Scott Greenwood analyses the courts’ new powers to grant injunctions and the repeal of the ASBI.As many of you are probably aware, after a very long statutory enactment process and a great deal of debate in the House of Commons and House of Lords, the Anti-Social Behaviour, Crime and Policing Act received royal assent last year and the majority of the provisions which relate to remedies and powers to registered providers came into force in 20 October 2014. There was a delay in the enactment of the new Civil Injunction under Part 1 of the Act as there was a need to make statutory amendments to the legal aid scheme with this power finally coming into force on 23 March 2015.
The debate on this legislation in the House of Commons and the House of Lords was of interest because at one stage the House of Lords were very keen that the legal test to be applied by the court in being satisfied to grant such an Injunction order was that of the criminal burden of proof beyond reasonable doubt rather than the civil burden of a balance of probability. Fortunately for registered providers, local authorities and the police, the House of Commons – when passing the final parts of this legislation –deemed that the criminal burden was not appropriate and the civil burden of proof applies to such orders.
At first glance the new Civil Injunction Order is very similar to the previous anti-social behaviour injunction (ASBI) but there are significant differences between what would be termed the old order and the new order. The obvious difference is the title in that it will no longer be referred to as the anti-social behaviour injunction but will be referred to as the court’s power to grant an injunction. This is perhaps not the snappiest of titles and when the Bill was travelling between through Parliament, at one stage it was given the title of injunctions to prevent nuisance and annoyance (the IPNA) but the Commons decided against that in the final part of the journey of the Bill. This is perhaps a shame as this is a snappier title, but I suspect it will still be referred to as the anti-social behaviour injunction by most practitioners and the courts.
The other major changes which apply and which should be noted include the following:
- The courts have always had the power to include prohibitions as part of the conditions of an order (i.e. asking the defendant to refrain from certain conduct such as causing violence or threatening violence) but under the new Order the court can also attach positive requirements to the order. Perhaps a good example of this is where the defendant has support needs and there are support agencies able to provide the necessary support, the court can make it a condition that the Ddefendant engages and attends such support. The important criteria to note however is that the support provider has to file evidence with the court that such support does exist, that they will provide and monitor it and will report back to the court. There is an assumption here that support providers have the time and resources to do this.
- Under the ASBI only registered providers and local authorities could apply for such a provision. Applying for the new Order will now be open to other organisations including the local authority (not just the housing authority) and also the Police. In most cases it will be clear as to which agency should lead and apply for the Order, but there will be cases where there are cross boundary issues as to whose jurisdiction it falls under and there will need to be agreement between the partner agencies as to who is best to lead.
- The meaning of anti-social behaviour set out in the Act for housing-related ASB will be either conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of a residential premises or conduct capable of causing housing related nuisance or annoyance to any person. If it is non housing related, the definition is harassment, alarm or distress to a member or members of the public. Arguably this may be construed as a higher test.
- Previous leading case law suggested that an injunction cannot granted against a minor (under the age of 18). However, the new legislation allows this but such an application has to be made in the Youth Court and before an application can be made, the applicant must consult with their local Youth Offending Team.
- The Act provides that for any application partner agencies should be informed by the applicant that they are applying for such an order. In the previous ASBI provisions there was no such requirement to inform.
- There remains a power to apply for power of arrest and to exclude a person from their home in cases of violence, threats of violence and/or significant risk of harm. However, it is important to note that there is statutory guidance provided by the Home Office which states that they do not expect powers of exclusion to be used often and the court will have to pay special attention to proportionality in line with Article 8 implications and that applications should only be made for exclusion in extreme cases that meet the higher threshold.
- The statutory guidance also states that agencies must make proportionate and reasonable judgments before applying for the injunction. This directly infers that proportionality and reasonableness both under human rights and public law have their part to play. So similar to possession actions, there will be a need to build proportionality exercises into the decision making process.
It is also important to note that if there is a breach of this new type of injunction and on committal the breach is found and determined by the court, then this finding will act as an trigger for the use of the absolute ground for possession in ASB cases. With that in mind, I suspect that we will see more applications defended (at present a lot of cases are not defended) and no doubt we will see an increase in the use of public funding for that purpose.
I have also come across an interesting loophole in the new type Order in a recent case I have been advising on. Part 1 of the Act provides that in deciding whether to grant an injunction under section 1 a court may take account of conduct occurring up to 6 months before the commencement day. This may cause an issue if you have a case where a defendant commits a crime (say possession of drugs at the property) in the property say a year before commencement of this part (March 2015) and is then convicted at criminal trial after commencement. The details and circumstances of the conviction may mean that it is not reasonable and proportionate to go for a possession order but there is a need to make a mark in the sand to warn the defendant that the conduct say drug offences at the property are not acceptable and an injunction will be applied for to make this position clear. If the courts, which is likely, consider the conduct to be considered was at the time of the event (the arrest) and not at conviction, then there is no injunctive remedy which can not have been Parliament's intention. It will be interesting to see if this point is tested in the higher appeal courts.
Scott Greenwood is an in-house lawyer at Radian. He can be contacted