Anti-social Behaviour, Crime & Policing Act 2014 – The Law
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Criminal Behaviour Orders (CBOs)
i. The court must be satisfied beyond reasonable doubt that the offender has engaged in behaviour that has caused or was likely to cause harassment, alarm or distress to any person; and
ii. The court must consider that making the order will help in preventing the offender form engaging in such behaviour.
Note the courts have said that it is not necessary to prove that actual witnesses were caused harassment but whether it was likely that members of the public would see the behaviour and as a result would have been caused harassment, alarm or distress – an example is open street drug dealing in R v Adam Hashi  EWCA Crim 2119.
There is no necessity requirement unlike under the old ASBO regime only a proportionality test.
What a judge views as helpful to prevent anti-social behaviour is now much more flexible and it is a very low hurdle – see DPP v Bulmer  EWHC 2323 where a district judge’s refusal to make a prohibition made against an entrenched alcoholic in the absence of positive support was successfully appealed as Beatson LJ took view that district judge had applied too strict a test. Apart from the necessity test he said that the old ASBO law still had application to CBOs and ASBIs. This means the leading cases of R v Boness  EWCA Crim 2395 and R v McGrath  EWCA Crim 353 are still highly relevant to whether the terms of any order will be sufficiently precise, clear and proportionate to withstand appeal court scrutiny (remembering to disregard necessity as a factor).
If the court adjourns it can make an interim order s.26 (2).
The order runs from the day it is made (s.25 (1)) or from the date an existing order ceases (s.25 (2))
The period must be specified and it runs for an adult from a minimum of 2 years up to indefinite orders. Different requirements may have different durations.
For under 18s the period is 1-3 years and generally the Standing Committee for Youth Justice recommends no more than 1 year and annual reviews.
There must be consultation with the YOT though this can be rather hurried when applications are made without proper notice. There is YOT and CPS guidance that should be followed to avoid this.
Reporting restrictions are not automatic so they need to be applied for using s.39 Children & Young Persons Act 1933 (as amended by s.79 Criminal Justice & Courts Act 2015 which limits it to non-criminal proceedings and extends the definition of ‘publication’).
The Standing Committee for Youth Justice urge careful consideration and consultation with the YOT before making a decision to publish by not using s.39 CYPA.
For both CBOs and ASBIs a breach is a criminal offence (s.30 (1).).
Adults – 6 month in Magistrates’ Court up to 5 years in Crown Court.
Under 18s – up to 3 months detention.
The Standing Committee on Youth Justice recommend careful consideration of the type of breach and whether any harm was caused. This is because many young people fail to comply and can then end up in custody for persistent minor behaviour by repetitive breaches.
Diversion and community resolution also applies. See guidance.
Both the prosecution and the offender can make one application to vary or discharge to the court who made the order but after that they need the consent of the court (s. 27(1)).
Appeals are to the Crown Court or Court of Appeal (Criminal Division) – see R v Tony Shane  EWCA Crim 287 par 36 and ss.9 (1) & 50 (1) Criminal Appeal Act 1968.
Practitioners should be live to potential public law defences in cases where the LA has not following its own policy and procedure as a failure to comply with an authority’s own policy will be sufficient to make a decision unlawful on public law grounds – see Eastlands HA v Whyte  EWHC 695 at para 58 (applying Barber v Croydon  HLR).
Application of the Equality Act 2010 (EA 2010)
Section 15 contains a five stage test, providing that a person (A) discriminates against a disabled person (B) if:
(1) A treats B unfavourably (not “less favourably”);
(2) because of something arising;
(3) in consequence of B’s disability;
(4) A cannot show that the treatment is a proportionate means of achieving a legitimate aim; and
(5) A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
This contains a double causation test. At the first stage, the Court must determine what caused the treatment. The Court must not fall into the trap of substituting “motive” (which is irrelevant) for causation: see Pnaiser v NHS England UKEAT  IRLR 170 at 31b-c (see the summary of the relevant law at para 31).
The disabled person does not need to show that the “something arising” was the only or main cause of the unfavourable treatment. It is sufficient for it to be an effective reason or cause: Pnaiser at 31(c).
