On 8 January 2014, the government suffered a defeat in the Lords over its proposed threshold for granting new injunctions to prevent nuisance and annoyance (IPNAs) set out in clause 1 of the Anti-social Behaviour, Crime and Policing Bill 2013-14. Clause 1 of the Bill proposed that a court may grant an IPNA against an individual respondent (aged 10 or over) if it is satisfied, on the balance of probabilities, that:
- “The proposed respondent has engaged or threatened to engage in conduct that is capable of causing nuisance or annoyance to any person (“anti-social behaviour”)” (condition 1); and
- It is “just and convenient to grant the IPNA to prevent the respondent from engaging in anti-social behaviour” (condition 2).
While recognising that anti-social behaviour can be a blight on society, Lord Dear, a former chief constable of West Midlands, was concerned that clause 1 of the Bill sought to replace the existing (and well-recognised) ASBO threshold test of behaviour that causes harassment, alarm or distress with a much wider one of behaviour that causes “nuisance or annoyance”. He recognised that a range of organisations and civil liberty groups had already expressed concern that the phrase “nuisance or annoyance” was likely to have serious implications for the rule of law given that it:
- Would catch a vast range of everyday behaviour.
- Was subject to a new lower burden of proof, that is the civil burden on the balance of probabilities.
Despite the fact that the phrase “nuisance or annoyance” has been used within the context of existing housing legislation (and is restricted to conduct affecting the housing management functions of the relevant landlord), Lord Dear considered that it should not be applied in the countryside, the public park, shopping malls or sports grounds; as that risked it being used against anyone in society such as individuals who seek to protest peacefully, noisy children in the street, carol singers, trick-or-treaters or church bell ringers. (Note that Lord Dear and those peers supporting his amendments were content to leave the test of nuisance and annoyance in place in the housing context, where it was well tried and proven.)
Although clause 1 deals mainly with the mechanics of the new injunctive procedure, Lord Dear’s view was the threshold test is the pivotal point around which everything else revolves, and the term “nuisance or annoyance” was too vague and imprecise. He therefore proposed inserting into the clause a precise and clear definition of anti-social behaviour as:
“conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, or (b) in the case of an application … by a housing provider or a local authority exercising housing management functions, as conduct capable of causing nuisance or annoyance to any person”.
That amendment would provide certainty and clarity and ensure that the law does not undermine fundamental freedoms such as the right to protest and freedom of expression.
In contrast to those peers who supported the amendment, Lord Faulks defended the legislation. He pointed out that, although peers had expressed concern that it would be too easy to obtain an IPNA and such injunctions posed a risk to freedom of speech, freedom of association and the freedom to indulge in activities that others might find a nuisance, clause 4 of the Bill provided an important filter, given that an application for an IPNA has to be made by an agency such as a local authority, a housing provider or some other body. A further safeguard was a judge then deciding whether it is just and convenient to order an injunction and Lord Faulks commented that it was difficult to envisage a judge ordering an injunction for trivial matters.
However, following a two-hour debate on the amendment, peers voted by 306 to 178 (a majority of 128) against the Bill’s proposals to replace the existing Bill wording with that proposed by Lord Dear.
For more information on the draft version of the Bill, see Legal update, Draft Anti-Social Behaviour Bill published. Practical Law Public Sector will be publishing a practice note on the Bill shortly.