councillor), but the written consent of the victim(s) should be obtained in all cases and before any information is disclosed to the third party.

The victim could be an individual, a business or a community group and the trigger can be used by someone of any age. Relevant bodies may therefore wish to consider how they will handle activations by young people where the behaviour concerned may have occurred in a school context or online.

Complaints, along with the request to use the trigger, may have been made to a single agency, or to several, and there is no requirement that they need to be in writing.

Local areas may therefore wish to consider how complaints are documented and shared across agencies concerned in order to link separate reports together (see also Data- sharing, below); although there is no statutory requirement to proactively identify when the threshold has been met, once a review request has been received, the relevant bodies will need to establish whether or not the required number of qualifying complaints have been made.

Outside of the relevant bodies, it is up to local areas to determine whether or not complaints made to other bodies exercising public functions should also count; this might include parish councils, schools and hospitals.

Under s104(12), if a person makes two or more complaints about anti-social behaviour within the specified timescales, local areas have the flexibility to decide which complaint is, or which complaints are, qualifying complaints. This is to allow scope for local review procedures to set rules on the approach to take where the complaints essentially relate to the same behaviour and how that situation is to be defined.

In this context it should be noted that there is no legislative requirement that qualifying complaints need to be from the same individual, relate to the same specific incident, the same type of behaviour or the same perpetrator(s).

11 Implementing the community trigger

It is therefore important that when drafting local procedures, the relevant bodies consider which of these factors will need to be consistent when determining whether or not separate complaints can be linked together meaningfully in order to meet the trigger threshold.

It is recommended that the procedures clarify whether or not anonymous complaints can count towards meeting the threshold requirements. Several pilot areas have not regarded anonymous complaints as valid as they have felt that working with the specific victim(s) involved is an integral part of the trigger process.

In West Lindsey, an anonymous trigger request was acted upon due to concerns about the risk of potential harm to the victim. However, it was acknowledged that this made processes difficult because it was impossible to document concerns in the same way and communicate outcomes to the complainant.

It may also be worth considering how to respond to related incidents of ASB that take place across different authority boundaries. Neighbouring authorities may wish to agree whether and how these incidents taken together could meet the trigger threshold.

Hate incidents Although the trigger is intended specifically for tackling anti-social behaviour, it is recognised that ASB can often be linked to, or motivated by, hate. Areas may therefore wish to include hate incidents explicitly within their community trigger processes and therefore their threshold definition. Pilot areas adopting this approach used a lower threshold for hate incidents than other episodes of ASB, reflecting concerns that hate crimes may often be underreported and are highly likely to have a significant impact on the victim concerned.

“A decision was made early on to include hate incidents. Communities affected by hate incidents have appreciated the inclusion in the process and this has had a positive impact on trust and confidence.” Brighton and Hove pilot

Where hate incidents are not included in the trigger process, local agencies should ensure that their trigger procedures dovetail with other provisions for responding to hate- related reports. Hate incidents or crimes must be properly recorded and areas may wish to consider different case strategies for dealing with these.

In the Boston pilot the trigger processes explicitly stated there must be three separate reports of “the same incidence of behaviour”.

Manchester trigger request

A caller was invited to use the community trigger after contacting the ASB team. The complainant had reported three incidents of ASB to the police and their housing provider within the previous six months, alleging racist abuse and threats to kill.

Various meetings were held to review the case, which was complicated by a long history and police intervention involving both parties being the victim and perpetrator at times. An action plan was agreed and confirmed in writing to the complainant, including:

• a police review of crimes reported during a specified period to reconsider whether independent evidence was available to support a criminal charge

• police to share any evidence obtained, allowing the housing provider to consider whether civil proceedings would be possible

• a follow-up meeting to review progress after four weeks

• working with the complainant to be rehoused out of the area.

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Establishing a point of contact Section 104(3) of the Act states that there must be an established point of contact (SPOC) for requesting a review, and that the nominated contact passes on applications to all relevant bodies as part of the review process. Although there is no statutory definition of the nature of this role, local areas may consider that it would be best filled by a single individual in one of the relevant bodies who can receive requests and coordinate the initial stages of the review process on behalf of all partners. It may also be useful to identify contacts within each of the relevant bodies with whom the SPOC can liaise as the review process unfolds, for example regarding data-sharing and coordinating review panel meetings.

All partners who may encounter trigger requests, which can include a wide range of front-line workers, call-handlers and elected members, will need to know who the point of contact is and how they can be contacted. These details should also be easily available to members of the public and it should be ensured that all partners advertise the same contact details to avoid duplication (see also Communication section below).

Some large areas may feel that the SPOC role is too big for a single person alone and the function may instead be shared across a team, however identifying a contact in each partner agency will still be useful for the purposes of effective information-sharing. Further, it will be important to agree who should hold information about each trigger request itself and log all activity regarding that review.

Setting timescales Areas should consider agreeing timescales for dealing with case reviews consistently. This might include:

• how quickly initial responses are made to the complainant

• within what time the case is evaluated to determine whether or not the threshold has been met

• how quickly case reviews should proceed

• when and how quickly complainants should be informed on review progress and outcomes

• if and when review outcomes are followed- up and/or escalated.

(see also Outcomes and escalation and Communication sections).

In Richmond, both the Richmond Housing Partnership (RHP) and the CSP act as ‘gateways’ to the community trigger, who will then forward reports to the single point of contact (SPOC) within one working day. The online form is designed to gather information about the case history, the victim’s vulnerability and what support has been provided. This then produces a risk matrix score to help assess the impact of the ASB on the victim.

After the trigger is activated an acknowledgement letter is sent to the complainant within two working days and sets out the timeframes for the trigger process.

Once a trigger request is received by the SPOC, the trigger panel, consisting of representatives from each of the agencies involved, will consider whether the report meets the trigger threshold (with a minimum of two of the three key partners required to agree).

Agencies have 10 working days to research relevant case information and to meet as a panel to identify ways forward.

Once the review meeting has taken place, the outcomes must be confirmed to the victim within one working day. The victim can then either agree to the actions proposed or ask for the case to be escalated.

Actions agreed as part of a case review are monitored by the borough’s ASB panel, held on a monthly basis and comprising representatives from the RHP, environmental health, health services, the police, Victim Support, social services and the troubled families team.

