ANTI-SOCIAL BEHAVIOUR ASB INJUNCTIONS AND ORDERS

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1 ANTI-SOCIAL BEHAVIOUR ASB INJUNCTIONS AND ORDERS ANTI-SOCIAL BEHAVIOUR INJUNCTIONS Introduction 1. The Anti-social Behaviour Act 2003 ( ASBA 2003 ) repealed sections 152 and 153 of the Housing Act 1996 ( HA 1996 ) and replaced them with: the anti-social behaviour injunction: s.153a; the injunction against unlawful use of premises: s.153b; and additional powers in relation to an injunction prohibiting breach of the tenancy agreement: s.153d. (Injunctions may also be obtained under section 222 of the Local Government Act 1972 where the local authority consider it expedient for the protection or promotion of the interests of the inhabitants of their area. A power of arrest may be added by section 91 of the Anti-social Behaviour Act 2003). Who may obtain an injunction? 2. A relevant landlord may apply to the court for the anti-social behaviour injunction and the injunction against unlawful use of premises. 3. Relevant landlord is defined in HA 1996, s.153e(7) as follows: (a) A local authority; (b) A housing action trust ( HAT ); (c) A registered social landlord ( RSL ). 4. Any landlord may, of course, apply for an injunction against breach of the tenancy agreement. However, unless it is a relevant landlord, there is no power to impose 1

2 a power of arrest and/or an exclusion order under s.153d. A charitable housing trust which is not a registered social landlord is only a relevant landlord for the purposes of s.153d. Against whom can an injunction be obtained? 5. This will depend on the type of injunction the landlord is seeking. A relevant landlord may only apply against the tenant for a power of arrest and/or an exclusion order to be attached to a section 153D injunction concerning breach of the tenancy agreement. In relation to the section 153A and 153B injunctions (conduct/unlawful use of premises), the injunction is against the perpetrator of the conduct; there is no need for the defendant to be a tenant or occupier of a dwelling-house owned or managed by the relevant landlord. Children 6. Landlords will encounter difficulties in obtaining injunctions against children because, generally, they will be unenforceable. The method of enforcing an injunction is limited to imprisonment, fine or sequestration but, in the case of a child, only a fine and sequestration are lawful. It is unlawful to imprison under-18s: Powers of Criminal Courts (Sentencing) Act 2000, s In Wookey v Wookey [1991] Fam. 121, the court distinguished between the recalcitrant teenager in good employment who may be appropriately injuncted and the vast majority of children in respect of whom recourse to the civil courts is not appropriate. Since the injunction will, in most cases, be unenforceable, applications for injunctions will be unlikely to succeed. 8. In Enfield London Borough Council v B (2000) 32 HLR 799, CA, the Court of Appeal, although not deciding the issue, expressed the opinion that an injunction under HA 1996, s.152 could be made against a minor. 2

3 9. More recently, the High Court in G v Harrow [2004] EWCA 17, QB, held that where an application was made for an injunction against a minor under the former HA 1996, s.152, the applicant must provide the court with evidence of the personal circumstances of the minor to show that the injunction could be enforced against him whether by way of a fine or sequestration of assets. 10. Where a landlord is considering applying for an injunction against a minor, then, there must be information provided to show that the injunction can be enforced. In addition, it is suggested that other methods of preventing the minor s antisocial behaviour should be considered. For instance, it may be possible to consider an acceptable behaviour contract ( ABC ). Anti-social Behaviour Orders ( ASBOs ) are, of course, available against children. Anti-social behaviour injunction (HA 1996, s.153a) What conduct? 11. The anti-social behaviour injunction relates to conduct: (a) which is capable of causing nuisance or annoyance to any person; and (b) which directly or indirectly relates to or affects the housing management functions of a relevant landlord. What does the landlord need to prove? 12. In order for a relevant landlord to obtain an anti-social behaviour injunction it is necessary to show: (a) the defendant is engaging, has engaged or threatens to engage in conduct which is capable of causing nuisance or annoyance to any person, and which directly or indirectly relates to or affects its housing management functions; and (b) the conduct is capable of causing nuisance or annoyance to any of the following: 3

