The new Injunction … proving your case

Presented by Tom Knox and Sarah Ellis, Knox Ellis Solicitors

Learning Objectives

• Understand what you have to prove in order to obtain the new Injunction

• Be aware of how your Housing Management witness statement will have to change in light of the new legislation and guidance

• Understand how to deal with positive requirements in your witness statements

When will the provisions be introduced?

• January 2015???

Home Office Guidance

Throughout the Manual reference will be made to the Statutory Guidance issued by the Home Office on 21st July 2014 in relation to how agencies should use the new tools and powers.

The Civil Injunction

-The new Civil Injunction – what do you have to prove?

Test under the new Act: (2 conditions)

(a) Respondent has engaged or threatens to engage in anti-social behaviour, and

(b) Court considers it just and convenient to grant the injunction

Key point to make: changing the way you do things… • You are used to explaining in your housing management

statement why you did something:

E.g. “I interviewed the Respondent because I wanted to warn them face to face about their behaviour”

• Given the express ‘just and convenient’ test you should now explain why you didn’t do something:

E.g. “I considered whether an Acceptable Behaviour Contract was suitable but given the previous warnings, comments of the Respondent and the type of behaviour I felt an ABC was not appropriate”

Guidance

“Informal interventions should be considered first in most

cases, particularly when dealing with young people e.g.

Verbal warnings, written warnings, community resolution,

ABC , mediation, parenting contracts, support and

counselling etc.”

The definitions of ASB

3 definitions of ‘anti-social behaviour’ under s.2(1) of the Act:

(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

BUT!

s.5(3) states:

‘A housing provider may make an application only if the application concerns anti-social behaviour that directly or indirectly relates to or affects its housing management functions’

- (ASB Policy and Procedure)

THEREFORE scope of a housing provider to apply for Injunction is much more limited to that of the Police or LA.

Suggested paragraph (pg. 14)

• Housing related nuisance or annoyance/directly, indirectly relating to your organisation’s housing management functions

‘Pursuant to s.218A Housing Act 1996 (as amended by s.12 Anti-Social Behaviour Act 2003) the Applicant has published a policy in relation to anti-social behaviour and a procedure for dealing with occurrences of the same. The Applicant is compelled to take action in the present case as the relationship between the Applicant and the Respondent is such that the Respondent’s behaviour directly and/or indirectly relates to the Applicant’s duty to tackle anti-social behaviour as set out in the aforesaid policy and procedure.’

Guidance

“The Injunction can be used in situations where the

perpetrator has allowed another person to engage in ASB,

as opposed to actively engaging in such behaviour

themselves.”

BUT – note the language of the Act! (‘the respondent’)

Power of Arrest

• Can have a POA attached to any term of the Injunction

TEST under the new Act:

Court may attach a POA if thinks that –

(a) The ASB in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or

(b) There is a significant risk of harm to other persons from the respondent

Guidance

“If the applicant believes a power of arrest is appropriate, they should present this by way of written evidence. Such evidence may indicate that the respondent poses a high level of risk to the victim or the community should any of the conditions of the injunction be breached, e.g. a history of violence.”

Power to exclude

• The Injunction can include a prohibition on the Respondent from entering a specified areas such as a shopping centre etc.

• In certain cases, a Respondent who is over 18 can be excluded from a place where they normally live (RP must own or manage the property)

Guidance

“We do not expect the power of exclusion to be used often and the court will pay special attention to proportionality in light of Article 8 implications (i.e. Right to respect for private and family life).”

Without notice/interim Injunctions

• The court may grant an injunction under that section lasting until the final hearing of the application or until further order (an “interim injunction”) if the court thinks it just to do so.

• An interim injunction made at a hearing of which the respondent was not given notice may not have the effect of requiring the respondent to participate in particular activities.

Guidance

“Injunctions can be applied for ‘without notice’ being given to the perpetrator in exceptional cases to stop serious harm to victims. They should not be made routinely or in place of inadequate preparation for normal ‘with notice’ applications.”

Suggested paragraph (pg. 19)

• Without Notice

‘The present Application is made on a without notice basis given the nature of the alleged behaviour of the Respondent which the Applicant will say makes this an exceptional case. The Applicant believes that should the Respondent be given notice of its intentions to apply for an Injunction Order it will place those persons whom this Order is sought to protect at serious risk of harm. Further an on notice application may deter any individual who has provided the Applicant with information or evidence from continuing to support the Applicant which may result in the Applicant having to re-consider making any application at all thereby resulting in the Applicant being unable to stop serious harm being caused to those persons referred to above’.

