1.         Statutory Background - ASBOs

They are ordinarily granted by magistrates courts, but can now be granted by certain county courts, in certain circumstances.

Applicants: An application may be made by a “relevant authority” (s1(1A)).  “Relevant authorities” are Local Authorities, the police, the transport police, Registered Social Landlords (“RSLs”) and Housing Action Trusts (“HATs”).

A court may make an ASBO against a person over 10 if:

• he has acted in an anti-social manner; and
• the order is necessary to protect persons not of the same household from further such behaviour from him (s1(4)).

“Acting in an anti-social manner” is defined in s1(1) as acting in a manner that caused
harassment, alarm or distress to one or more persons not of the same household as himself.

An interim ASBO may be granted where the court is satisfied that it is “just” to do so pending the final determination of the application (s 1D(2)).

An ASBO may prevent the defendant from doing anything which the court considers to be necessary to protect persons not of the same household from further anti-social acts by him or her s1(4) and (6).  This includes a prohibition on entering a defined geographical area.

Although ASBOs are usually made by Magistrates’ Courts, if a relevant authority is a party to County Court proceedings, the authority may apply for an ASBO within those proceedings (s 1B).  Where the authorities consider it reasonable to do so, they may join a person to those proceedings, simply in order to obtain an ASBO against them (s1(3)).  Thus in a possession action a Housing Association could apply for an ASBO preventing a friend or relative of the tenant from re-entering an area surrounding the tenant’s house.

Main Index

2.         Statutory Background - ASBIs

Anti-Social Behaviour Injunctions (“ASBIs”) are governed by s 153A of the Housing Act (“HA”) 1996.

Local Authorities, RSLs, HATs may apply for such injunctions (s 153E(7)).

ASBIs are directed against conduct which:

• is capable of causing nuisance or annoyance to any person; and
• directly or indirectly relates to or affects the housing management functions of a relevant landlord.

In order for a court to grant an ASBI, the following conditions need to be satisfied:

• The person in question is engaging has engaged or threatens to engage in conduct to which this section applies; and
• The conduct is capable of causing nuisance or annoyance to:

(i)         a person with a right to reside or occupy housing accommodation owned or managed by the relevant landlord;

(ii)        a person with a right to reside in or occupy other housing accommodation in the neighbourhood of accommodation mentioned in paragraph (i);
(iii)       a person engaged in lawful activity in or in the neighbourhood of housing accommodation mentioned in paragraph (i); or

(iv)       a person employed (whether by the relevant landlord or not) in connection with the exercise of the relevant landlord’s housing functions (s 153(4)).

Additional points:

• The location of the conduct is not material ( s153(5)).

• Without Notice ASBIs can be obtained where the court is satisfied that it is just and convenient to grant them ( s 153E(4)).  Where no notice is given the evidence in support must explain why notice was not given  (CPR 25 PD 3.4).

• It is difficult to obtain ASBIs against children.  If an application is made under HA 1996 s 152 the applicant must prove to court that the personal circumstances of the applicant would allow the injunction to be enforced against him by way of fine or sequestration of assets (G v Harrow [2004] EWCA 17 (QB)).  For this reason it is more usual for relevant landlords to apply for ASBOs against children.

• Legal representation to defend an application for an ASBI will usually only be granted where there are very serious allegations which are denied wholly or substantially and the matter cannot be reasonably dealt with by way of an undertaking.  If there is some question of lack of mental capacity representation may be justified in wider circumstances (LSC Manual – Vol 3, Part C p.239 para 12).

Main Index

3.         Recent Cases

Without notice ASBIs/ASBOs – Exclusion orders -  Use of Hearsay

Moat Housing Group South Ltd v Harris and Hartless [2005] HLR 33 [2005] EWCA Civ 287

Ms Hartless was a tenant of the Moat Housing Association under an assured tenancy commencing in May 2001.  At the relevant time in October 2004, she had 4 children aged between 6 and 14.  The childrens’ father Mr Harris did not live with Ms Hartless but visited regularly.

On 29th October 2004, Moat obtained without notice ASBIs under Housing Act 1996 from District Judge Ackner in the Aldershot and Farnham County Court.  The orders essentially evicted her from her house by 6pm that day, as a result of what was said to be the behaviour of her children.  She had at no stage been given any warning that the behaviour of her children was such as to put her or the children at risk of eviction.

