Law and Rights
Update 8th January: An amendment to Clause 1 of the Bill has been put forward in the House of Lords. See HERE. This amendment was carried - see also Democracy Live.
The Anti-social Behaviour, Crime and Policing Bill has almost completed its Parliamentary process. For some, it is seen as a very illiberal bill - e.g. see the article by George Monbiot in The Guardian 6th January. Monbiot goes so far as to assert that this is 'the most oppressive bill pushed through any recent parliament.' Concern was expressed in the Pre-Legislative Scrutiny Report about the continual widening of what amounts to anti-social behaviour - (Page 26 of this report).
An earlier post on this blog looked at the bill when it was first introduced and noted that there remains the long-stop of the Human Rights Act 1998 which public authorities are required to follow. Here is a good example of why either removing or limiting the scope of human rights protection could result in serious erosion of freedom. The Bill is replete with human rights implications though, as is usual, the government issued a statement of compatibility.
In this post, I take a brief overview of the Bill
as it now stands - (see Parliament - Bills) - and then consider in a rather more detail the Anti-social Behaviour elements in Part 1 of the Bill (Injunctions to prevent nuisance and annoyance). However, this post is not intended to be in any way an authoritative guide to this legislation.
Overview:
The Bill - here is the latest text - extends to 14 Parts: 171 sections and 10 Schedules.
Part 1 - Injunctions to prevent nuisance and annoyance:
Part 1 has to be read alongside Schedule 1 and Schedule 2 and, in relation to amendments to or repeals of other legislation see Schedule 10. The new Injunction system will replace "Anti-social Behaviour Orders" (ASBO) which were first introduced by the Crime and Disorder Act 1998. With the exception of injunctions applied for in Youth Courts for those under age 18, the new injunctions will not, unlike ASBOs, be issuable by the Magistrates' Courts.
Clause 1 empowers a court to grant an injunction against a person aged 10 or over (known as "the respondent") subject to two conditions:
An injunction under Clause 1 may - for the purpose of preventing the respondent from engaging in anti-social behaviour - either prohibit the respondent from doing anything described in the injunction or require the respondent to do anything described in the injunction. Any prohibitions and requirements must, so far as practicable, be such as to avoid (a) any conflict with the respondent's religious beliefs; (b) any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment; (c) any conflict with the requirements of any other court order or injunction to which the respondent may be subject.
An injunction has to specify the period for which it has effect or state that it has effect until further order. However, if an injunction is imposed before a respondent reaches age 18 then a period must be specified and may not exceed 12 months.
Youth Courts will exercise this jurisdiction in respect of respondents under age 18. In other cases, the matter will be decided by either the High Court or the County Court.
Clause 2 is concerned with what may be in an injunction. If an injunction includes a requirement to do something then the injunction must also specify who is to be responsible for supervising compliance with that requirement. This could be an individual or an organisation. The court must receive evidence about the suitability and enforceability of any proposed requirements. Also, if 2 or more requirements are to be imposed then the court must consider their compatibility with each other. The supervisor has onerous duties to make necessary arrangements in relation to the requirement and to promote compliance- (see clause 2 for further). Clearly, not a duty to be undertaken lightly. A respondent subject to a requirement must keep in touch with the person who is specified to supervise and must inform the supervisor of any change of address. Failure to do either of those things may amount to breach of the injunction- see Clause 2(6).
Clause 3 deals with power of arrest. A power of arrest may be attached by the court to a prohibition or requirement if the court thinks that - (a) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or(b) there is a significant risk of harm to other persons from the respondent. (Whether there is significant risk would appear to be an exercise of judgment or evaluation to be made by the court. Here is a point which may have to fall for judicial decision).
Clause 5 deals with applications for injunctions without notice to the respondent. "Without notice" proceedings are not entirely desirable but are sometimes necessary in practice. They go against a fundamental principle of hearing both sides before making a decision (audi alteram partem). It remains to be seen how the courts will handle this but the court is empowered by clause 5 to adjourn the proceedings and grant an interim injunction or simply adjourn or dismiss the application. I suspect that courts will tread carefully before issuing interim injunctions in the absence of respondents.
Clause 6 deals with Interim Injunctions. An interim injunction may be made when the court adjourns the proceedings. Such an injunction may be issued if the "court thinks it just to do so." The only restriction in the legislation seems to be that an interim injunction made at a hearing of which the respondent was not given notice may not have the effect of requiring the respondent to participate in particular activities.
