The Government has now issued its White Paper on the much-heralded changes to the methods presently used to tackle anti-social behaviour. The Secretary of State for the Home Department (Theresa May) said:
“The mistake of the past was to think that the government could tackle anti-social behaviour itself. However, this is a fundamentally local problem that looks and feels different in every area and to every victim. Local agencies should respond to the priorities of the communities they serve, not to those imposed from Whitehall. From November this year, directly elected police and crime commissioners will be a powerful new voice for local people, able to push local priorities to prevent anti-social behaviour from being relegated to a 'second-tier' issue.”
Looking at the proposed changes the main points of interest are:
Mandatory anti-social behaviour possession actions
Mandatory anti-social behaviour possession actions for anti-social behaviour in order to significantly reduce the length of the possession process. This will be available to both social landlords and private landlords and they will be able to use this mandatory route where serious housing-related anti-social behaviour has already been proven by another court. Where they did so the court would, subject to the landlord following the correct procedure and considerations of proportionality (where the landlord is a public authority), be required to grant possession.
The new mandatory route to possession is modelled on the process for bringing introductory tenancies to an end for local authority landlords and on existing mandatory grounds for possession (for example for rent arrears) for private registered providers of social housing and landlords in the private rented sector. Landlords will be able to choose to use a mandatory route to possession rather than existing discretionary grounds, where one of the following four ‘triggers’ applied:
- A tenant, member of their household or visitor to the property had been convicted of a violent or sexual offence, an offence against property, supplying drugs, or production with intention to supply drugs, where the offence was indictable and committed in the locality of the property in the previous 12 months;
- A court had determined that a Crime Prevention Injunction obtained by or in consultation with the landlord had been breached by a tenant, member of their household or visitor to the property within the previous 12 months;
- The property had been closed as a result of a court granting a Community Protection Order (closure) – see below – for more than 48 hours;
- A tenant, member of their household or visitor had been convicted by a court for breach of a noise abatement notice, in respect of the tenant’s property, under the statutory nuisance regime.
- There will also be an extension of the existing discretionary ground for possession to cover convictions of tenants or members of their household for offences committed at the scene of a riot wherever that took place in the United Kingdom. Those offences would include violent disorder and affray and provocation of violence and include violence against property as well as people and theft.
The Community Trigger
The “Community Trigger” which will give victims and communities (including carers and businesses) the right to demand that agencies who had ignored repeated complaints about anti-social behaviour (ASB) take action. Police and local authorities will be compelled to act upon reasonable requests by the communities they serve, though they will be able to reject those complaints deemed vexatious or malicious. Relevant authorities (at district council level or above) will be required to decide and publish the thresholds, criteria, process (including a single point of contact) and reporting mechanism they intend to use locally. Private registered providers of social housing will also have a duty to cooperate with the police and local authorities.
Community Harm Statements
Community Harm Statements have been developed by the Chartered Institute of Housing working with key partners for use in the County Court. The guidance on these can be found on the Chartered Institute of Housing website and the statement provides a recognised template to present evidence of harm on communities to court in a consistent way.
The replacement of Anti-social Behaviour Orders
Whether on conviction or by application, ASBOs will be replaced with Criminal Behaviour Orders in the former instance and Crime Prevention Injunctions (CPIs) in the latter case. CPIs, which will also replace Anti-social Behaviour Injunctions, Drinking Banning Orders, Individual Support Orders and Intervention Orders, will be a purely civil order with a civil burden of proof and civil sanctions.
The CPIs will be available in the County Court for adults and the Youth Court for 10 to 17 year olds. The following could apply – the police (including the British Transport Police), local authorities, private registered providers of social housing, NHS Protect, Transport for London and the Environment Agency. The only formal consultation requirement would be to consult with the Youth Offending Team (YOT) if the order is on someone under-18, though the applicant would need to take into account the views of other agencies if raised.
Interim orders will be available without notice and there will be no requirement to consult for an interim order. As for the substantive injunction the test will be that the person has engaged in conduct which is capable of causing nuisance or annoyance to any person and that it is just and convenient to grant the injunction (i.e. similar to the current s.153A Housing Act 1996 ASBIs). A power of arrest could be attached to the injunction if the individual had used or threatened violence, or if there is risk of significant harm to the victim.
The order should include any prohibitions or requirements that assist in the prevention of future anti-social behaviour and the latter should be designed to deal with the causes of their behaviour. There will as yet be no minimum or maximum terms set out in the legislation but that issue is still being considered by the Government.
Breach by an adult will be dealt with as with ASBIs at present but for someone aged 10 to 17 the sanction could be a curfew, activity or supervision requirement, or as a very last resort, repeated breach causing serious harm could result in custody for up to three months for someone aged 14 to 17 years old.
The replacement of Disposal Orders
The replacement of Disposal Orders with a police Directions Power directing any individual causing or likely to cause crime or disorder away from a particular place, and with a power to confiscate related items. The new power will not require the police to designate a zone as a ‘dispersal zone’.
The replacement of Closure Orders
The replacement of Closure Orders with a Community Protection Order (closure) which could be used to close a premises temporarily, or for up to six months. The power will be available to the police (officers of the rank of Inspector and above) and the local authority (LA) (persons designated by the Chief Executive) and the Magistrates’ Courts will retain jurisdiction. Within 24 hours of the order being issued, it must, in order to continue to be valid, be signed off, in the case of a police order, by an officer of at least Superintendent rank and, in the case of a LA order, by either the Chief Executive or a person designated by them.
Before issuing the order, the police or local authority must consult any person or agency they consider appropriate, as well as informing the owner, landlord, licensee and anyone who appears to be residing in the premise. The test for issuing an order will be that the police or local authority reasonably believes: that there is a public nuisance or there is or is likely imminently to be disorder in the vicinity of and related to the premises; and that the order is necessary in the interest of preventing the occurrence or reoccurrence of such disorder or behaviour. The maximum period an order will be able to last is six months and breach of the order, without reasonable excuse, would be a criminal offence.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
Please note that we do not give legal advice on individual cases which may relate to this content other than by way of formal instruction of a member of Hardwicke. However if you have any other queries about this content please contact: