ASB Reforms

Baljit Basra

Partner

Baljit.basra@anthonycollins.com

30th September 2014

ASB Crime and Policing Act 2014

Injunctions

CBOs and Closure orders

Possession

Strategic Issues

Injunctions

• Power to grant injunctions to anyone aged 10 or over if;-

• The Court is satisfied on the balance of probabilities that

the Respondent has engaged or threatens to engage in anti-

social behaviour and

• The Court considers it just and convenient to grant the

injunction for the purpose of preventing the Respondent

from engaging in anti-social behaviour.

• Who can apply: LA, H/P, Police, British Transport Police and The

Environment Agency

Injunctions: What is ASB?

a) Conduct that has caused, likely to cause

harassment, alarm or distress to any person.

b) Conduct capable of causing nuisance or

annoyance to any person in relation to that

person’s occupation of Respondent premises or,

c) Conduct capable of causing housing related

nuisance/annoyance to other persons.

b) and c) applies where injunction is applied for by LA

or RP

Injunctions

The Injunction can include positive and negative terms.

• The terms must not;

Interfere with times where the Respondent

works/attends school/Educational

establishment.

Conflict with any other Court Order

Injunctions - Positive terms

• Injunction must identify “The Responsible Person”

• Court must receive evidence about its suitability and enforceability

from the responsible person.

Responsibilities:-

• Make necessary arrangements.

• Promote and monitor Respondent’s compliance.

• To advise Applicant and appropriate Chief Officer of Police.

• No positive terms will be granted on a without notice basis

• No Power of arrest will be attached to any positive terms

Injunctions: Minors

• Application for under 18’s - Youth Court,

• Consult with local Youth Offending Team (does not

apply where the application being made without notice).

• Inform any other body/individual the Applicant thinks

appropriate.

• Any decision made by Youth Court can be appealed in

the Crown Court.

• Upon turning 18, proceedings can be transferred from

Youth Court to County/High Court.

Injunctions:

Section 21(7) – in considering whether to grant

an injunction, a Court may take account of

conduct occurring up to 6 months before the

commencement date (date when this part

comes into force).

Injunctions: Exclusions

Exclusions from a place where Respondent

normally lives:-

• And Court thinks ASB includes use or

threatened use of violence and/or significant

risk of harm.

• Injunction granted on behalf of Local Authority,

Chief Officer, housing provider (that owns and

manages the property)

Injunctions: Power of Arrest

The Court may attach a Power of Arrest if it thinks that:-

• Anti-social behaviour consists of or includes the use of/or threatened use of violence against persons or

• a significant risk of harm to other persons from the Respondent.

HP can only make an application if it directly or indirectly affects its housing management functions.

Injunctions: Arrest Without Warrant

The Respondent must within 24 hours of arrest be produced at Court

If under 18 – before a Justice of Peace (can be remanded to appear before Youth Court).

• May make a supervision order or

• Detention order (if 14 or over)- can only be made where no other power is available due to severity and extent of breach -Court must state in open court why its satisfied that that is the case

If 18 or over - in the County Court

Case Study 1

Mrs Springer, sole assured tenant of ABC Housing Association lives at the

property, 12 Spring Gardens, Birmingham with her two sons, David (18)

and Jack (15). Neighbours have recently complained of the anti-social

behaviour coming from the property. David owns a sports car from

which he constantly blasts bass music and revs the engine so loudly that it

wakes up the neighbours. He is abusive to neighbours and allows his

friends to congregate at the front of the property with beer cans on the

drive and also blocking the pavement so that neighbours are unable to

pass.

More recently David swore at a neighbour who was with her 2 year old

in a push chair and called her “a witch” and told her to “fucking mind

your own business” when she had asked one of his friends to move so

that she could pass. (yesterday).

.Assume the new provisions are in force

Case Study 1

Neighbours also complain that Jack smokes cannabis in

the front and back gardens and the smell filters into

others properties. He throws rubbish into others

gardens and rides his bike up and down the pavement.

He shouts abuse at neighbours and often this is when he

should be at school

Mrs Springer has said that she has tried to curb their

behaviour without success. Mrs Springer was in arrears,

but is now making payments and has significantly reduced

the arrears (£89.40). There are no real issues with Mrs

Springer insofar as her tenancy.