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It is important that timescales are realistic and practical to help manage the expectations of complainants, that these are clear in the published procedures and are communicated to victims. Agreed timetables may need to dovetail with meeting structures if, for example, case reviews are to be undertaken as part of existing meetings.

Some trial areas used very tight timescales for responding to victims; here it was felt that if the initial response to the ASB had been insufficient, the relevant bodies were keen to try and address this as quickly as possible.

Setting procedural timescales for implementing new actions to deal with problem behaviour may be difficult as establishing some of these, such as a mediation process, may take a long time; instead, these can be reflected on an individual basis in any recommendations or action plans drawn up as part of each specific case review.

Some force areas are considering adopting a consistent approach for contacting victims initially within a specific timeframe; beyond this local areas will have more flexibility around timeframes for other aspects of the process.

Data-sharing Data-sharing will be an important aspect of managing reviews and implementing effective outcomes. Areas will need to ensure that the provisions in the Act regarding data-sharing, alongside local information-sharing protocols (ISPs), will be sufficient for their needs – particularly concerning arrangements with housing providers who are often not included in standard ISPs.

Under Schedule 4 s7 of the Act, the relevant bodies are required to share relevant information for case reviews where they hold it (subject to the usual requirements of data protection legislation3). Requests made to other agencies for information may also be granted if that agency agrees.

For local housing providers, including both those co-opted into the group of relevant bodies and those who are not, information requested in connection with the exercise of the case review must be provided.

Beyond these agreements, it is worth exploring the extent to which all relevant bodies have compatible record management software, how consistently ASB is recorded and information shared, and whether staff will require training on any new software they may need to use.

Similarly, areas will need to ensure that information can easily be collated across agencies to determine both whether or not the trigger threshold has been met and what action was taken in response. Several of the trigger trial areas used shared IT systems which assisted with information sharing across agencies.

As noted previously, the written consent of the victim requesting the case review should be secured before any information about them is shared either with other agencies or with a third party requesting the review on their behalf.

3 The Act does not therefore require or authorise the disclosure of information that would be in contravention of the Data Protection Act 1998 or prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.

During the Boston pilot, there were difficulties in obtaining some information from one agency involved because of fears about how that might be used as part of a formal complaints process. One of the recommendations from the pilot was that a specific ISP may be needed to help remove barriers and increase transparency.

Following the trials in Avon and Somerset it was agreed that five weeks would provide a realistic timeframe from when the trigger was activated until the victim was informed about the review outcomes.

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Publishing procedures Once agreed, local agencies are required to publish their procedures under s104(2)(b) of the Act (one relevant body can publish these on behalf of all the relevant bodies if preferred). It may be useful to include the following documents:

• definitions

• process map

• timescales

• application forms and information on the trigger for potential complainants

• template letters for correspondence with complainants

• template for recording review outcomes/ action plans

• terms of reference for review panels

• confidentiality agreements and information sharing protocols.

Relevant bodies might also find it useful to run a table-top exercise once procedures have been drafted to help test the process.

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Approaching case reviews

Case reviews are intended to provide an opportunity to assess what action has been taken in response to previous complaints and, where the problem behaviour persists, bring agencies together to identify a more joined- up, problem-solving response for the victim concerned. Beyond meeting the statutory requirements for the trigger threshold, the legislation does not prescribe how case review requests should be assessed, what reviews should look like or how they should run, so this will largely be for local areas to agree.

“The community trigger helped agencies to collectively look at the problem from the victim’s perspective and find a solution which may not otherwise have been tried.” West Lindsey and Boston pilot

Receiving and reviewing case review requests Effective communication and awareness- raising amongst residents and staff from partner agencies should help ensure that trigger requests are channelled to the relevant individual point(s) of contact. Formally making a request should be possible through a variety of means, including by telephone, post or online application; areas should consider how to make this process as accessible as possible to all members of their local communities.

This should include proactively offering victims the opportunity to report and record incidents in their first language and offering assistance with completing application forms.

Areas may wish to develop reporting templates for trigger applications, either for completion by the victim or their representative, or a member of staff where the request is made by telephone.

This is an opportunity to collect as much information as possible about the incidents of ASB, when and to whom they were reported, their impact and about the victim themselves.

The impact and precise nature of the incidents are even more important where the local trigger also incorporates hate incidents.

At this point it may also be worth capturing the victim’s consent to collect and share information about them in order to proceed with their trigger application.

Some pilot areas agreed to allow case review requests to be channelled via the 101 switchboard. This was then forwarded to the central SPOC in the same way as other requests.

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Examples of reporting templates are attached at appendices 1 and 2. Examples of online application forms can be found at:

Richmond: https://richmond.firmstep.com/popup.aspx/ RenderForm/?F.Name=e2JedpzUvSt

Brighton & Hove: ww3.brighton-hove.gov.uk/index. cfm?request=c1265494&node=22096

Avon & Somerset: www.avonandsomerset.police.uk/advice/ neighbourhood-community/anti-social- behaviour/anti-social-behaviour-community- trigger/community-trigger-application-anti- social-behaviour/

Common templates should be shared across partners to ensure a consistent public message and approach.

Determining whether or not the requirements of the local threshold have been met is likely to require initial investigation of the information provided by the complainant. However this does not need to be a formal process; a simple scoping exercise should be sufficient and using established points of contact in each partner agency will assist with this.

Local areas should agree who should decide whether or not the threshold has been met in each case; for example whether this decision can be made by an individual, and who that should be, or through a range of agency representatives.

The former offers simplicity and uses less resources, but the latter may offer greater transparency, share responsibility and provide different perspectives. Procedures might also cover how senior that person(s) should be and whether or not the original organisation(s) managing the case should be excluded from this process.

Assessing risk and vulnerability A case review request provides an appropriate opportunity to formally undertake an assessment of risk and vulnerability. At this point, local areas may wish to agree to review a case which does not meet the published threshold, to help address particular concerns. Agencies should consider the potential cumulative effect of ongoing ASB on the victim rather than simply assessing each separate incident in isolation. Further, the victim’s perspective should also be considered when deciding whether or not the definition of ASB in the context of the community trigger (causing harassment, alarm or distress to the victim) has been met.

