HOUSING – ANTI-SOCIAL BEHAVIOUR By Justin Bates · HOUSING – ANTI-SOCIAL BEHAVIOUR By Justin...

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HOUSING – ANTI-SOCIAL BEHAVIOUR

By Justin Bates

[email protected]

Introduction

Anti-social behaviour is linked to housing law, simply because it is local authorities and

housing associations who bring the majority of ASB related claims.

These notes are only a brief overview of some of the relevant law. They also only focus on the

“punitive” aspects of ASB law. For a more full analysis, including the recent shift to

“preventative” and “restorative” aspects of ASB law (drink banning orders, parenting orders,

individual support orders etc) see Anti-Social Behaviour: Powers & Remedies – Collins &

Cattermole, Sweet & Maxwell, 2nd Edition.

Contents:

(1) Possession claims

(2) Injunctions

(3) ASBOs

1. “Bog Standard” Possession Claims: The process

1 The process for obtaining possession against secure tenants (in general terms, tenants

of local housing authorities) and assured tenants (in general terms, tenants of housing

associations) is particularly complex. In recent years, there has been an increase in the



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range and number of “routes” for obtaining possession. These notes deal with the

powers most commonly used by social landlords.

2 Secure and assured tenancies cannot be brought to an end except by the landlord

obtaining an order for possession from the court.1

Prior to the issue of proceedings

3 Before issuing any proceedings, the landlord is required to serve the relevant statutory

notice2 which will specify the ground on which the court will be asked to make the

possession order and give particulars of that ground.3

4 The purpose of the notice is to give the misbehaving tenant an opportunity to mend

their ways prior to the issuing of possession proceedings.

5 The usual “ground” relied upon is Ground 2 (secure) or Ground 14 (assured)

“The tenant or a person residing in or visiting the dwelling-house:

(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to

a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b) has been convicted of -

(i) using the dwelling house or allowing it to be used for immoral or illegal purposes,

or

(ii) an arrestable offence committed in, or in the locality of, the dwelling house.”

1 Housing Act 1985, s.82(1) and Housing Act 1988, s.5(1). 2 Housing Act 1985, s.83; Housing Act 1988, s.8. 3 Although, in each case, there is a power to dispense with the notice if it is just and equitable to do so.



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6. If proceedings are issued, then, at trial, there will be three questions for the court

to decide (although a determination of one issue in favour of the tenant may make

further issues academic):

(a) whether the ground for possession has been made out, which is an issue of fact

(b) whether it is reasonable to make an order for possession, which involves the

exercise of judicial discretion, but with a substantial element of judgment as to whether

or not the making of an order is reasonable; and

(c) whether to postpone the date for possession or to stay or suspend it the order

for a period on terms as the court thinks fit. 4

Is a ground made out?

7 This is, of course, a question of fact. However, note the broad wording of the ground.

It would cover nuisance caused by a mere visitor to the property; nuisance which has

occurred in the past; nuisance to anyone who happens to be in the area.

8 A well-recognised problem in possession proceedings based on nuisance is that victims

of that nuisance are often too frightened to give evidence personally against the alleged

perpetrators; hearsay evidence, whether in the form of witness statements from those

who are too frightened to give evidence orally, or oral evidence from third parties who

are not themselves victims, is therefore often admissible in nuisance possession

proceedings. The admissibility of such evidence and the weight to be afforded to it are

matters for the trial judge under Civil Evidence Act 1995,s.4.5

9 Previous convictions can also be taken into account, even if they pre-date the tenancy.6

4 1985, s.85(2); 1988, s.9(2) 5 : Solon South West Housing Association Ltd v James & Another [2004] EWCA Civ 1847 6 Raglan Housing Association v Fairclough [2007] EWCA Civ 1087; (2008) HLR 21



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Is it reasonable to make an order for possession?