Minors

• Max. duration of injunctions against minors is 12 months

• Application must be made to youth court

• Must consult with YOT before making application (unless w/o notice)

• Must inform any other body or individual you think appropriate (unless w/o notice)

The importance of YOT

• YOT’s role essential:

- ensure minor understands terms of Injunction and adhere to terms

- breach – court must take YOT’s representations into account

- Supervision order to be supervised by ‘responsible officer’

• Must consult YOT before make an application – are YOT aware? At what stage in the process will you consult YOT? Just before you make the Application or during the pre-legal stage?

• Will YOT release any information to you? Will you need a Form of Authority signed by the minor and/or their parent/guardian for them to share information with you?

Guidance

“Although consultation does not mean that YOT can veto the application, it is important that applicants fully consider and take into account representations from YOT as part of developing good partnership working in cases involving young people.”

Suggested paragraph (pg. 15)

• Consultation – on notice (minor)

‘The Applicant has consulted with the local Youth Offending Team (YOT) in relation to the present Application. The details of this consultation are set out below.

On XXXX I spoke with XXXX of the YOT to inform them of the Applicant’s intention to make the present Application against the Respondent. I made YOT aware of why the present Application was being made and of the terms of the Injunction Order which the Applicant was seeking. The Applicant was informed that [the Respondent was not known to their service]/[the Respondent was known to their service but they would not release any further details of their involvement]/[YOT were fully supportive of the Application and had no observations to make regards the terms of the Injunction Order which the Applicant is seeking].’

‘Informing’ requirement

s.14(1) A person applying for an injunction under section 1 must before doing so-

(a)…

(b) Inform any other body or individual the applicant thinks appropriate of the application

• This subsection does not apply to a without notice application

• BUT – before the return date you must have fulfilled the requirement to ‘inform’

• Vital to inform with CMHT, LA, FIP worker

• Remember!! The court must be satisfied it is “just and convenient” to make an injunction

Suggested paragraphs (pgs. 14-15) • Informing appropriate individual/body - on notice (adult)

‘The Applicant has contacted the following bodies/individual(s) in order to ascertain whether they have had any involvement with providing support and/or services to the Respondent: [insert list here] None of the individual(s) and/or bodies are aware of the Respondent. Therefore, the Applicant does not feel it appropriate to inform any such individual/body of the present Application. OR The Applicant has informed the following individual(s)/bodies prior to making the present Application: [insert list here, e.g. the Police, Adult Social Services and the Community Mental Health Team]. Details of the information provided, who it was provided to and, where appropriate, details of the response of the aforesaid individual(s)/bodies are set out below.’

Suggested paragraphs (pg. 15)

• Informing appropriate individual/body - without notice (adult)

‘As the current Application is made on a without notice basis, the Applicant has not yet sought to inform any bodies/individual(s) in relation to this Application. Prior to any first on-notice hearing the Applicant will inform any body or individual it thinks appropriate of the Application.’

Suggested paragraphs (pgs. 15-16)

• Informing appropriate individual/body - on notice (minor)

Parent/Guardian

‘Prior to making the present Application the Applicant has informed the Respondent’s parent/guardian, XXXX, of the possibility that if the Respondent’s behaviour did not improve then an Application for Injunction would be made. This contact took place by way of phone calls, correspondence and/or home visits on the following dates:….

Immediately prior to issuing the Applicant, I spoke with XXXX to inform them that as the Respondent’s behaviour had not improved that the Applicant would be instructing its solicitors to issue an Application for Injunction. I informed XXXX of the terms which the Applicant would be seeking and asked for their comments. XXXX said [….]/[XXXX refused to make any comments]/[…]’

Suggested paragraphs (pg. 16)

Children Services

‘On XXXX I spoke with XXXX of within Children Services to inform them of the Applicant’s intention to make the present Application against the Respondent, I made them aware of why the present Application was being made and of the terms of the Injunction Order which the Applicant was seeking. The Applicant was informed that [the Respondent was not known to their service]/[the Respondent was known to their service but they would not release any further details of their involvement]/[Children Services were fully supportive of the Application and had no observations to make regards the terms of the Injunction Order which the Applicant is seeking].’

Suggested paragraph (pg. 16)

Consultation/Informing – without notice (minor)

‘As the current Application is made on a without notice basis, the Applicant has not yet consulted with YOT or informed any other body or individual it thinks appropriate. Prior to any first on-notice hearing the Applicant will ensure that it consults with YOT and any appropriate body or person it thinks appropriate and will provide information of the same to the Court.’

Positive Requirements

• Can be imposed on adults and minors

• Cannot be imposed on ex parte interim injunctions

• Supervisor responsible for monitoring compliance must be specified (can be individual or organisation)

• Before including a req. the court must receive evidence about its suitability & enforceability from the supervisor (or staff member if org.)

