Anti-social behaviour injunctions

Transcription

1 Anti-social behaviour injunctions Powers and tools guide February

2 Contents Background... 3 Introduction to Anti-Social Behaviour Injunctions - ASBIs... 4 Building a case file... 6 What is anti-social behaviour? Definitions of causing or likely to cause harassment, alarm or distress Definition of harassment, alarm or distress Procedure for an application for an ASBI On notice and without notice Without notice application (also known as ex-parte hearing) Legal test for granting injunction Burden of proof Standard of proof Age restrictions Powers of arrest Human rights Jurisdiction of Youth, County, Crown and High Courts Youth/young person Adults Legal aid/funding Appeals against ASBIs or discharge applications Arrest without warrant Issuing of arrest warrant After the ASBI

3 Background 1. Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (ASBCPA or the Act ) provides new powers for obtaining anti-social behaviour injunctions (ASBIs) against individuals in certain specified circumstances. The ASBIs will replace the earlier anti-social behaviour orders (ASBOs). The new powers include the power to prohibit a person from doing something, and also the power to require a person to do something: this positive requirement sets ASBIs apart from ASBOs. Positive requirements can include any requirement which will help to address the underlying causes of the behaviour as part of a long term resolution. The most important distinction with ASBIs however is that these are civil orders and as such they do not require a conviction in a criminal court. ASBIs are civil proceedings and are conducted under civil law of evidence and procedure (for example, the standard of proof is not beyond a reasonable doubt as in criminal cases, but on the balance of probabilities ). 2. The ASBI can be used to counter a wide range of offences and misconduct common on NHS premises, such as causing nuisance or disturbance within hospital premises 1 or non-physical assault, i.e. verbal assault, minor thefts, causing harassment, alarm or distress, etc As outlined in the Act, NHS Protect is a specified organisation that has been granted the statutory powers to seek ASBIs in civil courts. The powers granted under the Act only apply to England and Wales. Within NHS Protect, only the Legal Protection Unit (LPU) has the legal power and authority to commence court proceedings to seek an ASBI in a civil court. More detailed guidance can be found later in this document, but the recommendation is that Local Security Management Specialists (LSMSs) first consult with NHS Protect s Area Security Management Specialist (ASMS) for their region before seeking the 1 As regulated and defined by the Criminal Justice and Immigration Act The statutory Home Office guidance can be found by following this link: ncefrontline.pdf 3

4 guidance of the LPU on whether the facts of a particular case merit making an application for an ASBI. Introduction to Anti-Social Behaviour Injunctions - ASBIs 4. An anti-social behaviour injunction is a court order prohibiting a person from doing something or requiring a person to do something. The purpose of the ASBI or injunction is to prevent the people engaging, or considering engaging, in anti-social behaviour from doing so. The key aspects of ASBIs are: to prohibit the respondent from doing anything described in the injunction to require the respondent to do anything described in the injunction a third aspect could be said to be the giving of a formal/court order to an individual to indicate that the behaviour in question is anti-social and contrary to law 5. Injunctions obtained from a court can also be in different forms: Interim injunction: A court can grant an interim injunction until the determination of the final application. Final Order injunction: This can be set for a particular period of time, e.g. 12 months or 18 months. Varied Order of injunction: This can be the final order, which may have been appealed and modified, or a variation of the final order by consent between parties due to practical issues, e.g. prohibition of an individual from a particular area is no longer necessary as the person has moved away from the area. 4

5 6. When considering the type of prohibitions 3 that might form part of an injunction, it should be taken into account that a prohibition should: cover the range of anti-social acts committed by the defendant, for instance nuisance, rude and disruptive behaviour. be necessary for protecting person(s) within a defined area from the antisocial acts of the defendant. be reasonable and proportionate. be realistic and practical. be clear, concise and easy to understand. 7. When considering the positive requirements of an ASBI, which require the defendant/respondent to do something as opposed to refraining from doing something, much will be specific to the individual and the facts of his or her particular case. Some examples of positive action requirements of an ASBI include the following (please note that this is not an exhaustive list): the respondent attending alcohol awareness classes for alcohol-related problems irresponsible dog owners attending dog training classes provided by animal welfare charities the respondent attending mediation sessions with victims of anti-social behaviour a requirement to keep in touch with the person or the organisation supervising the ASBI a requirement to notify the person or the organisation supervising the ASBI of a change of address. 3 For instance, examples of prohibitions an LSMS might consider, depending on the individual case, include (please note that this is not an exhaustive list but simply some examples): prohibiting an individual from particular NHS premises; prohibiting an individual from particular area; prohibiting an individual from hospital hopping; prohibiting an individual from drinking in public or in particular NHS area or premises. 5

