The ASBI is dead. Long live the IPNA

Anti-social Behaviour, Crime and Policing Act 2014.

The title of the 2012 White Paper “Putting Victims First: More effective responses to anti-social behaviour” gave an early indication of the message the government was aiming to put out. It spoke of the failure of the current system to deal adequately with the problems of graffiti on the walls, public drunkenness on our streets, harassment and intimidation on our doorsteps, yobbish behaviour and the misery inflicted on the lives of victims. It spoke of the need to protect the most vulnerable in society, and to put the powers to deal with this type of behaviour into the hands of local agencies. It described a consultation process where victims’ wishes informed the new process: Taking their complaints seriously, dealing with the problem swiftly and preventing it from reoccurring. This, in a nutshell, is what the new legislation seeks to achieve. This article explores the mechanics of the finished Act, how it intends to do achieve these aims, and whether early signs indicate that it is likely to succeed.

What are the main changes which aim to address the problems?

There will be no more ASBO or ASBIs! These will be replaced by:

  • Injunctions (Part 1). These were known throughout the consultation & drafting process as “IPNAS”, but in the Act are referred to only as injunctions.
  • Criminal Behaviour Orders (CrimBOs? CBOs?)
  • Dispersal Powers
  • Closure Notices & Orders

Requirements to be met before a court can make an injunction:

The legal test under the new Act will require the court to be satisfied of the following:

  • The respondent must be 10 years or older;
  • The legal test will be:
    • The Court must be satisfied on balance of probabilities that the respondent has engaged or threatens to engage in ASB; and
    • The Court must consider that it is just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti social behaviour.

Anti-Social Behaviour is defined in s2 as:

(a) Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,

(b) Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c) Conduct capable of causing housing-related nuisance or annoyance to any person.

Sub paragraph (b) only applies only where the injunction is applied for by a housing provider, local authority or chief officer of police.

Under subparagraph (c) “housing-related” means directly or indirectly relating to housing management functions of a housing provider or LA.

“Housing management functions” includes functions conferred by or under an enactment, and the powers & duties of the housing provider or LA as the holder of an estate or interest in housing accommodation.

If the Court is satisfied that an injunction is appropriate based on the above test, the injunction must:

  • Specify the period for which it has effect, or state that it has effect until further order.
  • If respondent is under 18 a period must be specified and cannot be longer than 12 months.
  • Be applied for in the youth Court if respondent under 18, or High Court/County Court in any other case.

An injunction under s1 may have the effect of excluding the respondent from the place where he or she normally lives only if:

  • The Respondent is aged 18 or over;
  • If the injunction has been granted on the application of a LA, chief officer of police or if the premises are owned or managed by a housing provider, that housing provider,

AND

  • The court thinks that:
    • The anti-social behaviour in which the respondent has engaged or threatens to engage in consists of or includes the use or threatened use of violence against other persons, or
    • There is significant risk of harm to other persons from the respondent.

The really significant change, which is based on the desire not only to stop the problem behaviour, is the ability to impose requirements upon the Respondent in addition to the prohibitions. If a positive requirement is included, the injunction must specify the person responsible for supervising compliance. Anticipated requirements are, for example, alcohol/drug rehabilitation programmes, removing rubbish, anger management etc, although it is not yet clear how this will be funded. This will raise obvious concerns on both sides, and easily foreseeable problems on the ground. It is not yet clear whether Respondents themselves will be able to propose requirements which they feel would assist and support them, nor is it clear what level of multi-agency disclosure or engagement will be possible in the event that a Respondent fails to cooperate. Concerns have been raised on the parts of Local Authorities and social landlords that the extra work and expense imposed on them by these new provisions will hamper their ability to effectively deal with anti social behaviour. Tenant representatives have raised concerns that the apparent absence of financial or other support for these imposed requirements will lead to inadequate provision with harsh penalties for failure to comply. Outsiders may question the prospects of successfully “imposing” any form of rehabilitation on a Respondent who has no desire to be rehabilitated.

Before including a requirement the Court must receive evidence about its suitability & enforceability, either from the individual specified or an individual representing the organisation that is specified.

It is the duty of that specified individual to make any necessary arrangements, promote the respondent’s compliance, and to inform the person who applied for the injunction & the appropriate chief officer of police if the respondent has complied or failed to comply with the relevant requirements. It appears that the Applicant for the injunction will need to find someone willing to agree to this level of involvement.

There is still the potential for a power of arrest to be attached by the Court if:

  • The anti-social behaviour in which the Respondent has engaged or threatens to engage in consists of or includes the use or threatened use of violence against other persons, or
  • There is a significant risk of harm to other persons from the Respondent.
  • Can be attached to a prohibition or requirement of the injunction but requirement does not include one that has the effect of requiring the respondent to participate in particular activities.
  • Can be for a period which is shorter than the prohibition or requirement to which it relates.

A further new level of pre-action work is imported by the s14 requirement to consult. An applicant for an injunction under s1 must consult with the local youth offending team about the application if the respondent is (and will be) under 18 when the application is made, and they must also inform any other body or individual the applicant thinks appropriate of the application. For obvious reasons this does not apply to applications made without notice.

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.

Applications for the new injunctions may still be made without notice. If so, the court must either adjourn the proceedings and grant an interim injunction, adjourn the proceedings without an interim injunction, or dismiss the application.

NB Ex parte Interim injunctions cannot include a condition which requires the respondent to participate in particular activities, but other than that have the same powers as if it were not an interim injunction.

If a Power of arrest attached, police can arrest the respondent without warrant if there is reasonable cause to suspect that the respondent is in breach of the provision. They must then inform the person who applied for the injunction, the Respondent must be brought before court within 24 hours and the Judge may remand the respondent if the matter is not disposed of straight away.

If no power of arrest has been attached the person who applied for the injunction may apply for the issue of a warrant. This application must be made to a judge in the court which made injunction (eg High or county). The Judge or justice may issue a warrant only if he/she has reasonable grounds for believing that the respondent is in breach of a provision of the injunction, and the warrant must require that the respondent is brought before the court.

The Act has now received Royal assent, but we are still awaiting dates when each section will actually come into force. There is no word as it stands on a likely date for implementation of Section 1, although it can be assumed that the government will want the major parts of the Act to be in force prior to the upcoming elections in 2015.

Elizabeth Willsteed

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