So section 15(1) will be established, subject to defences, where the impairment and an excluded condition form the reason for the treatment: see eg. Governing Body of X Endowed Primary School v Sendist and others  EWHC 1842;  ELR 1 at para 29.
At the second causation stage, the expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s.15 of the Act, the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability: Pnaiser at 31(d).
This stage of the causation test involves an objective question (not depending on the thought processes of the alleged discriminator): Pnaiser at 31(f).
The statutory language of s.15(2) makes clear that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability: Pnaiser at 31(h).
Section 136 EA 2010 is also relevant, because it provides for a reversal of the burden of proof in discrimination claims. So if there are facts from which the court could conclude that a step taken was “because of something arising in consequence of a person’s disability” then it would be for the alleged discriminator to prove that it was not. If they could not do so, the burden would then be on them to show that it was nevertheless a proportionate means of achieving a legitimate aim.
In the case of s.15 (1) discrimination, there is a potential proportionality defence in s.15 (2). This provides that the treatment of the disabled person, rather than the steps taken by the landlord, must be justified.
The concept of proportionality contained in s. 15(2) contains a four stage test:
1.1. is the objective sufficiently important to justify limiting a fundamental right?
1.2. is the measure rationally connected to the objective?
1.3. are the means chosen no more than is necessary to accomplish the objective?
1.4. Are the disadvantages caused disproportionate to the aims pursued?
Established principles in respect of the PSED – Public Sector Equality Duty
- Section 149 provides: (NB full list of public bodies this applies to is set out at Schedule 19 of the Act)
“A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic [which by subsection (7) includes disability] and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. …”
- The principles of law applying to the nature and extent of the PSED are explained in Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345 at paragraph 25. These include:
2.1. The duty is to have due regard to the need to achieve the goals identified in paras (a) to (c) of section 149(1).
2.2. The duty demands “a conscious approach” and that it should be performed “in substance, with rigour and an open mind.” ;
2.3. The PSED involves a duty of inquiry. The duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it.
Moreover, the PSED, particularly when viewed alongside the UN Convention on the Rights of Persons with Disabilities, imposes a positive obligation to advance equality of opportunity: see Bracking para 77.
- A person has a disability if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day to day activities: section 6 EA. The definition is supplemented by Sch 1.
- The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” must be taken into account by an adjudicating body (defined to include a court or tribunal) in determining whether a person is a disabled person: Sch 1 Para 12.
Meaning of “impairment”
- The Guidance advises on the “Meaning of Impairment”, at A3-4, concluding:
“Whether a person is disabled for the purpose of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities.”
- A disability can arise from a wide range of impairments including fluctuating or recurring effects, such as epilepsy, or from respiratory conditions such as asthma: see Guidance A5.
- The focus of attention required by the definition of disability is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do Goodwin v Patent Office  ICR 302, 309E; and Guidance B9.
- It is not material how the impairment is caused: see Power v Panasonic UK Ltd  IRLR 151 approved in Governing Body of X Endowed Primary School v Sendist at para 23.
“Substantial adverse effect”
- A substantial effect is one which is more than minor or trivial: see s.212 (1) EA.
- The ameliorating effect of medication or treatment must be ignored when considering whether there is a substantial adverse effect on day-to-day activities: Sch 1 para 5.
- “A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities”: Guidance B6.
- By Sch 1, para 2 EA, the effect of an impairment is long-term if:
(a) it has lasted at least 12 months;
(b) it is likely to last for at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected.
- If an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing, if it is likely to recur. Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of “long term”: Sch 1 para 2(2) EA; Guidance C5.
- A person with a progressive condition is disabled, from the point at which the impairment has an adverse effect (i.e. without the need to prove a substantial adverse effect): see Sch 1 Para 8, B19 Guidance.
13. The word “likely” within the definition of disability provisions is not a balance of probabilities standard. It means “could well happen”: see C3 Guidance.
Claimants often obtain injunctions on a without notice / ex parte basis.