6 Building a case file 8. In any court application, it is crucial to ensure that the evidence is collected and recorded in a methodical, safe and traceable manner. All evidence must be preserved in a way that ensures that there is no accidental tampering. The evidence collected must be auditable, which means it should be possible to answer the following questions: i. Where did the evidence come from? ii. Who collected the evidence? iii. Who is producing the evidence in court? iv. How is the evidence relevant to this case? 9. As these are civil proceedings, the application form known as the claim form will include a short summary of the facts of the case, which must be supported by a witness statement with a declaration of truth setting out the basis on which the application is made and how the statutory criteria are met. The LPU will fill in the claim form. 10. In addition, each claim or application will be supported by a particulars of claim document. This is a specific legal document usually drafted by counsel instructed in the matter: in an application for an ASBI the particulars of claim will set out in concise form the facts of the case, the legal elements in support of obtaining an ASBI, and the terms of the ASBI. The LPU will liaise with the counsel instructed in the matter to draft the particulars of claim. 11. It is crucial that the witness statements produced in support of an application for an ASBI: are clear, concise and accurate focus on factual criteria to be satisfied for obtaining an ASBI, e.g. conduct of the respondent focus on and address all relevant legal issues, e.g. type of prohibition or requirement sought avoid lengthy and complicated sentences 6

7 are chronological reference exhibits in an orderly and easily cross-checkable manner, e.g. start with exhibit ref: KJ/1 and then follow it in sequence have paragraph numbers and page numbers contain a statement of truth 12. A statement of truth should contain the following words: I believe the facts stated in this witness statement are true to the best of my knowledge and belief. 13. The suggested structure of a witness statement is as follows: a) Introduction: Set out in clear and concise terms that the application is for an ASBI pursuant to Part 1 ASBCPA Suitable wording could be as follows: 1. I, [insert name], [insert occupation] of [insert address] make this witness statement in support of the application by NHS Protect s Legal Protection Unit ( the claimant ) for an injunction against [insert name of the defendant/respondent], [insert his or her occupation, if known] of [insert address, if known] pursuant to section 1 of the ASBCPA The matters to which I herein refer to are true and within my information, knowledge and belief save otherwise where stated. If I refer to information provided to me by other sources, I will confirm the source b) Power to apply: Mention the statutory power to apply to for an ASBI pursuant to section 5(h) ASBCPA c) Facts: a. Set out the factual circumstances which make it appropriate to apply for an ASBI. b. Set out the relevant criteria for making the ASBI, with reference to the conduct,, stating whether it is conduct that has occurred or 7

8 is likely to occur and addressing different elements such as harassment, alarm or distress. d) Set out whether the application is with or without notice to the respondent: If it is with notice, set out details as to service of the documents personally on the respondent confirming that the respondent is fully aware of the hearing date. If it is without notice, clearly set out the reasons why it was necessary and proportionate for the application to be made without notice. e) Draft order: The draft order will be drafted by the LPU in conjunction with counsel instructed. It will set out the type of injunction sought, for example is it a prohibition injunction or a requirement injunction or is it a mixture of the two? The terms of the injunction must be clear, precise, practical and legally enforceable. The draft order should incorporate the details of the person responsible for enforcement and compliance. f) Inform the court as to whether the terms sought in the injunctions will or will not be contrary to section 1(5) ASBCPA 2014, which specifically prohibits interference with: a. working hours b. time attending school or any other educational establishment c. any other court order or other injunction that the respondent may be the subject of g) Exhibits: Exhibits are documents, items or things that are produced in support of a fact or assertion. Any exhibit when collected should be properly identified and should be put in a separate bag and tagged with a unique reference number. Make sure that each item has been bagged, tagged and is stored securely. h) Once the document and/or items are ready to be produced as an exhibit, then they must be produced through a witness statement. The items 8

