Section 17

Crime and Disorder Act 1998

Section 17

Summary

The 1998 Crime and Disorder Act provided local authorities, the police and a number of key partners with a new legal framework to reduce crime and disorder. Section 17 of the Act requires local authorities, police authorities and other agencies to consider crime and disorder reduction and community safety in the exercise of all their duties and activities.

Section 17 is a powerful tool, requiring all authorities to look at the crime reduction potential of all their policies, and decision-making processes. The recent introduction of a more performance driven agenda for Crime and Disorder Reduction Partnerships, supported by reporting structures introduced in the Police Reform Act 2002, further highlights the important role all partners play in working to reduce crime and disorder.

Under the Crime and Disorder Act 1998 Review Section 17 as been broadened to include anti social behaviour, behaviour adversely affecting the environment and substance misuse.

Introduction

The Crime and Disorder Act 1998 promotes the practice of partnership working to reduce crime and disorder and places a statutory duty on police and local authorities to develop and implement a strategy to tackle problems in their area. In doing so, the responsible authorities are required to work in partnership with a range of other local public, private, community and voluntary groups and with the community itself.

This approach recognises that both the causes of crime and disorder and the interventions required to deliver safer, more secure communities lies with a range of organisations, groups and individuals working in partnership. Crime reduction is not solely the responsibility of the police.

The view that tackling crime is a matter for the police and tackling poor health is a matter for the NHS and deprived neighbourhoods is a matter for local authorities and so categorises every problem and isolates responsibility for dealing with it into the silo of an individual agency or organisation. For people in the community the quality of their life in their neighbourhoods is affected by a whole range of influences. Quite rightly, they do not apportion responsibility for solutions uniquely to each individual agency and as part of our own community, we recognise situations in which the actions of one agency can positively contribute to the work of another. Local organisations working together can collectively provide interventions and responses to tackle problems and provide earlier, more effective solutions.

Section 17 of the Act recognises that there are key stakeholder groups who have responsibility for the provision of a wide and varied range of services to and within the community. In carrying out these functions, section 17 places a duty on them to do all it can to reasonably prevent crime and disorder in their area.

The purpose of section 17 is simple: the level of crime and its impact is influenced by the decisions and activities taken in the day-to-day of local bodies and organisations. The responsible authorities are required to provide a range of services in their community from policing, fire protection, planning, consumer and environmental protection, transport and highways. They each have a key statutory role in providing these services and, in carrying out their core activities, can significantly contribute to reducing crime and improving the quality of life in their area. Section 17 is aimed at giving the vital work of crime and disorder reduction a focus across the wide range of local services and putting it at the heart of local decision-making.

The implementation of this part of the Act, however, may not be seen by some partners as straightforward and undemanding. It may be seen as a radical approach to the way in which organisations have to work and be viewed as an additional burden to their core responsibilities.

The purpose of this guidance is to explain section 17 and to identify ways in which mainstreaming crime and disorder reduction into the strategic and implementation processes within organisations can not only contribute to their own delivery plans but also help contribute to the safety and well-being of people in their community.

THE LEGISLATION

Section 17 states:

"Without prejudice to any other obligations imposed upon it, it shall be the duty of each authority to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all it reasonably can to prevent crime and disorder in its area."

"Without prejudice to any other obligation imposed upon it," means that section 17 consideration does not overrule any other statutory obligation on the relevant authority. For example, the Fire Precautions Act 1971 places a duty to protect life and limb and that statutory obligation would take priority in the decision regarding the positioning of the means of escape in say a department store. It would however serve to highlight how best consideration should be given in the planning process to maximising the protection of the individual and minimising the potential for crime such as a potential escape route for shoplifters.

"...it shall be the duty of each authority to exercise its various functions with due regard to the likely effect of the exercise of those functions on..." means that all relevant authorities in provision of their daily functions and services must consider the impact they will have on crime and disorder. The aim is to anticipate the likely consequences on crime of decisions and look to ensure that any negative impact is avoided and positive outcomes promoted. Successful outcomes may best be achieved in discussion with other agencies and this part of the Section looks to promote not only mainstreaming crime and disorder within organisations individually but by the key stakeholders adopting a cross-cutting approach.

"...and the need to do all it reasonably can to prevent crime and disorder in its area" means that authorities must have taken reasonable and, under the Human Rights Act, proportionate action to have due regard to crime and disorder reduction in all their areas of work. Defining "reasonable" and "proportionate" is a matter for the courts and attention should not be drawn from the focus of preventing crime and disorder and improving the quality of life for the community.