4 (i) a person with a right (of whatever description) to reside in or occupy housing accommodation owned by or managed by the relevant landlord; (ii) a person with a right (of whatever description) to reside in or occupy other housing accommodation in the neighbourhood of housing accommodation owned by or managed by the relevant landlord; (iii) a person engaged in lawful activity in or in the neighbourhood of housing accommodation owned or managed by the relevant landlord; (iv) a person employed (whether or not by the relevant landlord) in connection with the exercise of the relevant landlord s management functions. 1 What is meant by housing management functions? 13. The housing management functions of a relevant landlord include: (a) functions conferred by or under any enactment; (b) the powers and duties of the landlord as the holder of an estate or interest in housing accommodation. 2 Does it matter where the conduct occurs? 14. Importantly, it is immaterial where the conduct occurs. 3 Consequently, it is irrelevant if the conduct occurs outside the locality of the housing accommodation so long as the conduct is capable of causing a nuisance to the persons described above and which directly or indirectly relates to the relevant landlord s housing management functions. Injunction against unlawful use of premises (HA 1996, s.153b) 15. The injunction against unlawful use of premises is available where the conduct consists of or involves using or threatening to use housing accommodation owned by or managed by a relevant landlord for an unlawful purpose. 4 The court has 1 HA 1996, s.153a(4); cf Manchester CC v Lewis Lee [2004] 1 WLR 459 in relation to s.152 injunctions and Enfield v. B (2000) 32 HLR 799 at HA 1996, s. 153E(11). 3 HA 1996, s.153a(5). 4

5 discretion as to whether to grant an injunction on the application of the relevant landlord This injunction will be useful where there is no evidence that anyone has suffered or was capable of suffering nuisance or annoyance from the defendant s activities. Exclusion Order and Power of Arrest 17. If the court grants an injunction under s.153a (anti-social behaviour injunction) or s.153b (injunction against unlawful use of premises), the court may prohibit the defendant from entering or being in any premises or any area specified in the injunction. 6 Additionally, a power of arrest can be attached to any provision of the injunction Before attaching either or both provisions to injunctions under s.153a and s.153b, the court has to think that either of the following applies: (a) the conduct consists of or includes the use or threatened use of violence; or (b) there is a significant risk of harm to a person mentioned in s.153a(4) Harm includes serious ill-treatment or abuse (whether physical or not) An exclusion order attached to the injunction can have the effect of excluding a person from his normal place of residence. 10 Therefore, it is irrelevant whether the defendant has a tenancy or licence at his normal place of residence. 4 HA 1996, s. 153B(1). 5 HA 1996, s. 153B(2). 6 HA 1996, s. 153C(2). 7 HA 1996, s. 153C(3). 8 HA 1996, s.153c(1). 9 HA 1996, s.153e(12). 5

6 Injunction against breach of tenancy agreement (HA 1996, s.153d) 21. Under the HA 1996, as amended by the ASBA 2003, a new power is given to local authorities, RSLs and HATs and Housing Trusts, which allows them to apply for an exclusion order and/or a power of arrest to be attached to the terms of any injunction against a tenant in respect of a breach or anticipated breach of a tenancy agreement It applies where the injunction is sought on the grounds that the tenant is engaging or threatening to engage in conduct that is capable of causing nuisance or annoyance to any person; or is allowing, inciting, or encouraging any other person to engage or threaten to engage in such conduct The court has a discretion whether to prohibit the defendant from entering or being in any premises or any area specified in the injunction or to attach a power of arrest 13 where it is satisfied, that the conduct includes the use or threatened use of violence, or that there is a significant risk of harm to any person As with anti-social behaviour injunctions and injunctions against unlawful use of premises, the injunction against breach of tenancy agreement with an exclusion order attached can have the effect of excluding a person from his normal place of residence. 15 Power of arrest and exclusion orders - generally 25. Under the old HA 1996 injunction provisions, the court had to be satisfied both that violence had actually been used or threatened and that there was a significant risk of harm before attaching a power of arrest or including an exclusion zone. This has been relaxed by ASBA Now it is sufficient for the court to think (in 10 HA 1996, s.153e(2)(b). 11 Tenancy agreement includes any agreement for the occupation of residential accommodation owned or managed by a relevant landlord: HA 1996, s.153d(5). 12 HA 1996, s.153d(1). 13 HA 1996, s.153d(3) & (4). 14 HA 1996, s.153d(2). 6