9 should be produced as an exhibit by reference to the name of the person producing the witness statement and exhibiting it, e.g. John Thomas s first exhibit would be JT/1 followed in sequence by the other exhibits being produced. For instance, the exhibit reference numbers could be as follows: Exhibit Ref: JT/1: Photo of the injury to the wrist. Exhibit Ref: JT/2: Text message received from the defendant/respondent. Exhibit Ref: JT/3: Details of visits to a particular hospital by the defendant /respondent. i) Any exhibits produced must be: Paginated for ease of reference by the court In a chronological order (if appropriate) in line with the witness statement paragraphs Tabulated and indexed. 14. It is anticipated that most of the witness statements in support of an ASBI will come from LSMSs. There may be occasions when unrelated third parties, such as witnesses and hospital staff, may have to give evidence in support of the ASBI. If the matter proceeds to court, the witnesses will have to give evidence and this may mean that NHS staff will have to attend court. 15. Before giving evidence in court, the witnesses will be given further guidance as to how the process works. This guidance will be given at court by the LPU in conjunction with counsel attending the court hearing. 16. There is one significant difference between civil and criminal proceedings in relation to witnesses giving evidence. In civil proceedings, the normal rule is that the witness statement submitted to the court prior to the hearing will stand as evidence-in-chief: this means that once the witness statement is tendered and produced as evidence in court, the witness will only be able to add to or 9

10 expand on the facts stated in the witness statement if permitted by the court. Otherwise, the witness would simply attend court and confirm that the declaration of truth is correct and then would be cross-examined by a barrister acting on behalf of the defendant /respondent. Once the cross-examination is completed, the witness may be asked questions that arise as a result of the cross-examination (this is known as re-examination ). There are no set time limits for the re-examination, as its length will differ depending on the specifics of the case, the subject matter, and the issues in contention, to mention a few aspects. 17. By contrast, in criminal proceedings, even though witness statements are made in writing, when giving evidence the witness will go through all the evidence orally. This means that the judge and the jury will follow the evidence fresh, as they do not have a copy of the written witness statement. In civil proceedings, the judge will have a copy of the witness statement and would normally have read it before the hearing. What is anti-social behaviour? 18. The Oxford dictionary defines the term anti-social as being contrary to the laws and customs of society, in a way that causes annoyance and disapproval in others. Anti-social is therefore a broad term, which covers many kinds of dayto-day crime, nuisance and disorderly behaviour which impacts on the lives of other people. Anti-social behaviour can range from public drunkenness, vandalism, and failure to control aggressive and dangerous dogs to noise pollution and abusive neighbours. This is obviously not an exhaustive list, but a general indication of the types of behaviour ASBIs can cover. Whether a particular incident or behaviour amounts to anti-social behaviour, will need to be judged on a case by case basis. Suspected anti-social behaviour should be referred to the LPU for review and legal analysis, after initial discussion with the ASMS. It is worth noting that individual LSMSs do not have the legal power or authority to commence court proceedings to seek an ASBI. LSMSs should consult with their ASMS before referring the matter to the LPU. Even in cases which are urgent, or if the incident takes place out of hours or at the weekend, 10

