GETTING THE MOST FROM THE ASB INJUNCTION
Recently, I was asked to speak at the RHE Global ASB Conference and given a blank page in terms of the subject matter for my session. Relatively quickly, I decided that I wanted to deliver something that focussed on the creative ways in which the ASB injunction can be used, to ensure that delegates were able to reflect on the wide range of ways in which is can be used.
Generally speaking, I find that ASB practitioners usually sit in one of three camps when it comes to their use of the ASB injunction:
The complete devotees – those who consider the injunction as a first option when a case requires legal intervention, who use this tool far more frequently than any other and who regularly use it for a range of issues.
The occasional user – those who may use the injunction where there has been a particularly serious incident, where it is abundantly clear that urgent legal protection is required to protect the victim/s.
The sparing user – those who may use the injunction very infrequently, perhaps not at all, opting for other tools in the box. There are many reasons why organisations may not embrace the injunction, perhaps having experienced challenges in getting orders granted at court or struggling with partnership working when it comes to dealing with breaches of a prohibition that has a power of arrest attached. It may be that the perceived costs associated with such action are deemed prohibitive to its use.
I cast no judgement on which category anyone falls into, or how many injunctions you apply for in a year; managing cases of ASB is about making the harm stop, not about being top of a league table for the number of legal actions taken. That said, I do believe that the best ASB services consider the entire toolkit when deciding what action to take in a case, weighing up what needs to be achieved and which tool is the best fit.
The injunction is a useful tool in many situations and I think sometimes we don’t fully appreciate the breadth of behaviours that it can be used for. When I ask practitioners the question, the immediate response tends to be that an injunction is most suitable for abusive and threatening behaviour; in reality, the definition of ASB for the purpose of the injunction is so elastic that it can cover a wide range of behaviours.
Paraphrasing, Part 1 of the ASB, Crime and Policing Act 2014 states that an injunction may be granted by the court where is necessary for preventing ASB. The legislation goes on to explain what the definition of ASB is for the purpose of this section. Those working in the sector will no doubt be aware that there are a number of different definitions, depending on who the applicant is and where the behaviour is taking place.
Section 2(1) defines ASB in the following way:
(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.
To put this into simpler terms:
If the behaviour is happening in a residential setting (whether private or otherwise) the test of ASB is where it is capable of causing nuisance or annoyance
If the behaviour is happening in a non-residential setting, the test for ASB is whether it has caused or is likely to cause harassment, alarm or distress
If the applicant is a social landlord then the test is always whether the conduct is capable of causing nuisance or annoyance, as long as the behaviour is housing related (e.g. affecting the housing management function of the landlord).
So, we know that the definition of ASB is either harassment, alarm or distress, or nuisance or annoyance. What behaviour, therefore, can the injunction be used to address?
The answer is as simple as this: any behaviour that meets this definition.
As I have referred above, I commonly see the belief that injunctions are only for serious incidents of ASB, behaviour like violence or threats of. It is absolutely true that the injunction is a fantastic tool for these types of problems – it can be put in place very quickly and can provide specific protection for the victims – but the injunction can also be used for behaviour that we may consider to be lower-harm than this.
Essentially, the injunction can be used for all forms of ASB. The job of the applicant, where the tool is being applied for against behaviour that appears lower harm, would be to show why the injunction is necessary and proportionate, when on first glance it may look like a sledgehammer is being used to crack a nut. For example, if the injunction is being used to tackle dog fouling, has the applicant provided evidence of all the non-legal attempts that have been made; letters, meetings, educational messages, dog ownership agreements, Community Protection warnings etc. Where these are evident, the court will be able to see that the definition of ASB has been met and that it is proportionate to grant an order, given that all other options have been exhausted and the ASB continues.
Turning to the other end of the scale, injunctions are also been used incredibly effectively to deal with behaviours that may traditionally be considered to be serious crimes. We have seen them being used to successfully tackle gang violence and knife crime; prohibitions can be included to keep gang members away from each other, out of certain high-risk areas and unable to carry offensive weapons. Positive requirements can also be included to try and address any root causes or support needs, such as mandating attendance at knife crime awareness classes etc.
Gang violence is just one example of the injunction being used to tackle serious behaviour, indeed we are even seeing the tool being used to minimise national security threats. The reason why these tools are so attractive is largely two-fold; they provide a holistic approach to dealing with problematic behaviour, incorporating boundaries and non-negotiable support, but also provide a suitable alternative where criminal action is not possible.
This second element is very important. Whilst, of course, criminal action should be considered where the law has been broken, it may not always be possible. Perhaps it is not deemed in the public interest to prosecute; perhaps there is not enough evidence to satisfy the criminal standard of proof; perhaps the victim is unwilling to support the prosecution. In all of these examples, the injunction might provide a solution. The standard of proof is lower, being on the balance of probabilities, and hearsay evidence can far more routinely be used.
Finally, we must not overlook the flexibility of the injunction. We are able to use it to hold people accountable for the behaviour of others. For example, we can seek an injunction for a resident to limit the number of visitors they have at their property, or a parent to take control of a young child who is causing havoc to a community, or a dog owner to control a dangerous animal that is running around unsupervised. We can use injunctions to support victims of domestic abuse, even where they are not willing to support the action themselves. We can tackle loud music, mandating when someone can play music and to what volume.
The injunction is not the solution to every case – we know the old adage that no two cases of ASB are the same, and we have to consider each case in turn when deciding the most suitable course of action – but if it is not something that you are at least routinely considering then it may be time to reflect on your processes and see whether you are maximising the benefit of this tool.
This blog was originally produced for the RIAMS ASB community; a free online space to share best practices and ask questions. Further details can be found here
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