Sentencing for breach of an Anti-Social Behaviour Injunction

Section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 provides the Court with the power to make an injunction (“ASBI”) if:

1. The Court is satisfied, on the balance of probabilities, that the Respondent has engaged in or threatened to engage in anti-social behaviour and
2. The Court considers it just and convenient to grant the injunction for the purpose of preventing the Respondent from engaging in anti-social behaviour.

An ASBI can prohibit the Respondent from or require the Respondent to do anything described in the injunction. An ASBI can have effect for a specific period or until further order, save for if the Respondent is under the age of 18.

A breach of an ASBI is treated as contempt of Court and CPR Part 81 applies. Any breaches must be proved to the criminal standard of proof. The judgment in the matter of Lovett v Wigan Borough Council and others [2022] EWCA Civ 1631 (https://www.judiciary.uk/wp-content/uploads/2022/12/Lovett-Smith-and-Hopkins-judgment-16-Dec-2022-Final.pdf) considered 3 appeals brought to the Court concerning breaches of ASBIs which were directed to be heard on the same day. A report by the Civil Justice Council dated July 2020 entitled “Anti-Social Behaviour and the Civil Courts” which raised concern about the inconsistency of penalties imposed for breaches of orders made under the 2014 act was considered as part of the judgment.

Lovett confirmed that the Court’s objectives in sentencing for breach are (in this order):

1. Ensuring future compliance with the order;
2. Punishment
3. Rehabilitation

Available to the Court when sentencing are 5 options:

1. An immediate order for committal to prison
2. A suspended order for committal to prison, with conditions
3. Adjourning the consideration of a penalty
4. A fine
5. No order

The maximum term of imprisonment that can be imposed is 2 years under Section 14 of the Contempt of Court Act 1981. The concept of the custody threshold, as used in criminal sentencing, has application upon sentencing for breaches of ASBIs; custody should be reserved for the most serious breaches, and for less serious cases where other methods of securing compliance with the order have failed. A custodial sentence should never be imposed if an alternative course is sufficient and appropriate and any term of imprisonment should be for the shortest term which will achieve the purpose for which it is being imposed. If custody is to be imposed, the length of the sentence should be decided without reference to whether or not it is to be suspended. Consideration needs to be given to the totality of the sentence imposed as simply adding up penalties for each breach may lead to an excessive total.

Suspension of a sentence is often used as a way of attempting to secure compliance with the order but another option may be to adjourn the consideration of the sentence. If an adjournment is provided, an indication of what sentence would have been imposed if the matter had not been adjourned, together with a clear statement of the consequences of good or bad conduct would likely be appropriate and should be recited in the order.

Lovett utilises the proposed scheme within the CJC Report to consider the appropriate sentence. This does not have the authority of the guidelines produced by the Sentencing Council but provides a valuable tool for Judges when considering sentence. The starting point is to consider the level of culpability and harm.

The 3 levels of culpability are:

1. High culpability; very serious breach or persistent serious breaches
2. Deliberate breach falling between A and C
3. Lower culpability; minor breach of breaches

The level of harm considers all the factors of the case to determine the harm caused or that was at risk of being caused by the breach or breaches. The 3 levels of harm are:

1. Breach causes very serious harm or distress
2. Cases falling between categories 1 and 3
3. Breach causes little or no harm or distress

This approach allows the Court to determine a starting point and range for the sentence which can be adjusted to take account of elements which increase or decrease seriousness and mitigation. Examples given of factors increasing seriousness include a history of disobedience and the particular vulnerability of any victim. Examples of mitigating factors include genuine remorse, ill health and age or lack of maturity when it affects the responsibility of the contemnor.

Any sentence imposed must be just and proportionate and this approach will allow Judges to approach the task of sentencing in a systematic manner.

Lovett provides some much-needed guidance for Courts and practitioners dealing with sentencing for breaches of ASBIs.

Members of Becket Chambers are able to assist with matters pertaining to the Anti-Social Behaviour, Crime and Policing Act 2014; please contact the clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.