11 the ASMS should be consulted prior to an LPU referral. If the situation or circumstances are serious and/or dangerous, the LSMS should seek immediate help from the police. 19. NHS organisations have a duty to protect their staff, service users, patients, suppliers and others directly or indirectly involved in the operation of NHS services from anti-social behaviour. Assisting the NHS in discharging these duties is one of the roles of NHS Protect. 20. Anti-social behaviour in NHS surroundings can also take many forms, from verbal and physical abuse of patients and staff to frivolous (mis)-use of 999, from hospital hopping to other kinds of misuse of hospital resources (this list is not exhaustive and may change as technology and NHS working practices change). If left unchecked, anti-social behaviour will ultimately affect the quality of the health services provided. 21. The legal definition of anti-social behaviour under section 2(1) of the Act is as follows: (1) In this Part anti-social behaviour means (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. 22. Section 2(1) captures two types of anti-social behaviour, as follows: a. Conduct that has caused or is likely to cause harassment, alarm or distress to any person. This covers anti-social behaviour in any circumstances, including NHS settings. b. Conduct causing nuisance or annoyance in a residential or housing environment. 11

12 23. The LPU has the power to deal with the first type of anti-social behaviour only, i.e. conduct under section 2(1)(a) but not under sections 2 (1)(b) and (c). 24. In order to apply for an ASBI only one of the requirements of anti-social behaviour as set out in section 2(1) has to be demonstrated or established to the satisfaction of the court. Definitions of causing or likely to cause harassment, alarm or distress 25. In an NHS environment, an ASBI can be sought in instances where anti-social behaviour has either: a. Caused (i.e. events that have already happened); or is b. Likely to cause (i.e. future event) harassment, alarm or distress to any person 26. Whether something has caused or is likely to cause harassment, alarm or distress will very much depend on the facts of each case. For example, if a patient behaves aggressively by shouting, screaming and swearing in a crowded A&E waiting room, then the staff working at the front desk or a doctor or a paramedic who witnessed the behaviour may feel alarmed or distressed. So in this instance the criteria under section 2(1)(a) would be fulfilled. Definition of harassment, alarm or distress 27. The terms harassment, alarm and distress are not defined by the Act. 28. However, guidance can be gleaned from a substantial body of case law and interpretations as to what amounts to harassment, alarm or distress pursuant to sections 4A and 5 of the Public Order Act Harassment (which need not be grave, but should also not be trivial) could be experienced without any real emotional disturbance or upset. This will be fact specific and depends on the emotions of the person experiencing the harassment. 12

13 30. Alarm could be experienced as a frightened state of mind. This will be fact specific and depends on the emotions of the person experiencing the harassment. 31. Distress requires real emotional disturbance or upset. While the degree of such disturbance or upset need not be grave, it should not be trivial. 32. In combination, the words harassment, alarm or distress give some idea of the mischief at which the legislation is aimed. They are relatively strong words, as befits an offence which carries imprisonment or a fine under the Public Order Offences Act Procedure for an application for an ASBI 33. ASBIs are injunctions that are known as statutory proceeding injunctions, as they are governed by the Act and by the Civil Procedure Rules ( CPR ): CPR Part 65, titled Proceedings relating to Anti-Social Behaviour and Harassment 4, and CPR Part 65 Practice Direction5, which sets out the procedure for applying for an ASBI. The CPR practice direction is extremely important and should be considered carefully with the LPU, who will be able to assist fully in ensuring any application is compliant with the Civil Procedure Rules and the practice direction of the courts. 34. CPR Part 65 Rule states that: a. The application for an ASBI must be made by a claim form using the specific format available from the court website. The form is known as N16A. A completed copy of form N16A is available in annex C below. The form must be filled in and lodged in accordance with Practice Direction 65, and will be treated as a Part 8 claim form under the CPR. This form must be completed by the LPU and will be reviewed by counsel instructed in the matter. b. The claim form must state the matters required by rule 8.2 CPR (see below) and the terms of the injunctions applied for. In this instance, NHS 13

14 Protect will be seeking an injunction, which is a remedy - this should be stated clearly. Rule 8.2 CPR reads as follows: Contents of the claim form 8.2 Where the claimant uses the Part 8 procedure the claim form must state (a) that this Part applies; (b) (i) the question which the claimant wants the court to decide; or (ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy; (c) if the claim is being made under an enactment, what that enactment is; (d) if the claimant is claiming in a representative capacity, what that capacity is; and (e) if the defendant is sued in a representative capacity, what that capacity is. (Part 22 provides for the claim form to be verified by a statement of truth) (Rule 7.5 provides for service of the claim form) c. The application may be made at any County Court hearing centre, ideally closest to the location of the incidents; and d. Must be supported by a witness statement 4, which must be filled in along with the claim form. On notice and without notice 35. An application for an ASBI can be made with or without notice to the defendant/respondent, depending on the nature and circumstances of the situation. 4 A template witness statement can be found in Annex C. 14

