Anti-Social Behaviour: the Housing Dimension

HLPA MEETING

Wednesday, March 17, 2004

ANTI-SOCIAL BEHAVIOUR: THE HOUSING DIMENSION

ASBOS AND SOME CHANGES TO THE LAW

Andrew Dymond, Arden Chambers

ASBOS

1. Relevant Legislation ASBOs are governed by the Crime and Disorder Act 1998 (as amended by the Police Reform Act 2002 and the Anti-social Behaviour Act 2003). Some of the 2003 Act amendments to provisions regarding ASBOs came into force on January 20, 2004: Anti-social Behaviour Act 2003 (Commencement No. 1 and Transitional Provisions) Order 2003, SI 2003/3300. Note also A Guide to Anti-social Behaviour Orders and Acceptable Behaviour Contracts. On the new Act, see Together Tackling Anti-social Behaviour. A summary is provided by the Home Office at www.homeoffice.gov.uk/docs2/asb_act_guide.pdf.

2. Who can an order be made against? An application for an ASBO can be made against any person aged 10 or over.

3. Who can apply? “Relevant authorities” as defined in s.1A of the 1998 Act, i.e. local authorities (now including County Councils), HATs, RSLs the police and the British Transport Police.

4. When can an application be made? If it appears to the authority (s.1(1)) and it is proved (s.1(4)) -

"(a) that the person has acted, ... , in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him".

5. For local authorities, “relevant persons" are persons in their area: s.1(1B)(aa), (a). For RSLs and HATs, relevant persons are s.1(1B)(d):

"(i) persons who are residing in or who are otherwise on or likely to be on premises provided or managed by that authority; or

(ii) persons who are in the vicinity or likely to be in the vicinity of such premises."

6. Consultation Before making an application, the applicant must consult other relevant authorities. A local authority must consult the police: s.1E(2). A RSL must consult (a) the council for the local government area in which the person is relation to whom the application is to be made resides or appears to reside and (b) the police force for that area: s.1E(4).

7. How is an application made? Generally, an application is by complaint to the magistrates' court: s.1(3). Applications for an ASBOs are not criminal proceedings: Clingham v Kensington & Chelsea RLBC [2002] UKHL 39. Although the burden of proof is in effect "beyond reasonable doubt", the applicant can use hearsay evidence. Generally, the application will be dependent on hearsay. Commonly, there is a lead witness, employed by the authority who exhibits anonymous statements or complaints from residents, police records and video evidence.

8. County Courts Currently, county courts can grant ASBOs but only as part of existing county court proceedings, e.g. a possession action. This may be where the applicant is an existing party to the proceedings (s.1B(2)) but an application can be made to be joined for the purposes of an ASBO: s.1B(3).

9. Once s.85(5) of the 2003 Act is in force, applicants will be able to join non-parties in order to get ASBOs against them, e.g. children of tenants: new s.1B(3A) and s.1B(3B). Such an application can only be made where the applicant considers that the non-party has acted in an anti-social manner and the person’s acts are material to the principal proceedings.

10. What does the order contain? If the magistrates are satisfied of (a) and (b), above, they may make an ASBO prohibiting the defendant from doing "anything which is necessary to protect persons ... from further anti-social acts by the defendant": s.1(6). For this purpose, it is not only "relevant persons" who are to be considered but any persons in England and Wales. The order usually forbids specific acts and/or specifies an exclusion zone. Some landlords are now asking for extremely draconian orders, e.g. preventing all bad language or exclusion from any property owned by the landlord. Always focus on “what is necessary to protect persons”. Note also the importance of checking that there is nowhere in the zone where the defendant has to go to: school, social workers, doctors, post office, council offices, relatives etc.

11. How long does the order last? The order must last for a period specified in the order (which must be for not less than at least two years) or until further order: s.1(7). During the first two years of the ASBO, it can only be discharged if the parties consent: s.1(9). After the two years have expired, the defendant can apply to discharge the order: s.1(8).

12. Effect of the Order If "without reasonable excuse" a person breaches the terms of an ASBO his is guilty of an offence and is liable on summary conviction to imprisonment for a term not exceeding 6 months and/or a fine. If the proceedings are by indictment, the sentence could be up to five years imprisonment and/or a fine. Breach of an ASBO is an arrestable offence. Currently, prosecutions are brought by the CPS but local authorities will be able to prosecute once the relevant part of s.85 of the 2003 Act is in force: new s.1(10B).

13. Interim Orders Before the final determination of whether an ASBO should be granted, the court can make an interim order: s.1D. This is for a fixed period of time (normally until the trial of the ASBO) and may be varied, renewed or discharged. Such an order can be made without notice to the defendant. In R (Kenny) v Leeds Magistrates Court [2003] EWHC 2963 (Admin); Legal Action, March 2004, p.25, Owen J. held that making a without notice interim ASBO is not contrary to article 6. Where a defendant is a minor, the court has to have regard to the principle that her/his best interests are a primary consideration when addressing the question of whether it is just to make an order.

14. Appeals The defendant has the right to appeal to the Crown Court: s.4

WHY ARE LANDLORDS USING ASBOS?

