Are you applying the revised antisocial behaviour powers correctly?


    Feature I | Cases and FYI

    Feature I

    Anti-social behaviour—powers to control behaviour under the Anti-social Behaviour, Crime and Policing Act 2014

    Reform of anti-social behaviour powers (2014)
    The Anti-social Behaviour, Crime and Policing Act 2014 (ABCPA 2014) has reformed the tools available for dealing with anti-social behaviour (ASB). The aim was to consolidate remedies and to make the process simpler and more effective. In July 2014 the government issued new statutory guidance 'Reform of anti-social behaviour powers: statutory guidance for frontline professionals’ July 2014. This guidance was updated in December 2017.

    The web of powers available to police and local authorities and other agencies to tackle ASB is streamlined to six key remedies:

    • civil injunctions
    • criminal behaviour orders
    • dispersal powers
    • community protection notices
    • public spaces protection orders, and
    • closure powers

    These powers were effective from 20 October 2014 (apart from civil injunctions under Pt 1 which became effective as of 23 March 2015).

    In addition, two new innovations were introduced to try to put the victims of ASB first and empower members of the community affected by such behaviour: the community trigger and the community remedy.

    ABCPA 2014, Pt 5, concerns new powers to regain possession of social housing including a new mandatory form of claim where ASB or criminality is proven in another court. For further guidance, see Practice Note: Possession—anti-social behaviour, nuisance and crime.

    This article will focus on remedies to tackle behaviour which previously would have fallen under the anti-social behaviour order (ASBO)/anti-social behaviour injunction (ASBI) regime: civil injunctions under ABCPA 2014, Pt 1 and criminal behaviour orders under ABCPA 2014, Pt 2. An existing ASBO and ASBI will remain enforceable; for further guidance, please see Practice Note: Repealed powers to control behaviour under the Anti-social Behaviour Act 2003.

    Reform under ABCPA 2014 was in part driven by a need to tackle some of the failings of the ASBO regime. The number of ASBOs sought was consistently falling but where granted breach rates remained high. The new regime under ABCPA was aimed at making the process simpler, but also sought to do more than simply criminalise perceived anti-social behaviour. Guidance therefore encourages alternative community-based remedies; where formal action is taken then there is a strong emphasis on positive requirements to try and reform underlying patterns of activity.

    ABCPA 2014 consolidates the key ASB remedies. The civil injunction under Pt 1 effectively replaces the on-application ASBO and the housing-based ASBI; the Criminal Behaviour under Pt 2 of the conviction ASBO.

    Part 1 Civil Injunctions
    ABCPA 2014, Pt 1 now consolidates housing and non-housing related forms of injunction. There are three stages that the court will consider.

    Stage 1
    The overarching two conditions that the court must be satisfied of are:

    • on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour, and
    • that it is just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour

    References: ABCPA 2014, s 1(2)–(3)

    Stage 2
    The court must be satisfied that the defendant satisfies the ‘Nuisance and Annoyance’ test ie:

    • the acts complained of are directed towards any person in relation to their occupation of residential premises
    • the acts must disturb the reasonable peace of mind (but need not amount to a physical detriment to comfort)

    References: ABCPA 2014, s 2

    Stage 3
    For the injunction to include a ‘Power of Arrest’, the court must be satisfied that:

    • the acts consist of or include the use or threatened use of violence against other persons
    • or there is a significant risk of harm to other persons from the respondent

    References: ABCPA 2014, s 4

    Standard of proof
    Note that the test is now the civil, not criminal, standard, which had applied for the ASBO. The ‘just and convenience’ test also replaces that of ‘necessity’ as had applied previously. The assumption is that this will amount to a lower standard.

    Forms of antisocial behaviour suitable for injunctive relief
    There are now in effect three forms of ASB that can form the basis of a Pt 1 injunction:

    • conduct that has caused, or is likely to cause, harassment, alarm or distress to any person
      References: ABCPA 2014, s 2(1)(a)
    • conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises (only when applied for by a housing provider, local authority or chief officer of police)
      References: ABCPA 2014, s 2(1)(b)
    • conduct capable of causing housing-related nuisance or annoyance to any person
      References: ABCPA 2014, s 2(1)(c)

    A section 2(1)(a) injunction is the new version of the former ASBO for non-housing related activity; a section 2(1)(c) injunction is the new form of housing-related ASBI. The section 2(1)(b) injunction is an additional measure widening the scope of residential-based ASB to cover situations where the ASB relates to non-social housing residential premises (so owner-occupiers but also any form of home).

    References: ABCPA 2014, s 2(1)(a)–(b)

    The class of applicant that can apply for an injunction is now widened and covers:

    • local authorities
    • housing providers
    • the Police (the chief officer of Police)
    • Transport for London
    • British Transport Police
    • The Environment Agency
    • Natural Resources Body of Wales
    • NHS Protect (ie NHS security)

    References: ABCPA 2014, s 5(1)
    A housing provider may make an application only if the application concerns anti-social behaviour that directly or indirectly relates to or affects its housing management functions.