Fulfilling the statutory roles set out in sections 5 and 6 of the 1998 Act, as amended by the Police Reform Act 2002, in the work of Crime and Disorder Reduction Partnerships would not in itself constitute compliance with section 17. Section 17 requires authorities to be able to show that their administrative and decision-making processes provide for both consideration and action to tackle crime and disorder in delivery of their services. Authorities should ensure that departments within their organisation can show that crime and disorder issues have been fully considered in their strategic and implementation processes.

Section 17 applies to a local authority (as defined by the Local Government Act 1972); a joint authority; a National Park authority; and the Broads Authority. As amended by the Police Reform Act 2002, it will also apply to a police authority and all fire authorities with effect from April 2003.

CONSEQUENCES OF NON-COMPLIANCE

There are three consequences:

  • Legal Implications
  • Impact on the community
  • Impact on the delivery of core services

Legal Implications

Public bodies in England and Wales are authorised by statute to do anything which facilitates the discharge of their functions. They must not disable themselves in any way from fulfilling their statutory obligations. In carrying out their functions, they are required to ensure that they do not inflict upon others any damage which might be avoided by reasonable care.

Some statutes provide specific remedies in the form of penalties or compensation. However, as in the case of section 17, statute does not confer specific remedies, persons have recourse to a potential civil action for damages or to judicial review of the action or decision.

  • Civil Action - Case Law would suggest that it is necessary to establish that in order to substantiate careless exercise of a duty, the aggrieved person will have to show that he or she has suffered damage and that the public body owed the person a legal duty of care in the way in which that power or duty was exercised. Duty of care arises about the way in which the public body has exercised the statutory discretion and the way in which it has implemented any decision taken.
  • Judicial Review of Administrative Action - Judicial Review enables an application to the Court by a person with sufficient interest to which the application relates, for enforcement of the law against public authorities in respect of their statutory functions. It enables a person to ask a Judge to review the lawfulness of a decision or action made by a public body. [Judicial Review does not question the merit of the decision but the legal basis of it and can result in the quashing of the decision or action - still correct in light of Human Rights Act]. The court has at its discretion a number of remedies provided it believes that the applicant acted promptly, in good faith and he or she suffered hardship as a result of a decision by the public body deemed bad by the court. These remedies are:

Certiorari: Quashes an illegal decision forcing the authority to take it again.
Prohibition: Prevents a public body from making an illegal, irrational or improper decision.
Mandamus: Forces a public body to perform a public duty or to reach a discretionary decision when it has failed to do so, but does not determine the outcome of such decisions.
Declaration: The court declares the way in which a piece of legislation should be interpreted in the future.
Injunction: Prevents an illegal act or enforces the performance of a public duty.
Damages: Can be payable to compensate individuals against whom unlawful decisions have been made. These are very rare in judicial review cases and only payable if a similar private law claim would have been payable (for example, for personal injury) had that course of action been pursued by the plaintiff.

Human Rights Act 1998 - based on the European Convention of Human Rights, all public authorities are required to act in accordance with the Act. The effect is that all public authorities have a liability if they fail to give effect to a right under the Convention. The following sections are relevant to public authorities:

Section 6: It is unlawful for a public authority to act in a way that is incompatible with a Convention right, unless the authority has to act in such a way as not to contravene primary legislation.

Section 7: Where a public authority acts in a way unlawful by section 6, a victim of that act may, within one year of the act, either bring proceedings against the authority under this Act, or rely on the convention in any legal proceeding.

Section 8: Where a court finds that a public authority has acted in a way made unlawful by Section 6, it may make such order, within its powers, as it considers just and equitable. In certain circumstances, damages may be awarded.

Section 9: Proceedings under section 7 in respect of a judicial act may be brought only by exercising a right of appeal, on an application for a judicial review, or in such other form as may be prescribed.

How might this impact on compliance with section 17? The right to liberty and security, the right to respect for private and family life and the right to protection of property may all be adversely affected by the way in which an authority either fails to or complies with section 17.

The courts are likely to seek to determine whether the damage was foreseeable; whether there was a relationship of proximity between the parties; and the acknowledgement that it is not the nature of a duty but the fact that a statutory duty exists. The latter point is crucial and the Act (?case law in this area has moved from whether it was) does not provide for consideration as to whether it is fair, just and reasonable to impose such a duty on a public body in the circumstances but recognition that it is a statutory duty.

Therefore, the relevant authorities are unable to consider the reasonableness of the application of section 17 in their exercise of their functions. The courts will, however, look to determine whether or not an authority has done all it reasonably can and taken all relevant factors into account in preventing crime and disorder in its area. This means that determination of a breach will be subject to the test of proportionality.

Impact on the community

A more subjective approach lies in the determination of the impact of an authority's delivery plan on reducing crime and disorder and the general well-being of the community. An authority will focus on the outcome of their own delivery plan in terms of achieving specific outcomes placed on it by obligation or statute.