Case Study 1

1. What action can ABC Housing Association

take?

2. If they were considering injunctions, what

would be the terms of those injunctions

and who would those injunctions be

sought against?

ASB Crime and Policing Act 2014

CBOs and Closure

Orders

Criminal Behaviour Orders (CBOs) formerly

CRASBO’S

This section applies where a person (offender) is convicted of an offence.

Two conditions:-

• The Court is satisfied beyond reasonable doubt that the offender is engaged in behaviour that caused or likely to cause harassment, alarm or distress to any person.

• The Court considers that making the Order will help in preventing the offender from engaging in such behaviour.

Criminal Behaviour Orders (CBOs)

Application must be made by the Prosecution.

Responsible Person requirements are the same

If under18:-

• the Prosecution must get views of the local Youth

Offending Team before applying

• the review period is 12 months. min fixed period of

a year and not more than 3 years.

For 18 or over- min fixed period of 2 years - an

indefinite period

CBOs: Breach of Order

Person who without reasonable excuse:-

• Does anything he/she is prohibited from doing

by CBO, or

• Fails to do anything he/she required to do by a

CBO

• Commits an offence – liable to imprisonment

/fine or both

Case Study 1

Part 2

It has been brought to the attention of ABC

Housing Association that David is due in Court

charged with theft from the local school and

shoplifting from the local shop. He is due to

be sentenced on 8 June 2014.

Is there anything that we can add or any

further action that can be considered?

Closure of Premises

A Police Inspector or Local Authority may issue a Closure Notice if satisfied on reasonable grounds:-

a) That the use of particular premises has resulted or is likely to result in nuisance to members of the public, or

b) There has been or likely to be disorder near the premises associated with the use of those premises, and

c) That the notice is necessary to prevent the nuisance or disorder from continuing, re-occurring or occurring.

Closure of Premises

What does it do;

• Prohibits access to all persons or a class of persons

(but not those habitually resident/owner)

• At all times or for all those times specified

• Whole or part of the premises

Duration – the maximum period is 48 hours

Application for Closure Order must be heard by the

Magistrates Court not later than 48 hours after service of

the Closure Notice

ASB Crime and Policing Act 2014

• Possession

• Discretionary and

• Absolute/Mandatory

Possession – ASB Ground 2/14-

• Amended text from 13th May 2014 to add:

“(aa) Has been guilty of conduct causing or likely to

cause a nuisance or annoyance to the landlord of the

dwelling-house, or a person employed (whether or

not by the landlord) in connection with the exercise

of the landlord's housing management functions, and

that is directly or indirectly related to or affects those

functions”

Possession – Riots

• New discretionary Ground 2 ZA/14 ZA for

riot related offences from 13 May 2014.

• Properties in England only

• Riot related offences must have been

committed after 13 May 2014

• Offence can be committed anywhere in

the UK

Possession – Riots

• Definition of a riot – Section 1 of the Public Order

Act 1986

“(1) Where 12 or more persons who are present together use

or threaten unlawful violence for a common purpose and the

conduct of them (taken together) is such as would cause a

person of reasonable firmness present at the scene to fear for his

personal safety, each of the persons using lawful violence for the

common purpose is guilty of riot. (2) It is immaterial whether or

not the 12 or more use or threaten unlawful violence

simultaneously. (3) The common purpose may be inferred from

conduct. (4) No person of reasonable firmness need actually be,

or be likely to be, present at the scene. (5) Riot may be

committed in private as well as in public places.”

Mandatory/Absolute Possession

• Secure Tenants – Section 84A HA 1985

• Assured Tenants-7A Housing Act 1988

• Mandatory Ground – Prove one of the

5 conditions and internal review has

been carried

Conviction for serious offence (by tenant, person residing or

visiting)

Committed after [commencement date]

Wholly/partly in locality of the DH or

Elsewhere against person with right to reside in housing

accommodation in locality or

Committed elsewhere against landlord’s employee/agent

employed in connection with exercise of landlord’s housing

management functions and (in)directly related to/affected those

functions.