During the trials in Avon and Somerset agency officers noted that often victims of ASB struggled to recall or were mistaken about when incidents had occurred or been reported. This meant that more time was needed than had been anticipated to check information provided by the victim against agencies’ own records, sometimes requiring prolonged contact with the victim and agencies involved to establish this. The reporting form encourages applicants to include as much information as possible and this is followed up with a telephone call to the victim to clarify the details.

In West Lindsey, either the police ASB coordinator or the council’s community action officer review the trigger request to determine whether or not the threshold had been met. Once the case details are available, it is then allocated to the agency which had had most involvement in the case. All triggers are jointly investigated by the two officers above to add a degree of independence.

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Assessing and responding to vulnerability should fit with existing procedures for managing risk across all partners. This might include a risk assessment matrix for each complainant, or embedding risk assessments into the initial ASB complaints process, which can then be reviewed as part of the trigger.

Implementing the trigger may also provide an opportunity to assess the extent to which risk assessments are consistent and complementary across agencies and how these will fit with case reviews.

Communicating whether or not to proceed The decision as to whether or not the threshold has been met (and thus, if a case review will be undertaken) will need to be communicated to the victim under s104(6) of the Act, in accordance with the agreed local timescales.

Complainants should also be informed of their right to appeal if they wish. Where the trigger threshold has not been met, processes should also make it clear what happens next. Other actions might be considered here, for example referring the case to an appropriate agency for additional follow-up.

Areas should consider including an audit process in their procedures to scrutinise decisions about whether or not the threshold has been met to help ensure decisions are consistent.

The community trigger is not a complaints process and is not intended to replace organisations’ own complaints procedures.

West Lindsey trigger request

A complaint was made about an ongoing nuisance linked to children playing ball games and roller skating in the resident’s road. While the incidents appeared to be minor, and were the subject of an ongoing response by the police, there were concerns about the complainant’s behaviour and the impact these incidents may be having. The case was subsequently reviewed at an Anti-social behaviour risk assessment conference (ASBRAC) and an action plan was then agreed with the victim.

In Brighton and Hove firm working relationships have been established with senior managers across partner agencies, who work in a management group to coordinate the process. Case review requests are received and reviewed using the following method:

• trigger activations are received by a senior caseworker and senior ASB coordinator who decide whether or not the threshold has been met

• the complainant is contacted within one working day and the process is explained, including contacting the victim again with a full response within five working days

• where the trigger threshold has been met, a lead agency is allocated, which reviews the case and responds to the complainant

• vulnerable victims are risk assessed and responded to where appropriate, overseen by the Multi-Agency Risk Assessment and Tasking meeting (MARAT).

During the Richmond pilot cases were reviewed even where the trigger threshold was not met to ensure no issues were missed; actions were agreed by the trigger panel for monitoring and victim support purposes.

18 Implementing the community trigger

It should be clear to victims of anti-social behaviour that they will still have the opportunity to complain to organisations such as the Ombudsman or Independent Police Complaints Commission if they are unhappy about the service they have received from an individual officer or agency. Similarly, case reviews cannot be used to review decisions made by the Crown Prosecution Service; these instances should be referred to the CPS complaints process (see also Escalation and appeal, below).

Case reviews It is important to remember that the purpose of reviews is to achieve a better outcome for the victim concerned, particularly where they are vulnerable, and ultimately should lead to service improvement for local residents. Reviews may provide challenge between partners but are not intended to apportion blame or provide formal accountability.

Case reviews should not be confused with case panels. The panel is simply a term given to the representative(s) from relevant bodies who will be responsible for reviewing the case (see below). However the format for case reviews may vary; reviews may be undertaken during a formal meeting of appropriate partners; this might include using existing meeting structures to hear reviews, such as ASB case panels or ASBRACs4 (Anti-social behaviour risk assessment conferences), or mean convening specific case review meetings when the trigger is activated.

4 ASBRACs are based on a similar victim-focussed model to MARACs (Multi-Agency Risk Assessment Conferences), for supporting victims of domestic abuse; ASBRACs are being increasingly used to support victims of anti-social behaviour.

However, a review may not necessarily require a formal case ‘panel’ meeting and in some instances, particularly where arranging a meeting is difficult within the set timescales, less formal arrangements may be regarded as sufficient. Following the trials in Avon and Somerset for instance, the format for consultation amongst the relevant bodies is now regarded as less important, and telephone conferencing and even email correspondence have both been used alongside more formal meetings.

Attendance at review meetings by statutory partners might not be required on all occasions; it may make more sense for them to attend only where their agency is relevant to the case and they have related information. Additional members may also be invited depending on the circumstances of that particular case; where the perpetrator is under 18 for instance, the youth offending team should be invited.

Approaches to conducting the case review have varied across pilot areas:

• In the Brighton and Hove pilot the agency which had most contact with the victim was appointed as the lead agency for reviewing the case, working with other partners as appropriate.

• In Boston, where one agency had had most contact with the victim, a lead was appointed from another organisation to review previous responses and consider further interventions, offering an independent perspective.

• In Richmond the trigger panel comprised members from all agencies involved in that particular case. Where appropriate, health, mental health and other services will also be invited to attend.

• In Manchester the Council’s ASB lead, chief inspector from the police partnerships team and a senior manager from the housing provider would meet, along with other service representatives where appropriate.

During trials in Avon and Somerset, three trigger applications were received regarding incidents in the same location. Each request met the trigger criteria individually, but local bodies agreed that the applications should be combined and investigated jointly.

19 Implementing the community trigger

Engagement with other services such as children and adult social care, health services (including mental health), drug misuse are also likely to be important to ensure that victims are offered the most effective interventions available.

“We found that the community trigger strengthens existing partnership links. It has also helped to identify areas where partnership working could be improved; in particular they are developing stronger links with health and mental health agencies.” West Lindsey pilot

Areas may also wish to consider how the victim is represented during reviews and/ or during review meetings, and whether someone should attend on their behalf. This might be achieved, for example, by securing representation from a victim’s group. The role of elected members might also be considered here.

Local areas may also wish to consider using independent representatives to provide additional challenge and objectivity; this may be particularly pertinent where, for example, a case is referred to the panel which involves personnel historically associated with that case.

