I have previously written on the Anti-Social Behaviour, Crime and Policing Act 2014 (“the Act”) in my article entitled ‘Using powers to prevent anti-social behaviour to protect, not punish’; that article looked at whether powers under the Act could be used in a way different to that that is normally expected. This article will consider whether those powers could be used in tackling breaches of the current Covid-19 lockdown regulations.
We are all aware of the ‘stay at home’ regulations and the roadmap that has been set out in order to bring us out of this state of lockdown (should all go according to plan). For the majority of us, that means most of our time is spent at home unless we have a reason to go out that fits within one of the exceptions, such as for work or for medical needs. However, the regulations are not being followed by all meaning in some cases further action is taken.
My attention was drawn to a story published recently with the headline of “Tenant of social landlord given six days in prison over breach of civil injunction by breaking Covid rules on illegal gatherings”. The article provides detail that a civil injunction had been imposed on the Defendant in April 2020 in relation to behaviour causing a nuisance, the selling or producing of illegal drugs, excessive noise and a complete prohibition on the presence of visitors.
A number of fixed penalty notices had been issued in November and in December, there were 2 reported breaches of other persons being found in the Defendant’s property – on one occasion, a male visitor and on the second occasion, a female visitor. The Defendant claimed they were there due to mental health issues.
The Defendant was arrested and taken to Court where he was remanded in custody. On sentencing, the Judge determined that the matter could be dealt with by a sentence equivalent to the six days the Defendant had already served in custody.
The Defendant in that matter was dealt with by the Court for breach of his injunction, rather than a breach of any of the Covid-19 regulations. So, is it the case that anti-social behaviour powers can be used as an alternative to ‘lockdown rules’, as an extension of them or as neither?
In order to grant a civil injunction, the Court must be satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour and that the Court considers it just and convenient to grant the injunction to prevent the respondent from engaging in anti-social behaviour. Injunctions can prohibit actions or require the respondent to do something.
In the case outlined above, the injunction prevented all visitors and so not even the exceptions within the Covid-19 regulations would apply. Should an applicant (a housing provider, Local Authority or the Police) have an issue with a person who persistently breaches the regulations with reasons being given that an exception applies but it can be shown that that is incorrect or without merit or no reasons being given, an applicant may wish to consider an injunction.
Anti-social behaviour is defined in the Act as
- a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,
- b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
- c) conduct capable of causing housing-related nuisance or annoyance to any person
“Housing related” means directly or indirectly relating to the housing management functions of a housing provider or local authority.
Any applicant would have to ensure that they could meet the test outlined above before applying. It appears from the information within the article that the injunction in the matter reported may have been obtained on the basis of visitors due to issues surrounding the selling or production of drugs, rather than the Defendant having visitors during the restrictions but it may be something to consider should restrictions continue.
Public Space Protection Orders
A Local Authority may make a Public Space Protection Order (“PSPO”) if it is satisfied that:
- Activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality or it is likely that activities will be carried on in a public place within that area and that they will have such effect and
- The effect, or likely effect, of the activities is, or likely to be, of a persistent or continuing nature, is, or is likely to be, such as to make the activities unreasonable and justifies the restrictions imposed by the notice.
A PSPO can prohibit actions, require actions or do both. Prohibitions and requirements can be framed so as to apply to all persons or specified categories, to apply at all times, or only at specified times and to apply in all circumstances or only in specified circumstances.
PSPOs have been used to prohibit congregation of groups but there is concern that PSPOs can also then be seen to be criminalising normal behaviour. A Local Authority could consider a PSPO to prohibit congregation in groups (if the regulations are lifted to the point to allow that) in a certain area where there is an evidenced issue to apply only in certain circumstances, for example if their Covid-19 rate reached a certain point.
However, in order to do so, the Local Authority would need to satisfy the test set out above and be able to provide an evidence base of the issue. Any Local Authority looking to implement a PSPO would need to carry out the necessary consultation, notification and publicity and ensure that they undertake any consultation needed and seek approval from the relevant committees, Cabinet and/or full Council.
The article is a brief look at some of the available powers within the Act and a different way of using them. If you are seeking to use the powers set out, you would need to ensure the relevant tests could be met. It may be that the tests cannot be met and you would need to consider whether using these powers would be the correct route depending on the circumstances but it is interesting to consider the different ways in which these powers could possibly be used.
“Tenant of social landlord given six days in prison over breach of civil injunction by breaking Covid rules on illegal gatherings” can be found here: https://www.localgovernmentlawyer.co.uk/housing-law/397-housing-news/46044-tenant-of-social-landlord-given-six-days-in-prison-over-breach-of-civil-injunction-by-breaking-covid-rules-on-illegal-gatherings
Specialist advice on the Anti-Social Behaviour, Crime and Policing Act 2014 can be obtained from members of Becket Chambers – speak to the Clerks