Using powers to prevent anti-social behaviour to protect, not punish

The Anti-Social Behaviour, Crime and Policing Act 2014 brought with it new powers in order to tackle anti-social behaviour (ASB). It introduced, amongst other things, the Criminal Behaviour Order (CBO), the civil injunction and the closure order. Local Authorities and Police Forces, amongst other organisations can apply for these; but when thinking about these powers, we generally think their purpose is to punish the offenders. However, many have use in also protecting the victim, the offender or both. This article will look at a few of these powers and how they can be used to protect or signpost.

Criminal Behaviour Order

The CBO was the power created to replace the Anti-Social Behaviour Order (ASBO). This order is applied for through the Magistrates Court on conviction of any offence with the Court having to be satisfied beyond reasonable doubt that:

  • The offender has engaged in behaviour that has caused or is likely to cause harassment, alarm or distress to any person and
  • That the making of the order will help prevent the offender from engaging in such behaviour

CBOs can have both prohibitions and mandatory requirements and it is the positive requirements where the protection for the offender can be focused. Home Office guidance tells us these requirements have to be specific, proportionate and easy to understand but they can include things, such as an anger management courses, drug or alcohol treatment or a job readiness course. These would need to be tailored to the offender to address the reasons why they are offending and should be clear by giving the organisation that can provide these services, the contact details for that organisation and a named person, if possible.

Civil Injunctions

These can be used in similar circumstances to CBOs, except they can be applied for without the need for a criminal conviction first. The test for these is that, on the balance of probabilities:

  • Behaviour likely to cause harassment, alarm or distress (non-housing related ASB) has occurred or
  • Conduct capable of causing nuisance or annoyance (housing-related ASB) has occurred and
  • It is just and convenient to grant the injunction to prevent ASB

Civil injunctions can be used in much the same way as CBOs in that they can both have prohibitions and mandatory requirements.

Closure Orders

Closure orders can only be applied for by a Local Authority or Police Force and can apply to any land, including residential, business and licensed areas. They are a two stage process:

  1. Closure notice – These can be served on the premises if nuisance to the public or disorder near those premises has occurred or is likely to occur if the power is not used. These notices can close premises for up to 48 hours but cannot stop the owner or those who habitually reside in the premises from accessing it.
  2. Closure order – These have to be applied for through the Magistrates Court within 48 hours of serving the closure notice. An order will be granted where there is disorderly, offensive or criminal behaviour, serious nuisance to the public or disorder near the premises that has occurred or will occur if the order is not granted. These orders can be granted for up to 6 months.

Closure orders are generally seen as orders which prohibit access to all and are commonly used to ‘close down’ a problem premise, removing all those who access it or reside within. However, they can be made with exceptions; meaning that the order can be written to allow certain people or types of people access to the premises. Allowing some persons access has been utilised to protect vulnerable tenants/occupiers with only them, the owners of the property and any professionals needed being allowed access. For example, these orders have been used to stop cuckooing*, leaving the vulnerable tenant/occupier in situ and giving them a means to have all other persons removed from their property. Breach of both notice and order is a criminal offence meaning the tenant/occupier (or neighbours or anyone willing, if others are fearful) can call the Police in order to have any unwanted persons immediately removed.

This article has briefly gone through some of the powers available to authorities in order to address anti-social behaviour and protect the vulnerabilities of those that need it either through signposting or other means. The Anti-Social Behaviour, Crime and Policing Act 2014 encompasses other tools and powers available to authorities, such as Community Protection Notices, which can be utilised in similar ways.

For more guidance on the act or any of these powers, please see the Home Office guidance available through this link: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679712/2017-12-13_ASB_Revised_Statutory_Guidance_V2.1_Final.pdf

* Cuckooing is a term used to described when a gang targets a vulnerable person and takes over their property to use as a base for drug dealing and other gang activity within that area.

Specialist advice on applications under the Anti-Social Behaviour, Crime and Policing Act 2014 can be obtained from members of Becket Chambers – speak to the clerks for further information.

Cara Radford is a Pupil barrister in Becket Chamber, presently undertaking her first six pupillage.