The orders further provided that she should not enter part of the village where she lived and should exercise proper parental control over the children to prevent them from behaving in an anti-social manner.  A power of arrest was attached under s 153C of HA 1996.  Similar orders were made against Mr Harris and 2 of Ms Hartless’s neighbours.

Most of the evidence before the District Judge related to the conduct of the neighbours and not to that of Ms Hartless or her family.

The evidence in relation to Ms Hartless was essentially that:

• Ms Hartless and Mr Harris had made threats against other people living on the estate; and
• two of the children had been involved in some incidents involving the neighbours’ children.

Almost all of the evidence before the DJ was hearsay.

Moat’s representatives, accompanied by a TV crew and the police, called at the house at about 9pm to serve the orders.  The police refused to enforce the orders.

At 1:30am on 30th October 2004 Stanley Burnton J granted a stay of the orders.

On 3rd December 2004, HHJ Anthony Thompson QC (sitting as a deputy circuit judge) made ASBOs against both Defendants combined with an outright possession order.

On 16th December 2004 Brooke LJ granted permission to appeal and thereafter a stay.
Brooke LJ stated that:

• The grant of an injunction without notice is an exceptional remedy.

• It is hard to envisage a more intrusive ‘without notice’ order than one which requires a mother and her four young children to vacate their home immediately.

• As a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given.

• Needless to say, the more intrusive the order, the stronger the reasons must be for the departure.

• It is one thing to restrain a defendant from what would in any event be anti-social behaviour for a short time until a hearing can be arranged where both sides can be heard.  It is quite another to make a ‘without notice’ order directing  defendants to leave their home immediately and banning them from re-entering a large part of the area where they live.

• When deciding whether to make ASBIs without notice judges should follow the guidance given in the Family Law Act 1996 s 45(2)(a) dealing with harm to relevant children.

• On the evidence before the court the District Judge could properly have made without notice non-molestation type orders, but the ouster and exclusion orders were disproportionate.

• It is ‘inconceivable that a court would grant an ASBI without notice unless there was both violence (or a threat of violence) in the past and a risk of significant harm to one of the relevant persons during the short period between the time of service of the order and the time of the court hearing on notice’. 

• It was proper for the DJ to attach a power of arrest to the non-molestation type orders.

• A non-molestation type order may last for as long as 6 months provided it is non-intrusive and the on notice application takes place timeously.

• Although courts do have the power to make ouster or exclusion orders of the type made in this case without notice this is only to be done in highly exceptional circumstances where the facts are sufficiently serious to warrant such a draconian order, and very great care is needed.  Additionally judges should be careful to make sure that orders are only served at a reasonable time of day (for example between 9am and 4:30 p.m. on a weekday).

• Judges should be especially wary when considering applications of this sort on hearsay evidence or when oral evidence has not yet been heard.  Rumours abound on small housing estates it is much more difficult for judges to assess the truth of what they are being told if the original makers of the statements do not attend court to be cross-examined on their evidence. 

• The judge in this case should have started his judgment with an analysis of the direct oral evidence he received and made clearer his approach to the evidence of the absent witnesses who were named.

• The Claimants should have paid more attention to the need to state by convincing direct evidence why it was not reasonable and practicable for the makers of the statements to give oral evidence.

• Where statements contain multiple hearsay the route by which the original statement came to the attention of the person attesting to it should be identified, insofar as it was practicable to do so.  However, the hearsay ground was not sufficient to set aside the possession order and order a retrial.

• The Possession Order.  Although the making of the possession order was a reasonable order to make in all the circumstances, given the childrens’ good school reports, the absence of any criminal records or any serious record of police involvement with the family and the favourable character evidence given about the defendants the Court of Appeal varied the possession order to a suspended possession order on terms that there were no further breaches of the tenancy agreement.

• The ASBOs.  The court found ASBOs to be inappropriate on the facts of the case.  Some form of undertaking as to future conduct was all that was required, if accompanied by a penal notice.  The Court noted that the judge had failed to identify any conduct on the part of Mr Harris that justified the making of an ASBO.

• There was no evidence of “persistent and serious anti-social behaviour” on the part of Mr Harris or Ms Hartless that justified an ASBO.  The most serious findings made by the judge against them related to incidents on a single night.  The Court of Appeal therefore set aside the ASBOs made against them.

Main Index

ASBOS v Human Rights - exclusion from family home

Liverpool City Council v Edie (Legal Action, May 2005)

The Defendant was one of 44 people convicted as a result of a police operation to purge areas of Leicester of drug dealing and associated crime.  He pleaded guilty to 5 offences of supplying small amounts of heroin, all but one of which were supplies to undercover police officers.