There is a duty to provide full and frank disclosure when making these applications and the higher courts have reinforced this view time and time again.
Often these applications are being thrown into a judge’s busy duty list. We find the judges often grant injunctions based on a one sided, totally biased view and these applications and the advocacy supporting them are not adhering to the duty of candour. Further, there is an obligation on the Applicant to keep a full and accurate attendance note of the submissions made at court which is being ignored.
That means these injunctions should be contested on this basis alone as they may have been made on a faulty basis.
This requires utmost urgency as you only have 7 days to vary an ordered made at a without notice hearing. You can also appeal the decision which will give you 21 days. We would strongly advise getting hold of the transcript of the injunction application hearing to confirm what submissions were made, if any, and whether the full and frank disclosure was provided to the judge.
If the Applicant has breached their duty then the court can and should discharge the order. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if, after a full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.
The principles applicable in considering whether there was material nondisclosure in an application for a without notice freezing injunction were summarised by Cooke J. in Alliance Bank v Zhunus  EWHC 714 (Comm), at paragraph 65 it was stated:
“The test of materiality of a matter not disclosed is whether it would be relevant to the exercise of the court’s discretion. A fact is material if it would have influenced the judge when deciding whether to make the order or deciding upon the terms upon which it should be made. The question of materiality is a matter for the court and not the subjective judgment of the applicant or his lawyers.”
St Vincent European General Partner Ltd v Robinson & Ors  EWHC 3267 (Comm) full and frank disclosure was considered.
“In my judgment this was a further and inexcusable failure to properly analyse and disclose the claims being made and the potential defences.” [per Phillips J.]
Cooke v Venulum Property Investments Ltd  it was held that it was inappropriate for the claimants to have made their original application ex parte. Courts have said time and time again that it is inherently unjust in hearing one party without the other party. On all applications made in the absence of the respondent, the applicant and their legal representatives owe a duty to the court to disclose all matters relevant to the application. This includes matters of fact or law which are or may be adverse to the applicant. The applicant or their legal representatives must specifically direct the court to passages in the evidence which disclose matters adverse to the application. If there is a failure to comply with this duty and an order is made, the court may subsequently set aside the order on this ground alone.
Al Rawi v Security Service  1 AC 531, SC, the Supreme Court held that, except where Parliament has provided otherwise, a respondent to an application has a right to know the case advanced by the applicant and to have fair opportunity to respond to it.
Siporex Trade SA v Comdel Commodities Ltd  2 Lloyd’s Rep 428 at pp 437 states:
“The applicant must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.”
For ASBI proceedings in the County Court or the Youth Court a civil application should be made under the associated civil legal aid work category in the criminal contract or it can be done under the provider’s housing contract. Costs are claimed using legal help and the non-family civil applications via the CCMS portal. The work is claimed at prescribed civil rates (see below) with enhancement which can often be justified given the urgency, vulnerable clients and what is at stake. Enhancement for County Court or Youth Court work is a maximum of 50% and for the higher courts 100%.1
Legal Help – the standard fee for non-specified proceedings is £79. The escape threshold is £237.
Reasonable travel and waiting (and disbursements) can be claimed.
For details of claiming rules see Chapter 13 of the SCC 2017 13.40 onwards.
1 Civil Legal Aid (Remuneration) regulations 2013, Reg 6(3).
Civil Remuneration Regulations 2013 (SI 2013/422) rates are:
|Table 10(a): Higher Courts, County Courts and Magistrates’ Courts for work carried out with Schedule Authorisation|
Non Family Prescribed Rates
|Activity||Higher Courts||County Court and Magistrates’ Courts|
|Routine letters out||£6.75 per item||£5.94 per item|
|Routine telephone calls||£3.74 per item||£3.29 per item|
|Preparation and attendance||£71.55 per hour (London rate)|
£67.50 per hour (Non-London rate)
|£63.00 per hour (London rate)|
£59.40 per hour (Non-London rate)
|Attendance at court or conference with Counsel||£33.30||£29.25|
|Advocacy||£67.50 per hour||£59.40 per hour|
|Travelling and waiting time||£29.93 per hour||£26.28 per hour|
They are not specifically listed as specified proceedings in the Regulations2 but they must come under the catch all in Regulation 9 (v) of
the Criminal Legal Aid (General) Regulations 2013 (SI 2013/09):
‘any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.’