10 Once the ground is established the court has to go on to consider whether it is

reasonable to make a possession order. In considering whether it is reasonable to make

an order for possession the duty of the judge is to take into account all relevant

circumstances as they exist at the date of the hearing in a broad, common- sense way as

a man of the world, and come to his conclusion giving such weight as he thinks right

to the various factors in the situation.7

11 The Anti-Social Behaviour Act 2003 amended the Housing Act 1985 and the Housing

Act 1988 so as to include some additional requirements. In considering whether it is

reasonable to make an order for possession under Ground 2, or as the case may be,

Ground 14, the court must consider, in particular:

(a) the effect that the nuisance or annoyance has had on persons other than the

person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such

persons;

(c) the effect that the nuisance or annoyance would be likely to have on such

persons if the conduct is repeated.8

12 It is unusual for a judge to decide that it is not reasonable to make an order for

possession where there has been serious and / or persistent behaviour.

Should the order be postponed, stayed or suspended?

13 Once the court has decided that it is reasonable to make a possession order it must go

on to consider whether to postpone that order.

7 (per Lord Greene M.R. in Cumming v Danson [1942] 2 All E.R. 653, CA at 655) 8 s.85A, 1985; s.9A 1988



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14 The factors to be taken into account at both stages may very well be the same, or at

least overlap.

15 In determining, however, whether to postpone a possession order the court must focus

on the future; there is no point in suspending an order if the inevitable outcome is a

breach. Therefore, any factor which is relevant to whether there will be future

breaches is relevant to the question of suspension.

16 Often, the nuisance has had such a deleterious effect that neighbours are unwilling to

come forward to give evidence.9

17 Therefore, one of the factors the court should take into account is the difficulty in

proving a breach of any suspended order; witnesses may be unwilling to come forward

for fear of reprisals or those who may have given evidence at trial may be reluctant to

come to court again.10

18 As against that, where the defendant has shown genuine remorse, or there has been an

improvement in the behaviour or what there is a real likelihood of improvement, then

the court can more easily be persuaded to suspend or postpone an order.

9 See Creswell v Hodgson [1951] 2 K.B. 92; Woking BC v Bistram (1993) 27 H.L.R. 1, CA; Darlington B.C. v Stirling (1996) 29 H.L.R. 309; Kensington & Chelsea RBC v Simmonds (1996) 29 H.L.R. 507; West Kent Housing Association v Davies (1998) 31 H.L.R. 415; Newcastle CC v Morrison [2000] 32 H.L.R. 89; Moat Housing Group- South Ltd v Harris and Hartless [2005] EWCA Civ 287, [2005] H.L.R. 33; London & Quadrant Housing Trust v Root [2005] E.W.C.A. Civ 43; [2005] H.L.R. 28; and Manchester City Council v Higgins [2005] EWCA Civ 1423. 10 Canterbury City Council v Lowe (2001) 33 H.L.R. 53 and confirmed in New Charter Housing (North) Limited v Ashcroft [2004] E.W.C.A. Civ 310; [2004] H.L.R. 36. c.f. Moat Housing Group- South Ltd v Harris and Hartless [2005] EWCA Civ 287; [2005] H.L.R. 33 at para. 140



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19 A possession order may be made against a tenant who, for whatever reason, is unable

to control the behaviour of another person living with her.11

20 A tenant who has complied with an injunction or would be likely to comply with one

if it were granted can also expect leniency.12

21 In considering whether to suspend an order, the tenant’s effort to improve his

behaviour are relevant.13

22 The extent to which the conduct in question is by others rather than the tenant, the

lack of likely recurrence and the absence of misconduct for a period of time all count

in the tenant’s favour.14

Defences

23 Each case will turn on its own facts but, in general, defences on the facts (“I didn’t do

it”) are rarely successful, although there is merit in criticising hearsay evidence which

does not comply with the provisions of the Civil Evidence Act.15

24 Public law defences are, however, very much worth exploring:

(a) has the claimant followed its own anti-social behaviour policy?16 If not, how can it

be reasonable to make an order?

