ASB – Enforcement Tools
The legislation contains a varied toolbox. Choice of tool depends upon the circumstances of the case, which agency are using the tool (not all are available to every agency) and any previous enforcement history.
Injunctions are court orders that instruct a person not to carry out particular acts. Before this enactment they had been used for a whole range of purposes including prevention of threatening behaviour or noise disturbance. They provide a quick way of stopping particular acts or behaviour.
Under the Anti-social Behaviour, Crime and Policing Act a wider range of authorities may apply for a civil injunction at the County, High or Youth courts :
- Local authorities
- Police (and transport police)
- Transport for London
- Social landlords
- Environment Agency and Natural Resources Wales
- NHS Protect
Injunctions can be placed on a person aged 10 or over if, on the balance of probabilities, the respondent has engaged or threatens to engage in anti-social behaviour (and if the court thinks it is convenient and just to grant the injunction for prevention purposes).
An injunction may be applied for in relation to owner occupiers, private sector renters or tenants in the social housing sector. They may also be used to tackle noise made outside the residential setting.
The qualification as to how ASB is defined in this Part of the Act depends upon who applies and the nature of the behaviour.
|Meaning of ASB||Applies to|
|Conduct that has caused, or is likely to cause, harassment, alarm or distress.||Relevant to any application.|
|Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.||Only applicable to applications from the local authority, Chief officer of police or housing provider.|
|Conduct capable of causing housing-related nuisance or annoyance to any person.||“Housing related” means that which directly or indirectly relates to the housing management functions of a housing provider or local authority.|
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. In other words they must have applied because of some credible form of interest or duty.
If granted, the injunction granted may include wide ranging prohibitions or requirements, including positive action. It may include, for example:
- Dog training classes
- Alcohol awareness classes
In the case of adults it may be publicised.
The power to exclude people from their home is limited to serious cases where, for example, there is a significant risk of harm or abuse.
Breach of an injunction is, again, a civil matter which is punishable as contempt of court. As sanctions may include unlimited fine or imprisonment the burden of proof moves to the higher level.
The community protection notice and (EPA) abatement notice mechanisms are not inter-related to the injunction process in any way.
Criminal Behaviour Orders
Criminal behaviour orders may be made by a court where a person is convicted an offence and where the offender has caused, or was likely to cause, harassment, alarm or distress to any person. The court must be satisfied that it meets the test beyond reasonable doubt.
The application will be made by the prosecution (usually the Crown Prosecution Service but could also be the local authority) so needs to be considered and prepared for before the alleged offender appears in court. A partner organisation, such as a social landlord, could request the prosecuting authority consider CBOs and may provide evidence and support.
Aggressive or threatening behaviour is likely to fit the test. If, for example, a CBO were to be applied following conviction for breach of a statutory nuisance abatement notice, the prosecution would need to provide evidence that the noise caused harassment, alarm or distress. They would also need to be in a position to propose positive and reasonable requirements for inclusion that: (a) tackles the root-cause of the problem; and (b) the recipient was capable of complying with.
CBOs are intended as a preventative tool so may include prohibitions, restrictions or both. It is not intended to be used as a punitive measure. The local authority must therefore be in a position to monitor
Failure to comply is a criminal offence that may lead to a fine and/or imprisonment on conviction.
Community Protection Notices
Community protection notices may be issued by an authorised person to an individual (aged 16 or over) or a body if it is satisfied on reasonable grounds that:
(a) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and
(b) the conduct is unreasonable.
The test here is lower in terms of severity than that of statutory nuisance and may provide a solution to those cases that do not meet the criteria for nuisance. However, note the use of the term ‘those’ (plural) and ‘community’ which infer the need for more than one person to be affected. The authorised person must follow a warning process, and only after which may the notice be issued if the recipient’s conduct is still having the effect. They must also have gathered sufficient evidence from those in the locality to back-up their assertion that there is having an effect on quality of life.
It is possible to serve a CPN in relation to disturbance from noise very soon after the warning has been issued and require an immediate response. However, this will not discharge the local authority from their duty to issue an abatement notice where the behaviour amounts to a statutory nuisance. There is also the availability of the Noise Act powers. There exists a principle of law that states that a specific power or duty should be used in preference to a general one.
Where an authority such as the Police or housing provider (if authorised by the local authority) are going to issue a CPN they are advised to discuss the matter with the local authority first. Local authority noise response teams considering use of CPNs in response to one-off events or parties should also be careful to check any case history.
It is possible that the local authority may have to serve an abatement notice if statutory nuisance is subsequently found to exist. They should be wary of the use of simple notices (those merely requiring its abatement) where works (or requirements) have previously been made.
