ASB Reforms Baljit Basra Partner Baljit.basra@anthonycollins.com 30 th 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 antisocial 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 13 th 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
Condition One 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 Two 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. Not proven if breach on appeal Serve NSP within 12 months of breach finding/appeal NSP notice period not <28 days
Condition Three 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. Not proven if conviction on appeal Serve NSP within 12 months of conviction NSP notice period not <28 days
Condition Four Property subject to closure order lasting more than 48 hours Not proven if being appealed Serve NSP within 3 months of date closure order made/appeal fails NSP notice period not <28 days
Condition Five 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 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.
Mandatory Ground Review NSP Ground 7A (assured) Section 84A (Secure) Conditions 1, 2, 3, 4 or 5 7 days 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 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
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 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