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Dealing with anti-social behaviour – the proposed new tools

Anti-Social 2 iStock 000001684994XSmall 146x219Following publication of the draft Anti-Social Behaviour Bill, Donna McCarthy looks at the tools that are to be made available.

Now that the Government has published the much anticipated draft Anti-Social Behaviour Bill and started the pre-legislative scrutiny, practitioners will be waiting in anticipation to use the new tools.

Whilst the Bill contains relatively few surprises, there is one area of the Bill that will need some finesse – Part 6, the ‘Community Remedy’ which is running alongside a consultation not due to close until March.

The Bill itself comprises seven parts as follows:

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Part 1: Civil Injunction to prevent nuisance and annoyance. This is intended to replace the current Anti-Social Behaviour Injunction (ASBI) and Anti-Social Behaviour Order (ASBO). Keen observers will note the subtle change in language from the initial consultation, as it is no longer called the Crime Prevention Injunction. The new proposals are incredibly similar to the current Anti-Social Behaviour Injunction, save that the remedy will also be available against those under the age of 18 by way of application to the Youth Court.

Part 2: Criminal Behaviour Order. This is intended to replace the post-conviction ASBO and may only be applied for by the police when a person is convicted of an offence.

Part 3: The new police dispersal power. This will enable officers to direct a person who has committed or is likely to commit anti-social behaviour to leave a specified area and not return for a specified period of up to 48 hours. An officer will also be able to compel an individual to hand over items causing, or likely to cause anti-social behaviour.

Part 4: New powers to deal with community protection. This part covers environmental anti-social behaviour and is intended to tackle its effect on communities. Chapter 1 deals with the Community Protection Notice which is intended to replace a number of current measures such as litter clearing notices, defacement removal notices and street litter control notices. The draft Bill makes it clear that it is not a replacement of the statutory nuisance regime and if the behaviour is at such a level as to amount to a statutory nuisance, it should be dealt with accordingly. The power to issue a notice will be available to police, authorised local authority officers and staff of registered providers of social housing, if designated by the relevant local authority.

The main changes to the notices are that they cover a wider range of behaviour, can be served by more people and can apply to businesses and individuals and further can be used to tackle noise disturbance. In addition, it would be deemed a criminal offence if the individual does not comply.

Chapter 2 contains provisions regarding the Public Spaces Protection Orders which is intended to deal with a particular nuisance or problem in a particular area whereby conditions can be imposed that apply to everyone. Only a local authority will be able to issue the Order but before doing so they will be required to consult with the Chief Officer of Police, and any member of the PCC (or in London the relevant policing body) and any representatives of the local community they consider appropriate. A little clarity on who should be consulted would be useful in the final Bill, as local authorities may be subject to challenge if they do not consider a particular body as part of the process of issuing the Order.

The third chapter relates to closure of premises associated with nuisance or disorder. This ties in current closure provisions and provides for the service of a Closure Notice by the police or local authority after consultation and thereafter obtaining the Closure Order in the Magistrates Court. As with current provision, the initial period of closure is up to three months with an ability to extend the Order up to a total of six months.

Part 5: Possession Proceedings. This part introduces the absolute ground for possession as well as extending the current nuisance ground to include rioting.

The absolute ground for possession will enable the County Court to make an Order for Possession if the tenant, a member of the tenant’s household or a person visiting the property has been convicted of a serious offence, been found by the Court to have breached an Injunction to prevent nuisance and annoyance obtained under clause 1, or been convicted for breach of a Criminal Behaviour Order obtained under clause 21 or the dwelling house has been subject to a closure order.

Subject to those and other conditions being met and the correct procedure being followed (pursuant to the new proposed Section 84A of the Housing Act 1985) the court will be required to grant possession. However, it should be noted that a tenant may still raise the issue of proportionality as a defence to possession proceedings.

It is also proposed that there will be a new ground for possession inserted into Schedule 2 of the Housing Act 1985 to enable a landlord to apply for possession where the tenant or a person living in the tenant’s property has been convicted of an offence committed at the scene of riot which took place anywhere in the UK. This will be a discretionary ground and will, of course, be subject to the Court’s consideration of whether it is reasonable to make a Possession Order.

Part 6: Community Remedies. These provisions are subject to consultation. The draft bill proposes that victims should be able to choose from a list of Community Remedies agreed with the local Police and Crime Commissioner. This may include reparation, mediation or the offender signing an acceptable behaviour contract. These would apply to nuisance, anti-social behaviour and low level crime. This part also deals with the community trigger, which will set out a mechanism for victims of persistent anti-social behaviour to request that a relevant body undertake a case review. Unlike the initial consultation proposals, the draft Bill provides that the threshold will be set by the relevant bodies rather than in statute. A further duty is imposed on all relevant bodies to make and publish arrangements for review procedures.

While it is now possible to see the future landscape of ASB, it is important to note that the Bill is still in draft form and may well be subject to further change before it finally makes it to the statute books so watch this space.

Donna McCarthy is a Partner in the Housing Management Team at Devonshires. She can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

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