Can a local authority use the Anti-social Behaviour Crime and Policing Act 2014 in relation to incidents that occured before the Act commenced? Jonathan Manning reports.
In Birmingham City Council v Glenn Pardoe  EWHC  EWHC 3119 (QB), the High Court has held that s.21(7) of the Anti-social Behaviour Crime and Policing Act 2014 (“the Act”), does not prevent a court hearing an application for an injunction under Part 1 of the Act from having regard to conduct which took place more than 6 months prior to the commencement of the Act in relation to the questions of whether anti-social behaviour within the meaning of the Act has been established and whether it is just and convenient to grant an injunction.
By section 1 of the Act, a court may grant an injunction if two conditions are satisfied:
(i) the court is satisfied, on the balance or probabilities, that the respondent has engaged or threatened to engage in anti- social behaviour (s.1(2)); and
(ii) the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour (s.1(3)).
Section 21 is headed “Saving and transitional provision”. Subsection (7) provides: “In deciding whether to grant an injunction under section 1 a court may take account of conduct occurring up to six months before the commencement day.”
The commencement day for Part 1 of the Act was 23 March 2015, so the relevant date for the purposes of s.21(7) is 23 September 2014.
The respondent local authority (“Birmingham”) issued a claim for an injunction against the defendants, whom it alleged to have engaged in anti-social behaviour over many years involving the targeting of elderly and vulnerable persons and charging them excessive sums for building works which were unnecessary and/or shoddy. A schedule of incidents containing 49 allegations against one or more of the defendants was served. Interim orders having been obtained, the county court considered as a preliminary issue an application by the defendants to exclude allegations 1-27 inclusive on the basis that they were alleged to have taken place prior to 23
September 2014 so that the court was precluded from considering them at all, because of s.21(7).
The Judge dismissed the defendants’ claim based on s.21(7), holding that that subsection should not be construed to mean that the court could not consider any incident alleged to have taken place prior to 23 September 2014, as that would lead to absurd and unworkable results. He concluded that while the court could not consider such “pre-period” conduct when addressing the first condition (whether qualifying conduct had been committed) it could and should pre-period conduct in relation to whether is it just and convenient to grant an injunction.
The First Defendant appealed; the authority filed a respondent’s notice, arguing that the Judge should have held that pre-period conduct could also be considered in relation to the first condition – e.g. it may be relevant to prove that qualifying behaviour had taken place or to rebut a defence.
Decision on appeal
Holroyde J dismissed the appeal. The Judge below had been correct to hold that the literal interpretation of the subsection proposed by the defendant would lead to absurd results. Section 21(7) was a transitional provision. Parliament could not have intended, by the use of such a provision, to impose so severe a limitation on the evidence the court could consider, especially given that the effect of the transitional provision would change as time passed from the commencement of the Act. It was difficult to think that Parliament intended that there would be different approaches to the relevance of past events depending on whether an application under the Act was made in 2015 or in 2020. The Court had adequate general case management powers to prevent the litigation of stale or irrelevant matters.
The Judge below had been wrong, however, to hold, that pre-period conduct could only be relevant to the second condition. While the absence of any qualifying conduct after 23 September 2014 would deprive the court of jurisdiction to make an order, evidence of pre- period conduct may be relevant to proving qualifying conduct such as by way of similar fact evidence to prove identity, or to rebut a defence e.g. of accident or innocent error.