15. Children An ASBO is available against any person aged 10 or over. A Housing Act injunction will often be unavailable against a child as there is no way of enforcing the injunction: Harrow LBC v G [2004] EWHC 17; Legal Action, March 2004, p.25. In that case, G conceded that an injunction could be made against a minor but successfully argued that it should not be made in the absence of any evidence that the injunction would be enforceable against him, e.g. assets showing a fine could be imposed.

16. Where a tenant’s children are guilty of ASB, could the availability of an ASBO be used to argue that it is not reasonable for a possession order to be made? The Court of Appeal has held that a landlord is not required to apply for an injunction before commencing possession proceedings: Newcastle upon Tyne CC v Morrison (2000) 32 H.L.R. 891, CA. In respect of RSLs, note the Housing Corporation's guidance that possession proceedings should be a "last resort": The Way Forward, para. 3.5(c).

17. RSLs Non-tenants This is illustrated by Medina HA v Case [2002] EWCA Civ 2001; [2003] H.L.R. 37, CA. Medina obtained a possession order against Ms Case and successfully obtained an injunction under s.153 excluding her from the neighbourhood of her former home. The Court of Appeal quashed the injunction because the basis of the injunction was the terms of the tenancy agreement, which had come to an end. Medina now regularly applies for an ASBO as an ancillary to a possession claim. Note that RSLs would encounter a similar problem with tolerated trespassers.

18. Once the new provisions for Housing Act injunctions are introduced, it is likely that RSLs will revert to using them rather than ASBOs: see the new s.153A.

19. Residential nexus Currently, both authorities and RSLs need to establish a “nexus” between residential premises as defined in s.153(2) or s.153(4) (“tenanted accommodation”) and the person sought to be protected by the injunction. Accordingly, a Housing Act injunction is not available against council employees who work in offices which happen to be in the locality of the estate (Enfield LBC v B [2000] 1 W.L.R. 2259, CA and Nottingham CC v Thames [2002] EWCA Civ 1098, [2003] H.L.R. 14, CA. , or where the complainants are owner-occupiers: Manchester CC v Lee [2003] EWCA Civ 1256.

20. Again, the amendments in the 2003 Act are intended to reverse the position. New s.153(4) provides a wide range of persons who may be affected.

“CRACK-HOUSE” ORDERS

21. Part 1 (ss.1 to 11) of the 2003 is now in force: “Premises where drugs used unlawfully”. This allows the police to issue a closure notice where premises have been used in connection with the unlawful use, production or supply of a Class A drug and “the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public”: s.1(1),(2). The police must first consult the local authority and reasonable steps must have been taken to identify the person with control of or responsibility for the premises.

22. The closure notice, which warns that a closure order is to be applied for, must be fixed to the premises and has to be given to anyone with control or responsibility: s.1(6). Application for a closure order is to the magistrates court: s.2(1). The court has the power to adjourn to enable an occupier or person with control/responsibility to show why an order should not be made.

23. A closure order will be made if the court is satisfied that premises have been used in connection with the unlawful use, production or supply of a Class A drug and “the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public” and the order is necessary to prevent the disorder/serious nuisance: s.2(3). If the order is made the police can enter and secure the premises: s.3(1). A person remaining in or entering premises subject to an order commits an offence punishable by a maximum of six months’ imprisonment and/or a level 5 fine: s.4(1), (3). In the first instance, the order lasts a maximum of 3 months (s.2(4)) but this can be extended by application: s.5. The order can be discharged on application by the police, the local authority, a person served with the notice or a person interested in the premises: s.5(6).

24. Provision is made for appeal to the Crown Court: s.6. Application can be made by persons who suffer financial loss as a result of a closure notice: s.10(1). The person must have: (a) had no connection with the illegal use; (b) taken steps to prevent that use; and, (c) must have incurred financial loss. In addition, compensation must be appropriate having regard to all the circumstances.

MISCELLANEOUS PROVISIONS

25. The following provisions of the 2003 Act are also of particular note.

(a) Part 4 – Dispersal of groups and removal of persons under 16 to their place of residence (ss.30-36), now in force.

(b) Part 6 – Closure of noisy premises (ss.40-42).

(d) S.222 LGA 1972 – Power of arrest may be attached where the conduct consists of the use or threatened use of violence, or there is a significant risk of harm.

(e) The structured discretion in nuisance possession actions: s.85A Housing Act 1985 and s.9A Housing Act 1988.

The Court must consider, in particular-

(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons;

26. Note also s.12 of the 2003 Act which introduces a new s.218A Housing Act 1996. This requires local housing authorities, HATs and RSLs to prepare a policy in relation to anti-social behaviour and procedures for dealing with it. They must publish a statement within 6 months of s.12 coming into force. Such policies may well become relevant to issues of reasonableness when defending possession proceedings or when assisting victims of anti-social behaviour in complaining to the ombudsman where landlords have delayed in taking action.

THE HOUSING BILL

27. For the future, note the following parts of the Housing Bill.

(a) Licensing of HMOs, including imposing conditions requiring landlords to control the behaviour of occupants (cl.56(2)(b)).

(b) Licensing of other residential accommodation (Part 3). This allows authorities to designate certain areas for licensing. Again, the Government has in mind anti-social behaviour: see cl.67(6)(a).

Andrew Dymond

Arden Chambers

2 John Street

London WC1N 2ES

www.ardenchambers.com