ANTI-SOCIAL BEHAVIOUR ORDERS

ANTI-SOCIAL BEHAVIOUR ORDERS

(This shows sections 1 to 1I of the Crime and Disorder Act 1998 as amended by sections 61, 65(2) & 68(2) of the Police Reform Act 2002 , sections 85 & 86 of the Anti-social Behaviour Act 2003 and sections 139 t0 143 of The Serious Organised Crime and Police Act 2005. It has been prepared for www.HarassmentLaw.co.uk )

1. Anti-social behaviour orders

(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely

(a) that the person has acted, since the commencement date, [1st April 1999] in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him.

(1A) In this section and sections 1B 1CA and 1E "relevant authority" means-

(a) the council for a local government area;

(aa) in relation to England a county council;

(b) the chief officer of police of any police force maintained for a police area;

(d) any person registered under section 1 of the Housing Act 1996 (c. 52) as a social landlord who provides or manages any houses or hostel in a local government area.

(e) a housing action trust established by order in pursuance of section 62 of the Housing Act 1988.

(1B) In this section "relevant persons" means-

(a) in relation to a relevant authority falling within paragraph (a) of subsection (1A), persons within the local government area of that council;

(aa) in relation to a relevant authority falling within paragraph (aa) of subsection (1A), persons within the county of the county council;

(b) in relation to a relevant authority falling within paragraph (b) of that subsection, persons within the police area;

(i) persons who are within or likely to be within a place specified in section 31(1)(a) to (f) of the Railways and Transport Safety Act 2003 in a local government area; or

(ii) persons who are within or likely to be within such a place

(d) in relation to a relevant authority falling within paragraph (d) of that subsection-

(i) persons who are residing in or who are otherwise on or likely to be on premises provided or managed by that authority; or

(ii) persons who are in the vicinity of or likely to be in the vicinity of such premises.

(2) (repealed)

(3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the local government area or police area concerned.

(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an 'anti-social behaviour order') which prohibits the defendant from doing anything described in the order.

(5) For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.

(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons (whether relevant persons or persons elsewhere in England and Wales) from further anti-social acts by the defendant.

(7) An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.

(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.

(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order.

(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is guilty of an offence and liable

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(10A) The following may bring proceedings for an offence under subsection (10)

(a) a council which is a relevant authority;

(b) the council for the local government area in which a person in respect of whom an anti-social behaviour order has been made resides or appears to reside.

(10B) If proceedings for an offence under subsection (10) are brought in a youth court section 47(2) of the Children and Young Persons Act 1933 (c. 12) has effect as if the persons entitled to be present at a sitting for the purposes of those proceedings include one person authorised to be present by a relevant authority.

(10C) In proceedings for an offence under subsection (10), a copy of the original anti-social behaviour order, certified as such by the proper officer of the court which made it, is admissible as evidence of its having been made and of its contents to the same extent that oral evidence

(10D) In relation to proceedings brought against a child or a young person for an offence under subsection (10)-

(a) section 49 of the Children and Young Persons Act 1933 (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the child or young person against whom the proceedings are brought;

(b) Section 39 of the Children and Young Persons Act 1933 (power to restrict reporting of criminal proceedings involving persons under 18) does so apply.

(10E) If, in relation to any such proceedings, the court does exercise its power to give a direction under section 39 of the Children and Young Persons Act 1933 (c. 12). it shall give its reasons for doing so.

(11) Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the offence.

(12) In this section

"British Transport Police Force" means the Force established by Part 3 of The Railways and Transport Safety Act

"child" and "young person" shall have the same meaning as in the Children and Young Persons Act 1933;".

'the commencement date' means the date of the commencement of this section [1st April 1999]

'local government area' means

(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly

(b) in relation to Wales, a county or county borough.

1A Power of Secretary of State to add to relevant authorities
(1) The Secretary of State may by order provide that the chief officer of a body of constables maintained otherwise than by a police authority is, in such cases and circumstances as may be prescribed by the order, to be a relevant authority for the purposes of section 1 above.