15 36. On notice or with notice application means that the application will be served before the hearing on the defendant/respondent, so that they will be aware of the evidence, the nature of application, the terms of the ASBI sought and the date of the hearing. Being on notice or being given notice gives the defendant/respondent an opportunity to attend the hearing and oppose the application if they wish. The defendant/respondent may also produce evidence in support of their assertions. 37. Alternatively, on being given the notice of an application for an ASBI, the defendant /respondent may confirm or agree to the terms of the ASBI as sought. This is done by way of a consent order, which would then mean that the court will be aware that there is an agreement between the parties to the application. 38. CPR Part 65 Rule 65.43(5)says that in every on notice application the notice must be served, together with a copy of the witness statement, by the claimant on the defendant personally. 39. There may be circumstances where it is not possible to serve the ASBI application documents personally on the defendant /respondent. For example, the LSMS may not have the address of the defendant/respondent or the individual may be a person of no fixed abode. In these circumstances, the LSMS should use their best endeavours to serve the documents personally on the defendant/respondent. 40. If personal service is not feasible, then the LSMS, following guidance from the LPU, may well use the services of external agents such as process servers, who are court recognised individuals and firms that undertake the process of serving court related documents on individuals and companies. If a process server is used to serve documents on a defendant/respondent, then evidence of the same by way of a statement and/or receipts should be obtained from the process server so that it can be exhibited in court. 15

16 Without notice application (also known as ex-parte hearing) 41. An application in certain circumstances can be made without notice to the defendant /respondent, if the facts of the case justify it. For instance, if there is imminent risk of anti-social behaviour and giving notice to the defendant/respondent would make the obtaining of an ASBI futile, then an application can be made without notice. 42. If an ASBI is granted after a without notice application, then the defendant/respondent must be notified as soon as possible of the fact that an ASBI has been granted and be provided with disclosure of the relevant documents as follows: a. a copy of the ASBI/court order b. an explanation of the terms of the order, setting out the prohibitions and any requirements of the order c. a copy of the application notice/claim form d. a copy of the draft order as given to court e. a copy of the supporting witness statement setting out the reasons for the defendant/respondent not being given notice f. a copy of the note of the hearing by counsel who attended the hearing g. a confirmation note as to the consequences for breach of the ASBI. 43. CPR Part 65 Rule 44(3) requires that: (3) Where the injunction has been granted without notice, the claimant must not deliver a copy of the relevant provisions to any police station for the area where the conduct occurred before the defendant has been served with the injunction containing the relevant provisions. 44. This rule means that when an ASBI is granted by the court with the power of arrest following a without notice application, the LPU must ensure that a copy is served on the defendant/respondent before giving a copy to the police. The rationale is that if the defendant/respondent is not aware of the ASBI being 16

17 granted on a without notice basis with a power of arrest, they will be surprised to be arrested by a police officer without warning. This is an important requirement which has to be complied with. The LSMS must liaise with the LPU to ensure that the provisions of CPR are fully complied with. Legal test for granting injunction 45. Pursuant to section1 ASBCPA 2014, a court may grant an injunction against a person aged 10 years or over if the two conditions below are met: a. The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour. b. The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. Burden of proof 46. In any trial proceedings, whether criminal or civil, the concept of burden of proof relates to the evidential duty placed on a party to produce evidence in support of a particular issue or contention. 47. In civil proceedings such as the application for an ASBI, the burden of establishing the statutory criteria lies with the claimant/applicant, namely the LPU. Standard of proof 48. The concept of standard of proof refers to the quality/strength of the evidence that must be produced by a party to a trial to persuade the tribunal that a particular issue has been established. 49. The standard of proof differs subject to whether it is a criminal or a civil proceeding. 17

