Part 1 Injunctions Introduction Application for injunction

Transcription

1 Part 1 Injunctions Introduction 1. Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 introduces a new civil injunction which will replace the current civil or stand-alone ASBOs and the ASBI. 2. The provisions come into force on 23 rd March 2015 (Article 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No. 8, Saving and Transitional Provisions) Order 2015/373). 3. For now, the new provisions will not apply to ASBIs or ASBOs which were applied for before the commencement date (section 21(2)). However, five years from the commencement date the new provisions will start to apply to those ASBIs and ASBOs which are still in force (section 21(5)). Application for injunction 4. An application for an injunction should be made to the County Court or High Court in the case of an adult and to the Youth Court in the case of a youth (section 1(8)). 5. Under section 5, an application may be made by: i. A local authority; ii. A housing provider, but only if the application concerns anti-social behaviour that relates to its housing management functions; iii. The police/british Transport Police; iv. TfL; v. The Environment Agency; vi. The Natural Resources Body for Wales; vii. The Secretary of State exercising security management functions (as defined by section 5(2)) or a Special Health Authority exercising such functions on the direction of the Secretary of State; or viii. The Welsh Ministers exercising security management functions or a person or body exercising such functions on the direction of the Welsh Ministers. 6. Before applying for an injunction, unless the application is made without notice the applicant must consult the local YOT (if the respondent is under 18) and inform any other body or individual the applicant thinks appropriate (section 14(1)). If the application is made without notice, this consultation and/or informing must take place before the date of the first on-notice hearing (section 1

2 4(2)). A person applying for a variation or discharge of the injunction is under similar duties (section 14(3)). 7. An application may be made without notice (section 6(1)). The court s powers upon hearing a without notice application are to: adjourn the proceedings and grant an interim injunction under section 7; adjourn without granting an interim injunction; or dismiss the application (section 6(2)). An interim injunction made at a without notice hearing cannot require the respondent to participate in particular activities (section 7(3)). Power to grant injunction 8. The relevant court may grant an injunction under section 1 where two conditions are met: [ ] (2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour. (3) The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. 9. What constitutes anti-social behaviour will depend on the context: i. In a non-housing context, such as in the street or in a shopping centre, anti-social behaviour means conduct that has caused, or is likely to cause harassment, alarm or distress to any person (section 2(1)(a)). ii. In a housing context, anti-social behaviour means conduct capable of causing nuisance or annoyance to a person in relation to that person s occupation of residential premises (section 2(1)(b)) or conduct capable of causing housing-related nuisance or annoyance to any person (section 2(1)(c)). Housing-related means directly or indirectly relating to the housing management functions of (a) a housing provider, or (b) a local authority (section 2(3)). Only social landlords, local councils, or the police can apply for this second type of injunction. 10. An injunction can be granted against anyone aged 10 or over (section 1(1)). Content of the injunction 11. The terms of the injunction can prohibit the respondent from doing something and/or require him or her to do something (section 1(4)). The prohibitions and/or requirements should, so far as practicable, avoid: i. Interference with times at which the respondent works or attends an educational establishment (section 1(5)(a)); and/or 2

3 ii. Conflict with the requirements of another court order or injunction (section 1(5)(b)). 12. Where the injunction includes a requirement, the injunction must specify the person responsible for supervising compliance with that requirement (section 3(1)). Before stipulating any requirement the court must receive evidence from that person about the suitability and enforceability of the requirement (section 3(2)). That person will be responsible for making any necessary arrangements in connection with the requirements, promoting the respondent s compliance with the requirements, and informing the applicant of the respondent s compliance or otherwise (section 3(4)). It will be a requirement of the injunction that the respondent keeps in touch with that specified person (section 3(6)). 13. Before including two or more requirements, the court must consider their compatibility with each other (section 3(3)). 14. The injunction can include a term excluding the respondent from his or her home (section 13). However, this power is only available where: i. The respondent is an adult; ii. The applicant for the injunction is a local authority, the police, or the housing provider where the home is owned by that provider; and iii. The court thinks that the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the issue of threatened use of violence, or that there is a significant risk of harm to other persons from the respondent. 15. The injunction can last indefinitely, in the case of an adult, or for up to 12 months in the case of a youth (section 1(6)). The injunction should specify the period for which it has effect or state that it has effect until further order (section 1(6)). The injunction can also specify periods for which particular terms will have effect (section 1(7)). 16. A power of arrest may be attached to a prohibition or requirement if the court thinks that the antisocial behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence, or that there is a significant risk of harm to other persons from the respondent (section 4(1)). A power of arrest may not be attached to any requirement which obligates the respondent to participate in particular activities (section 4(1)). The court may specify a period for which the power of arrest has effect that is shorter than the period relating to the prohibition or requirement to which it is attached (section 4(2)). 3