    References: ABCPA 2014, s 5(3)
    A non-social housing residential injunction (s 2(1)(b)) may only be sought by councils, a chief of police or a housing provider. Notably though non-housing providers can apply for (social) housing-based injunctions under s 2(1)(c)).

    A Pt 1 injunction can be sought against persons aged ten or over; application is through the county court or High Court, or in the case of minors, the youth court. Where it involves a minor there is an obligation to consult with the local Youth Offending Team prior to application (save in the case of a without-notice application). In addition, and in all cases involving adults, the applicant should inform any other body or organisation deemed appropriate.

    The claim is made using form N16A; procedure is subject to the rules under CPR 8, as modified by CPR 65 (s VIII, rr 65.42–65.49).

    CPR 65.3(6)(a) requires that the proceedings are served two clear days before the hearing (save in the case of a without-notice application).

    There is provision for a without-notice application. Guidance suggests that these should only be used exceptionally where there is serious harm to victims. The court has power to grant an interim injunction, for either on notice or without notice applications, though for without notice applications this cannot include ‘positive requirements’.

    References: ABCPA 2014, ss 67

    Where a court has adjourned the hearing of a ‘with or without notice’ application, the court can grant an interim injunction continuing until the final hearing or until a further order is made.

    A witness statement must be filed in support of the application which should exhibit all relevant documentation. It is important that the witness statement not only details the behaviour on which the applicant relies, but also the relevant steps they have taken to consult with the offender.

    References: CPR 65.43(2)(c), Civil Evidence Act 1995, s 2

    It is often the case that the witness statement is filed by a housing officer who has not had any direct experience of the anti-social behaviour but relies on testimony from other residents. In these cases, notice of hearsay evidence must be given.

    The Pt 1 injunction can include both prohibitions and ‘requirements’ (now commonly referred to as positive requirements). Both must be framed so as to avoid interference so far as is practical with the subject’s work or education.

    References: ABCPA 2014, s 1(4)–(5)

    The emphasis on positive requirements is a key innovation under ABCPA 2014; where these are sought then there must be supervisory arrangements in place. A supervising individual or organisation must be appointed and the court must receive evidence about the suitability and enforceability of requirements. The court must also consider the compatibility of requirements where there are multiple requirements. The statutory guidance highlights a range of requirements such as anger management classes and alcohol dependency sessions.

    References: ABCPA 2014, s 3

    The court has power to exclude the subject from their home but this can only be ordered where the court is satisfied that the ASB involves the use or threatened use of violence or where there is a significant risk of harm to others. It can be ordered only where the injunction is sought by the Police, the local authority, or a housing provider (in cases where the premises in question is owned or managed by the provider). This power cannot be used against a minor.

    References: ABCPA 2014, s 13

    An exclusion order can be obtained on a without notice basis. However, as was the case under the ASBI regime, the court is likely to require both that the ASB includes the use or threatened use of violence against other persons and that there is a significant risk of harm to other persons from the perpetrator before granting such an order. Prior to issuing an application that includes a without notice exclusion order against a vulnerable or disabled individual, the housing provider should make appropriate enquiries with social services, the homelessness department and if appropriate the perpetrator’s support network as to whether short term accommodation will be provided, if a without notice order is made.

    References: Moat Housing Group v Harris [2005] 3 WLR 691, [2005] EWCA Civ 287

    A power of arrest can also be attached to an injunction but only where the ASB involves violence or the threat of violence, or where there is a significant risk of harm to others. This can be attached to prohibitory terms of the injunction but not to positive requirements (though breach of positive requirements is still a contempt of court).

    References: ABCPA 2014, s 4

    An injunction can be varied or discharged upon application by either party; a variation can include the imposition of additional requirements or prohibitions, and/or to add a power of arrest.

    References: ABCPA 2014, s 8

    An injunction must specify how long it shall take effect for. The court has the power to allow the injunction to continue for an indefinite period, by ordering that it shall remain in force until there is a further order from the court.

    References: ABCPA 2014, s 1

    The court also has the power to order that certain requirements or prohibitions obtained in the injunction can take effect for a shorter period than the substantive injunction.

    References: ABCPA 2014, s 1(7)

    Breach of a Pt 1 injunction is now treated as a contempt of court offence (this differs from the ASBO where breach was a criminal offence). Breach by an adult will therefore fall within CPR 81; for cases involving minors powers of the court are contained in ABCPA 2014, Sch 2.

    The standard of proof for breach proceedings is the criminal standard of beyond reasonable doubt.
    Where there is a power of arrest then this can be exercised where there is reasonable cause to suspect a breach; the respondent must then be brought before the court within 24 hours of the arrest. On a practical level this can be very difficult, especially if the applicant is not informed of the arrest immediately.

    References: ABCPA 2014, s 9

    Where there is no power of arrest then a warrant of arrest can be sought by the applicant on application to the relevant court, where the applicant thinks the respondent is in breach; the court must have reasonable grounds for believing the respondent to be in breach to issue the warrant.