18 50. In criminal proceedings the standard of proof is that the tribunal should be satisfied beyond a reasonable doubt. This is often stated as at about 75% or more of being sure that a particular issue has been proved. 51. In civil proceedings, for example an application for an ASBI, the standard of proof is lower, often known as on the balance of probabilities. This is often colloquially quoted as 51% or more of being sure that a particular issue has been proved. 52. There are a number of cases in which the High Court has given guidance as to how on the balance of probabilities should be interpreted: a. Denning J, in the case of Miller v Minister of Pensions [1947] 2 All ER 372 stated that: "If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not." b. Lord Hoffman in the case of Re B [2008] UKHL 35, gave further guidance as follows: "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." 18

19 Age restrictions 53. The minimum age at which a child or young person can receive an ASBI is 10 years old. There is no maximum age restriction. 54. In considering an ASBI against a child, the LSMS should give significant consideration as to whether it would be appropriate to bring a child to court for civil proceedings such as an application for an ASBI. 55. Section 14 ASBCPA 2014 imposes a specific statutory requirement to consult with other relevant bodies such as the local youth offending team (YOT) or other appropriate bodies, e.g. local social services, before making an application for an ASBI in relation to a child or young person. 56. In G v Harrow [2004] EWCA 17, the Queen s Bench Division, the court considering an injunction under s.152 Housing Act 1996, held that the applicant must provide the court with full assistance and evidence of the personal circumstances of the minor to indicate to the court whether the injunction could be enforced by way of a fine or other methods, e.g. sequestration of assets. It is imperative to appreciate that the principle established in the case of G v Harrow would apply equally to any application for an ASBI. 57. If the person is under 18, for instance, it would be sensible to inform the following individuals/bodies: his/her parents his/her adult responsible family members, e.g. elder brother or sister his/her grandparents, who may have responsibility for looking after the child/young person the school or college which the child /young person is attending social services the child/young person s GP (if the application is related to alcohol or drug dependency). 19

20 This is not an exhaustive list but simply an indication of the type of individuals, bodies or organisations that the LSMS should consider contacting. However, the requirement to notify or contact does not apply in the case of a withoutnotice application. 58. If an ASBI is granted for a child or young person over the age of 10 but under 18, the maximum period that an ASBI can run for is 12 months. 59. In addition, importantly, any injunction obtained against a child/young person under the age of 18 can be published and there is no general reporting restriction as is normally provided in criminal proceedings. For the avoidance of doubt, section 49 of the Children and Young Persons Act 1933 does not apply to these ASBI proceedings. (s.17 ASBCPA Act 2014). 60. The person responsible for supervision of prohibitions and requirements may be an individual or an organisation. 5 The responsible person has a duty to ensure that any necessary arrangements are made in connection with the requirements and promote the respondent s compliance with the relevant requirements. The responsible person also has the duty to inform the applicant, in this case the LPU, as to whether the requirements have been complied with or not (s.3(4) (a) to (c) ASBCPA Act 2014). 61. The LSMS should take extreme care to determine what would be the most suitable prohibitions and requirements in any particular case. As a matter of good practice the LSMS should engage substantially with the LPU to ensure that the wordings are correct. Powers of arrest 62. An ASBI order may also contain a provision that enables arrest of the individual. 5 S.3(1) Anti-Social Behaviour, Crime and Policing Act

21 63. Section 4 ASBCPA 2014 provides additional powers to the court to authorise a power of arrest. (1) A court granting an injunction under section 1 may attach a power of arrest to a prohibition or requirement of the injunction if the court thinks that (a) the anti-social behaviour in which the respondent has engaged or threatens to engage in consists of or includes the use or threatened use of violence against other persons, or (b) there is a significant risk of harm to other persons from the respondent. Requirement here does not include one that has the effect of requiring the respondent to participate in particular activities. 64. The arrest provisions should be used with extreme care as they involve direct interference with the person s liberty. 65. The existence of the conditions specified above (para. 64) should be made clear and demonstrated in the evidence provided to the court to support an application for a power of arrest. 66. The evidence will be provided by way of a witness statement from an officer or the witness who can demonstrate that the anti-social behaviour has crossed the threshold where the individual has used or threatened to use violence against other persons or that there is a significant risk of harm to other persons from the respondent. Again, this will be very fact specific and will require consideration of the circumstances of a particular case or individual. 67. In terms of evidence to prove such use of violence or threatened use of violence, the LSMS should try to ensure that evidence in the form of witness statements is recorded at the earliest possible opportunity. In addition, there may be other evidence such as photographic or video evidence of the injury (or 21