7 relation to s.153c) or be satisfied (in relation to s.153d) that either limb is made out. 26. If the court has granted an injunction in circumstances such that a power of arrest could have been attached under s.153c(3) or s.153d(4) but - (a) has not attached a power of arrest under the section in question to any provisions of the injunction, or (b) has attached that power only to certain provisions of the injunction, then, if at any time the applicant considers that the respondents have failed to comply with the injunction, they may apply to the relevant judge for the issue of a warrant for the arrest of the respondent. 16 Without notice applications, variation and discharge 27. The injunction may be made for a specified period or until varied or discharged. 17 An injunction may be varied or discharged by the court on an application by the person in respect of whom it is made or by a relevant landlord. 18 The court may also grant or vary an injunction without the respondent having been given notice but only if the court considers it just and convenient. 19 The court must, however, give the person against whom the injunction is made an opportunity to make representations in relation to the injunction as soon as it is practicable for him to do so The Court of Appeal has considered the issue of without notice anti-social behaviour injunctions in Moat Housing Group South Ltd v Harris & Hartless [2005] EWCA Civ 287. It was held that a without notice injunction is an exceptional remedy and, as a matter of general principle, no order should be made in civil or 15 HA 1996, s.153e(2). 16 HA 1996, s HA 1996, s.153e(2)(a). 18 HA 1996, s.153e(3). 19 HA 1996, s.153e(4). 20 HA 1996, s.153e(5). 7

8 family proceedings without notice to the other side, unless there is a very good reason for departing from the general rule that notice should be given. The more intrusive the order, the stronger the reasons must be for departure from the general rule. When considering whether to grant an injunction under s.153a on a without notice basis, judges should consider: That to make a without notice order is to depart from the normal rules of due process and warrants the existence of exceptional circumstances; That one such exceptional circumstance is a significant risk that the defendant will cause harm to persons if the injunction is not made; and That the order must not be wider than is necessary and should be proportionate as a means of avoiding any apprehended harm That the court, on a without notice application, will normally need to be satisfied that there has been violence or a threat of violence combined with a significant risk of harm, notwithstanding that the Act states these to be alternative requirements. Terms of the injunctions - generally 29. The terms of the injunction will be dictated by the type of injunction that the landlord is seeking. Where the landlord is applying for an anti-social behaviour injunction, one of the terms commonly requested is that the defendant is not to behave in a manner which is capable of causing a nuisance and annoyance to any person. 30. The problem with this approach is that if the injunction is breached there may be difficulties in trying to enforce it. It is a fundamental principle of law that a person should not be committed for a breach of an order unless that person clearly understood what may and what may not be done under the terms of the order. Moreover, terms of this very general type have been disapproved by the Court of Appeal 21 8

9 31. The terms should set out clearly the conduct which is prohibited. This does not necessarily prevent a general clause being included, but it is legitimate to question the purpose of including such a clause if, as should be the case, other clauses prohibit the specific behaviour which has been proven. Funding for defendants 32. Legal representation to defend an application for an anti-social behaviour injunction will generally only be granted where: (a) there are very serious allegations; (b) the allegations are denied wholly or substantially; and (c) the matter cannot reasonably be dealt with by an undertaking. 33. Legal representation, however, may be justified if there is some question of inability to defend (e.g. mental capacity). ANTI-SOCIAL BEHAVIOUR ORDERS Statistics 34. The number of ASBOs being granted by the courts is interesting. The total reported to the Home Office as issued by courts between 1 st April 1999 and 30 September 2004 stood at It is interesting to note the regional variations in local authorities obtaining ASBOs. For example, Greater Manchester has obtained the greatest number (608), with Greater London accounting for 364. West Yorkshire and the West Midlands account for 299 and 271 ASBO respectively, while southern areas such as Cambridgeshire and Norfolk lag behind with 45 and 58 respectively. At the bottom of the scale are Wiltshire with 13 and Dyfed Powys at18. Use of ASBOs 35. ASBOs may be appropriate in a wide range of situations. Home Office Guidance suggests the followingwhere the behaviour consists of: 21 See Manchester CC v Lee [2003] EWCA Civ 1256; [2004] 1 W.L.R