    References: ABCPA 2014, s 10

    Breach is also a trigger for the new mandatory ground for housing possession under Pt 5 of the Act—see Practice Note: Possession—anti-social behaviour, nuisance and crime.

    Part 2 Criminal Behaviour Order (CBO)
    Part 2 CBO replaces the ASBO on conviction. It is available where the offender has been convicted of an offence in the Crown Court, magistrates court, or youth court.

    References: ABCPA 2014, s 22(1)

    The conditions that must be satisfied by the court are:

    • that, beyond reasonable doubt, the offender has engaged in behaviour that caused or was likely to cause harassment, alarm, or distress to any person, and
    • that the order will help in preventing the offender from engaging in such behaviour

    References: ABCPA 2014, s 22(3)–(4)

    It is available only on application of the prosecution. A housing provider working in partnership with the local police can make a request to the prosecution to make the necessary application.

    References: ABCPA 2014, s 22(7)

    Evidence can be relied on by the prosecution which may not have been admissible in the criminal proceedings.

    References: ABCPA 2014, s 23(2)

    The court may adjourn the CBO proceedings and where it does so an interim injunction can be ordered.

    References: ABCPA 2014, ss 23(3), 26

    As with the Pt 1 injunction where it is sought against minor then the views of the youth offending team (YOT) must first be sought.

    An order must be for not less than two years, or for an indefinite period, in the case of an adult, and for between one and three years in cases of minors.

    References: ABCPA 2014, s 26

    As with a Pt 1 injunction, it can include both prohibitions and positive requirements. Again the court must attempt to avoid any interference with school or work and any conflicts with any other requirements of an order or injunction. Supervision arrangements mirror those of the Pt 1 injunction.

    References: ABCPA 2014, s 24

    Application for variation or discharge can be made on application by either the offender or the prosecution and can include adding prohibitions or requirements. For CBOs against a minor, there is a requirement to review compliance and support arrangements.

    References: ABCPA 2014 ss 2728

    An offence is committed where the offender, without reasonable excuse, breaches either a prohibition or a requirement.

    References: ABCPA 2014, s 30

    As with the injunction, a breach of a CBO triggers the mandatory possession ground—see Practice Note: Possession—anti-social behaviour, nuisance and crime.

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    Cases and FYI

    R (on the application of Qin and others) v Metropolitan Police Commissioner and another [2017] EWHC 2750 (Admin)[2017] All ER (D) 47 (Nov)

    The Administrative Court held that a district judge had erred in law when deciding whether the claimant owners of premises subject to closure notices issued by the first defendant police commissioner (the commissioner) were entitled to. The compensation claim was for lost business during the period of closure between the issue of the notices and the judge’s refusal of the first defendant’s subsequent application for closure orders. The court found that the judge had erred by applying principles which were relevant to the award of costs where the losing party was a public authority which had acted honestly and reasonably in the exercise of its public duty to the determination of compensation. The court also held that the first defendant’s failure to inform all of the relevant parties that the closure notices were going to be issued was not relevant to the claimants’ entitlement to compensation or costs in the closure order proceedings.

    Harris v Mayor and Burgesses of the London Borough of Hounslow [2017] EWCA Civ 1476

    The Court of Appeal was called on to consider the new mandatory ground for possession in anti-social behaviour (ASB) cases which was introduced by the Anti-Social Behaviour, Crime and Policing Act 2014.(ABCPA 2014) The statute gives a local authority tenant a statutory right to request a review of the local authority’s decision to serve a notice of seeking possession but the request must be made within seven days of the notice being served. The court had to rule on whether, if a tenant requests a review outside that statutory timescale, the local authority can be compelled to extend the timescale. The court ruled that an authority cannot be compelled to waive a statutory timescale in cases involving the public interest or third party rights. The court further ruled that if an authority has the power to choose to waive the timescale, it would need to have a good reason to do so.

    Anti-social behaviour powers – Statutory guidance for frontline professionals

    The Home Office published statutory guidance in July 2014 to support the effective use of new powers to tackle anti-social behaviour that were introduced through the Anti-social Behaviour, Crime and Policing Act 2014. This guidance replaces that earlier guidance, updating it in the light of experience since the new powers were introduced. The changes will help to ensure that there is a greater focus on the impact of anti-social behaviour on victims and on their needs, ensuring that the relevant legal tests are met before the powers are used, underlining the importance of ensuring that the use of the powers are focused on specific behaviour that is antisocial or causing nuisance, and ensuring that the issues of local consultation, accountability and transparency are addressed. The guidance is intended to assist those frontline professionals – the police, local councils and social landlords - who are able to make use of the powers to respond to instances of anti-social behaviour in their local areas.

    This updated guidance emphasises the importance of ensuring that the powers are used appropriately to provide a proportionate response to the specific behaviour that is causing harm or nuisance without impacting adversely on behaviour that is neither unlawful nor anti-social.

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