(b) has the claimant had regard to the relevant guidance?17

11 Portsmouth City Council v Bryant (2000) 32 HLR 906; Kensington & Chelsea RBC v Simmonds (1996) 29 H.L.R. 507. 12 Canterbury v Lowe (2001) 33 HLR 53. 13 Greenwich LBC v Grogan (2000) 33 HLR 12. 14 Gallagher v Castle Vale (2001) 33 HLR 72. 15 See, for example Moat Housing Group- South Ltd v Harris and Hartless [2005] EWCA Civ 287; [2005] H.L.R. 33 16 s.218A Housing Act 1996



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(c) has the claimant given the defendant an opportunity to present their case prior to

the issue of proceedings?

(d) has the claimant taken account of the rights of the defendant under Article 8,

ECHR?

(e) has the claimant fulfilled any other obligations it has to the defendant and / or her

children?18

25 In practice, most effort is usually expended in persuading the Judge to suspend /

postpone the order on terms that your client does not commit any further anti-social

behaviour. In this regard, evidence of compliance with an injunction or other

improvement in behaviour are important, as is evidence as to the likely impact of a

possession order on your client.

Injunctions

26 Anti-Social Behaviour Injunctions are found in s.153A et seq Housing Act 1996.

27 This provide that a relevant landlord19 may apply to the court for an injunction if it

can show that the defendant has engaged or threatened to engage in housing-

17 Housing Corporation Circular 07/04 which states inter alia that eviction should be a last resort; (para 1.2) and eviction should only be used where other remedies have failed to protect the wider community. (para 3.2.1); and Secretary of State in August 2004, pursuant to s.218A(7) Housing Act 1996, which states inter alia, that “3.22 In considering the most effective options for the protection of tenants and the wider community from ASB landlords should consider the positive impact that support might have on perpetrators. The provision of support will be particularly relevant when considering issues of ASB that are a consequence directly or indirectly of one or more of the following factors: • Drug use • Alcohol use • Mental health • Disability. 3.25 Landlords should consider what actions they can take to achieve long-term changes behaviour of perpetrators, and to prevent displacement of anti-social behavior.” 18 See, for example, s.47 National Health Service and Community Care Act 1990. 19 Meaning a local authority or a registered social landlord – s.153E(7).



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related conduct which is capable of causing a nuisance or annoyance to a relevant

person (see para. 17, below).

28 Behaviour is “housing related conduct” if directly or indirectly relating to or affecting

the housing management functions of a relevant landlord.20 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.21

29 A relevant person22 is:

(a) a person with a right (of whatever description) to reside in or occupy housing

accommodation owned or managed by a relevant landlord,

(b) a person with a right (of whatever description) to reside in or occupy other housing

accommodation in the neighbourhood of housing accommodation mentioned in

paragraph (a),

(c) a person engaged in lawful activity in, or in the neighbourhood of, housing

accommodation mentioned in paragraph (a), or

(d) a person employed (whether or not by a relevant landlord) in connection with the

exercise of a relevant landlord's housing management functions.

30 If the court grants an injunction under section 153A (anti-social behaviour injunction),

the court may prohibit the defendant from entering or being in any premises or any

area specified in the injunction.23 Additionally, a power of arrest can be attached to any

20 Housing Act 1996, s.153A(1). (1996 herein after) 21 1996, s. 153E(11), 22 1996, s.153A(3) 23 1996, s.153C(2)



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provision of the injunction.24 Further, the court is expressly empowered to exclude a

person from their normal place of residence.25

31 Before attaching either or both provisions to injunctions under section 153A 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).26

32 Harm includes serious ill- treatment or abuse (whether physical or not).27

33 Injunctions may also be sought on an ex parte basis.28

34 Breach of an injunction is a contempt of court and is punishable by up to two years

imprisonment and / or an unlimited fine.