10 Intimidation Persistent unruly behaviour Verbal abuse, vandalism, threats Abuse of the elderly or vulnerable Persistent bullying Racial harassment or homophobic behaviour Drug or alcohol misuse Ticket touting Nuisance in hospital waiting areas Street Prostitution Chief Constable of Lancashire v Lisa Marie Potter [2003} EWHC 2272 (Admin). When can an application be made 36.An application may be made by a relevant authority if it appears to that authority that: (a) the person has acted, since the commencement date ( ) in an anti-social manner that is to say, in a manner that causes or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) such an order is necessary to protect relevant persons from further anti-social acts by him: s. 1(1)(a) and (b) of the CDA. Who can apply? 37. An application for an ASBO may only be made by a relevant authority. Under the CDA as originally enacted, an application could only be brought by a local authority or the chief officer of police for an area. Section 61(1) and (2) of the PRA amended the CDA to expand the definition of relevant authority to allow applications by the Chief Constable for the British Transport Police and Registered Social Landlords (RSLs). Section 85(1) and (2)(c) of the ASB Act 2003, inserted s.1a(aa) into the CDA to add county councils for England and housing action trust to 10

11 the number of relevant authorities who apply for an ASBO. The local authority for the purposes of ASBO applications is the council for the local government area, which includes a district or London Borough, the City of London, he Isle of Wight and the Isles of Scilly in relation to England and a county or county borough for Wales: S.1(12) CDA. Who can be subject to an ASBO 38. An ASBO may be obtained against a person who is aged 10 or over: s.1(1) CDA. It is not dependent on the defendant being a tenant, or even having a home at all. The application is not limited by any nexus between the defendant s home or the location where the anti-social behaviour occurs. Interim ASBO 39. An interim ASBO may be granted where the court is satisfied that it is just to do so pending the final determination of the application: s.1d(2). Prohibitory 40. An ASBO may prohibit the defendant from doing anything (including entering a defined geographical area) which the court considers to be necessary to protect persons not of the same household from further anti-social acts by him: s.1(4), (6). Where is the application made? 41. Generally, an application for an ASBO is made to the magistrates court. Where, however, a relevant authority are a party to county court proceedings, they may apply for an ASBO within those proceedings (s.1b) and, where they consider it reasonable to do so, may join a person as a party to those proceedings solely for the purposes of obtaining an ASBO against him: s.1(3). Accordingly, in a possession action, the landlord could apply for an ASBO preventing the tenant s child from reentering an area surrounding the tenant s home. Civil Proceedings 42. ASBOs are civil and not criminal orders: R (McCann) v Manchester Crown Court [2002] UKHL 39; [2003] 1 AC 787. Accordingly, hearsay evidence is admissible under 11

12 the Civil Evidence Act 1995 and the Magistrates Courts (Hearsay evidence in Civil Proceedings) Rules 1999 SI/681. Submissions may however be made as to the weight which should be attached to hearsay evidence, because for example, of the absence of cross examination. Hearsay: Civil Evidence Act Section 4, Civil Evidence Act 1995 governs the weight to be afforded to hearsay evidence: (1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard may be had, in particular, to the following (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight. What the court must consider when deciding whether to grant an anti-social behaviour order: 44. When considering whether to grant an anti-social behaviour order a court should consider that: 12

13 (a) the test for making an order is one of necessity to protect the public from further anti-social acts by the offender; (b) the terms of the order must be precise and capable of being understood by the offender; (c) the findings of fact giving rise to the making of the order must be recorded; (d) the order must be explained to the offender; and, (e) the exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced Ancillary Orders 45. When the court makes an ASBO against a person who is under 16, it must consider making a parenting order against the child s parent, and must do so unless satisfied that a parenting order is already in place, that the making of an order would not be desirable to prevent repetition of the conduct. 46. Similarly, Individual Support Orders must be considered in the case of ASBOs against the under 18s. Publicity 47. Publicity about the making of ASBOs and the identities of people who are subject to them may infringe rights under Art.8(1) of the convention, particularly if photographs taken under the powers of the Police and Criminal Evidence Act 1984 are used by the media. The police and local authorities must consider whether publicity is necessary and proportionate to their legitimate aims: R ( Stanley, Marshall and Kelly) v Metropolitan Police Commissioner [2004] EWHC 2229 (Admin); 7 October Home Office Guidance regarding publicity 48. Guidance on Publicising Anti-Social Behaviour Orders, March 2005, Office of the Deputy Prime Minister: this guidance, provides guidance on whether or not to publicise an ASBO and on the content, style and distribution of publicity, having regard to Stanley. 13

