The ASBO is dead… long live the IPNA?Vincent Blake-Barnard
On 23 March, 2015, the final part of Part 1 (ss1 to 21) of the Anti-Social Behaviour, Crime and Policing Act 2014 came into force. In short, this is the government’s most recent attempt to replace what was perceived as the discredited standalone ASBO. As well as replacing the ASBO, it has resolved an issue which social landlords have encountered when dealing with aberrant youths.
Although the new orders are civil in nature, criminal practitioners will, without doubt, regularly encounter them in the youth courts.
As with most new developments, the Home Office has produced guidance on the act, ‘Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers – Statutory guidance for frontline professionals’. Published in July 2014, this sets out the aim of the various orders within the act, stating,
“To stop or prevent individuals engaging in anti-social behaviour quickly, nipping problems in the bud before they escalate.”
Who can apply for an IPNA?
The new civil injunctions (IPNA) can be applied for by:
- Local authorities
- Social landlords
- The police (including British Transport Police)
- Transport for London
- Environment Agency and Natural Resources Wales
- NHS Protect and NHS Protect (Wales).
2 tests for the IPNA
Like the ASBO, there are 2 tests for an IPNA. However, the tests have been adjusted for housing and non-housing situations. As this is an injunction, the test is applied on the balance of probabilities and not the ‘higher civil level’ (for now):
- Where the behaviour is non-housing related: that the behaviour is likely to cause harassment, alarm or distress;
- Where the behaviour is housing related: the conduct is capable of causing nuisance or annoyance.
In both cases, it is just and convenient to grant the injunction to prevent anti-social behaviour.
Youths’ ages & where to seek an IPNA
With regards to youths aged over 10 but under 18, the IPNA (like the ASBO) will be sought through the youth courts in the form of a complaint. For those 18 and over it will be through the County or High Court.
The period of the IPNA
The IPNA must either specify the period for which it has effect, or state that it has effect until further order. Where the IPNA is granted before the respondent turns 18, the period of the IPNA must be specified and for no more than 12 months (s. 1(6)). Particular prohibitions or requirements can be effective for different periods, and the IPNA may specify what those periods are.
IPNAs & powers of arrest
It is only if the individual requirement within the order has a power of arrest attached that the subject of the condition may be arrested without a warrant being sought from the court upon breach.
Thus, an arrest without a warrant for a breach of an IPNA for those aged 18 or over will be required to be produced before the county court within 24 hours of arrest, and the subsequent breach proceedings will be dealt with there. Those aged under 18 will need to be produced before a youth court.
It is for the organisation who applied for and gained the IPNA to apply for the warrant to the relevant court, and the officer arresting must also notify that organisation when the warrant has been executed.
IPNAs & contempt of court
Those breaches being treated as a contempt of court require proof beyond reasonable doubt. And as a contempt, regard should be had of s14 of the Contempt of Court Act 1981. There is no limitation to the period of committal, but the committal shall be for a fixed term, not on any occasion exceeding 2 years in the case of committal by a crown court, or 1 month in the case of committal by a magistrates’ court.
In the case of a fine for contempt of court, the crown court has no limit but the magistrates are limited to £2,500.
IPNAs & hospital/guardianship orders
The crown court has the power to make a hospital order or guardianship order under section 37 of the Mental Health Act 1983 or an interim hospital order under section 38 of that act (in the case of a person suffering from mental disorder within the meaning of that act, who could otherwise be committed to prison for contempt of court as the crown court has under that section in the case of a person convicted of an offence).
Positive IPNA requirements
One key change to the new injunctions is the ability to obtain an injunction requiring the defendant to take positive steps. These requirements are designed to “get the individual to deal with the underlying cause of their behaviour” and should be targeted towards the individual defendant. Examples include mandatory attendance at drug and alcohol counselling; attending dog training classes and nuisance pets; and clearing properties and gardens which have been left in a state of disrepair.
However, the claimant will be responsible for making sure that provisions are in place to allow the defendant to meet these requirements, such as paying for the resource and policing the requirement.
Magistrates’ Courts (Injunctions: Anti-Social Behaviour) Rules 2015 (SI 2015/423).
These rules have now been published, and have come into force in reference to injunction applications made in the youth court. The rules set out the procedural steps and requirements necessary when an injunction is sought against a minor. They also grant the youth court the discretion, on an application by the claimant, to hear applications against those over the age of 18 where another defendant in the same matter is under 18 and must be heard in the youth court.
Where an injunction is made against a minor who then attains the age of 18, the matter will continue to be heard by the youth court unless it directs otherwise.
The sentencing powers are set out in schedule 2 of the Act, with supervision or detention orders, with such supervision order being limited to a maximum of 6 months.
IPNAs & Legal Aid
Although the initial injunction application may well be dealt with by a civil practitioner, the breach proceedings will be dealt with by a practice undertaking criminal legal aid.
- Note: It is vital that practitioners are aware that a breach of an order brought by a landlord could have wide-ranging ramifications for the tenant, as it will act as a stepping-stone to the ultimate sanction of the mandatory loss of tenancy.
This is an interesting development, and – I suspect – will simply put more financial barriers in the way of seeking such orders. As stated, this is a true civil remedy, with its costs, risks and implications. From experience, there has been confusion from the police as to which court an individual should be produced in, in the first instance. With regards to non-molestation and Housing Act injunctions, we will need to wait and see if this continues with the IPNA.
Vincent’s practice spans crime, personal injury, commercial & chancery and regulatory & public law. Contact him via his clerks on 0113 245 9763.