Some areas are exploring the use of ‘peer reviews’, where the case history is reviewed perhaps by an independent team from a neighbouring borough with whom reciprocal arrangements have been agreed. Alternatively this arrangement might form part of the appeals process.

London Borough of Richmond upon Thames use a ‘Tenants’ Champion’ to help advocate on behalf of the victim. The Champion, an elected member whose role is to support tenants and leaseholders who rent or lease their properties from a registered housing provider, can refer cases to the trigger panel and provide an oversight role on the panel for those cases.

As noted above, the community trigger is not a complaints process. However, in Avon and Somerset there were some concerns amongst police officers about whether information passed on to the trigger case review panel could be used against individuals as part of a disciplinary process. Avon and Somerset found it useful to engage with the Police Federation and Professional Standards Department to agree assurances that nothing used during the trigger review could form part of a formal disciplinary hearing.

20 Implementing the community trigger

Outcomes and escalation

Review outcomes Case reviews are likely to result either in the relevant bodies being satisfied that responses to the original complaints were appropriate and sufficient, or with recommendations for further action. Local procedures should be clear who should sign-off the outcome/ response; this may simply be those who attended the meeting (if held), or an individual (for example in Manchester, this will be undertaken by the chair of the CSP). Under s104(8) of the Act, the review applicant must be informed of the outcomes and any recommendations made.

Ideally the recommendations/action plan will include timescales and identify individuals responsible for undertaking these. There should also be opportunities agreed to review progress; in Avon and Somerset agencies will review a case again after three months to ensure that no further action or response is required.

Outcomes may also include recommendations about service provision more generally. Procedures should note how any wider issues are recorded, escalated and resolved and provide a mechanism for checking on progress to ensure these are followed up.

“The trigger has led to the identification of gaps in the services of some agencies.” Brighton and Hove pilot

Under s104(7) of the Act, public bodies, or individuals working in them, are required to have regard to any recommendations made in exercising their public functions.

Although this means they are not required to act on those recommendations, they should acknowledge and consider them and may be challenged by other agencies should they decide not to act as suggested. Recommendations cannot however include actions for the CPS, as this is an independent body.

Escalation and appeal Schedule 4 of the Act (Part 1, s3) states that review procedures must include provision for a process where applicants are dissatisfied either with the way their trigger application was dealt with, or how the case review has been carried out. There are no further statutory provisions on the nature of this appeal process, or to whom appeals can be made; local procedures should therefore cover how and where complaints are escalated.

In Manchester a ‘learning log’ is produced after each trigger review to capture any wider learning from that case. This then informs multi-agency training sessions to consider how to respond to ASB across partners.

21 Implementing the community trigger

Examples from trial areas include referring the matter to the head of service, the CSP chair, a panel from neighbouring boroughs, a senior police officer or the police and crime commissioner. This might form part of a wider accountability framework for the trigger panel.

Some reviews may identify broader issues in how cases are managed more generally, for example around working with specific agencies. Local areas may wish to formalise procedures for escalating these issues, perhaps to other forums such as the CSP or CCG, in their trigger processes.

The appeals process could also dovetail with more formal complaints procedures where this is appropriate, such as referring an issue to the Ombudsman or the Independent Police Complaints Commission.

Persistent or vexatious complaints Some concerns have been raised about the potential for persistent complainants to abuse the trigger process, diverting resources away from those most in need. While this does not appear to have been a feature of the pilots, case review requests that are deemed to be vexatious can be rejected in accordance with local procedures.

Some areas will already have procedures in place for dealing with persistent complaints. In the context of the trigger, partner agencies should review their existing vexatious complaints policies to ensure that these are appropriate here and agreed across all relevant bodies.

However, managing the expectations of complainants and potential complainants and informing them of action taken in response to their concerns are key to helping prevent persistent calls.

It is possible that even after a case review there may be successive requests to activate the trigger from the same complainant; agencies may wish to consider drafting their procedures such that a ‘new set’ of incidents has to be reported in accordance with the local threshold before a subsequent case review must be scheduled.

22 Implementing the community trigger

Communication

Raising awareness Section 104(3) of the Act states that the local procedures must set out how to apply for a case review and the relevant point of contact. This involves not only raising awareness amongst potential victims, but also includes elected members who will receive many complaints directly from their residents; staff across all partner agencies; and amongst all local professionals working with vulnerable people.

Outcomes from all the pilot areas have suggested that internal communication and clarification around using the trigger are crucial. Many frontline workers recognise that their clients suffer ASB but often do not make referrals to ASB teams.

Within this context it is worth noting again that the trigger can be activated not only by the victim themselves, but by a carer, friends or family or by a professional acting on their behalf.

Relevant bodies may wish to publicise their trigger procedures using a variety of means, including partner websites, social media, launch events, poster and leaflet campaigns, staff briefings, local and national press, and public meetings/events. Coordinating publicity campaigns across bodies can help to maximise its impact.

Thought should be given as to how best to brand marketing materials; for instance, including logos from all the relevant bodies can help avoid the misconception that victims are reporting events to a single agency.

Campaign materials should be tailored where possible for specific community groups; for example using social media may be particularly appropriate for targeting young victims of ASB.

It should be clear what the local trigger threshold is, including how ASB is defined in the trigger context, and how to make a case review request, including a phone number, email address and postal address. Some areas, such as Swale, are working with their PCC to raise awareness across the force area.

For staff, awareness-raising might also include training sessions and developing scripts for customer service call-handlers. Communications should be coordinated between partner agencies and easy to access, with consistent messages used throughout.

In particular, points of contact and their contact details should be consistent to avoid duplication between agencies. Raising awareness will need to be an on-going process and local areas may wish to include this in broader media strategies to ensure that this continues.

“Customers with active cases were signposted inappropriately by well-meaning colleagues in customer services who misunderstood the criteria.” Leeds pilot

23 Implementing the community trigger

Although s104(1) of the Act places the onus on the victim or their representatives to make a review request, agencies should not necessarily assume victims are aware of their right to apply; if a case appears to meet the local threshold, agencies may wish to proactively offer victims the opportunity to use it.