Defences

35 As with possession proceedings, factual defences are not usually successful. In practice,

unless the behaviour complained of involves violence, most claimants are content to

compromise injunction proceedings if the defendant will give an undertaking to the

court.

24 1996, s.153C(3) 25 1996, s.153E(2). 26 1996, s.153C(1). 27 1996, s.153D(12) 28 1996, s.154.



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36 An undertaking is a solemn promise to the court, breach of which is also a contempt

of court, punishable in the same way as an injunction. However, one cannot be

arrested for breach of an undertaking and it involves no finding of fact.

37 Public law defences (above) are worth exploring and, in theory, should carry more

weight in these proceedings. Injunctions are, of course, equitable remedies and if the

claimant does not come with “clean hands” then equity should not assist them.

38 For the truly brave defendant, there is an argument that it is wrong in principle to

apply for an ASBI if the claimant could have obtained an ASBO.29

3. ASBOS

39 Anti-social behaviour orders, or “ASBO’s” as they have become known, were

introduced by the Crime and Disorder Act 1998. They are civil orders which prohibit

a person from certain conduct. In that respect they are akin to injunctions. However,

unlike injunctions, the breach of an ASBO is a criminal offence.

40 The Crime and Disorder Act has been subject to frequent amendment, with the result

that there are now three separate types of ASBO; the freestanding ASBO made on

application to the Magistrates’ Court30; an ASBO made by the County Court as part of

principal proceedings31 and an ASBO made be a court at the conclusion of a criminal

trial32 (also known as a “CRASBO”). Of these three types of orders, only the first is

properly called an ASBO, although, given the high degree of overlap between the three

Orders, the term “ASBO” will be used for all three.

29 Birmingham City Council v Shafi and another [2008] EWCA Civ 739. 30 s1 Crime and Disorder Act 1998 31 s1B Crime and Disorder Act 1998 32 s1C Crime and Disorder Act 1998



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41 ASBOs in the Magistrates’ Court were originally created by the 1998 Act and form the

model for the other two types of order.

42 An ASBO may be made against any person who has acted in an anti-social manner,

that is to say, 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; and such an

order is necessary to protect relevant persons from further anti-social acts by him.33

43 A “relevant authority” means:

• the council for a local government area;

• in relation to England, a county council;

• the chief officer of police of any police force maintained for a police area;

• the chief constable of the British Transport Police Force;

• any person registered under section 1 of the Housing Act 1996 (c. 52) as a social

landlord who provides or manages any houses or hostel in a local government area;

or

• a housing action trust established by order in pursuance of section 62 of the

Housing Act 1988.

• The Environment Agency

44 The Secretary of State may add to this list as he sees fit.34

45 The concept of “relevant person” varies according to which “relevant authority” is

seeking the ASBO:35

33 s1(1) Crime and Disorder Act 1998 34 s1A Crime and Disorder Act 1998.



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• In relation to a council for a local government area, it is any person within that

local government area;

• In relation to an English county council, it is any person within the county of the

county council;

• In relation to a chief officer of police, it is any person within the police area;

• In relation to the chief constable of the British Transport Police Force, it is any

person who is within or likely to be in a place specified in s31(1)(a)-(f) of the

Railways and Transport Safety Act 2003 in a local government area;

• In relation to social landlords or housing action trusts, it is any person who is

residing in or on or likely to be on premises provided or managed by the landlord

or any person who is in or likely to be in the vicinity of such premises.

46 If the Secretary of State adds to the list of “relevant authorities” he also has the power

to prescribe who the “relevant persons” will be for that new “relevant authority”36

47 In all cases, applications may only be made against persons aged 10 or over.

48 The “relevant authority” must initiate the process by laying a complaint in the

Magistrates’ court.37

Acted in a manner

49 This is the first limb of the test. It must be proved to the criminal standard of proof,

that the Defendant has acted in the manner which is alleged by the relevant authority.