Clause 7 deals with variation and discharge of injunctions. Clause 8 deals with the POLICE power of arrest but this only applies where the injunction includes a power of arrest. "Where a power of arrest is attached to a provision of an injunction under section 1, a constable may arrest the respondent without warrant if he or she has reasonable cause to suspect that the respondent is in breach of the provision." Clause 9 deals with Warrants for Arrest - "if the person who applied for an injunction under section 1 thinks that the respondent is in breach of any of its provisions, the person may apply for the issue of a warrant for the respondent?s arrest." "A judge or justice may issue a warrant under this section only if the judge or justice has reasonable grounds for believing that the respondent is in breach of a provision of the injunction." (This would seem to require the hearing of some evidence as opposed to taking merely the word of the applicant - this point which may require to be decided judicially).
Clause 10 states that Schedule 1 (remands under sections 8 and 9) has effect. Clause 11 activates Schedule 2. These are not considered further here.
Clauses 12 and 13 are applicable in cases where the applicant is a provider of residential accommodation.
Clause 14 includes a need to consult local Youth Offending Teams in relation to respondents aged 10 to under 18. This is a particularly important provision though it remains to be seen how effective it is as a check against unmeritorious applications. Clause 15 provides for appeal to the Crown Court when a Youth Court has issued an injunction. Clause 16 enables special measures (similar to those in criminal proceedings) to be applied to witnesses. Clause 17 disapplies the Children and Young Persons Act 1933 sc49. This seems set to result in more children and young persons being publicly named. Clause 18 provides for "Rules of Court" to be made. Clause 19 is Interpretation and Clause 20 Savings and Transitional matters.
Sanctions:
The bill does not make specific provision for a standard of proof in relation to breaches of injunctions by those aged 18 or over. Breach will not be a criminal offence (unlike the ASBO regime) but rather a breach of a civil injunction dealt with by way of contempt of court for adults. Contempt of court is punishable with up to 2 years imprisonment. There is a new scheme of punitive criminal-type sanctions for children.
For those under 18, Schedule 2 applies the criminal standard "beyond reasonable doubt" and this schedule goes on to specify the ways by which such individuals found to be in breach may be dealt.
Legal Aid: Schedule 10 (para 49) appears to extend legal aid to this area.
Useful Links:
Legal opinion by Lord Macdonald QC on aspects of the Bill
Home Office - Factsheet
Liberty - Briefing on the Bill - essential reading here. A highly critical and devastating analysis likely to be used as a point of reference by those seeking to challenge this system on human rights grounds.
When will this commence?
Following Royal Assent, the provisions will be brought into force by Commencement Orders.
The following proceedings in the House of Lords may be of interest to those wishing to delve into this further.
Parliament - Pre-legislative Scrutiny
Other suggestions included a new civil penalty covering littering from vehicles and the introduction of a corporate anti-social behaviour order, granting authorities power to close premises that cause harassment, alarm or distress within communities.
Protection for victims of anti-social behaviour, powers of arrest under the new injunction procedure and the role of police and crime commissioners in determining a local strategy to deal with anti-social behaviour were also considered.
- The Naked Rambler
Stephen Gough - also known as "The Naked Rambler" - has appeared (in the nude) via Video Link before the Court of Appeal (Criminal Division) - BBC News . The appeal was against his conviction (in October 2014) for Breach of an Anti-Social Behaviour Order...
- The Anti-social Behaviour, Crime And Policing Bill ~ Possible Amendment
UPDATE 9th January: The amendment set out below was carried in the House of Lords by a majority of 178. The debate may be viewed via Democracy Live. An amendment has been moved to the Anti-social Behaviour, Crime and Policing Bill. ...
- Forced Marriage ~ Enforcement Of Protection Orders
May a Police Force apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when the police were not the applicants who obtained the order? The answer is NO according to Holman J...
- A Matter Of Contempt
Another notable event this week was the finding by His Honour Judge Barry Cotter QC that the Home Secretary was in contempt of court for not abiding by an undertaking given to release a man (Mr Lamari) from a UK Detention Centre by a specified date. ...
- Super Injunctions: Private Prosecutions: Domestic Violence And Contact With Child
Injunctions For those wealthy enough to be able to use the courts, a "Super-injunction" may be one way of trying to ensure that personal information is kept private. Strictly speaking, a super injunction even bans publication of the fact that it...
Law and Rights
The Anti-social behaviour, Crime and Policing Bill ~ IPNAs
The Anti-social Behaviour, Crime and Policing Bill has almost completed its Parliamentary process. For some, it is seen as a very illiberal bill - e.g. see the article by George Monbiot in The Guardian 6th January. Monbiot goes so far as to assert that this is 'the most oppressive bill pushed through any recent parliament.' Concern was expressed in the Pre-Legislative Scrutiny Report about the continual widening of what amounts to anti-social behaviour - (Page 26 of this report).