During the West Lindsey trials for instance, a complainant was not aware of the community trigger, but it was clear the threshold had been met. The complainant was demonstrating signs of distress and as a result the case was dealt with as a trigger report and reviewed accordingly.

Threshold levels and the potential outcomes from trigger reviews should also be clearly communicated to avoid confusion and help manage public expectations. Outcomes from the pilots suggested that victims’ understanding of what the trigger could achieve was mixed. Effective communication can help avoid instances where victims feel dissatisfied with the outcomes of the trigger process.

“The investigating officer highlighted that managing expectations is key in the process, so that victims understand exactly what can be achieved…” Boston pilot

“Managing expectations is very important. Residents often think that agencies haven’t done enough because tenants haven’t been evicted, even where the problem behaviour has stopped. Our job is not to evict tenants but to respond to the ASB.” Manchester pilot

Contact with the victim Ongoing and constructive communication with complainants is crucial and can help provide transparency. Often dissatisfaction with the outcome of a complaint of anti- social behaviour is simply the result of poor communication about what action was taken in response. Evaluations from several of the pilots found that victims valued the increased levels of contact with agencies that the trigger process provided, even where ultimately no further action was taken.

“The most significant outcome of the trial has been to improve communication with residents who feel that they had not received a good service and to identify gaps in service provision.” Brighton and Hove trial

Local procedures should clarify whether one agency will be responsible for communicating with all victims, or whether this will be assigned to a lead agency depending on the circumstances of that case.

This may be particularly important where a complainant feels they have not received a good service from a particular organisation in the past.

In Brighton and Hove caseworkers promote the trigger as part of their general service offer for ASB and hate incidents. The trigger is also embedded in their online reporting processes so that victims reporting incidents online are alerted if the trigger threshold has been met and are invited to activate it.

“This makes the trigger part of normal business and advertises it directly to those who meet the criteria.”

24 Implementing the community trigger

The legislation sets out a number of points throughout the process at which case review applicants must be updated:

• under s104(6) of the Act, the applicant must be informed whether or not their application meets the threshold for review (see also Approaching case reviews, above)

• under s104(8) complainants must be informed of case review outcomes and any recommendations made as a result (see also Outcomes and escalation, above).

Areas may also wish to consider offering the victim a choice in their initial assessment; this might include, for instance a personal visit, where appropriate. In several pilot areas complainants are invited to meet directly with agency staff to talk through their concerns face-to-face. It was found that communicating directly with minority groups in particular helped to build confidence and trust with these communities and encourage both the reporting and resolving of incidents.

Reporting on local activity Under s104(9) of the Act, the relevant bodies must publish information on the following for their locality:

• the number of case review applications made during that period

• how many times the threshold was not met

• the number of case reviews carried out

• how many case reviews resulted in recommendations being made.

This may be done by one agency on behalf of all other agencies in the local area and might also comment on the effectiveness of procedures in place.

Some areas plan to use this evaluation process to explore additional questions, such as why the trigger was not activated by victims despite meeting the review threshold.

How frequently this information is published can be determined by local procedures (for example, as part of the community safety partnership’s annual review) but this must be at least every 12 months. Any data published must not include information that could identify the victims involved.

Brighton and Hove trigger request

Two separate reports were received about a family in an ongoing case being managed by the Council’s housing department. The housing ASB manager undertook an immediate quick-time review of the case and met with both residents within five days to explain the plans in place to address the issue. Both residents were satisfied with the response.

During trials in Swale, all complainants in cases that did not meet the threshold criteria were contacted to set out the reasons why and given follow-up advice including signposting to other agencies or departments who might provide further assistance.

25 Implementing the community trigger

26 Implementing the community trigger

Further information and support

Anti-social Behaviour, Crime and Policing Act 2014 www.legislation.gov.uk/ukpga/2014/12/contents/enacted/data.htm

Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers – Statutory guidance for frontline professionals www.gov.uk/government/uploads/system/uploads/attachment_data/file/352562/ASB_Guidance_ v8_July2014_final__2_.pdf

Evaluation report from the Home Office pilots www.gov.uk/government/publications/empowering-communities-protecting-victims-summary- report-on-the-community-trigger-trials

Putting victims first – more effective responses to anti-social behaviour www.gov.uk/government/publications/putting-victims-first-more-effective-responses-to-anti- social-behaviour

Fact sheets, explanatory notes and impact assessments www.gov.uk/government/collections/anti-social-behaviour-crime-and-police-bill

Presentations from three LGA community trigger workshops held in summer 2014:

York: www.local.gov.uk/past-event-presentations/-/journal_content/56/10180/6254746/ARTICLE

London: www.local.gov.uk/web/guest/past-event-presentations/-/journal_ content/56/10180/6309338/ARTICLE

Birmingham: www.local.gov.uk/web/guest/past-event-presentations/-/journal_ content/56/10180/6366349/ARTICLE

Home Office community trigger pilot areas:

Brighton & Hove: www.brighton-hove.gov.uk

Manchester: www.manchester.gov.uk/info/200030/crime_antisocial_behaviour_and_ nuisance/5654/community_trigger

Richmond: www.richmond.gov.uk/community_trigger

West Lindsey: www.west-lindsey.gov.uk

Boston: www.boston.gov.uk

The College of Policing’s Anti-social behaviour: Your powers e-learning package:

http://asb1.ncalt.com/01/engine.html

27 Implementing the community trigger

Appendix 1 Boston Borough Council pilot online trigger application template

28 Implementing the community trigger

Appendix 2 Avon and Somerset online trigger application form

29 Implementing the community trigger

Appendix 3 Process map used during the Manchester pilots

Gateway to community trigger

Digital portal via website, letter,

telephone

ASB Services Lead SPOC

Acknowledgement sent to complainant

Greater Manchester Police

Information requested

Sign off from Assistant Chief

Executive, Neighbourhoods (acting as Chair of CSP for the trial)

Response to trigger

Registered Housing Providers

Information requested

10 Working Days (responses from agencies could require longer in complex cases)

1 Working Day

5 Working Days

5 Working Days

Review of previous actions

and propose response/ solutions

Resolution

Escalation if appropriate

(to Chair of CSP, acting as PCC for

the trial)

Manchester City Council

Information requested

Partners Information requested

30 Implementing the community trigger

Appendix 4 Process map used in Avon and Somerset

Community Trigger Process

Vi ct

im o

f A SB

AS C

SP O

C Pa

rt ne

r A ge

nc ie

s Co

m m

un ity

T rig

ge r P

an el

DAY 35 - 90DAY 25 - 35DAY 1 DAY 10 – 25 Day 7 - 9DAY 4 - 6DAY 3DAY 2

Contact victim and

acknowledge successful

activation of trigger

Update SPOC if not

at panel meeting

Request to activate

Community Trigger

Received from Victim of ASB

Provide information

to SPOC where

appropriate

Decision / Action letter written and signed off by CSP

chair sent to Victim

Victim happy? NO

Victim able to make

complaint to relevant agency

Notify Partner Agencies of

trigger application and request information (pro-forma)

Panel Meeting

Meets CT criteria?