In December 2003 he was sentenced to 3 years’ youth custody.  The police did not seek an ASBO under the CDA at the time of sentence.

In September 2004 the defendant was recommended for release on home detention curfew.  At this stage the Council applied for ASBIs under HA 1996 s 153A and Local Government Act 1972 s 222 to restrain him from:

(1)        engaging in conduct likely to cause a nuisance;
(2)        engaging in or threatening to engage in the supply of class A drugs;
(3)        residing at his family home; or
(4)        being found within a specified exclusion area.

The defendant filed evidence from family and friends, including a petition signed by over 80 local people, welcoming his return.

He argued that he would be on licence and would be in far less stable accommodation on release if excluded from his family home, and that there would be gross interference with his family life.

HHJ Brunning made injunctions (1) and (2) but not (3) or (4), considering that they were not justified in view of article 8(2) of the European Convention on Human Rights.

The Council sought permission to appeal.  Field J refused permission to appeal.

He held that the judge had to consider 3 matters:

(1)       the likelihood of the defendant reoffending if allowed home or in the exclusion area;
(2)       the proportionality of the order as against the risk posed by the defendant; and
(3)       whether the admitted breach of article 8 was justified.

He held that the judge had exercised his discretion properly.  He stated that the orders sought were a serious infringement of the defendant’s article 8 rights in circumstances where the defendant had served the custodial element of his sentence.

Main Index

Inclusion of a curfew in an ASBO

R (Lonergan) v Lewes Crown Court [2005] 2 All ER 362

The defendant was sentenced to an ASBO in criminal proceedings which included a curfew order.

He argued that the inclusion of a curfew was unlawful because it was a mandatory and not prohibitory order and therefore did not fall within CDA 1998 s 1(4) and (6).
His application for Judicial review was refused.  It was held as follows:

• Although ASBOs should be substantially and not just formally prohibitory, a restraint upon leaving or travelling between specified premises between particular times meets that test.

• Additionally there was nothing legally objectionable in a curfew provision in an ASBO if it is necessary for the protection of relevant people.

• Courts should, however, carefully consider the need for and duration of the curfew provisions when making ASBOs.

• Just because ASBOs have to run for a minimum of 2 years, it does not follow that each and every prohibition within a particular ASBO has to endure for the life of the order.

• A curfew for 2 years in the life of a teenager is a very considerable restriction of freedom.  In the light of the Local Authority indicating that as a result of an improvement in the defendants behaviour,  it would not oppose an application to the Magistrates’ Court to vary the ASBO by removing the curfew, Maurice Kay LJ did interfere with it, but suggested that in similar cases an application under s 1(8) to vary such a curfew in the light of behavioural progress “might well succeed”.

Main Index

Allowing a defendant to make representations prior to an ASBO

Wareham v Purbeck DC [2005] EWHC 358 (Admin), The Times 28th March 2005

A failure to invite the proposed defendant to put his view at an anti-social behaviour case conference prior to the decision to apply for an ASBO does not amount to an infringement of any right under the European Convention on Human Rights.  The defendant had a full opportunity to put his case before the Magistrates’ Court.

Width of ASBOs

W v Director of Public Prosecutions [2005] EWCA Civ 1333

The Defendant was a youth of 14 and committed offences of criminal damage, unauthorised taking of a motor vehicle and theft.  A 2-year supervision order and a 3-month curfew were imposed upon him.  At the same time a 2-year ASBO was made against him prohibiting him from:

(1)       entering a defined area;
(2)       causing physical damage or intimidating another;
(3)       damaging or attempting to damage property not belonging to himself;
(4)       sitting in the driver’s position of any motor vehicle save on private land with the owner’s permission;
(5)       remaining in any public place when he is considered to be causing a nuisance and has been requested to leave by a police officer; or
(6)       committing any criminal offence.

The Defendant was caught stealing sweets and Lucozade during the currency of the order, and had therefore breached section (6) of the ASBO.
It was held that the clause restraining the defendant from committing any criminal offence was plainly too wide.  It was not necessary under s (1)(1)(b).  The 5 carefully tailored restrictions would have been sufficient to protect the public.  An ASBO that contains a restriction against committing any criminal offence will almost always be invalid.  Clause (6) was unenforceable as it was too wide and therefore ultra vires.