An earlier post on this blog looked at the bill when it was first introduced and noted that there remains the long-stop of the Human Rights Act 1998 which public authorities are required to follow. Here is a good example of why either removing or limiting the scope of human rights protection could result in serious erosion of freedom. The Bill is replete with human rights implications though, as is usual, the government issued a statement of compatibility.
In this post, I take a brief overview of the Bill
as it now stands - (see Parliament - Bills) - and then consider in a rather more detail the Anti-social Behaviour elements in Part 1 of the Bill (Injunctions to prevent nuisance and annoyance). However, this post is not intended to be in any way an authoritative guide to this legislation.
Overview:
The Bill - here is the latest text - extends to 14 Parts: 171 sections and 10 Schedules.
Part | Title | Notes |
1 | Injunctions to prevent nuisance and annoyance | Clauses 1 - 20 |
2 | Criminal Behaviour Orders | 21 - 30 |
3 | Dispersal Powers | 32-39 |
4 | Community Protection Chapter 1 ? Community Protection Notices Chapter 2 ? Public Spaces Protection Orders Chapter 3 ? Closure of Premises associated with nuisance or disorder | 40 - 85 |
5 | Recovery of possession of dwelling-houses, Anti-social behaviour grounds | 86 - 92 |
6 | Local involvement and Accountability | 93 - 97 |
7 | Dangerous Dogs | 98 - 99 |
8 | Firearms | 100 - 104 |
9 | Protection from Sexual Harm and Violence | 105 - 107 |
10 | Forced Marriage | 108 - 110 |
11 | Policing etc | 111 - 142 |
12 | Extradition | 143 - 160 |
13 | Criminal Justice and Court fees | 161 - 165 |
14 | General | 166 - 171 |
Part 1 has to be read alongside Schedule 1 and Schedule 2 and, in relation to amendments to or repeals of other legislation see Schedule 10. The new Injunction system will replace "Anti-social Behaviour Orders" (ASBO) which were first introduced by the Crime and Disorder Act 1998. With the exception of injunctions applied for in Youth Courts for those under age 18, the new injunctions will not, unlike ASBOs, be issuable by the Magistrates' Courts.
Clause 1 empowers a court to grant an injunction against a person aged 10 or over (known as "the respondent") subject to two conditions:
- The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person (?anti-social behaviour?).
- 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.
An injunction has to specify the period for which it has effect or state that it has effect until further order. However, if an injunction is imposed before a respondent reaches age 18 then a period must be specified and may not exceed 12 months.
Youth Courts will exercise this jurisdiction in respect of respondents under age 18. In other cases, the matter will be decided by either the High Court or the County Court.
Clause 2 is concerned with what may be in an injunction. If an injunction includes a requirement to do something then the injunction must also specify who is to be responsible for supervising compliance with that requirement. This could be an individual or an organisation. The court must receive evidence about the suitability and enforceability of any proposed requirements. Also, if 2 or more requirements are to be imposed then the court must consider their compatibility with each other. The supervisor has onerous duties to make necessary arrangements in relation to the requirement and to promote compliance- (see clause 2 for further). Clearly, not a duty to be undertaken lightly. A respondent subject to a requirement must keep in touch with the person who is specified to supervise and must inform the supervisor of any change of address. Failure to do either of those things may amount to breach of the injunction- see Clause 2(6).
Clause 3 deals with power of arrest. A power of arrest may be attached by the court to a prohibition or requirement if the court thinks that - (a) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or(b) there is a significant risk of harm to other persons from the respondent. (Whether there is significant risk would appear to be an exercise of judgment or evaluation to be made by the court. Here is a point which may have to fall for judicial decision).
Clause 4 contains a lengthy list of possible applicants. However, it is likely that the principal applicants will be local authorities, housing providers or the Police. A housing provider may make an application only if the application concerns anti-social behaviour that directly or indirectly relates to or affects its housing management functions. The term "housing management functions" includes (a)functions conferred by or under an enactment; (b)the powers and duties of the housing provider as the holder of an estate or interest in housing accommodation.
Clause 5 deals with applications for injunctions without notice to the respondent. "Without notice" proceedings are not entirely desirable but are sometimes necessary in practice. They go against a fundamental principle of hearing both sides before making a decision (audi alteram partem). It remains to be seen how the courts will handle this but the court is empowered by clause 5 to adjourn the proceedings and grant an interim injunction or simply adjourn or dismiss the application. I suspect that courts will tread carefully before issuing interim injunctions in the absence of respondents.
Clause 6 deals with Interim Injunctions. An interim injunction may be made when the court adjourns the proceedings. Such an injunction may be issued if the "court thinks it just to do so." The only restriction in the legislation seems to be that an interim injunction made at a hearing of which the respondent was not given notice may not have the effect of requiring the respondent to participate in particular activities.