(2) The Secretary of State may by order-

(a) provide that a person or body of any other description specified in the order is, in such cases and circumstances as may be prescribed by the order, to be a relevant authority for the purposes of such of sections 1 above and 1B, 1CA and 1E below as are specified in the order; and

(b) prescribe the description of persons who are to be "relevant persons" in relation to that person or body.

1AA Individual support orders
(1) Where a court makes an anti-social behaviour order in respect of a defendant who is a child or young person when that order is made, it must consider whether the individual support conditions are fulfilled.
(2) If it is satisfied that those conditions are fulfilled, the court must make an order under this section ("an individual support order") which-
(a) requires the defendant to comply, for a period not exceeding six months, with such requirements as are specified in the order; and

(b) requires the defendant to comply with any directions given by the responsible officer with a view to the implementation of the requirements under paragraph (a) above.

(3) The individual support conditions are-
(a) that an individual support order would be desirable in the interests of preventing any repetition of the kind of behaviour which led to the making of the anti-social behaviour order;

(b) that the defendant is not already subject to an individual support order; and

(c) that the court has been notified by the Secretary of State that arrangements for implementing individual support orders are available in the area in which it appears to it that the defendant resides or will reside and the notice has not been withdrawn.

(4) If the court is not satisfied that the individual support conditions are fulfilled, it shall state in open court that it is not so satisfied and why it is not.
(5) The requirements that may be specified under subsection (2)(a) above are those that the court considers desirable in the interests of preventing any repetition of the kind of behaviour which led to the making of the anti-social behaviour order.

(6) Requirements included in an individual support order, or directions given under such an order by a responsible officer, may require the defendant to do all or any of the following things-

(a) to participate in activities specified in the requirements or directions at a time or times so specified;

(b) to present himself to a person or persons so specified at a place or places and at a time or times so specified;

(7) But requirements included in, or directions given under, such an order may not require the defendant to attend (whether at the same place or at different places) on more than two days in any week; and "week" here means a period of seven days beginning with a Sunday.
(8) Requirements included in, and directions given under, an individual support order shall, as far as practicable, be such as to avoid-
(a) any conflict with the defendant's religious beliefs; and

(b) any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(9) Before making an individual support order, the court shall obtain from a social worker of a local authority social services department or a member of a youth offending team any information which it considers necessary in order-
(a) to determine whether the individual support conditions are fulfilled, or

(b) to determine what requirements should be imposed by an individual support order if made,

and shall consider that information.
(10) In this section and section 1AB below "responsible officer", in relation to an individual support order, means one of the following who is specified in the order, namely-
(a) a social worker of a local authority social services department;

(b) a person nominated by a person appointed as chief education officer under section 532 of the Education Act 1996 (c. 56);

1AB Individual support orders: explanation, breach, amendment etc
(1) Before making an individual support order, the court shall explain to the defendant in ordinary language-
(a) the effect of the order and of the requirements proposed to be included in it;

(b) the consequences which may follow (under subsection (3) below) if he fails to comply with any of those requirements; and

(c) that the court has power (under subsection (6) below) to review the order on the application either of the defendant or of the responsible officer.

(2) The power of the Secretary of State under section 174(4) of the Criminal Justice Act 2003 includes power by order to-
(a) prescribe cases in which subsection (1) above does not apply; and

(b) prescribe cases in which the explanation referred to in that subsection may be made in the absence of the defendant, or may be provided in written form.

(3) If the person in respect of whom an individual support order is made fails without reasonable excuse to comply with any requirement included in the order, he is guilty of an offence and liable on summary conviction to a fine not exceeding-
(a) if he is aged 14 or over at the date of his conviction, £1,000;

(b) if he is aged under 14 then, £250.

(4) No referral order under section 16(2) or (3) of the Powers of Criminal Courts (Sentencing) Act 2000 (referral of young offenders to youth offender panels) may be made in respect of an offence under subsection (3) above.
(5) If the anti-social behaviour order as a result of which an individual support order was made ceases to have effect, the individual support order (if it has not previously ceased to have effect) ceases to have effect when the anti-social behaviour order does.
(6) On an application made by complaint by-
(a) the person subject to an individual support order, or

(b) the responsible officer,

the court which made the individual support order may vary or discharge it by a further order.
(7) If the anti-social behaviour order as a result of which an individual support order was made is varied, the court varying the anti-social behaviour order may by a further order vary or discharge the individual support order.