Receive information

from partner

agencies

Contact victim to

advise trigger not activated

NO

YES

Contact partners

confirming successful

trigger activation

Further actions (if

appropriate) carried out by relevant

agencies

YES

Review in 3 months

Retained for

analysis

Arrange panel

meeting

Send letter to victim to

acknowledge request

Telephone victim and

obtain further

information

Agree on necessary

further actions

Conduct leading to disciplinary procedure identified?

NO

YES

Refer to appropriate disciplinary department

Victim updated by nominated

member of panel of trigger process

being stopped

Victim applies to activate trigger

Create crime related incident

(CRI) to case manage trigger

application

Local Government Association Local Government House Smith Square London SW1P 3HZ

Telephone 020 7664 3000 Fax 020 7664 3030 Email [email protected] www.local.gov.uk

For a copy in Braille, larger print or audio, please contact us on 020 7664 3000. We consider requests on an individual basis. L14-541

© Local Government Association, September 2014

Justice and Punishment/Support/Death Pen.docx

Introduction to capital punishment

HNC 2013 Module 14

Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial.

It can only be used by a state, so when non-state organisations speak of having 'executed' a person they have actually committed a murder.

It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.

The phrase 'capital punishment' comes from the Latin word for the head. A 'corporal' punishment, such as flogging, takes its name from the Latin word for the body.

Capital punishment is used in many countries around the world. According to Amnesty International as at May 2012, 141 countries have abolished the death penalty either in law on in practice. Source: Amnesty

In 2008, there was a growing reluctance among those countries that do retain the death penalty to use it in practice. In 2008, only 25 out of 59 countries that retain the death penalty carried out executions.

Amnesty International, March 2009

China executes the most people per year overall, with an estimated figure of 1,718 in 2008. Amnesty International also states that in 2008 Iran executed at least 346 people, the USA 111, Saudi Arabia 102 and Pakistan 36.

Details of which countries are abolitionist and which are receptionist can be found on the Amnesty website.

In China, at least 1,718 people were executed and at least 7,003 people were known to have been sentenced to death in 2008. These figures represent minimum estimates - real figures are undoubtedly higher. However, the continued refusal by the Chinese authorities to release public information on the use of the death penalty means that in China the death penalty remains shrouded in secrecy.

Amnesty International, March 2009

There is now steadily increasing support for abolishing capital punishment.

On 18 December 2008, the United Nations adopted resolution 63/168, which is a reaffirmation of its call for a moratorium on the use of the death penalty (62/149) passed in December the previous year. The resolution calls for states to freeze executions with a view to eventual abolition.

The World Coalition against the Death Penalty was created in Rome in 2002, and 10th October 2006 was World Day against the Death Penalty.

Retribution

First a reminder of the basic argument behind retribution and punishment:

· all guilty people deserve to be punished

· only guilty people deserve to be punished

· guilty people deserve to be punished in proportion to the severity of their crime

This argument states that real justice requires people to suffer for their wrongdoing, and to suffer in a way appropriate for the crime. Each criminal should get what their crime deserves and in the case of a murderer what their crime deserves is death.

The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim.

Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals.

Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

Justices A.S. Anand and N.P. Singh, Supreme Court of India, in the case of Dhananjoy Chatterjee

Some people are prepared to argue against retribution as a concept, even when applied fairly.

Deterrence

Rehabilitation

Prevention of re-offending

Closure and vindication

Incentive to help police

This is a very feeble justification for capital punishment, and is rather similar to arguments that torture is justified because it would be a useful police tool.

A Japanese argument

From an ethical point of view this is the totally consequentialist argument that if executing a few people will lead to an aggregate increase in happiness then that is a good thing.

Retribution

First a reminder of the basic argument behind retribution and punishment:

· all guilty people deserve to be punished

· only guilty people deserve to be punished

· guilty people deserve to be punished in proportion to the severity of their crime

This argument states that real justice requires people to suffer for their wrongdoing, and to suffer in a way appropriate for the crime. Each criminal should get what their crime deserves and in the case of a murderer what their crime deserves is death.

The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim.

Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals.

Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

Justices A.S. Anand and N.P. Singh, Supreme Court of India, in the case of Dhananjoy Chatterjee

Many people find that this argument fits with their inherent sense of justice.

It's often supported with the argument "An eye for an eye". But to argue like that demonstrates a complete misunderstanding of what that Old Testament phrase actually means. In fact the Old Testament meaning of "an eye for an eye" is that only the guilty should be punished, and they should punished neither too leniently or too severely.

The arguments against retribution

· Capital punishment is vengeance rather than retribution and, as such, is a morally dubious concept

· The anticipatory suffering of the criminal, who may be kept on death row for many years, makes the punishment more severe than just depriving the criminal of life

· That's certainly true in the USA, but delay is not an inherent feature of capital punishment; some countries execute people within days of sentencing them to death

Some people are prepared to argue against retribution as a concept, even when applied fairly.

Deterrence

Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.

The arguments against deterrence

· The statistical evidence doesn't confirm that deterrence works (but it doesn't show that deterrence doesn't work either)

· Some of those executed may not have been capable of being deterred because of mental illness or defect

· Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences

· No-one knows whether the death penalty deters more than life imprisonment

Deterrence is most effective when the punishment happens soon after the crime - to make an analogy, a child learns not to put their finger in the fire, because the consequence is instant pain.

