Ordering an ASBO must be "Necessary and Proportionate" rules High Court


07 July, 2009

The use of Anti Social Behaviour Orders (ASBOs) has steadily increased since their introduction ten years ago. ASBOs have now been used in a wide range of situations and for a variety of nuisance and criminal behaviour.

The number of times an incident of nuisance or criminal behaviour takes place will be crucial to the likelihood of an ASBO being granted. In any such application, a judge will have to be satisfied that it is both 'necessary' and 'proportionate' in order to deal with the problematic conduct. The case of R (on the application of McGarrett) v Kingston Crown Court (2009) which was heard in the Divisional Court on 8 June 2009, examined this issue and has provided some guidance on this area of the law relating to ASBOs.

The Facts

The claimant (M) applied for judicial review of the decision of the defendant Crown Court to impose an indefinite ASBO upon him. M had been a tenant of a particular property and the local authority had issued proceedings for possession of the premises for nuisance behaviour. A possession order was granted, but was postponed for one year and certain conditions were attached to prevent M from causing a nuisance to other residents in the neighbourhood or from threatening local authority employees.

In the meantime, M informed both the local authority and his neighbours that he was planning to hold a wedding reception at his home. In response to this, the local authority served a noise abatement notice upon him. Regardless of the issuing of the notice, the reception took place. M was subsequently convicted for breaching the noise abatement notice and the ASBO was imposed.

M submitted to the Divisional Court that the ASBO should be quashed as it was not proportionate to the risk to be guarded against and that it was outside the court's sentencing discretion.

The Divisional Court's Decision

In granting M's application, the Divisional Court held that the purpose of an ASBO was not to punish and that the terms of any order should be proportionate to the risk to be guarded against. There was a need to take into account other orders to which a person was subject to before considering the imposition of an ASBO. In M's case, the court had not taken proper steps to consider whether an ASBO should have been imposed. There was no finding of fact giving rise to the making of the ASBO and the judge had not precisely stated the concerns he had in relation to M's behaviour.

There was also no discussion of the necessity of an ASBO in view of the suspended possession order. The judge thought that the local authority would be slow to proceed with the eviction but there was no evidence to indicate that. The breach of the noise abatement notice was a single offence and no other relevant offending had occurred. Therefore, the circumstances of the case were such that the ASBO was not necessary or justified and was quashed.


The case has shown that in order for a landlord or any other applicable party to seek an ASBO, they must be able to show that doing so is both necessary and proportionate in order to guard against the alleged risk. Not being able to do so could lead to situations where the ASBO is quashed.

It is advisable to bear in mind that an ASBO is a tool that the court will not order lightly, given that it can interfere with a person's liberty and freedom to engage in certain activities. Therefore, parties seeking such orders may wish to ensure that they have a comprehensive and thorough account of all instances of behaviour which has led to the application for the ASBO.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.


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