35 s1(1B) Crime and Disorder Act 1998 36 s1A(b) Crime and Disorder Act 1998 37 s1(3) Crime and Disorder Act 1998



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50 R (McCann) v Manchester Crown Court38 is the leading case on the application of s1(1).

Notwithstanding that the application for an ASBO is an application governed by civil,

and not criminal law, given the seriousness of the matters involved, the matters alleged

must be proved to the criminal standard.

51 However, although the standard of proof is the criminal standard, the rules of evidence

are the civil rules of evidence. In particular, hearsay evidence is admissible.

52 The allegations which the relevant authority seeks to prove must have occurred within

6 months of the application being made. Section 127(1) of the Magistrates' Courts Act

1980 provides that a magistrates' court shall not try an information or hear a

complaint unless the information was laid, or the complaint made, within 6 months

from the time when the offence was committed, or the matter of complaint arose.

53. However, this does not mean that evidence of anti-social behaviour outside the 6

month time limit must be ignored. It is admissible both to underline the necessity for

any order and to give the magistrates sufficient understanding of the background

underlying the decision to apply for an ASBO in the first place.39

54. It is for the magistrates in each case to hear the pre-period evidence and give it

the weight they see fit.40

55. Although the Crime and Disorder Act does not expressly provide for any defences, it

does state that the court must disregard any act which the defendant shows was

38 [2003] 1 AC 787 39 Chief Constable of West Mercia Constabulary v Boorman [2005] EWHC 2559 (Admin), para 12-15 40 Stevens v South East Surrey Magistrates’ Court [2005] EWHC 1456 (Admin) para 20-22



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reasonable in the circumstances.41 The Justices’ Clerks Society have stated that the

defendant need only show, on the balance of probabilities, that the act was reasonable

in the circumstances.42

Which caused or was likely to cause alarm, harassment or distress

56 Having proved that the defendant acted in the manner alleged, the next stage is to

consider whether or not the behaviour caused or was likely to cause alarm, harassment

or distress.

57 Whether or not the behaviour “caused” alarm harassment or distress should rarely give

rise to any difficulties. If the behaviour complained of has been proved, the evidence of

the witnesses as to the impact that this behaviour has had on their lives will be

sufficient to overcome this threshold.

58 The slightly more complex situation is where there is no direct evidence from

someone who is affected by the behaviour complained of. In considering whether

behaviour is “likely” to cause alarm, harassment or distress, the court should ask itself

if it is more probable than not that alarm, harassment or distress would flow from the

proven actions.43

59 The state of mind of the defendant is irrelevant under s1(1). It does not matter whether

or not he was aware that his behaviour caused or was likely to cause alarm harassment

41 s1(5) Crime and Disorder Act 1998 42 Justices’ Clerks Society, Anti-Social Behaviour Orders: a guide to law and procedure in the Magistrates’ Court. April 2004 43 Chief Constable of Lancashire v Lisa Marie Potter [2003] EWHC 2272 (Admin) para 31



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or distress. The fact that he did not intend to act in an anti-social manner plays no part

in the application of s1(1).44

60 It is not open to a Defendant to argue that he played a relatively minor part in any

anti-social behaviour. The court should put itself in the position of a hypothetical

“relevant person” who observed the anti-social behaviour. If that person was likely to

be caused alarm, harassment or distress by the behaviour as a whole, then s1(1)(a) is

satisfied.45

61 Whilst the jurisprudence on s1(1)(a) does largely favour those who are applying for

ASBO’s, there is still a need to show that the behaviour complained of did cause or

was capable of causing alarm, harassment or distress. Whilst these words are wide, they

are not without limit. For example, in R (Mills) v Birmingham Magistrates Court, it was

accepted that the defendant’s shoplifting, in circumstances where the shop was

unaware of the theft, was not likely to cause harassment, alarm or distress.46

62 Likewise, it has been suggested that professional witnesses, such as police officers,

should have a higher degree of tolerance for ASB than members of the public. In R (R)

v DPP47 the Divisional Court rejected a contention that a 12 year old boy who called a

policeman a “wanker” had caused him distress.