4 Breach 17. Where a power of arrest is attached to a provision, the respondent may be arrested without warrant if a constable has reasonable cause to suspect that the respondent is in breach of the provision (section 9(1)). After having been arrested, the respondent must be brought before the court within 24 hours (section 9(3)). 18. Alternatively, if the applicant for the injunction thinks that the respondent is in breach of any of its provisions, they may apply for the issue of an arrest warrant (section 10(1)). A warrant may only be issued if the court has reasonable grounds for believing that the respondent is in breach of a provision (section 10(3)). 19. A person brought before the court under either a power of arrest or an arrest warrant may be remanded either in custody or on bail if the matter is not dealt with straight away (section 9(5) and section 10(8)). Remands are dealt with under Schedule 1. A person may not be remanded for more than eight clear days unless either: i. A medical report is needed and the respondent is remanded to enable a report to be done, in which case the adjournment may not be longer than 3 weeks (where the respondent is in custody) or four weeks (where they are on bail) (paragraph 5, Schedule 1); ii. The court is satisfied on the evidence of a registered medical practitioner that the respondent is suffering from a mental disorder and the court is of the opinion that it would be impracticable for a report on the respondent s mental health to be made if he or she were on bail, in which case the respondent may be remanded to a hospital or other registered establishment (paragraph 6, Schedule 1); or iii. The respondent is remanded on bail and both the respondent and applicant agree to a longer period of adjournment (paragraph 4, Schedule 1). 20. When remanding a respondent on bail, the court may require the respondent to comply with any requirements that appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice (paragraph 9, Schedule 1). 21. A youth may not be remanded in custody unless paragraph 6 (remand to a medical establishment ) applies (paragraph 2(1), Schedule 1). 22. Breach of an injunction will be a contempt of court. An adult can be punished by up to 2 years in prison or an unlimited fine. 4

5 23. Breach of an injunction by a youth is dealt with under Schedule 2. If satisfied beyond reasonable doubt that the respondent is in breach of a provision, the court may make a supervision order or (where the respondent is aged 14 or over) a detention order (paragraph 1, Schedule 2). The court may only make a detention order if it is satisfied that, in view of the severity or extent of the breach, no other power available to the court is available (paragraph 1, Schedule 2). A supervision order may include a supervision requirement (paragraph 3, Schedule 2), an activity requirement (paragraph 4, Schedule 2), and/or a curfew requirement (paragraph 5, Schedule 2). 24. Breach of an injunction can also be the basis of an application for possession on the new mandatory ground (new section 84A of the Housing Act 1985 and new Ground 7A to Schedule 2 of the Housing Act 1988). Variation, discharge, and appeal 25. An injunction may be varied or discharged on the application of the original applicant or the respondent (section 8(1)). The power to vary an injunction includes the power to include an additional prohibition or requirement, to extend the period for which a prohibition or requirement has effect, to attach a power of arrest, or to extend the period for which a power of arrest has effect (section 8(3)). If an application to vary or discharge is dismissed, the party making the application may not make any further application without the consent of the court or the agreement of the other party (section 8(4)). 26. An appeal against an injunction made by a youth court lies to the Crown Court (section 15(1)). TESSA BUCHANAN 3 RD MARCH