This is also covers civil breaches see para 6.16 CBAM below.
2 Criminal Legal Aid (General) Regulations, Reg 9.
Note travel/waiting is payable and there is no means test unless the breach is dealt with in the Youth Court or Crown Court.
- Proceedings in relation to breach of an injunction under Part 1 ASBCPA 2014 are criminal for the purposes of legal aid. If the breach is in relation to an adult then it will be heard in either the County Court or the High Court (depending on where the order originates), if the breach is in relation to a child (under 18) then it will be heard in the Youth Court or the Crown Court (depending on where the order originates).
- In order to apply for funding for these proceedings the relevant application forms must be completed (CRM14 and CRM15). A Representation Order must be granted by the relevant representation authority (which will be either the Criminal Application Team or the relevant court). The means test must also be completed where the proceedings are in a criminal court – this will be for a child (or an adult in a mixed application) in the Youth Court. The relevant application forms can be accessed on the website. Applications for legal aid should be submitted to the relevant Criminal Application Team.
- Please note if a location is not included in this guidance the application should be submitted to the Nottingham Office.
- Representation in breach proceedings will be paid in accordance with the rates set out Criminal Legal Aid (Remuneration) Regulations (as amended) 2013. The table in schedule 4 at paragraph 5A sets out the relevant rates. When calculating whether the Higher Fee or the Lower Fee (as specified in table 5A) applies the following work should be used to determine core costs:
(a) any preparation;
(b) routine letters written and routine telephone calls;
(d) work done by a fee-earner acting as Agent for the Solicitor named in the Representation Order; and
(e) Unassigned Counsel’s preparation and advocacy
- Further information on determining whether the Higher or Lower Fee apply can be found in 10.175 to 10.178of the SCC Specification.
- Travel and Waiting will be payable for travel to any venue in addition to the Higher or Lower Fee. Any Travel and Waiting costs should not be used to calculate whether the case becomes payable at hourly rates. Further information about claiming can be found in 10.175 to 10.178 of the SCC Specification.
- In cases where the core costs do not exceed the Lower or Higher Fee Limits a Provider must submit a claim for the appropriate fee on their monthly submission. Where the core costs exceed the Higher Limit the Provider should submit this on a CRM7 using claim code PROV. Civil Providers, or those operating under an Individual Case Contract should use the CRM claim 11 form instead of a CRM7. Where Assigned Counsel has been instructed, a completed CRM8 including a note of taxation from counsel will be required.
- Assigned Counsel rates can be claimed at £70 per hour for attendances, preparation and advocacy under 10.106 of the SCC Specification
- Note that where the case is in the County and High Court, counsel will be automatically assigned however where the case is in the Youth Court, Magistrates Court or Crown Court, Counsel in these cases will be unassigned as per 10.134 to 10.137 of the SCC Specification.
Series of Offences
- Should further breaches arise in relation to these proceedings these will be treated as a series of offences. The Representation Order will need be amended to cover further attendances and further costs should be submitted as a supplemental claim. Any request for an amendment must be made in writing to the National Courts Team in Nottingham, and be accompanied by evidence of the further alleged breach proceedings.
- Prior Authority can be obtained by way of an application in writing to The National Courts Team or via email to Nottingham.NCT@Legalaid.gsi.gov.uk
- Correspondence should be clearly marked as a Part 1 breach matter. The Provider will need to include the clients CNTP number and details of the expert to be instructed along with the quote for the work to be done.
- Such proceedings are deemed to be criminal by virtue of Paragraph 9(v) of the Criminal Legal Aid (General) Regulations (as amended) 2013.
- A Representation Order is required to provide representations in such proceedings, applications should be sent to the National Courts Team. Once the matter is concluded, the Provider should complete a CRMClaim11 and send this, with the full file of papers to the Criminal Finance Team. When billing Counsel’s fees a completed CRM8 and a note of taxation from Counsel is required.