• Supervisor has positive duties to make necessary arrangements & promote compliance & report compliance/non-compliance to RP and Chief Police

Guidance

“Positive requirements could include the following:

The respondent attending alcohol awareness classes;

Irresponsible dog owners attending dog training classes

provided by animal welfare charities;

The respondent attending mediation sessions with

neighbours of victims.”

Should you ask for positive requirements?

Yes • In certain cases may prove

very effective to resolve ASB • Puts the onus on the

respondent to demonstrate change in their behaviour

• Failure to comply is a breach of the Injunction

• May be effective in helping to build possession case

• If internal supervisor should assist in keeping channels of communication open with respondent

No • May be costly – who is

funding this? • Need to be organised and

have an appropriate supervisor

• Must be clear evidence that requirement is enforceable & suitable

• Must ensure requirements do not interfere with any other court order or Injunction

• May be necessary to provide out of hours provision

Guidance

“The draft of the proposed terms of the injunction should include all proposed prohibitions and requirements, their duration and any powers of arrest attached. Applicants will need to be prepared for the court to examine each prohibition and requirement, and will need to be able to prove how each will help stop or prevent the respondent from engaging in or threatening to engage in anti-social behaviour in the future.”

Suggested paragraph (pg. 17)

• Prohibitions

‘The Applicant seeks the following prohibitions:

…

In relation to prohibition 1 the Applicant believes this prohibition will help prevent the Respondent from engaging in anti-social behaviour to the detriment of those persons the Injunction is sought to protect as it relates to the type of behaviour which the Respondent has engaged in and which is referred to in the Applicant’s evidence.’

Suggested paragraph (pg. 18)

• Requirements ‘The Applicant is seeking the following requirement(s) to be included in any Injunction Order made against the Respondent: […….] In relation to requirement (i) above the Applicant feels that this requirement will help prevent the Respondent from engaging in anti-social behaviour as it will assist the Respondent to obtain appropriate help with their [alcohol/drug] problem which the Applicant believes is a contributing factor to their anti-social behaviour. Further in relation to the aforesaid requirement(s) the person/body who will be responsible for supervising compliance with the requirement is XXXX. The individual/representative of the body has provided a separate witness statement setting out why the requirement is suitable, what arrangements have or will be made in connection with it, with specific reference to how the requirement will be supervised and enforced, and further setting out their duties pursuant to Section 3(4) of the Act.’

Suggested paragraph

• When you feel positive requirements are not appropriate

‘The Applicant does not seek any positive requirements in this specific case as despite the Respondent demonstrating drug/alcohol issues, the Applicant is not able to fund/arrange/supervise the Respondent’s attendance at drug/alcohol counselling from it’s own resources. However, on XXXX I did provide the Respondent with the contact details of the local Community Alcohol Team/Drug Treatment provider and encouraged him/her to contact them for help. I repeated this advice on XXXX and XXXX. As far as I am aware the Respondent has failed to contact the Community Alcohol Team/Drug Treatment provider. [Given the history of this case I am doubtful the Respondent will engage with any support services in any event.]

Suggested paragraph (pg.16)

• Prohibitions/Requirements (general paragraph – adult)

‘Having reviewed the information it holds in relation to the Respondent and having carried out the relevant consultation as referred to above the Applicant is not aware that any of the prohibitions and/or requirements which it seeks as part of the Injunction Order interfere with the times, if any, at which the Respondent normally works or attends any educational establishment nor that they conflict with any requirements of any other court order or injunction to which the Respondent may be subject.’

Suggested paragraph (pg.17)

• Prohibitions/Requirements (general paragraph – minor)

‘Having reviewed the information it holds in relation to the Respondent and having carried out the relevant consultation as referred to above the Applicant is not aware that any of the prohibitions and/or requirements which it seeks as part of the Injunction Order interfere with the times, if any, at which the Respondent normally attends school or any other educational establishment nor that they conflict with any requirements of any other court order or injunction to which the Respondent may be subject.’

Positive Requirement(s) Witness Statement (pgs. 19-22) Key content of witness statement to support positive requirements

• Before the Court will include a requirement in an Injunction Order it MUST receive evidence about its suitability and enforceability from either (a) the individual to be specified within the Injunction Order who is to be responsible for supervising compliance with the requirement; or (b) an individual representing the organisation who is to be responsible for supervising compliance with the requirement.

• Therefore, you will either have to include additional paragraphs with the Housing Management Statement or have a separate witness statement from the person or representative of the organisation who will be supervising compliance.

Questions

Thank you for your time!

If you have any queries or require any assistance as the new tools and powers come into force then please contact us:

08443 814734