Anti-social Behaviour case law up-date Presented by Maya Naidoo

1. Anti-social Behaviour case law up-date Presented by Maya Naidoo

2. Is the ground for possession made out? • Is it reasonable to order possession? • Whether, if it is reasonable to order possession any such order should be made on terms.

3. Sections 85A HA 85 and 9A HA 88,the court must consider: (a)     the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought; (b)     any continuing effect the nuisance or annoyance is likely to have on such persons; (c)     the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

4. HA 85 Ground 1 Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed. Ground 2 The tenant or a person residing in or visiting the dwelling-house— (a)  has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b)  has been convicted of— (i)   using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii)  an [indictable] offence committed in, or in the locality of, the dwelling-house. Ground 2, paragraph (b)(ii) the word “indictable” in square brackets was substituted by the Serious Organised Crime and Plice Act 2005, in force as of 01.01.06, SI 2005 No 3495.

5. HA 88 Ground 12 Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed. Ground 14 The tenant or a person residing in or visiting the dwelling-house— (a)   has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b)     has been convicted of— (i)   using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii)  an [indictable] offence committed in, or in the locality of, the dwelling-house.

6. Recent case law in possession cases Raglan Housing Association v Fairclough [2007] EWCA Civ 1087 Ground 14 (b) (ii) does not matter if the offence was committed before the tenancy.

7. Sheffield City Council v Shaw [2007] EWCA Civ 42 No principle that historic conduct may be so bad as to produce in one or more victims an apprehension for the future which no amount of apology and good intention can dispel.

8. Knowsley Housing Trust v McMullen [2006] EWCA Civ 539 It was proper exercise of Judge’s discretion to suspend on terms relating to conduct of the tenant’s son. If anything an inability to control the nuisance-maker’s behaviour will weigh in favour of an outright order, rather than suspension. ASBO – the fact that it was in place was relevant to reasonableness and suspension but did not mean an order should not be made. As the Defendant had a disability it was appropriate to require the Claimant to apply for permission before applying for a warrant.

9. Jurisdiction Fletcher v Sheffield [2007] EWHC 419 (Ch) High Court has jurisdiction to consider stay, suspension and postponement.

10. Demoted tenancies and Article 6 R (On the application of Gilboy) v Liverpool City Council & Secretary of State for Communities and Local Government [2007] EWHC 2335 Review procedure and JR compatible with Article 6.

11. Anti-social Behaviour Injunctions case law Moat Housing Group-South Ltd v Harris and Hartless [2005] EWCA Civ 287 • Without notice warrants exceptional circumstances e.g. risk of significant harm. • Must be necessary and proportionate.

12. Must satisfy both use or threatened use of violence AND risk of significant harm tests to obtain POA on without notice application. • Six months is appropriate if non-intrusive type injunction with quick return date. • Claimants must take care when relying upon hearsay evidence.

13. Breach of injunciton Hillingdon London Borough Council v Vijayatunga [2007] All ER B (D) 357 Technical irregularities in committal proceedings – the question is whether the Defendant has suffered any injustice.

14. Accent Foundation Ltd v Lee [2007] EWCA Civ 665 • There can be no agreement to vary statutory scheme. • A breach may be waived but in this case the order had been sought by the HA and for the benefit of other neighbours not just the persons who were said to have ‘waived’ the breach. • Some orders might be severable, but not in this case.

15. New s. 153A, HA 1996 06.04.07

16. Entire new section, but note: 153 A (4) Without prejudice to the generality of the court's power under subsection (2), a kind of conduct may be described in an anti-social behaviour injunction by reference to a person or persons and, if it is, may (in particular) be described by reference— (a) to persons generally, (b) to persons of a description specified in the injunction, or (c) to persons, or a person, specified in the injunction.

17. s. 153 C: Injunctions: exclusion order and power of arrest • Two criteria still apply: conduct consists of or includes the use or threatened use of violence or significant risk of harm to a person mentioned in the new s. 153A. • Changes reference to the new s. 153 A. s. 154: Power of arrest: ex parte applications for injunctions

18. s. 156 HA 1996: Remand for medical examination and report • Change at a date to be appointed to incorporate new definition of mental disorder under MHA 2007.

19. Updates to CPR 65

20. ASBOs, Closure Orders and other orders and remedies designed to prevent or punish anti-social behaviour Presented by John Beckley

21. ASBOs • Crime and Disorder Act 1998 • R(McCann) v Manchester CC [2002] 3 WLR 1313 • Moat Housing v Harris [2005] 3 WLR 691 • R v Boness [2005] EWCA Crim 2395 • R (Lonergan) v Lewes CC [2005] EWHC 457 • CPS v T [2006] EWHC 457

22. CLOSURE ORDERS • Anti-Social Behaviour Act 2003 • Merseyside Police v Harrison [2006] EWHC 1106 • CC of Cumbria v Wright [2006] EWHC 3574 • CC of Met Police v Hooper [2005] 1 WLR 1995 • R(Cleary) v Highbury Corner MC [2006] EWHC 1869

23. FUNDING • Defending ASBOs and Closure Orders funded under General Criminal Contract • Exception – ASBO sought by local authority against a tenant or person living with her/him or appeal against such order to Crown Court

24. CLEAN NEIGHBOURHOODS AND ENVIRONMENT ACT 2005 • Gating Orders • Vehicles • Litter • Graffiti • Dogs • Noise • Shopping Trolleys

25. DRUGS ACT 2005 • Intervention Orders

26. SERIOUS ORGANISED CRIME AND POLICE ACT 2005 • Environment Agency • Transport for London • Reporting restrictions in s49 CYPA 1933 do not apply • Contracting out • Special measures for vulnerable witnesses

27. VIOLENT CRIME REDUCTION ACT 2006 • Drinking banning orders

28. POLICE AND JUSTICE ACT 2006 • Parenting contracts • Parenting orders

29. WELFARE REFORM ACT 2007 • Housing benefit sanctions • 10%, 20%, 100% • Blackburn, Blackpool, Dover, Manchester, New Forest, Newham, South Gloucestershire, Wirral.

30. CRIMINAL JUSTICE AND IMMIGRATION BILL • Part 9 • Closure of residential premises from which persistent disorder or nuisance emanates

31. PRESSURE TO DO MORE • Respect standard for housing management • Ombudsman

32. TACTICS • Strength of case against you • Bare denials • PPOs and adjournments • Disability • Medical Evidence • Mental Capacity • Official solicitor

33. TACTICS 2 • Support • Drugs • Closure Order • Genuine Contrition and improvement