See Schedule 2A Housing Act 1985 for ‘serious offence’

Not proven if conviction on appeal

Serve NSP within 12 months of conviction/appeal

Notice period in NSP not <28 days

Condition One

Tenant/person residing/visiting has breached an IPNA (not a

positive term) and

Breach in locality or

Breach elsewhere of a provision preventing conduct capable of

causing nuisance and annoyance to:

o person residing/ occupying property in locality or

o Landlord’s employee/agent employed in connection with

exercise landlord’s housing management functions and

(in)directly related to/affected those functions.

Condition Two

Not proven if breach on appeal

Serve NSP within 12 months of breach finding/appeal

NSP notice period not <28 days

Tenant/person residing/visiting convicted of breach of CBO prohibiting

conduct which was

• A breach in locality or

• A breach elsewhere of a term intended to prevent behaviour causing

harassment/alarm or distress to

o a person with a right to reside/occupy the property in the locality

or

o A landlord’s employee/agent employed in connection with

exercise of landlord’s housing management functions and

(in)directly related to/affected those functions.

Condition Three

Not proven if conviction on appeal

Serve NSP within 12 months of conviction

NSP notice period not <28 days

Property subject to closure order lasting

more than 48 hours

Condition Four

Not proven if being appealed

Serve NSP within 3 months of date closure order

made/appeal fails

NSP notice period not <28 days

Tenant or person residing/visiting convicted of offence - either

o S.80(4) EPA 90 breach of an abatement notice for

statutory nuisance or

o S.82(8) EPA 90 breach of a Court order to abate

statutory nuisance

Condition Five

Not proven if being appealed

Serve NSP within 12 months of conviction/appeal

NSP notice period not <28 days

Mandatory Ground – Internal review

• Internal Review required:

• Regulations to cover process for Secure

Tenancies:

• For Assured Tenancies - suggest follow same

review procedure as for Secure Tenants.

• Act expressly recognises HRA (Human Rights

Act) challenges possible.

NSP Ground 7A (assured) Section 84A (Secure)

Conditions 1, 2, 3, 4 or 5

Tenant right to request a review

By person more senior

Not involved in original decision

Oral hearing/ written submissions?

Landlord review

Notify Tenant in writing with reasons

Before expiry date in NSP

7 days

Mandatory Ground – Review

Issue proceedings

Possession – Mandatory + Discretionary

Grounds Together?

What are the issues?

Case Study 3

Mr Room is convicted on 10 December 2014 of

possessing indecent photographs of children under

Section 1 Protection of Children Act 1978. This is a

serious offence under Schedule 2A Housing Act 1985.

He is sentenced to 2 years imprisonment. He has a

joint tenancy with his wife who remains in the

property which is on the walking route to a

secondary school.

A year later he is released on licence to the property.

There are no arrears or other breaches of tenancy or

reports of ASB.

Case Study 3 - Questions

1. What can be done if his wife does not

want him to return?

2. If his wife welcomes him back, what action

could you take?

Strategic Issues to Consider

1. Work closely with Environmental Health

Departments. Funding prosecutions? Provide any

supporting evidence?

2. Working closely with the police to obtain

closure orders/CBOs.

3. Transition. E.g. delay applying for an ASBO if just

a matter of weeks before comes into force and

ask Police/LA apply for a CBO instead?

Strategic Issues

4. Apply for committal on injunctions rather

than use discretionary possession grounds. If

injunction breach proven, enables condition 2

to be used.

5. Update Policies and Procedures on ASB.

6. Internal Review processes.

7. Update precedents – NSP; grounds etc.

Advance Date for Diary!

Housing Management Update – 19 November 2014

at 10am-1pm

If you have any queries or comments in

regards to this document please contact

Baljit Basra on 0121 212 7452 or

baljit.basra@anthonycollins.com

Disclaimer: Whilst every effort has been made to ensure the accuracy of these materials, advice should be taken before action is

implemented or refrained from in specific cases. No responsibility can be accepted for action taken or refrained from solely by

reference to the contents of these materials. © Anthony Collins Solicitors LLP 2014