"Anti - social Behaviour Orders - a new false dawn?"
This article appeared in the New Law Journal on the 15 June 2001. It is written by and is © of
Daniel Collins who has given permission for it to be included in www.harassment-law.co.uk. It may only be reproduced with the permission of Daniel Collins
Daniel M Collins considers recent developments
Despite several recent decisions seemingly offering hope to long suffering victims of anti-social neighbours, the jury is out on whether the anti-social behaviour order (ASBO) is providing a substantive solution to this most serious and socially corrosive of problems. Early indications are disappointing, with only 177 such orders having been made up until December 2000.
Anti-social behaviour and historical remedies
For many years, those intimidated by neighbours had been compelled to seek redress through various unhelpful channels, ranging from common law nuisance to statutory nuisance. In respect of those seeking remedies as tenants, this has all too often proved an impossible task. Where the act complained of is perpetrated by a fellow tenant of a common landlord, the case of Hussain v Lancaster City Council made clear that such a landlord will only be liable if he has authorised the acts of nuisance; this seems to require that a let "necessarily involved a nuisance"
Malzy v Eichholz [1916] 2 KB 308. Moreover, case law indicates that this will be difficult to prove even if the landlord is aware of the troublesome nature of tenants when housing them Smith v Scott [1973] 1 Ch 314. Similarly, there is currently no duty of care to existing tenants in the selection of new tenants Smith v Scott [1973] 1 Ch 314.It may be therefore, that one relies upon a landlord to enforce covenants against nuisance that usually exist in the tenancy agreement or to seek repossession on those grounds contained in the various housing legislation. For policy reasons, including those of a financial nature, many public sector landlords will be reluctant to take such steps.
Recent developments
In 1998, the Government introduced the Crime and Disorder Act. This was a commendable piece of legislation aimed at combating a range of anti-social behaviour. Under s. 1, the relevant local authority or the police may apply to the courts for ASBOs in circumstances where a person of over 10 years of age has acted "in a manner that caused or was likely to cause harassment." This supplemented existing powers available to the local authority, which not only include possession proceedings in appropriate circumstances but also, the obtaining of injunctions against the culpable party, which may be coupled with a power of arrest for breach Housing Act 1996, ss 152 & 153
The task of the local authority in obtaining an ASBO has been made simpler by the courts following three recent decisions. Firstly, in R v Manchester Crown Court, ex parte McCann and Others, the Court of Appeal confirmed that proceedings to obtain such an order were civil and, as such, not subject to the stricter criminal rules of evidence; a balance of probabilities test would be applied upon application. The rationale is clear - the overriding purpose of this Act would be defeated if strict criminal rules were applicable. Whereas intimidation of victims might previously have been an obstacle to witness testimony, this should no longer be the case.
Further clarification has more recently been provided by Clingham v Kensington and Chelsea London Borough Council. Here it was held that hearsay evidence comprising statements made by persons not available for cross-examination could also be included as evidence in any application.
In essence, therefore, we have a civil piece of legislation providing criminal sanctions upon breach, with penalties ranging from six months imprisonment or a fine upon summary conviction to a five year sentence or a fine for conviction on indictment.
Human Rights?
In an earlier article,
( Wright H & Sagar T "Out of sight, out of mind" (2000) 150 NLJ 1792) it was suggested that the Act could lead to potential conflict with the Human Rights Act 1998. It would initially seem that any such conflict would be on the basis of a breach of Article 6 - the right to a fair trial. However, this argument was given short shrift by the Court of Appeal in ex parte McCann, where the court decided that the protection afforded by Article 6.2 and 6.3 only applied to those situations where there was a criminal charge as determined by the classification of proceedings, the nature of the offence and the weight of any penalty. As the proceedings were civil, this particular aspect of the Act did not apply. This is despite the fact that the sanctions imposed for breach of an order are clearly criminal. Similarly, in R (On the application of M (A Child) v Manchester Crown Court, it was held that the categorisation of an application for an anti-social behaviour order as a civil matter did not create an infringement of the Human Rights Act.Overall, this liberal judicial approach to such orders should provide an incentive for local authorities to act to protect their tenants. However, as stated earlier, surprisingly few of these orders are being sought. The reasons for this are unclear but may include a lack of financial resources on the part of local authorities rendering a policy of using this power unsustainable.
It should not be forgotten though, that such orders may be sought by the police. A recent example of a successful application is provided by Marylebone Magistrates Court issuing orders against six men who had for some time been responsible for racist and sexist abuse over neighbours on a housing estate in Marylebone (3rd and 4th July 2000). It was interesting to note, that the police opted not to pursue criminal proceedings against the perpetrators due to the reluctance of residents to attend court. The lower standard of evidence required in pursuing an ASBO removed this requirement from the equation.
It is to be hoped that more of these orders will be sought, both by the police and the local authorities, thereby providing a glimmer of hope for those at the mercy of aggressive neighbours. At present, this initiative, introduced for the most laudable of reasons, is looking increasingly like another false dawn.