injunctions possession strategic issues support/em... · injunctions • power to grant injunctions...
TRANSCRIPT
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
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