Sending in the professionals

From April, council tenants could be found guilty of antisocial behaviour if a 'professional witness' gives evidence that they are 'likely to cause' problems. Tessa Mayes reports

It is one thing for the New Labour government to create a new crime of 'antisocial behaviour', to help convict badly behaved council tenants. But it is quite another for the courts to secure convictions when nobody comes forward as a witness. After all, who wants to be labelled as the estate grass?

The government's solution to this problem is to recruit people to spy on tenants until they get the evidence. In April the new Antisocial Behaviour Orders (part of the Crime and Disorder Act 1998) come into force, allowing for the extensive use of 'professional witnesses' in providing evidence for convictions. These orders will make it far easier for the local authorities to police council estates. But they will also allow for an unprecedented level of intrusion into the private lives of residents.

'Professional witnesses', in this context, are private detectives or housing officials employed by local authorities to conduct secret surveillance on unsuspecting council tenants or other neighbours accused of wrongdoing. This can involve sitting in a flat for days, secretly filming alleged 'nuisance neighbours' going in and out of their homes. Often professional witnesses are used in cases where council tenants are accused of criminal behaviour. When other residents refuse or are unwilling to come forward and testify, councils can employ professional snoopers to gather evidence.

To the authorities, 'professional witnesses' are a sensible use of resources to help victims of nuisance neighbours receive better justice. And there is no doubt that some residents do have big problems with their neighbours. A survey by Oldham Council in July 1998, for example, revealed that 26 percent of council tenants are dissatisfied or very dissatisfied with their neighbours; 29 percent of people who moved house did so because of problems with the antisocial behaviour of other tenants.

In focusing on the fears and concerns of the minority of tenants who dislike their neighbours, the freedom of all residents to live without interference in their home lives is being eroded. Every tenant will be assumed to be a potential problem, whose behaviour can legitimately be watched and regulated by the council and police.

The use of professional witnesses is happening in the context of increasing levels of surveillance. According to a recent report by the CCTV User Group, in Britain there are over one million CCTV cameras in public places, making this country the largest user of CCTV in the world (Sunday Times, 14 February 1999). Many council estates are now dotted with cameras - last year Newham Council in London installed a mobile CCTV camera inside a lift on one estate. Other councils are considering starting 24-hour protection patrols on estates, and putting cameras in neighbours' cars. Neighbourhood Watch schemes, the Noise Act 1996 and the Housing Act 1996 are also used to deal with 'antisocial behaviour'.

All of this leads to a situation in which residents on council estates are under the constant eye of the councils and the police. Rather than sorting out inter-neighbour disputes between themselves, tenants will find themselves subject to more and more covert scrutiny and official intervention.

If, as a result of this scrutiny, somebody is charged with troublemaking, they are unlikely to get a fair trial. According to the draft guidance document for the Crime and Disorder Act 1998, somebody can be accused of 'antisocial behaviour' that not only caused but was 'likely to cause' harassment, alarm or distress. The guidelines state that 'this is intended specifically to validate the use of professional witnesses to provide evidence to the court where victims feel unable to come forward'.

The phrase 'likely to cause' is more than a technical device to allow professional witnesses to appear in court. It has a serious impact on the kind of evidence needed to charge and convict the defendant. There does not have to be an actual victim of harassment; the authorities can simply say somebody was 'likely' to cause harassment to another.

Some of Britain's top academic lawyers have raised deep concerns about the legal effect of the Antisocial Behaviour Orders on a defendant's right to a fair trial. Under the headline 'Neighbouring on the oppressive', Andrew Ashworth of Oxford University, John Gardner of King's College, London, and Tony Smith of Cambridge University write in the magazine of the penal reform group the Howard League that 'a law that depends so much on the word of a policeman or paid witness invites abuse, and should not survive more than a few moments of careful scrutiny'.

These lawyers are concerned about the standard of proof required for convictions: 'Not only is the offending conduct vaguely defined, but the criteria for proof are inappropriately low. The standard of proof is the civil normal of "balance of probabilities", rather than the higher criminal standard of proof "beyond reasonable doubt''.' In this context, the word of a professional witness alone could be enough to initiate an order, where there is a supposed victim (according to the authorities) and evidence of causing 'harassment' (also according to the authorities).

Other lawyers worry that evidence gathered by professional witnesses could be tainted with the knowledge that the witness has a financial incentive to incriminate the defendant. Housing officers may not have a financial incentive, but they may be under different pressures - for example, to please their employers by reaching targets to gain promotion. Compare this to the evidence given by ordinary witnesses. They are usually neighbours who will have to live with their version of events afterwards, or passers-by, involuntarily caught up in the events about which they testify without an obvious vested interest to lie or fabricate a story.

Renting a council house used to mean just that. Now, it seems, to live on an estate means forfeiting your privacy and constantly watching your back, in case the men from the council are doing the same.