44 Chief Constable of Lancashire v Lisa Marie Potter [2003] EWHC 2272 (Admin) para 22; R (McCann) v Manchester Crown Court [2003] 1 AC787, per Lord Steyn at 808B 45 During the Parliamentary debates on the Crime and Disorder Act, the Liberal Democrat Lord Goodhart moved an amendment to require that anti social behaviour would have to be such behaviour as would case a reasonable person to suffer alarm, harassment or distress. He also sought to have the Bill amended to include a requirement that the defendant had to intend to cause harassment alarm or distress. Both amendments were defeated. See HL Debates, Vol 584 / 585, Col 533-5 and Vol 587, Col 584. 46 R (Mills) v Birmingham Magistrates’ Court [2005] EWHC 2732 (Admin) para 11 - 12 47 [2006] EWHC 1357 (Admin)



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Necessary to protect relevant persons

63 Having proved that the conduct complained of occurred and having shown that it

caused or was likely to cause alarm, harassment or distress, the final step is for the

court to ask itself whether or not the order is necessary to protect relevant persons

from further anti-social conduct.

64 Unlike the first two stages of the process, there is no burden or standard of proof

when considering s1(1)(b). The court is simply required to use its judgment, based on

all the evidence.48

65 Necessity must be judged with reference to the facts as they were when the application

for an ASBO was made. Merely because the behaviour of the defendant has improved

since the application was served (or the interim order made, see below) does not mean

that there is no longer any necessity for the order.49

66 The focus on necessity also serves as a reminder to the applicant and the court that the

terms of any order should be personalised and specific for each case.50

Terms of any ASBO

67 An ASBO may only prohibit a defendant from doing things described in the order.51

In addition, the terms must be necessary for the purpose of protecting any person in

England and Wales from further anti-social acts by the defendant.52

48 R (McCann) v Manchester Crown Court [2003] 1 AC 787 per Lord Steyn at 812G 49 S v Poole [2004] EWHC 244 (Admin), para 19 50 R v Boness et al [2005[ EWCA Crim 2395 51 s1(4) Crime and Disorder Act 1998 52 s1(6) Crime and Disorder Act 1998



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68 The order must last for at least two years and may run until further order.53 However,

there is no requirement for each and every prohibition to last for the entire life of the

order.54

69 The overarching principle is that the terms of any order must be clear and accessible

and understood by the defendant.

“It is well established that a restraining order must be drawn in terms which

enable the person restrained to understand what he may or may not do. In B v

Chief Constable of Avon and Somerset [2001] 1 WLR 340, Lord Bingham CJ…

said… “if anyone is the subject of a propitiatory court order for breach of

which he is liable to severe punishment, that person is entitled to know, clearly

and unambiguously, what conduct he must avoid to comply with the order…

the order should be expressed in simple terms, easily understood even by those

who, like the appellant, are not very bright…”55

70 In addition, the findings of fact giving rise to the making of the order must be

recorded, ideally on the face of the order; the order must be explained to the defendant

and the order itself should be read to the defendant in open court.56

71 The philosophy behind the terms of any order should be to prevent anti-social

behaviour by enabling the police or other authorities to take action before the anti-

social behaviour occurs.57

53 s1(7) Crime and Disorder Act 1998 54 Lonergan v Lewes Crown Court [2005] EWHC 457 (Admin), para 13, R v Boness et al [2005[ EWCA Crim 2395 para 27 55 W v DPP [2005] EWCA Civ 1333, para 10 56 R v Shane Tony P [2004] EWCA Crim 287, para 34 57 R v Boness et al [2005] EWCA Crim 2395 para 36 - 38



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72 It follows that, as a general rule, ASBO’s should not merely prohibit criminal activity.

