Introduction
The power to grant ASBOs was extended to county courts from 1 April 2003 - see Police Reform Act 2002 s63 inserting s1B into the Crime and Disorder Act 1998 and the Police Reform Act 2002 (Commencement No. 4) Order 2003 SI No. 808. Anti-social Behaviour Act 2003 s85 also amended s1B to allow a relevant authority which considers that a person who is not a party to county court proceedings has acted in an anti-social manner, and that those anti-social acts are material to the proceedings, to apply for that person to be joined to the county court proceedings so that the county court may make an ASBO. A relevant authority may also apply to be joined to county court proceedings if it is not already a party so that it may apply for an ASBO. These changes came into effect on 31 March 2004.
The substantive law is very similar to that governing the grant of “civil ASBOs” in criminal courts. The criteria for the grant of ASBOs and the definition of “relevant authority” are the same - see Crime and Disorder Act 1998 s1 and Chapter ** above. However, there are significant procedural differences. One of the key distinctions between applications for ASBOs in criminal and county courts is that county courts have no power to grant “free-standing” ASBOs. Any application for an ASBO in a county court must be made in the “principal proceedings” - see e.g. s1B(2) and s1B(3C) which provides that “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.”
Children
Unlike criminal courts, county courts were not initially able to make ASBOs against children, but from 1 October 2004 pilot arrangements were operating in a number of county courts allowing ASBOs to be made against children (see Anti-social Behaviour Act 2003 (Commencement No. 4) Order 2004 SI No. 2168 and Anti-social Behaviour Act 2003 (Commencement No. 4) (Amendment) Order 2006 SI No. 835. That pilot scheme has now come to an end. The current position therefore is that county courts have no power to make ASBOs against children.
Procedure
Procedure in the county court is governed by CPR Part 65 and its Practice Direction. They came into effect on 30 June 2004.
If the relevant authority is the claimant in the principal proceedings, an application for an ASBO under s1B(2) must be made in the claim form. Where the relevant authority is a defendant in the principal proceedings, an application for an ASBO must be made by an application notice in Form N244 which must be filed with the defence. If the relevant authority becomes aware of the circumstances which lead it to apply for an order after its claim is issued or its defence filed, the application must be made by application notice as soon as possible thereafter. If the application is made by application notice, it should normally be made on at least three days notice to the person against whom the order is sought. (See CPR 65.22 and CPR 23.3, but see CPR 23.4.)
An application under s1B(3B) by a relevant authority which is a party to the principal proceedings to join a person who is not yet a party must be made in accordance with CPR 19. It should be made as soon as possible after the relevant authority considers that the criteria in s1B(3A) are met. The application notice should be in Form N244 and must contain the relevant authority’s reasons for claiming that the person’s anti-social acts are material to the principal proceedings and details of the anti-social acts alleged. The application should normally be made on notice. (See CPR 65.23.)
If the relevant authority is not a party to the principal proceedings, applications under s1B(3) to be made a party and for an ASBO must be made in accordance with CPR Part 19 and on notice in Form N244. Such applications must be made as soon as possible after the authority becomes aware of the principal proceedings and should normally be made on notice to the person against whom the order is sought. (See CPR 65.24.)
As to the relationship between ASBOs and possession claims based upon anti-social behaviour, see e.g. Knowsley Housing Trust v McMullen [2006] EWCA Civ 539; (2006) Times May 22 and Manchester City Council v Higgins [2005] EWCA Civ 1423; [2006] HLR 14.
Evidence
All applications for orders under s1B(4) must be accompanied by written evidence, which must include evidence that s1E (consultation requirement) has been complied with. (See CPR 65.25.) Such written evidence may either be contained in Pt C of the application notice in Form N244 or in a separate witness statement. County courts are obliged to consider whether the relevant authority has complied with the consultation requirements of s1E ( Manchester CC v M [2006] EWCA Civ 423; 20 March 2006).
Hearsay evidence is admissible under the Civil Evidence Act 1995. However “the willingness of a civil court to admit hearsay evidence carries with it inherent dangers”. Claimants should state, by convincing direct evidence, why it is not reasonable and practicable to produce the original makers of statements as witnesses. If statements involve multiple hearsay, the route by which the original statement came to the attention of the person attesting to it should be identified as far as practicable. When hearing such applications, it is better for judges to start their judgements with an analysis of the direct oral evidence received, and then to move onto the evidence of the absent named witnesses and anonymous witnesses. (See Moat Housing Group South Ltd v Harris and Hartless [2005] EWCA Civ 287; (2005); [2005] HLR 33 .)
Interim ASBOs
Applications for interim ASBOs under s1D must be made in accordance with CPR Part 25. Such applications should normally be made in the claim form or application notice seeking the order and on notice to the person against whom the order is sought. Interim ASBOs should be made for a fixed period, but may be varied, renewed or discharged.
Service
PD65, para. 13.1 provides that an ASBO made under s.1B(4) or an interim order under s.1D must be served personally on the defendant.
Jurisdiction
PD2B, para. 8.1A provides that district judges have jurisdiction to make ASBOs under s.1B and interim ASBOs under s.1D.
Enforcement in the county court
It has been suggested that ASBOs made in the county court order under s1B(4) are a species of injunction, so that, if the order is endorsed with a penal notice, breach can be dealt with by an application to the county court for committal. Dyson LJ, Deputy Head of Civil Justice, has indicated to judges that even if (which he doubts) the county court does have jurisdiction to exercise the power to commit for breach of an order made under s1B(4), it should not be exercised as a matter of practice, because the statute provides a clear alternative sanction for breach under section 1(10). For this reason it is good practise not to endorse a county court ASBO with a standard form County Court injunction penal notice. A modified penal notice should be substituted, as follows “IMPORTANT NOTICE TO THE CLAIMANT/ DEFENDANT. If you break [any of the terms of] this order you will be guilty of a criminal offence.” The use of this wording will also help to avoid confusion between ASBOs and very similar orders made the Housing Act 1996.
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