1F Contracting out of local authority functions

(1) The Secretary of State may by order provide that a relevant authority which is a local authority may make arrangements with a person specified (or of a description specified) in the order for the exercise of any function it has under sections 1 to 1E above-

(a) by such a person, or

(b) by an employee of his.

(2) The order may provide-

(a) that the power of the relevant authority to make the arrangements is subject to such conditions as are specified in the order;

(b) that the arrangements must be subject to such conditions as are so specified;

(3) The order may provide that the arrangements may authorise the exercise of the function-

(a) either wholly or to such extent as may be specified in the order or arrangements;

(b) either generally or in such cases or areas as may be so specified.

(4) An order may provide that the person with whom arrangements are made in pursuance of the order is to be treated as if he were a public body for the purposes of section 1 of the Local Authorities (Goods and Services) Act 1970.

(5) The Secretary of State must not make an order under this section unless he first consults-

(a) the National Assembly for Wales, if the order relates to a relevant authority in Wales;

(b) such representatives of local government as he thinks appropriate;

(6) Any arrangements made by a relevant authority in pursuance of an order under this section do not prevent the relevant authority from exercising the function to which the arrangements relate.

(7) The following provisions of the Deregulation and Contracting Out Act 1994 apply for the purposes of arrangements made in pursuance of an order under this section as they apply for the purposes of an authorisation to exercise functions by virtue of an order under section 70(2) of that Act-

(a) section 72 (effect of contracting out);

(b) section 73 (termination of contracting out);

(d) paragraph 3 of Schedule 16 (authorised persons to be treated as officers of local authority).

(8) For the purposes of subsection (7), any reference in the provisions specified in paragraphs (a) to (d) to a person authorised to exercise a function must be construed as a reference to a person with whom an arrangement is made for the exercise of the function in pursuance of an order under this section.

(9) Relevant authorities and any person with whom arrangements are made in pursuance of an order under this section must have regard to any guidance issued by the Secretary of State for the purposes of this section.

(10) An order under this section may make different provision for different purposes.

(11) An order under this section may contain-

(a) such consequential, supplemental or incidental provisions (including provision modifying any enactment), or

(b) such transitional provisions or savings,

as the person making the order thinks appropriate.

(12) Each of the following is a local authority-

(a) a local authority within the meaning of section 270 of the Local Government Act 1972;

(b) the Common Council of the City of London;

(2) In subsection (1) of section 1A of that Act (definition of relevant authority) (as re-numbered by section 139(3) of this Act) for "and 1E" substitute ", 1E and 1F".

(3) In section 114(3) of that Act (orders and regulations) after "section" insert "1F

1I Special measures for witnesses

(1) This section applies to the following proceedings-

(a) any proceedings in a magistrates' court on an application for an anti-social behaviour order,

(b) any proceedings in a magistrates' court or the Crown Court so far as relating to the issue whether to make an order under section 1C, and

(2) Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 (special measures directions in the case of vulnerable and intimidated witnesses) shall apply in relation to any such proceedings as it applies in relation to criminal proceedings, but with-

(a) the omission of the provisions of that Act mentioned in subsection (3) (which make provision appropriate only in the context of criminal proceedings), and

(b) any other necessary modifications.

(3) The provisions are-

(a) section 17(4),

(b) section 21(1)(b) and (5) to (7),

(d) section 27(10), and

(e) section 32.

(4) Any rules of court made under or for the purposes of Chapter 1 of Part 2 of that Act shall apply in relation to proceedings to which this section applies-

(a) to such extent as may be provided by rules of court, and

(b) subject to such modifications as may be so provided.

(5) Section 47 of that Act (restrictions on reporting special measures directions etc.) applies, with any necessary modifications, in relation to-

(a) a direction under section 19 of the Act as applied by this section, or

(b) a direction discharging or varying such a direction,

and sections 49 and 51 of that Act (offences) apply accordingly

1B Orders in county court proceedings

(1) This section applies to any proceedings in a county court ("the principal proceedings").

