ASB Bill – further update

The Government has now considered the HASC report and issued its own response to it. The key issues discussed are set out below.

The HASC was concerned that the proposed IPNA would be “easier” to obtain than an ASBO and would be open to more agencies than the ASBI. The HASC was concerned that the proposed test for the granting of an IPNA, conduct capable of causing nuisance or annoyance, is too broad and they recommended adding a further proportionality test and a requirement that the Claimant show that there was either intent or recklessness in relation to the behaviour complained of. The HASC recommended the addition of a further requirement that such an Injunction is necessary to protect relevant persons from further anti-social acts by the respondent.

In practical terms:

The HASC was concerned that the obtaining of an IPNA under the tests currently drafted may be open to abuse by the agencies requesting them and recommended adding in further hurdles for the Claimant, such as the need for the Court to look at the proportionality of the application i.e. is the granting of an IPNA reasonable as against the seriousness of the behaviour complained of.

The Government’s response:

The Courts already look at issues such as proportionality without the need for this to be specifically stated in the legislation and the Court is best placed to decide such issues. The Government will issue guidance on the granting of IPNAs specifying that they should only be used when appropriate and necessary to deal with the Defendant’s behaviour.

The Government will retain the nuisance and annoyance test as it has been used in ASBI applications for the last 15 years, is supported by case law that has been decided over that time and Courts and practitioners are all very familiar with the concept. Additions to this test could cause confusion and slow the process down.

Comment:

We strongly agree! The HACS proposal raised considerable concerns re the usability of IPNAs.

A duty to consult local authorities must be included in the dispersal power where it is applied for a period of longer than 6 hours. Public Spaces Protection Orders must include a requirement for 6 monthly interim approval. There should also be a clear exemption to dispersal powers where there is a genuine need to travel through the area.

In practical terms:

The HASC was concerned that the definition of ASB has grown ever wider and what a body has to prove to obtain Orders has lowered. The HASC was not convinced this will help tackle ASB.

The Government’s response:

The reforms proposed by the Bill aim to be flexible and robust whilst retaining appropriate safeguards. The Government’s view is that the HASC recommendations would constrain use of the new powers. However, the Government takes on board safeguards in relation to the dispersal powers and will add the need for an officer of at least the rank of Inspector to approve its use. It will also ensure that the legislation allows for a genuine need to travel through the area. The Government does not accept that the Public Space Protection Order should be subject to a 6 monthly review. The requirement for a 3 year review, as currently drafted in the Bill, is sufficient.

Comment:

We agree.

The Bill must include an annual review of all formal ASB interventions imposed on under 18’s to ensure restrictions are not continued unnecessarily if behaviour has changed. For under 18’s IPNA’s should only be available for 12 months at most and only after attempts to resolve the issue through informal support and ABCs have failed.

In practical terms:

The HASC appears concerned that the new IPNA’s, unlike the current ASBI’s, can be issued against under 18’s and that there is a possibility that, if not reviewed, they will remain in place even if the Defendant’s behaviour has improved.

The Government’s response:

The Government accepts this argument and agrees that a 12 month limit should be imposed in relation to IPNA’s for those under 18. In relation to the requirement to attempt informal support prior to obtaining an IPNA, the Government agrees that this should be the case in the majority of cases however there will be cases where this would be inappropriate, for example, where immediate Court action is necessary. Guidance will therefore be issued on this issue rather than making it a requirement in the Bill.

Comment:

We agree this is a helpful approach.

The Community Remedy should not become “the modern pillory and stocks”. Safeguards are needed to ensure officers have discretion to choose alternative disposals where appropriate. Assurances are also needed to ensure that victims are not drawn into the process without their full consent and understanding.

In practical terms:

There are concerns that a perpetrator will be publicly “hung out to dry” and unnecessarily embarrassed before the community. Complainants must be made aware of the full implications of agreeing to use the Community Remedy and understand the limitations it has.

The Government’s response:

The Government agrees and will ensure that Police Officers will be given adequate training and guidance to be able to implement this remedy appropriately.

Comment:

Helpful.

The HASC recommends that before the Community Trigger is engaged there should be a notional maximum of 5 complaints as a backstop. This should be combined with a review of the potential for harm, taking into account the nature of the activity and the vulnerability of the victims. Agencies should be obliged to agree a timetable for dealing with the problem which they must inform victims of. The Trigger also needs a “bullet” i.e. what the response will be when activated. Police and Crime Commissioners (“PCC’s”) should be kept informed each time the backstop of 5 complaints is reached.

In practical terms:

The HASC is concerned that the use of the Community Trigger will become a gimmick.

The Government’s response:

The Government agrees with the proposal and will include a requirement in the legislation for a national backstop but at a lower level of three complaints. There will be guidance that victims should agree a timetable for action with the agency involved. However, they disagree with the call for the PCC to be more involved as the PCC is democratically elected it is not right to dictate the level of input they should have as this will depend on issues locally.

Comment:

Localism at work! Three complaints is so low as to risk generating disproportionate amounts of work especially if abused by serial complainers.

The Bill should allow for IPNAs to be dealt with in the Magistrates Court as well as the County Court. There should also be a strict timetable of 28 days for Courts to deal with any breach of conditions.

In practical terms:

The HASC is concerned, as many practitioners are, about the speed in which the County Court is able to process applications. This often means that the ASB caused by the perpetrator continues for longer than is necessary.

The Government’s response:

The response states that the IPNA is designed to be a purely civil order and it should remain in the civil courts i.e. the County Court. Attention is drawn to the Crime and Courts Bill which will, if implemented, allow cases to be issued in Courts other than the one that holds jurisdiction over the Property address meaning parties can take advantage of Courts that are more efficient. The 28 day limit for dealing with breaches is taken on board and will be reflected in the legislation.

Comment:

IPNAs against minors must be heard in youth courts in the magistrates anyway. Magistrates courts are in reality no more or less efficient than county courts and have far less experience in handling injunctions or any application made without notice so the expectation they will be quicker is in probably unfounded.

The HASC encourages inter-agency working, with good information sharing, to ensure the appropriate course of action is taken quickly. The report suggests that the Bill does nothing to strengthen the network of support; recommends a National ASB Forum be established to identify and disseminate best practice, headed by a Chief Constable, a housing association chief executive and a local council leader.

In practical terms:

Promoting joined up thinking between agencies and improving working relationships between them. Practitioners will be aware that in some areas agencies enjoy a very close working relationship whereas others do not. The HASC want to standardise this across the country.

The Government’s response:

The Government reminds practitioners of the use of Multi-Agency Risk Assessment Conferences as a way to strengthen relationships and facilitate information sharing. They promote the Home Office’s practice area on its website for the ability to share examples of successful approaches to crime and community safety issues.The legislation makes it clear that bodies must share information in relation to the community trigger in line with the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. The suggestion of a National ASB Forum is rejected in view of the establishment of the College of Policing whose central work will be to identify and share best practice.

Comment:

Not much of a surprise as an ASB Forum would no doubt incur too high a cost to set up.

Conclusion:

We await further news about when the ASB bill as revised will be published.

For further discussion in the meantime, call any of our housing litigation team on 0121 212 7400.

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