Legislation
Crime and Disorder Act 1998, Section 17
3. CONSEQUENCES OF NON-COMPLIANCE
3.1 There are three consequences:
Legal Implications
Impact on the community
Impact on the delivery of core services
Legal Implications
3.2 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.
3.3 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
3.4 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.
3.5 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.
3.6 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.
3.7 Part 5 of this guidance sets out examples of cross-cutting between organisations and of departments within organisations. These are not definitive and creative and lateral thinking will be required to predict the potential crime and disorder outcomes on the delivery of services.
Impact on delivery of core services
3.8 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.
3.9 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.
3.10 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.
Last update: 19/08/03