(2) If a relevant authority-

(a) is a party to the principal proceedings, and

(b) considers that a party to those proceedings is a person in relation to whom it would be reasonable for it to make an application under section 1,

it may make an application in those proceedings for an order under subsection (4).

(3) If a relevant authority-

(a) is not a party to the principal proceedings, and

(b) considers that a party to those proceedings is a person in relation to whom it would be reasonable for it to make an application under section 1,

it may make an application to be joined to those proceedings to enable it to apply for an order under subsection (4) and, if it is so joined, may apply for such an order.

(3A) Subsection (3B) applies if a relevant authority is a party to the principal proceedings and considers-

(a) that a person who is not a party to the proceedings has acted in an anti-social manner, and

(b) that the person's anti-social acts are material in relation to the principal proceedings.

(3B) The relevant authority may-

(a) make an application for the person mentioned in subsection (3A)(a) to be joined to the principal proceedings to enable an order under subsection (4) to

be made in relation to that person;

(b) if that person is so joined, apply for an order under subsection (4).

(3C) But a person must not be joined to proceedings in pursuance of subsection (3B) unless his anti-social acts are material in relation to the principal proceedings.

(4) If, on an application for an order under this subsection, it is proved that the conditions mentioned in section 1(1) are fulfilled as respects that other party, the court may make an order which prohibits him from doing anything described in the order.

(5) Subject to subsection (6), the party to the principal proceedings against whom an order under this section has been made and the relevant authority on whose application that order was made may apply to the county court which made an order under this section for it to be varied or discharged by a further order.

(6) Except with the consent of the relevant authority and the person subject to the order, no order under this section shall be discharged before the end of the period of two years beginning with the date of service of the order.

(7) Subsections (5) to (7) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders made under this section as they apply for the purposes of the making and effect of anti-social behaviour orders.

1C Orders on conviction in criminal proceedings

(1) This section applies where a person (the "offender") is convicted of a relevant offence.

(2) If the court considers-

(a) that the offender has acted, at any time since the commencement date, [1st April 1999] in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and

(b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,

it may make an order which prohibits the offender from doing anything described in the order.

(3) The court may make an order under this section

(a) if the prosecutor asks it to do so, or

(b) if the court thinks it is appropriate to do so.

(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.

(4) An order under this section shall not be made except-

(a) in addition to a sentence imposed in respect of the relevant offence; or

(b) in addition to an order discharging him conditionally.

(4A) The court may adjourn any proceedings in relation to an order under this section even after sentencing the offender.

(4B) If the offender does not appear for any adjourned proceedings, the court may further adjourn the proceedings or may issue a warrant for his arrest.

(4C) But the court may not issue a warrant for the offender's arrest unless it is satisfied that he has had adequate notice of the time and place of the adjourned proceedings.

(5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.

(6) to (8) (repealed 1^st July 2005 replaced by 1CA)

(9) Subsections (7), (10) (10C) (10D), (10E) and (11) of section 1 apply for the purposes of the making and effect of orders made by virtue of this section as they apply for the purposes of the making and effect of anti-social behaviour orders.

(9A) The council for the local government area in which a person in respect of whom an anti-social behaviour order has been made resides or appears to reside may bring proceedings under section 1(10) (as applied by subsection (9) above) for breach of an order under subsection (2) above.

(9B) Subsection (9C) applies in relation to proceedings in which an order under subsection (2) is made against a child or young person who is convicted of an offence.

(9C) In so far as the proceedings relate to the making of the order-

(a) section 49 of the Children and Young Persons Act 1933 (c. 12) (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the child or young person against whom the order is made;

(b) section 39 of that Act (power to prohibit publication of certain matter) does so apply.

(10) In this section-

"the commencement date" has the same meaning as in section 1 above; [1st April 1999]

"the court" in relation to an offender means-

(a) the court by or before which he is convicted of the relevant offence; or

(b) if he is committed to the Crown Court to be dealt with for that offence, the Crown Court; and

"relevant offence" means an offence committed after the coming into force of section 64 of the Police Reform Act 2002 (c. 30) [1st December 2002]

1CA Variation and discharge of orders under section 1C

(1) An offender subject to an order under section 1C may apply to the court which made it for it to be varied or discharged.