- Assigned Counsel Rates can be claimed at £70 per hour for attendances, preparation and advocacy under the 10.106 of the SCC Specification.
- Note that where the case is in the County and High Court, Counsel will be automatically assigned however where the case is in the Youth Court, Magistrates Court or Crown Court, Counsel in these cases will be unassigned as per 10.134 to 10.137 of the SCC Specification.
Series of Offences
- Should further breaches arise in relation to these proceedings these will be treated as a series of offences. The Representation Order will need be amended to cover further attendances and further costs should be submitted as a supplemental claim. Any request for an amendment must be made in writing to the National Courts Team in Nottingham, and be accompanied by evidence of the further alleged breach proceedings
- Prior Authority can be obtained by way of an application in writing to The National Courts Team or via email to Nottingham.NCT@Legalaid.gsi.gov.uk
- Correspondence should be clearly marked as a contempt matter. The Provider will need to include the clients CNTP number and details of the expert to be instructed along with the quote for the work to be done.
- The Anti-Social Behaviour, Crime and Policing Act 2014 introduced a new Closure Order that can be granted on a number of different grounds including: criminal behaviour, disorderly or offensive behaviour or serious nuisance. The new order consolidates previous powers to grant closure orders under the Anti-Social Behaviour Act 2003 and the Licensing Act 2003.
- Closure orders issued under s.80 (5)(a) are prescribed as criminal for the purposes of legal aid.3 These Closure Orders are issued where the court is satisfied that ‘a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises’.
- Where the Order relates to criminal behaviour or criminal behaviour and a combination of the other grounds contained in section 80 (ASBCPA 2014) (e.g. nuisance or disorderly behaviour) the Order will be criminal for the purposes of legal aid. Where the order does not concern any criminal behaviour then only civil legal aid will be available.
- Questions 19, 23, 24 or 25 of CRM14 application should specify if criminal behaviour has been involved when making an application for criminal legal aid.
- A Representation Order is required to provide representations in such proceedings, applications should be sent to the National Courts Team. Once the matter is concluded, the Provider should complete a CRM Claim11 and send this, with the full file of papers to the Criminal Finance Team. When billing Counsel’s fees a completed CRM8 and a note of taxation from Counsel is required.
Appeals against Closure Orders to Crown Court made under s. 84 Anti-Social Behaviour Crime and Policing Act 2014 against an Order made under 80(5)(a) comes under the Crown Court Representation Order.
3 Criminal Legal Aid (General) Regulations 2013, Reg 9 (k) although it refers to proceedings under sections 2, 5 and 6 of the Anti-social Behaviour Act 2003.
Applications for Criminal Behaviour Orders in Youth/Crown Court – treated as ‘prescribed proceedings’ under regulation 9 of the General Regulations so need to apply for a Representation Order which will be assigned in first place to a solicitor only (with costs limit in Crown Court unless it relates to an appeal from the YC – so it will need extending as will the Representation Order for an Assigned Advocate).
Breach of Criminal Behaviour Orders treated as a criminal matter in the normal way under standard fee for breach of order.
Stand-alone applications for ASBIs – are civil proceedings in both the County Court and Youth Court so need to get Legal Help signed and apply for civil Legal Aid via CCMS (normal civil claim with enhancement – 50% if Youth or County Court or 100% if High Court).
Breach of ASBIs – treated as criminal proceedings but travel and waiting paid in addition to the standard fees or Non Standard Fee (with enhancement up to 100%).
Applications for Closure Orders – if they involve criminal behaviour prescribed proceedings see above, if non-criminal basis then civil Legal Aid.
Breach where a Civil Contempt – treated as prescribed proceedings – see above.
Note: For prescribed proceedings Representation Orders in County Court and above automatically assign advocate but in the Courts below (Youth/Magistrates/Crown) do not.
If solicitor conducts advocacy (and they have automatic rights of audience) in County Court then very likely to get enhancement as this will save costs overall by having continuity of representation.
Further breaches should be claimed under the same Representation Order as a supplemental claim.
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