From ASBI to an ASBO: A better way to deal with persistent offenders?


13 September, 2007

Salford City Council v Darren Filer (unreported)
24 September 2007, Salford County Court

By now most if not all social housing landlords will know about their powers to apply for an Antisocial Behaviour Injunction ("ASBI") under s.153A-D Housing Act 1996 against those whose anti-social behaviour is making others' lives a misery.

It is powerful legislation if a county court judge finds on the balance of probabilities that perpetrators have caused the misery they are accused of, the judge will order injunctions against them. Any further antisocial behaviour is then a breach of injunction which, in civil law, is a contempt of court. This can and often does result in the perpetrator being committed to prison for up to two years (one of the rare occasions when county court judges can jail someone).

All well and good usually; the community is protected for a while, the punished perpetrator gets the fright of their lives and, with any luck, the problem is cured. So the theory goes.

But what happens when, two years down the line, the serial perpetrator is being hauled in handcuffs before the county court to account for his thirteenth alleged breach, having already been given two suspended and four actual prison terms for previous breaches?

This was the case in Salford, yesterday, when Darren Filer, an adult with many personality problems and an unhealthy alcohol addiction, was accused, for the thirteenth time, of breaching his injunction against harassing his mother.

The terms of his injunction, first granted in 2005, were simple, and amounted to forbidding him from harassing his mother and from going within 50 yards of her house. Darren's problem was that, even with the injunction in place, once he'd had a few drinks he was straight back to his mother's house, on one occasion within hours of being released from his last spell in prison.

Although when Darren was in custody his mother got some brief respite, it clearly was no long-term solution to a deeper problem which, everyone concluded, needed more than merely prison to solve. Yet, other than fines, prison is the only sentence that county court judges can dispense.

A different approach was found by looking back at the Crime and Disorder Act 1998. Since 2002, this Act has allowed county courts (as well as magistrates' courts) to issue ASBOs which, like ASBIs, are civil orders with one or more restrictions intended to prevent further instances of antisocial behaviour.

Yet here is the critical difference between ASBIs and ASBOs: if the antisocial behaviour recurs following an ASBO, this constitutes not (just) a contempt of court but a criminal offence. Breaches of ASBO are dealt with in the criminal courts usually the magistrates' court, where the range of possible sentences is very wide indeed, including Community Rehabilitation Orders, with regular contact with the Probation Service, and options such as treatment for anger management, drug abuse and, in Darren's case, alcohol misuse programmes.

To apply for such an ASBO, there must already be "principal proceedings" in the county court. When the legislation was drawn up, this was intended, so it is generally thought, to refer mainly to possession proceedings, where additional measures were deemed to be needed to deal with anti-social tenants. However, the legislation allows ASBOs to be "piggy-backed" onto "any proceedings" (CPR 65.21(2)(c)), and Salford City Council did not see why this should not, therefore, include proceedings for breach of ASBI. The court agreed.

At the hearing at Salford County Court, the circuit judge HJ Raynor QC duly issued an ASBO against Darren under s.1B CDA 1998. The ASBO is for two years, and in exactly the same prohibitive terms as the ASBI, so the ASBI was therefore discharged, and the committal proceedings likewise dropped. A copy of the ASBO was rushed down to the local police station to make sure, at the next breach, when Darren's mother again calls the police, that this time the police arrest him not for breach of civil injunction, but for breach of ASBO.
Of course, the criminal courts who will then deal with Darren can also issue prison sentences suspended or actual but it is the range of positive measures for reform not just punishment that gives Salford City Council hope that the ASBO, rather than the ASBI, will offer some hope of improvement.

Additional Legal Notes

County courts are empowered to issue ASBOs by s.1B Crime and Disorder Act 1998 (as amended by the Police Reform Act 2002).

Applications can be made by a "relevant authority" which, as well as local authorities, includes RSLs, and ALMOs following the Local Authorities (Contracting out of Antisocial Behaviour Order Functions) (England) Order 2007.

Although applications for ASBOs should generally be made at the same time as civil proceedings (such as possession proceedings), there is a provision (CPRr.65.22(2)) for an ASBO application to be made at a later stage (as happened in this case) "where the relevant authority becomes aware of the circumstances that lead it to apply for an order after its claim is issued). In this case, the circumstances that Salford City Council "became aware of" were that repeated prison terms were simply having no effect on curbing the antisocial behaviour.

Social landlords who make such an ASBO application must comply with s.1E CDA 1998 and prove that they have consulted with police and other relevant bodies about the suitability of an ASBO. A certificate of this consultation should accompany the application, and if possible the minutes of the consultation meeting.

In this case, those representing Mr Filer did not contest the ASBO application. The judge nonetheless has to be satisfied to the criminal standard of proof, both that antisocial behaviour has occurred which satisfies the definition in s.1(1) CDA 1998, and that an ASBO "is necessary to protect relevant persons from further anti-social acts by him".

Interestingly, breaches of non-molestation orders (as given in the family courts), although previously dealt with in the same way as breaches of ASBI by way of county court "committal" hearings, now constitute a criminal offence under the very recently introduced s.42A Family Law Act 1996. "Non-mols" are very closely related in law to ASBIs, but no similar legislation currently exists to criminalise breaches of ASBI.

This article was kindly supplied by Peter Marcus, Barrister at Young Street Chambers for Forbes Solicitors
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