Tackling anti-social behaviour was a key pledge of the Labour Government when it came to power in 1997. Over the 13 years they were in power, this resulted in a large number of new tools being introduced - everything from the 'ASBO' to demotion, high hedge provisions to the Family Intervention Tenancy. The current Government believe that the system has become overcomplicated and have attempted to simplify things by entirely scrapping some tools (notable ASBOs), amending other tools and also introducing new provisions. The Home Office maintains that the reforms are "designed to put victims at the heart of the response to anti-social behaviour, and give professionals the flexibility they need to deal with any given situation." These reforms are made in the Anti-social Behaviour, Crime and Policing Act 2014. Some of the provisions are in force already, other key provisions come into force on 20 October 2014, whilst the death of the ABSO and the new injunction proceedings should be in force early in 2015.
The Act is sizeable and a detailed review is not possible in this update. The following are the 'headlines' of the Act.
Goodbye ASBOs and ASBI - hello s1 Injunctions
The most reported change is the end of the ASBO, but the changes to injunctions are equally significant.
New civil injunctions, designed to tackle nuisance and anti-social behaviour, will replace ASBIs and stand-alone ASBOs. They will be available to minors as well as adults and will be obtainable from the County Court or, alternatively, the Youth Court for 10-17 year olds. The test for the injunction differs slightly according to whether the injunction application relates to housing-related behaviour or is anti-social behaviour ("ASB") occuring more widely in a community. In addition you must show that the making of the order is just and convenient to prevent further ASB. The standard of proof for this 2 stage test is assessed on the balance of probabilities and therefore is a civil test rather than the higher criminal test applicable to ASBOs.
The Act introduces a formal statutory duty to 'consult' in all but without notice cases - if an application is against a minor, you must consult with the Youth Offending Team; for all other applications you must inform any other body or individual 'the applicant thinks appropriate.'
Notable is the express ability to seek positive obligations that can be placed on a Defendant - to attend drug or alcohol projects, for example.
An order excluding a person from their home will still be available under the new Act, but only for those over 18. Interestingly there is no specific mention of exclusion from other areas (of the ASBI provisions) - the Guidance on the Act does however envisage exclusion from any area.
Criminal Behaviour Orders
Conviction-based ASBOs do survive in the form of Criminal Behaviour Orders.
There are 2 new provisions to tackle what the Act describes as 'environmental' ASB. Community Protection Notices are aimed at tackling littering, dog fouling, noise etc and can be issued against individuals and companies. The notices can be issued by more agencies than current measures, including police, local authorities and housing associations (if authorised to do so). Breach can result in fixed penalty notices and will be a criminal offence.
Public Space Protection Orders are aimed more widely at tackling specific problems within a specific areas, such as the drinking of alcohol.
Dispersal orders continue, as will closure orders (albeit that the legislation is now all amalgamated into one clear set of rules under the Act).
Changes to Possession Grounds
There are several changes being made to the possession grounds contained in the Housing Acts 1985 and 1988. The biggest change is in relation to the introduction of a new mandatory ground for possession where there has been serious ASB. The Acts set out a number of conditions which if proven (and subject to any human rights proportionality defence that the tenant may raise) will lead to the making of an outright possession order.
There are also new grounds in relation to riot and nuisance behaviour affecting a landlord's housing management function.
The community focus
Part of the ethos behind the Act is to focus on the ideas of community and restorative justice. The Act contains 2 provisions to emphasise these values. The 'Community Remedy Document' will set out at a community level the alternatives that a community is prepared to offer to an individual who has engaged in ASB. Cleaning graffiti, engaging in local projects etc are envisaged. Provision is then made for an 'ASB case review' where there have been not less than 3 eligible complaints within a 6 month period.
The new Act is already raising some interesting discussions amongst practitioners about how the various provisions will work in practice. The mandatory possession ground in particular could be the source of high profile litigation in the coming months. What is clear, however, is that any practitioners who are involved with tackling ASB do need to ensure that policies and procedures are amended to reflect the changes.
The Housing and Property Litigation Team at Ashfords is providing training for clients on these new provisions. If you would be interested in receiving this training, please let us know.