However, there may be circumstances where it is necessary to do so and the court

retains a discretion to make such an order.58

73 An order not to “commit any criminal offence” is plainly too wide and cannot be

included in an ASBO.59

74 There is no objection to a curfew provision being included in any ASBO.60

75 Most ASBO’s will include a term prohibiting the defendant from acting in an “anti-

social manner”. Although defendants frequently object to such a term, there is no

objection to including it in the ASBO, as long as it has some geographical limit61 or

some further definition of what is meant by “anti-social manner” – merely repeating

the words of the statute seem unlikely to be sufficient.62

76 There is nothing objectionable to making an ASBO which prohibits the defendant

from associating with others who are not subject to an ASBO.63

Consultation Requirements

77 Before an application can be made for either a freestanding ASBO or an ASBO in the

county court as part of principal proceedings, the relevant authority must follow a

prescribed consultation process.64

58 R v Shane Tony P [2004] EWCA Crim 287 59 W v DPP [2005] EWCA Civ 1333 para 8 60 Lonergan v Lewes Crown Court [2005] EWHC 457 (Admin) para 6 and 12 61 R v Boness et al [2005] EWCA Crim 2395 para 77-78 62 Crown Prosecution Service v T [2006] EWHC 728 (Admin) 63 Hills v Chief Constable of Essex (2006) EWHC 2633 (Admin)



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• If the applicant is a Local Authority, it must consult the chief officer of the police

for its area;65

• If the applicant is a chief officer of the police, he must consult the Local Authority

for the local government area in which the person in relation to whom the

application it to be made resides or appears to reside;66

• Any other relevant authority must consult the Local Authority the for local

government area in relation to whom the application is to be made resides or

appears to reside and the chief officer of police of the police force maintained for

the police area within which that local government area lies.67

78 The chief officer of the police is entitled to delegate his role in the consultation process

to other officers.68

79 Consultation is not synonymous with consent. The purpose of consultation is to

inform other agencies and to exchange information. There is no requirement that the

other agencies consent, only that they have the opportunity to comment.69

80 The only document that needs to be filed with the court is a signed document of

consultation. There is no need to indicate whether or not an agreement was reached,70

and the Home Office guidance counsels against making any such statement.

64 s1E Crime and Disorder Act 1998 65 s1E(2) Crime and Disorder Act 1998 66 s1E(3) Crime and Disorder Act 1998 67 s1E(4) Crime and Disorder Act 1998 68 R (Chief Constable of West Midlands Police) v Birmingham Justices [2002] EWHC 1087 69 A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts, Home Office, March 2003 70 CPR 65.25



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81 There is no requirement to inform any potential defendant that he is being considered

for an application for an ASBO, although the relevant agency retains a discretion to do

so if they consider it would be a useful step to take.71

82 Consultation becomes a slightly more onerous and difficult process when the Local

Authority is considering applying for an ASBO against a child who is subject to a care

order under the Children Act 1989.

83 The decision to apply for an ASBO is a decision within the meaning of s22(4) Children

Act 1989. The Local Authority is therefore required to ascertain the “wishes and

feelings” of the child; any person who is not a parent but who has parental

responsibility for the child and any other relevant person. This obligation cannot be

overcome or ignored.

84 The material at the consultation meeting must be prepared as a report on behalf of the

child. The consultation meeting must consider the material before the Local Authority

can begin the process of making an application to court.

85 The report should be drawn up by social services and should be independent of the

department which is seeking the ASBO (usually the Housing department or

Community Safety Team or some variation thereof). The social worker must not

participate in the decision to apply for an ASBO.