14 49. The guidance, while acknowledging each case should be viewed on its own facts, suggests that publicity should be the norm rather than the exception, and that a defendant subject to an ABSO should expect the community to be aware of it. It sets out four factors which should be considered when deciding whether to publicise an ASBO: the need for publicity; the human rights of the public at large; the human rights of those subject to the ASBO; what the publicity should look like and whether it is proportionate to the aims of the publicity. Typical aims for publicity 50. The guidance sets out various typical aims of publicity: assisting in the enforcement of the ASBO; reassuring the public about their safety; giving confidence to the public that action will be taken against asb; deterring the perpetrator from further acts of asb; deterring others from committing acts of asb. Type of publicity 51. The guidance states the photographs of persons subject to the ASBO will usually be necessary so that the perpetrator can be identified. A list of information that may be found in any publicity includes: the name and description of an individual subject to the ASBO; his address, the nature of the behaviour complained of, the terms of the ASBO, the geographical area in which the ASBO is being publicised and how the public can report the breaches. Naming of children and young persons 52. Unlike in criminal cases, there is no presumption against publicity revealing the details of a child or young person s identity. The court does have a discretion to 14

15 prevent such information being published, however. s.39(1) of the Children and Young Persons Act See now Full ASBOs 53. In R (T) v St Albans Crown Court [2002] EWHC 1129 (Admin); 20 May 2002, Elias J, stated that when considering whether a s.39 order should be imposed a balance had to be struck between the desirability of public disclosure on the one hand and the need to protect the welfare of the defendant. 54. Elias J emphasized that disclosure of the identity of the individuals may assist in making an order efficacious and that the public has a particular interest in knowing who in the community has been responsible for anti-social behaviour. Interim ASBOs 55. In Keating v Knowsley MBC [2004] EWHC 1933 (Admin); 22 July 2004, the court stressed the value of publicity in making the order efficacious and deterring others from similar behaviour but also stressed that at the interim stage it is necessary to bear in mind that the allegations are unproven which is a very important consideration to put into the balance. Children in care 56. A conflict of interest arises where local authorities apply for ASBOs against children in their care: R (M) v Sheffield Magistrates Court, although this does not preclude local authorities from seeking ASBOs against children in their care. Rather measures must be taken to ensure that the rights of children in care are not breached on such applications. Newman J gave guidance on the form which such measures may take: social services officers who are discharging care duties for the child should prepare report as information for the authority on behalf of the child; the ASBO panel should consider that report before it makes an application for the order; the social worker should not participate in the decision to apply for an ASBO; 15

16 the court should not make an ASBO against a child in care without someone from social services who can speak to the issue. RECENT DEVELOPMENTS Drugs Act Section 20 inserts a new section 1G into the Crime and Disorder Act 1998, creating intervention orders, which apply in cases where an ASBO application in the magistrates or county court is made against an adult. 58. The court may make an order if the relevant authority has an expert report on the effect on the person's behaviour of the misuse of controlled drugs or of such other factors as the Secretary of State by order prescribes, and has consulted such persons as the Secretary of State by order prescribes for the purpose of ascertaining that, if the report recommends that an order under this section is made, appropriate activities will be available. 59. The court must also be satisfied that the relevant conditions are met, namely, (a) that an intervention order is desirable in the interests of preventing a repetition of the behaviour which led to the behaviour order being made (trigger behaviour); (b) that appropriate activities relating to the trigger behaviour or its cause are available for the defendant; (c) that the defendant is not (at the time the intervention order is made) subject to another intervention order or to any other treatment relating to the trigger behaviour or its cause (whether on a voluntary basis or by virtue of a requirement imposed in pursuance of any enactment); (d) that the court has been notified by the Secretary of State that arrangements for implementing intervention orders are available in the area in which it appears that the defendant resides or will reside and the notice has not been withdrawn. 16

17 60. An intervention order is an order which- (a) requires the defendant to comply, for a period not exceeding six months, with such requirements as are specified in the order, and (b) requires the defendant to comply with any directions given by a person authorised to do so under the order with a view to the implementation of the requirements under paragraph (a) above. 61. The mechanism for making the order is almost identical with that relating to the Individual Support Order (Criminal Justice Act 1993, s 322). See also new section 1H, which deals with the explanation to the defendant of the effect of the intervention order, and makes provision relating to breach and discharge of the order. Serious Organised Crime and Police Act 2005, Part 4 and Schedule 10 Anti-social behaviour 62. Section 139 amends the Crime and Disorder Act 1998 in the following respects: (a) A new subsection (2) is inserted into section 1A (power of Secretary of State to add to relevant authorities) enabling the Secretary of State, by order, to provide that any person or body specified may be a relevant authority and to prescribe relevant persons for that person or body. (b) Section 1C (orders about anti-social behaviour on conviction in criminal proceedings) is amended so that the proceedings relating to the Order on conviction may be adjourned until after the sentencing of the defendant for the criminal offence of which he has been convicted (new subsection (4A). Section 140 sets out a new procedure for the variation of orders on conviction in a new section 1CA.; (c) Section 1D (interim orders) is amended so as to enable a court to decide to make an interim order on conviction, whether on application or of its own motion. 17