Section 17 does not diminish that responsibility. What it does do is require the authority to recognise that its actions can be of benefit to the community both in terms of delivering its core services and also how, in that delivery, it can contribute to the wider renewal of neighbourhoods. An authority may consider that its actions or failure to carry out an action is responsible for preventing or helps minimising any increase in crime and disorder. That may be because the authority concerned does not consider that crime reduction is not part of either its core or ancillary functions.

However, it is highly dangerous to conclude that section 17 does not apply to the service you provide or receive because there is no obvious crime and disorder reduction association. Also, the introduction of new or reviewed approaches to existing working practices or delay in implementing a decision or not making a decision at all can all have consequences under section 17. The impact on the community and on individual citizens may be at best not to lead to improvements in their quality of life and at worst, lead to a reduction in the quality of service provided.

Impact on delivery of core services

Crime and disorder is among if not the top concern that people raise about the quality of life in their neighbourhoods. Individuals are victims but so to are organisations and agencies who either directly suffer from the consequences of crime or indirectly through the emotional and physical impact of crime on staff or from costs passed on from crime suffered by other agencies.

Diversion of resources away from core services in order to deal with preventative or consequential costs directly effects the ability of an authority to deliver its services. It means that external influences are helping drive the authority's agenda. It may be that as an authority the price is not considered significant and that "we can absorb" the costs of the crime as it is not in proportion to the cost of spending time and money to help tackle the source of the problem. That is a matter for the authority provided it can justify compliance with section 17 in that it has done all it reasonably can to prevent crime and disorder in its area and that their decision is proportionate to the nature and impact of the crime.

However, it is unlikely that crime committed against an authority - unless it is very specialist - is done in isolation from the remainder of the community. Developing solutions in partnership with other agencies should help tackle the problem and, importantly, help ensure that an authority can concentrate more effectively on delivery of its core functions as well as contributing to the wider agenda of community safety.

BURDEN OR BENEFIT?

The perceived wisdom on section 17 compliance is that it is an additional task for local authorities resulting in some areas either paying no attention at all to its implementation or adopting a cursory approach. That would suggest that it is seen as a burden, an add-on to an already heavy schedule of meeting statutory requirements and delivering services. On the other hand, some areas have been able to successfully mainstream crime and disorder by focussing on community safety priorities within each of their service provider and delivery mechanisms. Indeed, some parts of the country had adopted this approach before the introduction of the 1998 Act.

Whilst the 1998 Act does not build in specific sanctions for authorities which fail to comply with section 17, there are statutory and community repercussions for failure to do so. These are set out later in this guidance but equally important are the benefits which individual authorities can achieve from focussing on crime and disorder as a priority issue when delivering their own core and ancillary tasks.

Sections 5 and 6 of the Crime and Disorder Act requires responsible authorities to formulate and implement a strategy to tackle crime and disorder in their area. The delivery of a strategy setting out activity for the next three years is the beginning of the process and not the end. Strategy implementation requires real activity with intervention and initiatives tackling the identified problems and being sufficiently flexible to deal with changing or emerging priorities.

In order to do this effectively, each agency must have an understanding of its own role in both identifying and tackling the issues which affect its community and the contribution it can make to improving safety and security of that community. To do so, it must examine its own actions and delivery of its local services and the impact they have. That means first identifying why action is necessary and what - in the light of consideration with other local service providers - is the most effective solution.

In practice, implementing section 17 is no more than that. It means adopting an evidence-based approach to problem solving and working with others to achieve the most suitable outcome. There will of course be discussion on the exact nature of that outcome and no doubt a degree of compromise from an individual agency perspective but local consideration will help raise issues and provide an informed, consensus solution.

CROSS CUTTING IMPLICATIONS

The Crime and Disorder Act promotes an evidence based, problem solving approach to tackling crime. Sections 5 and 6 of the Act require responsible authorities to conduct an audit of crime and disorder in their area and to develop and implement a strategy to tackle local priorities based on the evidence of the audit and community consultation.

The audit and strategy process will identify types of crime and disorder which impact on the local community. It should also help identify how different local agencies can contribute to interventions and solutions. As part of that process, individual authorities should examine their activities and how:

  • delivery of their services can be affected by crime and disorder
  • can prevent or reduce crime and disorder
  • can anticipate potential future risk from crime and disorder

www.crimereduction.gov.uk
Home Office Crime Reduction website
www.crimereduction.gov.uk/toolkits
Evidence-based guidance on specific areas of crime and criminality
www.lga.gov.uk
Local Government Association
www.auditcommission.gov.uk
Audit Commission