Clause 7 deals with variation and discharge of injunctions. Clause 8 deals with the POLICE power of arrest but this only applies where the injunction includes a power of arrest. "Where a power of arrest is attached to a provision of an injunction under section 1, a constable may arrest the respondent without warrant if he or she has reasonable cause to suspect that the respondent is in breach of the provision." Clause 9 deals with Warrants for Arrest - "if the person who applied for an injunction under section 1 thinks that the respondent is in breach of any of its provisions, the person may apply for the issue of a warrant for the respondent?s arrest." "A judge or justice may issue a warrant under this section only if the judge or justice has reasonable grounds for believing that the respondent is in breach of a provision of the injunction." (This would seem to require the hearing of some evidence as opposed to taking merely the word of the applicant - this point which may require to be decided judicially).
Clause 10 states that Schedule 1 (remands under sections 8 and 9) has effect. Clause 11 activates Schedule 2. These are not considered further here.
Clauses 12 and 13 are applicable in cases where the applicant is a provider of residential accommodation.
Clause 14 includes a need to consult local Youth Offending Teams in relation to respondents aged 10 to under 18. This is a particularly important provision though it remains to be seen how effective it is as a check against unmeritorious applications. Clause 15 provides for appeal to the Crown Court when a Youth Court has issued an injunction. Clause 16 enables special measures (similar to those in criminal proceedings) to be applied to witnesses. Clause 17 disapplies the Children and Young Persons Act 1933 sc49. This seems set to result in more children and young persons being publicly named. Clause 18 provides for "Rules of Court" to be made. Clause 19 is Interpretation and Clause 20 Savings and Transitional matters.
Sanctions:
The bill does not make specific provision for a standard of proof in relation to breaches of injunctions by those aged 18 or over. Breach will not be a criminal offence (unlike the ASBO regime) but rather a breach of a civil injunction dealt with by way of contempt of court for adults. Contempt of court is punishable with up to 2 years imprisonment. There is a new scheme of punitive criminal-type sanctions for children.
For those under 18, Schedule 2 applies the criminal standard "beyond reasonable doubt" and this schedule goes on to specify the ways by which such individuals found to be in breach may be dealt.
Legal Aid: Schedule 10 (para 49) appears to extend legal aid to this area.
Useful Links:
Legal opinion by Lord Macdonald QC on aspects of the Bill
Home Office - Factsheet
Liberty - Briefing on the Bill - essential reading here. A highly critical and devastating analysis likely to be used as a point of reference by those seeking to challenge this system on human rights grounds.
When will this commence?
Following Royal Assent, the provisions will be brought into force by Commencement Orders.
: Some of what was said in Parliament :
The following proceedings in the House of Lords may be of interest to those wishing to delve into this further.
Parliament - Pre-legislative Scrutiny
Anti-social Behaviour, Crime and Policing Bill committee stage day three: Wednesday 20 November
- Catch up on Parliament TV
- Read the Lords Hansard transcript
Other suggestions included a new civil penalty covering littering from vehicles and the introduction of a corporate anti-social behaviour order, granting authorities power to close premises that cause harassment, alarm or distress within communities.
Anti-social Behaviour, Crime and Policing Bill committee stage day two: Monday 18 November
- Catch up on Parliament TV
- Read the Lords Hansard transcript
Protection for victims of anti-social behaviour, powers of arrest under the new injunction procedure and the role of police and crime commissioners in determining a local strategy to deal with anti-social behaviour were also considered.
- The Naked Rambler
Stephen Gough - also known as "The Naked Rambler" - has appeared (in the nude) via Video Link before the Court of Appeal (Criminal Division) - BBC News . The appeal was against his conviction (in October 2014) for Breach of an Anti-Social Behaviour Order...
- The Anti-social Behaviour, Crime And Policing Bill ~ Possible Amendment
UPDATE 9th January: The amendment set out below was carried in the House of Lords by a majority of 178. The debate may be viewed via Democracy Live. An amendment has been moved to the Anti-social Behaviour, Crime and Policing Bill. ...
- Forced Marriage ~ Enforcement Of Protection Orders
May a Police Force apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when the police were not the applicants who obtained the order? The answer is NO according to Holman J...
- A Matter Of Contempt
Another notable event this week was the finding by His Honour Judge Barry Cotter QC that the Home Secretary was in contempt of court for not abiding by an undertaking given to release a man (Mr Lamari) from a UK Detention Centre by a specified date. ...
- Super Injunctions: Private Prosecutions: Domestic Violence And Contact With Child
Injunctions For those wealthy enough to be able to use the courts, a "Super-injunction" may be one way of trying to ensure that personal information is kept private. Strictly speaking, a super injunction even bans publication of the fact that it...