(2) If he does so, he must also send written notice of his application to the Director of Public Prosecutions.

(3) The Director of Public Prosecutions may apply to the court which made an order under section 1C for it to be varied or discharged.

(4) A relevant authority may also apply to the court which made an order under section 1C for it to be varied or discharged if it appears to it that-

(a) in the case of variation, the protection of relevant persons from anti-social acts by the person subject to the order would be more appropriately effected by a variation of the order;

(b) in the case of discharge, that it is no longer necessary to protect relevant persons from anti-social acts by him by means of such an order.

(5) If the Director of Public Prosecutions or a relevant authority applies for the variation or discharge of an order under section 1C, he or it must also send written notice of the application to the person subject to the order.

(6) In the case of an order under section 1C made by a magistrates' court, the references in subsections (1), (3) and (4) to the court by which the order was made include a reference to any magistrates' court acting in the same local justice area as that court.

(7) No order under section 1C shall be discharged on an application under this section before the end of the period of two years beginning with the day on which the order takes effect, unless-

(a) in the case of an application under subsection (1), the Director of Public Prosecutions consents, or

(b) in the case of an application under subsection (3) or (4), the offender consents."

(5) In section 3 of the Prosecution of Offences Act 1985 (c. 23) (functions of the Director of Public Prosecutions), in subsection (2), after paragraph (fa) insert-

"(fb) where it appears to him appropriate to do so, to have the conduct of applications under section 1CA(3) of the Crime and Disorder Act 1998 for the variation or discharge of orders made under section 1C of that Act;

(fc) where it appears to him appropriate to do so, to appear on any application under section 1CA of that Act made by a person subject to an order under section 1C of that Act for the variation or discharge of the order

1D Interim orders

(1) This section applies where-

(a) an application is made for an anti-social behaviour order;

(b) an application is made for an order under section 1B;

(d) the court is minded to make an order under section 1C of its own motion.

(2) If, before determining the application or request, or before deciding whether to make an order under section 1C of its own motion, the court considers that it is just to make an order under this section pending the determination of that application or request or before making that decision, it may make such an order

(3) An order under this section is an order which prohibits the defendant from doing anything described in the order.

(4) An order under this section-

(a) shall be for a fixed period;

(b) may be varied, renewed or discharged;

(c) shall, if it has not previously ceased to have effect, cease to have effect on the determination of the application or request mentioned in subsection (1), or on the court's making a decision as to whether or not to make an order under section 1C of its own motion.

(5) In relation to cases to which this section applies by virtue of paragraph (a) or (b) of subsection (1),Subsections (6), (8) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders under this section as they apply for the purposes of the making and effect of anti-social behaviour orders."

(6) In relation to cases to which this section applies by virtue of paragraph (c) or (d) of subsection (1)-

(a) subsections (6) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders under this section as they apply for the purposes of the making and effect of anti-social behaviour orders; and

(b) section 1CA applies for the purposes of the variation or discharge of an order under this section as it applies for the purposes of the variation or discharge of an order under section 1C

1E Consultation requirements

(1) This section applies to-

(a) applications for an anti-social behaviour order; and

(b) applications for an order under section 1B.

(2) Before making an application to which this section applies, the council for a local government area shall consult the chief officer of police of the police force maintained for the police area within which that local government area lies.

(3) Before making an application to which this section applies, a chief officer of police shall consult the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside.

(4) Before making an application to which this section applies, a relevant authority other than a council for a local government area or a chief officer of police shall consult-

(a) the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside; and

(b) the chief officer of police of the police force maintained for the police area within which that local government area lies.

4. Appeals against orders

(1) An appeal shall lie to the Crown Court against the making by a magistrates' court of an anti-social behaviour order, an individual support order, or an order under section 1D above

(2) On such an appeal the Crown Court

(a) may make such orders as may be necessary to give effect to its determination of the appeal and

(b) may also make such incidental or consequential orders as appear to it to be just.

(3) Any order of the Crown Court made on an appeal under this section (other than one directing that an application be re-heard by a magistrates' court) shall, for the purposes of section 1(8) or 2(6) above, be treated as if it were an order of the magistrates' court from which the appeal was brought and not an order of the Crown Court.