The notice may include requirements aimed at preventing or reducing continued or recurring detrimental effects.
Grounds of appeal in the case of a CPN include that the conduct specified has not been of a persistent or continuing nature, is not unreasonable or has not had a detrimental effect on the quality of life of those in the locality. Failure to comply with a notice is an offence. A person guilty of an offence is liable to a fine of up to £2500 (in the case of an individual). However, there is also a fixed penalty procedure involving a specified amount of no more than £100 (with provision for an early payment discount).
In the case of CPNs authorised persons include constables, local authorities and persons designated by local authorities (which may include registered social landlords).
The closure power provides a fast response to (or preventative measure for) nuisance or disorder. It can be used by either the local authority or Police to prohibit access to a premises for a period of 24 hours if they are satisfied on reasonable grounds:
- That the use of premises has resulted, or (if the notice is not issued) is likely soon to result, in nuisance to members of the public; or
- That there has been, or (if the notice is not yet issued) is likely to soon be, disorder near those premises associated with those premises, and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring.
It may be extended in certain circumstances to 48 hours.
Prior to the service reasonable efforts must be made to inform the people who live on the premises, have control of the premises or who have an interest in them, of your intention. There are certain matters that need to be included in the notice which may specify who may have access and at what times (if applicable). There are also requirements applying to service of the notice.
After service the notice may be varied or cancelled by notice (if circumstances change significantly). If it is not cancelled the authority who served the notice must also apply to the magistrates court for a closure order within 48 hours of service. The court may issue an order closing the premises for a further 3 months or extend the effect of the notice for a period of up to a further 48 hours.
A further application can be made to extend a closure order for further 3 months where there is serious nuisance to members of the public or disorderly, offensive or criminal behaviour.
In the majority of cases it is likely that its use is associated with non-noise related issues. There is scope for using the power in relation to noisy parties or events (with respect to either residential or commercial premises, or land) that affect a locality or, perhaps, that amount to a public nuisance. Raves or unlicensed events that are expected to take place without authority are another potential application. The practicalities of doing so may present difficulties but the power provides a quick and flexible tool.
Breach of an order or notice is an offence carrying a penalty of imprisonment and/ or unlimited fine. Whilst an appeal may be made against an order there is no appeal against the issue of the notice.
Absolute Grounds for Possession
The new absolute ground for possession provides a faster mechanism for getting back possession of a property. It enables landlords (of private rental or social housing landlords) to gain possession of property where assured and secure tenancies exist.
Currently private sector landlords can gain possession at the end of a fixed term tenancy agreement by notice. It is therefore expected that the new mechanism will be used, in practice, where a quicker solution is required for serious cases of anti-social behaviour. Social landlords might also opt to evict under alternative powers provided in the Housing Act 1988, for example, for rent arrears.
The court may only grant possession if the correct procedure has been followed by the landlord and one of the prerequisite tests are met, including that the tenant, member of their household (or visitor to their property):
- have been convicted of a serious offence (see list in the Housing Act 1985);
- have been found by a court to have breached a civil injunction;
- have been convicted for breaching a criminal behaviour order; or
- have been convicted for breaching a noise abatement notice or order.
They might also apply for possession where the property has been closed under an anti-social behaviour order for more than 48 hours.
The offences relating to the above terms must have been committed in, or in the locality of, the property, affected a person with a right to live in the locality of the property of affected the landlord or landlord’s staff (e.g. through assault).
A possession notice must be served within 12 months of the conviction, or 3 months of the closure notice, with a minimum notice period of 4 weeks (or rental period if longer). A fixed term tenancy requires a minimum notice period of a month. There are requirements for format and inclusions.
Council tenants have a right to review and all tenants are entitled to a court hearing. The defence are, of course, able to raise a defence based on their Convention rights or procedural error. However, other than a period of suspension for the notice to take effect, there are few options open to the court.
The victim may be permitted to be consulted on how the perpetrator should be dealt with when considering community remedies. A Community Remedy allows for informal reparations to be placed into a more formal format. It is an administrative procedure carried out by a Police Officer rather than a judicial procedure intended for use in cases that are less serious.
It should not be used as an opportunity for an officer to dismiss investigation as they must have evidence that the perpetrator was engaged in ASB or have committed a criminal offence.
During the process a document is drawn up that specifies any punitive or restorative action thought necessary to achieve amends or repair damage. The perpetrator must also be willing to admit that they have engaged in ASB and be willing to undertake any remedial measures proposed. The measure therefore takes the form of an agreement or undertaking.
Whilst the police officer will make the final decision on the remedy it provides an opportunity for the victim and agencies to consider this approach, for example through the ASB review panel.