18 63. Section 141 makes further provision in relation to reporting restrictions in ASBO cases. A new subsection (10D) is inserted into section 1 of the Crime and Disorder Act, disapplying section 49 of the Children and Young Persons Act 1933 and applying section 45 of the Youth Justice and Criminal Evidence Act 1999 (power to restrict reporting of criminal proceedings involving persons under 18). Section 45 is not yet in force, and until it is, references to it are to be read as references to section 39 of the Children and Young Persons Act A new subsection (10E) provides that if the court exercises its power to direct reporting restrictions under section 45 of the Youth Justice and Criminal Evidence Act 1999, it must give its reasons for doing so. 65. Section 143 creates a new section 1I, providing for special measures for witnesses in ASBO proceedings in the magistrates court, including interim applications, and the Crown Court in respect of orders on conviction. They do not apply to proceedings in the county court. 66. The basic measures are derived from Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 (special measures directions in the case of vulnerable and intimidated witnesses), with certain provisions omitted. Parental compensation orders 67. Section 144 and Schedule 10 create these orders. In summary, Schedule 10 inserts new sections 13A-13D into the Crime and Disorder Act 1998 which entitle a magistrates court, on application by a local authority, to make an order where it is satisfied on the civil standard of proof that a child under the age of 10 has taken, or caused loss of or damage to, property in the course of- (a) committing an act which, if he had been aged 10 or over, would have constituted an offence; or (b) acting 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. 18

19 68. The court must also consider that the making of an order is desirable to prevent a repetition of the behaviour in question. 69. The order requires any person specified in the order who is a parent or guardian of the child (other than a local authority) to pay compensation of an amount specified in the order to any person or persons specified in the order who is, or are, affected by the taking of the property or its loss or damage. 70. The amount of compensation specified may not exceed 5,000 in all. 71. By new 13B(1) and (2), when specifying the amount of compensation, the magistrates' court must take into account- (a) the value of the property taken or damaged, or whose loss was caused, by the child; (b) any further loss which flowed from the taking of or damage to the property, or from its loss; (c) whether the child, or any parent or guardian of his, has already paid any compensation for the property (and if so, how much); (d) whether the child, or any parent or guardian of his, has already made any reparation (and if so, what it consisted of); (e) the means of those to be specified in the order as liable to pay the compensation, so far as the court can ascertain them; (f) whether there was any lack of care on the part of the person affected by the taking of the property or its loss or damage which made it easier for the child to take or damage the property or to cause its loss. 72. If property taken is recovered before compensation is ordered to be paid in respect of it- (a) the court shall not order any such compensation to be payable in respect of it if it is not damaged; 19

20 (b) if it is damaged, the damage shall be treated for the purposes of making a parental compensation order as having been caused by the child, regardless of how it was caused and who caused it. 73. By section 13C, before deciding whether or not to make a parental compensation order in favour of any person, the magistrates' court must take into account the views of that person about whether a parental compensation order should be made in his favour. The court must also obtain and consider information about the child's family circumstances and the likely effect of the order on those circumstances. 74. It is a criminal offence to fail to comply with a compensation order. 75. A right of appeal is created against the making of an order (section 13D). Provision is also made concerning the effect of an order in subsequent civil proceedings for compensation in respect of the same loss (so as to prevent double recovery) (section 13E). Violent Crime Reduction Bill 76. Chapter 1 of Part 1 provides for drink banning orders, by which a magistrates court must prohibit persons aged 16 and over from entering licensed premises for a period between two months and two years who are responsible for alcohol-related disorder and may prohibit them from doing anything else necessary to protect other persons from criminal or disorderly conduct by the person while under the influence of alcohol. RECENT CASES 77. Although, in practical terms, the threshold for an ASBI/ASBO is relatively low, and the courts do take a tough line on ASB, there are still a number of things that can be done for defendants. Clients need to be aware of the realities of the situation at an early stage, but there are also opportunities for influencing the course and outcome of proceedings. 20

