Public Nuisance Civil and Criminal      Anti-social Behaviour Orders      Articles and Reports on Anti-social Behaviour      Case Law on Anti-social Behaviour      Harassment and Housing      Statutory and Noise Nuisance      Anti-social Training and Legal Services
     

Though the phrase Anti-social behaviour is a modern one, behaviour which causes harassment to neighbourhoods and communities rather than just individuals is an age old problem which for centuries has been dealt with by the law of Public Nuisance. This is an ancient area of the common law and behaviour which constitutes a Public Nuisance is both a Crime and a Tort (a civil wrong). What that means is that, depending on the facts the Police can prosecute an individual or a group of individuals for the crime of public nuisance and/or Local Councils can obtain Injunctions.

Because there are such a variety of Criminal Offences in existence today there are few prosecutions for public nuisance because defendants are often prosecuted separately for each individual incident as it happens. The main problem with this is that the criminal court often does not get the full picture of the totality of the offending and the individual offences themselves often carry limited sentences because, looked at individually, they are often minor offences.

Local Councils can, relatively easily, obtain Public Nuisance Injunctions from the civil courts preventing people entering certain localities or continuing with their anti-social actions. Such Injunctions have often been used successfully but there are two main problems with them. Because they are Civil Court Injunctions the Police have now direct power to enforce them or to arrest the person who is breaching the Injunction. Also, for technical reasons, Civil Court Injunctions cannot be made against juveniles under 18 years of age.

Because of these difficulties with the law on public nuisance a variety of other legal remedies such as Anti-social Behaviour Orders, Anti-social Behaviour Injunctions, and Statutory Nuisance have been created and are dealt with in this page on the site. The subject of Public Nuisance is however discussed further in the attached, edited, version of Chapter 6 of "Harassment Law and Practice".

The most recent legislation for dealing with neighbourhood harassment is section 1 of the Crime and Disorder Act 1998 . These sections came into force 1st April 1999 and created a new type of court order known as Anti-social Behaviour Orders. Often referred to as 'ASBO's these orders are seen by the government as forming a major part of their law and order strategy. A number of changes to ASBO's were introduced by sections 61 - 66 Police Reform Act 2002 and by sections 85 - 86 of the Anti-social behaviour Act 2003

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In many respects ASBO's are similar to injunctions and are applied for using the Civil rules of evidence. This means that applications for ASBO's can use hearsay evidence though the standard of proof required is still the criminal standard of "beyond reasonable doubt" rather than the civil standard of "on the balance of probabilities" Clingham & McCann [2002] UKHL 39 . However ASBO's are applied for in the (normally criminal) Magistrates Court rather than the Civil County Court and breach of them is a criminal offence rather than a contempt of court. This particular provision was introduced in order to give Police the power to arrest persons who breached and ASBO and it also means that ASBO's can be made against any juvenile of 10 years of age or older. At the time this was a highly controversial innovation in English Law though it is worth remembering that in many jurisdictions, for example Canada and most US states, breach of any Court Order, civil or criminal is a criminal offence. Section 63 of the Police Reform Act 2002 provides for ASBO's to be applied for in the County Court as well as in the Magistrates Court.

One major change in ASBO's introduced by section 64 of the Police Reform Act 2002 is that ASBO's can now be imposed by criminal courts once a defendant has been convicted of a criminal offence. The provision applies to "any" criminal offence. Section 86(2) of the Anti-social Behaviour Act 2003 has simplified the making of these orders on conviction by adding the following subsections to s1C.

"(3A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.
(3B) It is immaterial whether evidence led in pursuance of subsection (3A) would have been admissible in the proceedings in which the offender was convicted"

There are many reports and articles on ASBO's available on this site including

2006 Home Office Guidance on use of ASBO's (PDF)
The 2002 Anti Social Behaviour Orders Rules
The Hearsay in Magistrates Courts Rules

One of the most important principles in relation to ASBO's is that the wording of them should be clear and they should not restrict personal freedom to any greater extent than is necessary. This principle was stated on the 5th April 2000 by the Lord Chief Justice Lord Bingham in the case of B v Chief Constable of Avon and Somerset when he said , para 33.

Though the facts in that particular case related to a Sex Offender Order rather than an ASBO the principles stated by Lord Bingham relate to all court orders including ASBO's and Restraining Orders under s5 Protection from Harassment Act 1997. Unfortunately these principles are often ignored in practice and many ASBO's, Injunctions and Restraining Orders are badly drafted, unclear or unnecessarily restrictive.

Public Nuisance Civil and Criminal      Anti-social Behaviour Orders      Articles and Reports on Anti-social Behaviour      Case Law on Anti-social Behaviour      Harassment and Housing      Statutory and Noise Nuisance      Anti-social Training and Legal Services