The more the legal process distances the punishment from the crime - either in time, or certainty - the less effective a deterrent the punishment will probably be.

Cardinal Avery Dulles has pointed out another problem with the deterrence argument.

Executions, especially where they are painful, humiliating, and public, may create a sense of horror that would prevent others from being tempted to commit similar crimes...

...In our day death is usually administered in private by relatively painless means, such as injections of drugs, and to that extent it may be less effective as a deterrent. Sociological evidence on the deterrent effect of the death penalty as currently practiced is ambiguous, conflicting, and far from probative.

Avery Cardinal Dulles, Catholicism and Capital Punishment, First Things 2001

Some proponents of capital punishment argue that capital punishment is beneficial even if it has no deterrent effect.

If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.

John McAdams: Marquette University, Department of Political Science

Rehabilitation

Of course capital punishment doesn't rehabilitate the prisoner and return them to society. But there are many examples of persons condemned to death taking the opportunity of the time before execution to repent, express remorse, and very often experience profound spiritual rehabilitation.

Thomas Aquinas noted that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life.

This is not an argument in favour of capital punishment, but it demonstrates that the death penalty can lead to some forms of rehabilitation.

Prevention of re-offending

It is undeniable that those who are executed cannot commit further crimes.

Many people don't think that this is sufficient justification for taking human life, and argue that there are other ways to ensure the offenders do not re-offend, such as imprisonment for life without possibility of parole.

Although there have been cases of persons escaping from prison and killing again, these are extremely rare.

But some people don't believe that life imprisonment without parole protects society adequately. The offender may no longer be a danger to the public, but he remains a danger to prison staff and other inmates. Execution would remove that danger.

Closure and vindication

It is often argued that the death penalty provides closure for victims' families.

This is a rather flimsy argument, because every family reacts differently. As some families do not feel that another death will provide closure, the argument doesn't provide a justification for capital punishment as a whole.

Incentive to help police

Plea bargaining is used in most countries. It's the process through which a criminal gets a reduced sentence in exchange for providing help to the police.

Where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced, even to life imprisonment without possibility of parole, and it's argued that capital punishment therefore gives a useful tool to the police.

This is a very feeble justification for capital punishment, and is rather similar to arguments that torture is justified because it would be a useful police tool.

A Japanese argument

This is a rather quirky argument, and not normally put forward.

Japan uses the death penalty sparingly, executing approximately 3 prisoners per year.

A unique justification for keeping capital punishment has been put forward by some Japanese psychologists who argue that it has an important psychological part to play in the life of the Japanese, who live under severe stress and pressure in the workplace.

The argument goes that the death penalty reinforces the belief that bad things happen to those who deserve it. This reinforces the contrary belief; that good things will happen to those who are 'good'.

In this way, the existence of capital punishment provides a psychological release from conformity and overwork by reinforcing the hope that there will be a reward in due time.

Oddly, this argument seems to be backed up by Japanese public opinion. Those who are in favour currently comprise 81% of the population, or that is the official statistic. Nonetheless there is also a small but increasingly vociferous abolitionist movement in Japan.

From an ethical point of view this is the totally consequentialist argument that if executing a few people will lead to an aggregate increase in happiness then that is a good thing.

Value of human life

Everyone thinks human life is valuable. Some of those against capital punishment believe that human life is so valuable that even the worst murderers should not be deprived of the value of their lives.

They believe that the value of the offender's life cannot be destroyed by the offender's bad conduct - even if they have killed someone.

Some abolitionists don't go that far. They say that life should be preserved unless there is a very good reason not to, and that the those who are in favour of capital punishment are the ones who have to justify their position.

Right to live

Everyone has an inalienable human right to life, even those who commit murder; sentencing a person to death and executing them violates that right.

This is very similar to the 'value of life' argument, but approached from the perspective of human rights.

The counter-argument is that a person can, by their actions, forfeit human rights, and that murderers forfeit their right to life.

Another example will make this clear - a person forfeits their right to life if they start a murderous attack and the only way the victim can save their own life is by killing the attacker.

The medieval philosopher and theologian Thomas Aquinas made this point very clearly:

Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good... Therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful.

Thomas Aquinas, Summa theologiae

Aquinas is saying that certain contexts change a bad act (killing) into a good act (killing to repair the violation of justice done by the person killed, and killing a person who has forfeited their natural worthiness by killing).

Execution of the innocent

The most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.

Witnesses, (where they are part of the process), prosecutors and jurors can all make mistakes. When this is coupled with flaws in the system it is inevitable that innocent people will be convicted of crimes. Where capital punishment is used such mistakes cannot be put right.

The death penalty legitimizes an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated

Amnesty International

There is ample evidence that such mistakes are possible: in the USA, 130 people sentenced to death have been found innocent since 1973 and released from death row. Source: Amnesty

The average time on death row before these exonerations was 11 years. Source: Death Penalty Information Center

Things were made worse in the USA when the Supreme Court refused to hold explicitly that the execution of a defendant in the face of significant evidence of innocence would be unconstitutional [Herrera v. Collins, 560 U.S. 390 (1993)]. However many US lawyers believe that in practice the court would not permit an execution in a case demonstrating persuasive evidence of "actual innocence".

The continuous threat of execution makes the ordeal of those wrongly convicted particularly horrible.

Retribution is wrong

Many people believe that retribution is morally flawed and problematic in concept and practice.

We cannot teach that killing is wrong by killing.

U.S. Catholic Conference

To take a life when a life has been lost is revenge, it is not justice.

Attributed to Archbishop Desmond Tutu

Vengeance

The main argument that retribution is immoral is that it is just a sanitised form of vengeance. Scenes of howling mobs attacking prison vans containing those accused of murder on their way to and from court, or chanting aggressively outside prisons when an offender is being executed, suggest that vengeance remains a major ingredient in the public popularity of capital punishment.

But just retribution, designed to re-establish justice, can easily be distinguished from vengeance and vindictiveness.

In any case, is vengeance necessarily a bad thing?

The Victorian legal philosopher James Fitzjames Stephens thought vengeance was an acceptable justification for punishment. Punishment, he thought, should be inflicted:

for the sake of ratifying the feeling of hatred-call it revenge, resentment, or what you will-which the contemplation of such [offensive] conduct excites in healthily constituted minds.