21 78. The Court of Appeal in ASB cases has made a number of important comments recently which Claimants, particularly for ASBOs, frequently need reminding of. Harassment, alarm or distress 79. R (Mills) v Birmingham Magistrates' Court (Admin Ct 11/10/05): shoplifting does not automatically engage section 1 of the Crime and Disorder Act An act of theft may cause harassment alarm or distress, but whether or not it did so depended on the individual facts of the case. Prohibitions 80 Not only must it be necessary to make an order but each prohibition must also be necessary before it can be included. This would appear to indicate an approach which requires consideration of the proposed prohibitions individually and as a whole as part of the exercise of deciding whether it is necessary to make an order, and not to decide it is necessary to make an order and then go on to see what can be included in it. Sweeping up clauses like not to behave in an antisocial manner anywhere in England or Wales do seem to stretch the meaning of necessary. 81. R v Boness & Ors[2005] EWCA Crim 2395 Each prohibition in an ASBO must be necessary, and orders must be tailor-made for each offender. A prohibition which is also a specified criminal offence should only be included if the sentence for the offence in question would not be a sufficient deterrent. Prohibitions must also be capable of being understood by the offender and must be enforceable (c.f. Manchester CC v Lee [2003] EWCA Civ 1256; [2004] 1 WLR 349 in the context of Housing Act injunctions). Orders on conviction 82. R v Kirby [2005 EWCA Crim 1228 Orders on conviction should not normally be made where the offence for which the offence was being imposed did not involve intimidation, harassment, alarm or distress, or with the aim of giving higher sentencing powers to the court should the defendant reoffend. 21

22 83. R v Rush [2005] EWCA Crim 1316 Making an ASBO should not be a normal part of the sentencing process, especially if the crime of which the defendant had been convicted did not involve the causing of harassment, alarm or distress. Sentence for breach 84. R v Lamb [2005] EWCA Crim 2487 Where a breach of an ASBO amounts to a criminal offence, it is permissible to impose a longer sentence of imprisonment for the breach than would be the applicable statutory maximum penalty for the offence. On the other hand, where breaches do not involve harassment, alarm or distress, long sentences should be avoided and community penalties considered to assist the defendant to learn to live with the order. PRACTICAL POINTS Use the force Many of the observations above are equally applicable to county court ASBI proceedings. Use them creatively to limit the effect of an order, but also as a negotiating tool. Make admissions at the earliest opportunity Showing a willingness to accept responsibility at the earliest opportunity for what the defendant clearly has done or admits doing and/or offering undertakings can provide a strong basis for avoiding the making of an order, or at least the attachment of a power of arrest. Apologies are also extremely useful. Was the Defendant warned? Clearly, if the proceedings come out of the blue, the defendant is in a much stronger position than if efforts to control behaviour have already been made and failed. Did the Claimant consider an ABC? Although ASBOs/ASBIs are not remedies of last resort, there is an increasing focus on the need for other measures to be attempted first. Indeed, in ASBO cases, the claimant has to show that it is necessary to make an order and that each of the prohibitions sought is necessary. 22

23 Deny/not admit Try to avoid denials where not admitting the conduct complained of is the correct response, e.g. where the conduct complained of relates to the tenant s children. Hearsay The Moat case provides considerable ammunition in relation to the indiscriminate use of hearsay evidence. Do not regard it as a fait accompli. Examine what it actually proves and how reliable it is. Serve counternotices seeking cross examination of the makers of the statements and test the reasons why it is said that those statement-makers cannot or will not come forward. The extension of measures for the protection of witnesses in recent legislation (Serious Organised Crime and Police Act 2005) adds an argument as to why witnesses should be required to come forward. Sauce and geese If hearsay is admissible, then it is admissible for both sides. If neighbours will write letters of support, then get them and disclose them. Likewise petitions often seem to have a significant effect on judges. Cross allegations Consider the use of Part 20 claims, but this is a minefield. Exclusion zones make sure that these are drafted rigorously and carefully. Consider the location of employment, schools, relatives, benefit offices etc, bus routes etc. ISOs and Intervention Orders They may help the defendant stay out of prison so push YOT teams and social services. Andrew Dymond Arden Chambers 23