There’s a good chance that most people will have heard of the “ASBO” or Anti-Social Behaviour Orders. These orders were introduced by the Blair government to try to deal with behaviour that wasn’t serious enough to be criminal, but which had the potential to cause harassment, alarm or distress to others. What may be less well known is that ASBOs were abolished in England and Wales with effect from 23 March 2015, and replaced with civil injunctions, sometimes known as ASBIs (as well as criminal behaviour orders).
This new regime appears to face many problems of its own. A report from the Civil Justice Council in 2020, Anti-Social Behaviour and the Civil Courts, pointed out that the rates of breach still seemed to be very high (suggesting that the orders weren’t preventing the problematic behaviour); that a high proportion of orders were made without the defendant even knowing that an order was being applied for against them (called an “ex parte” order); and that a significant number of defendants were having to deal with these cases without legal representation, even when they were facing the possibility of custody.
For better or worse, however, there is no sign of any reforms in this area, so for the foreseeable future these orders will continue to be made. Here, we cover some of their key features.
As the name suggests, civil injunctions are generally made in the civil courts, specifically, in the county court, rather than in the magistrates’ or crown court. If the defendant is under 18, the application will be in the youth court, but will largely follow the same rules as the county court would.
The courts will also follow the civil rules of evidence, most importantly the court will accept evidence from witnesses who don’t come to court (hearsay evidence), even from anonymous witnesses.
The first step is that an organisation, usually a local authority or the police, applies for an injunction to be made. The written application will say what terms the applicant wants the court to include in the injunction, and the evidence they rely on. The court will then hold a hearing to decide whether to make the injunction or not. The defendant can be told about this first hearing before, in which case they can come to court and argue against the order.
If you are told that an application for an injunction has been made against you, don’t ignore it, do engage with the process, and get representation if you can. If you don’t turn up the order may well be rubber-stamped without the court knowing the full facts. Even if the court still makes the injunction, very often it will be possible to oppose some of the terms that the applicant asks for and reduce the impact of them.
However, it’s also very common for an injunction to be made without the defendant being told about the application, meaning that the first time they hear about it is when they’re served with the injunction. If this happens to you there will be a “return date” i.e. a second court hearing when the injunction will be reconsidered with everyone able to attend. Until that return date the injunction has to be obeyed (although it is possible to ask for a more urgent second hearing if the rules of the injunction cause real problems).
The test for the court to apply when they decide whether to make an injunction is whether;
a) the defendant has engaged in or threatens to engage in anti-social behaviour
b) it is just and convenient to grant the injunction to prevent similar behaviour
Importantly, the court only has to think that anti-social behaviour has been proven on the balance of probabilities, i.e. that it is more likely than not that the defendant has engaged in antisocial behaviour (or threatened to).
If an injunction is made, there will be a set of rules that the defendant has to follow – usually preventing them from doing specified things, although there can be positive requirements (things the defendant must do) as well.
The second stage to think about is what happens if the defendant breaches the injunction (or when a breach is alleged). Breaching a civil injunction is not technically a crime, but it can have many of the same consequences. First, the defendant can sometimes be arrested, but only if the court which made the injunction included a power of arrest which is something that can often be opposed if the right arguments are made at the initial application stage.
Second, the court will hold a hearing that will be similar to a criminal trial, to decide whether the breach has been proved or not. Even if you haven’t been represented in earlier stages of the case, we would highly recommend you get specialist representation for this hearing: it’s the chance to ask questions of any witnesses who come to court, and to make any arguments about the validity of the original injunction, or about the scope of it. Members of Drystone have found cases where the injunction was poorly worded, meaning that it didn’t actually ban the behaviour that the local authority objected to, so the defendant was not in breach of it.
The third and most important similarity to a criminal charge is that a defendant can go to prison for breach of a civil injunction. Technically referred to as “committal” to prison, the maximum length is 2 years. This is another reason why it is important to be represented.
If you need legal aid to fund your representation, there are different regimes that apply to the different stages of the process. When the court is deciding whether to make an injunction in the first place, civil legal aid rules apply, whereas criminal legal aid applies to proceedings when a breach of the order is alleged.
It is often easier to secure representation under the criminal legal aid regime, so if you have been told that you can’t get legal aid at the first stage, it’s worth checking again if you’re facing breach proceedings. As usual, you will usually want to approach a solicitor’s firm first,Drystone can recommend reputable firms in your area if you don’t know who to ask.