Sir James Fitzjames Stephens, Liberty, Equality, Fraternity

Retribution and the innocent

But the issue of the execution of innocent persons is also a problem for the retribution argument - if there is a serious risk of executing the innocent then one of the key principles of retribution - that people should get what they deserve (and therefore only what they deserve) - is violated by the current implementation of capital punishment in the USA, and any other country where errors have taken place.

Uniqueness of the death penalty

It's argued that retribution is used in a unique way in the case of the death penalty. Crimes other than murder do not receive a punishment that mimics the crime - for example rapists are not punished by sexual assault, and people guilty of assault are not ceremonially beaten up.

Camus and Dostoevsky argued that the retribution in the case of the death penalty was not fair, because the anticipatory suffering of the criminal before execution would probably outweigh the anticipatory suffering of the victim of their crime.

Others argue that the retribution argument is flawed because the death penalty delivers a 'double punishment'; that of the execution and the preceding wait, and this is a mismatch to the crime.

Many offenders are kept 'waiting' on death row for a very long time; in the USA the average wait is 10 years. Source: Death Penalty Information Center

In Japan, the accused are only informed of their execution moments before it is scheduled. The result of this is that each day of their life is lived as if it was their last.

Capital punishment is not operated retributively

Some lawyers argue that capital punishment is not really used as retribution for murder, or even consistently for a particular kind of murder.

They argue that, in the USA at least, only a small minority of murderers are actually executed, and that imposition of capital punishment on a "capriciously selected random handful" of offenders does not amount to a consistent programme of retribution.

Since capital punishment is not operated retributively, it is inappropriate to use retribution to justify capital punishment.

This argument would have no value in a society that applied the death penalty consistently for particular types of murder.

Capital punishment is not retribution enough

Some people who believe in the notion of retribution are against capital punishment because they feel the death penalty provides insufficient retribution. They argue that life imprisonment without possibility of parole causes much more suffering to the offender than a painless death after a short period of imprisonment.

Another example is the planner of a suicide bombing - execution might make that person a martyr, and therefore would be a lesser retribution than life imprisonment.

Failure to deter

The death penalty doesn't seem to deter people from committing serious violent crimes. The thing that deters is the likelihood of being caught and punished.

The general consensus among social scientists is that the deterrent effect of the death penalty is at best unproven.

In 1988 a survey was conducted for the UN to determine the relation between the death penalty and homicide rates. This was then updated in 1996. It concluded:

...research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis.

The key to real and true deterrence is to increase the likelihood of detection, arrest and conviction.

The death penalty is a harsh punishment, but it is not harsh on crime.

Amnesty International

NB: It's actually impossible to test the deterrent effect of a punishment in a rigorous way, as to do so would require knowing how many murders would have been committed in a particular state if the law had been different during the same time period.

Deterrence is a morally flawed concept

Even if capital punishment did act as a deterrent, is it acceptable for someone to pay for the predicted future crimes of others?

Some people argue that one may as well punish innocent people; it will have the same effect.

This isn't true - if people are randomly picked up off the street and punished as scapegoats the only consequence is likely to be that the public will be frightened to go out.

To make a scapegoat scheme effective it would be necessary to go through the appearance of a legitimate legal process and to present evidence which convinced the public that the person being punished deserved their punishment.

While some societies have operated their legal systems on the basis of fictional evidence and confessions extracted by torture, the ethical objections to such a system are sufficient to render the argument in the second paragraph pointless.

Brutalising society

Brutalising individuals

Statistics show that the death penalty leads to a brutalisation of society and an increase in murder rate. In the USA, more murders take place in states where capital punishment is allowed. In 2010, the murder rate in states where the death penalty has been abolished was 4.01 per cent per 100,000 people. In states where the death penalty is used, the figure was 5.00 per cent. These calculations are based on figures from the FBI. The gap between death penalty states and non-death penalty states rose considerably from 4 per cent difference in 1990 to 25 per cent in 2010. Source: FBI Uniform Crime Report, from Death Penalty Information Center

Disturbed individuals may be angered and thus more likely to commit murder.

It is also linked to increased number of police officers murdered.

Brutalising the state

Capital punishment may brutalise society in a different and even more fundamental way, one that has implications for the state's relationship with all citizens.

...the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life.

George Kateb, The Inner Ocean 1992

Brutalising the law

Capital punishment is said to produce an unacceptable link between the law and violence.

But in many ways the law is inevitably linked with violence - it punishes violent crimes, and it uses punishments that 'violently' restrict human freedoms. And philosophically the law is always involved with violence in that its function includes preserving an ordered society from violent events.

Nonetheless, a strong case can be made that legal violence is clearly different from criminal violence, and that when it is used, it is used in a way that everyone can see is fair and logical.

Capital punishment 'lowers the tone' of society

Civilised societies do not tolerate torture, even if it can be shown that torture may deter, or produce other good effects.

In the same way many people feel that the death penalty is an inappropriate for a modern civilised society to respond to even the most dreadful crimes.

The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly

Beccaria, C. de, Traité des Délits et des Peines, 1764

Because most countries - but not all - do not execute people publicly, capital punishment is not a degrading public spectacle. But it is still a media circus, receiving great publicity, so that the public are well aware of what is being done on their behalf.

However this media circus takes over the spectacle of public execution in teaching the public lessons about justice, retribution, and personal responsibility for one's own actions.

Expense

In the USA capital punishment costs a great deal.

For example, the cost of convicting and executing Timothy McVeigh for the Oklahoma City Bombing was over $13 million.

In New York and New Jersey, the high costs of capital punishment were one factor in those states' decisions to abandon the death penalty. New York spent about $170 million over 9 years and had no executions. New Jersey spent $253 million over a 25-year period and also had no executions. Source: Death Penalty Information Center

In countries with a less costly and lengthy appeals procedure, capital punishment seems like a much cheaper option than long-term imprisonment.

Counter-arguments

Those in favour of capital punishment counter with these two arguments:

· It is a fallacy that capital punishment costs more than life without parole

· Justice cannot be thought of in financial terms

People not responsible for their acts

Applied unfairly

Cruel, inhumane, degrading

Unnecessary

Free will