86 Once a decision has been reached it must be communicated to all concerned.

71 Wareham v Purbeck DC [2005] EWHC 358 (Admin) para 12



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87 Failure to comply with this process invalidates the application for an ASBO and the

application should be rejected.72

Interim Orders

88 It is also possible for a court to make an interim order in each of the three situations

outlined above.73 These are temporary orders made at an initial hearing in advance of

the main hearing. They carry the same penalties as a full Order and, like a full Order,

prohibit the defendant from certain kinds of conduct.74 They must be for a fixed

period and may be varied, renewed or discharged75

89 Interim orders may be made where the court considers it to be “just” to make such an

order pending the determination of the main application.76

90 Whether or not it is “just” is the only test to be applied. This involves a consideration

of all the relevant circumstances, including whether the application is made correctly

and complies with the statutory requirements, but does not require the court to

consider whether or not the evidence discloses an extremely strong prima facie case.77

91 One of the primary reasons for seeking an interim order is to facilitate a fair and

proper hearing of the full application by reducing the scope for witness intimidation

and ensuring that further instances of anti-social behaviour are not allowed to take

place prior to the determination of the substantive application.78

72 R (M, by his grandmother) v Sheffield Magistrates’ Court [2004] EWHC 1830 Admin, para 49 – 51 73 s1D(1) Crime and Disorder Act 1998 74 s1D(3) Crime and Disorder Act 1998 75 s1D(4) Crime and Disorder Act 1998 76 s1D(2) Crime and Disorder Act 1998 77 R (M) v Secretary of State for Constitutional Affairs [2004] EWHC Civ 312, para 39(8) 78 R (M) v Secretary of State for Constitutional Affairs [2004] EWCA Civ 312, para 30



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92 At the interim stage, the Court must ensure that the process is fair, but need not

concern itself with the requirements of Article 6. The interim order is temporary and

regulates behaviour prior to the full hearing. It is not “determinative” of any civil

rights and, hence, Article 6 is not engaged.79

Without notice interim applications

93 It is also possible for the Magistrates’ Court to make interim orders on a “without

notice” basis.

94 The Magistrates’ Courts (Anti-social Behaviour Orders) Rules 200280 permit the

Magistrates’ Court to make an interim order on a without notice basis if the justices’

clerk grants leave for such an application to be heard. The Clerk must be convinced

that it is necessary for the application to be heard without notice being given to the

defendant.81

95 The clerk should have regard to the following (non-exhaustive) matters:

(1) the likely response of the defendant upon receiving notice of such application;

(2) whether such response is liable to prejudice the complainant having regards to the

complainant’s vulnerability;

(3) the gravity of the conduct complained of within the scope of conduct tackled by

ASBOs in general as opposed to the particular locality;

(4) the urgency of the matter;

(5) the nature of the prohibitions sought in the interim ASBO;

(6) the right of the defendant to know about the proceedings against him;

(7) the counterbalancing protections for the rights of the defendant, namely: 79 R (M) v Secretary of State for Constitutional Affairs [2004] EWHC Civ 312, para 39(5) 80 SI 2002/2784 81 Rule 5



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(a) the ineffectiveness of the order until served;

(b) the limited period of time the order is effective;

(c) the defendant’s right of application to vary or discharge.82

96 In addition, there are various safeguards built into the Rules when dealing with

without notice applications. Interim orders are of no effect until served on the

defendant and cease to have effect if not served within seven days of being made.83

97 If a defendant who has had an Order made against him on a without notice basis

requests that the interim order be varied or discharged, then the Court must hear his

oral application. At any such hearing it is for the relevant authority to justify the

continuation of the order.84

Defences

99. As before, a defence on the facts is almost always doomed to failure. The only ‘success’

for defendants in the reported cases have been to reduce or limit the terms and / or

duration of an ASBO.

100. Public law defences are totally unexplored in this field. Ask for disclosure of the

minutes of the consultation meeting and see if any irrelevant factors were taken into

account. Check for compliance with the ASB policy of the claimant. Ask for disclosure of

all social services files.

Justin Bates

November 28, 2008 82 R (Manchester City Council) v Manchester Magistrates’ Court [2005] EWHC 253 (Admin), para 34 83 Rule 5(4) and 5(5) 84 R (M) v Secretary of State for Constitutional Affairs [2004] EWHC Civ 312, para 27

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