Ordinary activities or petty crimes?

Khylee Quince

Last week, our whānau had a lively discussion about the music that would be effective in moving us on from a venue where we were not wanted.

The teens, of course, had never heard of Barry Manilow, while us Gen X old punk rockers would lace up our skates and leave if the sounds of ’90s R&B pierced the airwaves.

“Unpopular” music has been used as a tactic in crime control and national security since the 1980s by local and national governments, as well as by private businesses – to discourage loitering and public disorder, and to encourage confessions and information sharing.

‘’The social and legal control and regulation of people perceived as ‘difficult’ in public spaces poses a challenge to authorities,’’ says Khylee Quince.

The social and legal control and regulation of people perceived as “difficult” in public spaces poses a challenge to authorities, who must balance the interests of ordinary people to go about their daily lives without unnecessary interference from others, against people whose presence or behaviour may be deemed problematic.

The key to this balancing act is appreciating the levels of nuisance or annoyance that are part of the fabric of a vibrant democracy, while having the means to intervene when those levels breach an unacceptable tipping point.

Ordinary legal frameworks such as the Summary Offences Act in New Zealand criminalise low-level public-disorder-type offending – disorderly or offensive behaviour and intimidation, for example.

However in recent decades, the creep of civil or private law-type controls has increasingly occurred as a means of sanitising public spaces. This has had the effect of casually redefining ordinary social activities as petty crimes – such as the congregating of teenagers, or drinking in a public space.

Critics also claim it is a means of banishing or hiding away those who offend the middle classes, including the homeless, mentally ill and sex workers.

In Britain, the attempted suppression of anti-social conduct hit a high with the introduction of the notorious “ASBOs” – the anti-social behaviour orders enacted in 1998, with a preventive, not punitive, purpose.

A civil, and not criminal, order, the ASBO was enacted to address drunkenness, violence and intimidation – by restricting behaviour and banning recipients from certain places or people, similar to an injunction. Offenders were not subject to a criminal record or punishment unless the order was broken.

It was replaced in 2014 by the Criminal Behaviour Order, which is aimed at more serious and persistent anti-social people, who have been convicted of criminal offences.

Similar trends in the United States have seen the introduction of off-limits and parks-exclusion orders as a means of excluding the socially marginalised from contested public spaces – effectively criminalising homelessness and youth.

In criminal justice, we call these “status offences”, meaning that a person’s status in relation to age, domicile or other characteristics is deemed unlawful or problematic. For the homeless, drinking or urinating in public is just drinking or urinating.

The innovative aspect of these approaches is the fusing of civil laws of trespass and nuisance with the more traditional higher-level criminal legal authority attached to more serious harms. These are hybrid laws that collapse the boundaries between criminal law, which regulates a citizen’s relationship with the state, and private or civil law that regulates relationships between citizens.

Enforcing breaches of civil wrongs is expensive and complicated for ordinary people. Hybrid strategies are a middle ground between the heavy-handed formalities of arrest, conviction and punishment, but have actually increased the types of behaviours subject to social and legal control.

Working alongside anti-social laws and policies are strategies in “defensive architecture” in urban design and planning – including anti-homeless spikes and curved benches with central arm-rests, and pay-per-minute public seating. Youth are targeted with uncool music, anti-skateboard design and the notorious Mosquito Alarm, which emits a high-pitch sound that most older people cannot hear.

Appallingly, there is a pattern of Olympic host cities clearing their streets of the young, homeless and undesirable in advance of the events, so as not to expose these elements to the viewing public. When Vancouver prepared to host the Winter Games in 2010, authorities established a no-go red zone and gave police increased powers to move people off the streets into shelters.

Keen to ‘’clean up’’ London’s streets ahead of the 2021 Olympic Games, the city’s then mayor, Boris Johnson, gave police increased powers to stop, search and move people on.

In 2009, then London mayor Boris Johnson vowed to “clean up” London streets before the 2012 Games, giving police increased powers to stop, search and move people on – with the assistance of high-power water jets to discourage rough sleeping.

All of these strategies rely upon a familiar thesis – what was termed the “broken windows” or zero-tolerance theory of crime control, most famously adopted in New York in the 1980s and 1990s.

The theory is that if authorities aggressively crack down on minor problems, such as the broken windows in the metaphor, then this will curb more serious crime and disorder. The jury is out on whether this strategy worked, although there was no significant effect on major crimes.

American geographer Don Mitchell has termed the increasing control of public areas as “the annihilation of space by law” to cleanse the streets of those left behind by globalisation.

In a famous passage from his 1894 novel The Red Lily, Anatole France observes that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread”.

As France well knew, the reality is that we don’t all have to, but it should not mean that the fact others do is swept from our collective view to ease our comfort.

Associate Professor Khylee Quince is the Dean of the School of Law, Auckland University of Technology

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