22 damage). Consideration should be given as to whether CCTV footage of the incidents is available. 68. The power of arrest granted should be for a specified period of time, which could be shorter than the duration of the prohibition or requirement which it relates to. This power of arrest should only be sought when the evidence justifies it, as per the conditions set out section 4 ASBCPA 2014 (see para. 64 above). Human rights 69. However, as an ASBI may have significant impact on a person s life, section 5 ASBCPA 2014 particularly requires that any prohibitions and requirements must, so far as practicable, be such as to avoid: (a) any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment; (b) any conflict with the requirements of any other court order or injunction to which the respondent may be subject. 70. When considering the type of prohibitions or requirements, it is important to take into account factors such as the following: Does the individual work? Where does the individual work? What sort of times do they work? Does the individual attend school or an educational establishment? Is the individual subject to any further court orders which may conflict with the injunction? For example, an individual may be subject to bail conditions or a requirement to attend probation appointments. 22

23 Jurisdiction of Youth, County, Crown and High Courts 71. ASBCPA 2014 provides powers to different courts to deal with many different types of applications in relation to ASBIs. The different types of applications are: a. first application for an ASBI b. discharge of the ASBI c. appeal against granting of an ASBI d. variation application to the terms of an ASBI. Youth/young person 72. ASBCPA 2014 provides jurisdiction to three separate courts to deal with matters relating to youths/young persons as follows: Youth Court >10 18 ASBI Crown Court Appeals against ASBI Under < 10 ASBI Not available Child/ youth/ young person County Court Variation of ASBI 73. Each court has its own rules and legal procedure in terms of dealing with applications. It is essential that the LSMS liaise with the LPU so that proper procedure and protocol are complied with. 23

24 Adults 74. Any individual over the age of 18 years can be dealt with in the County Court or the High Court. The general rule is that the first application for an ASBI will be made to the local County Court. County Court Adults >18 High Court Legal aid/funding 75. It is also important to know, once an application is made and served on the defendant/respondent, how he or she will be able to fund the case, whether he or she has the ability to pay privately for their legal representation or will depend on the state aid known as legal aid. 76. If the defendant/respondent is able pay for their legal representation, then it should not impact too much on the court timetable as to the hearing dates. 77. If the defendant/respondent does not have the means to pay for legal representation, then he or she may be entitled to legal aid (paid by the state) pursuant to amendments brought in by The Civil and Criminal Legal Aid (Remuneration) (Amendment) Regulations The new legal aid provisions come into force on 23 March Any application for legal aid will have to be made through an accredited and approved solicitor s firm, who are willing to act on behalf of the defendant/respondent. 24

25 79. It is important to know if the defendant/respondent is or will be seeking legal aid, since it usually takes 4 to 6 weeks for an application to the Legal Aid Agency to be processed. The Legal Aid Agency will also consider the financial means of the defendant/respondent, which can often delay the process. 80. The time period given to obtain legal aid will need to be factored in when working with the court on the timetable for service of evidence and listing the matter for any contested hearing. Appeals against ASBIs or discharge applications 81. The defendant/respondent who is aggrieved by the granting of the ASBI by a court may make an application for discharge of the ASBI with the same court. For example, if a County Court grants the first interim injunction, then a further application can be made to discharge it in the same court. 82. Like with any civil proceedings, orders of a County Court can be appealed to the High Court. 83. Any order of a High Court can be appealed to the Court of Appeal (Civil Division). There are very specific rules in relation to permission required for appealing. In considering any appeals and/or discharge applications, the LSMS should liaise with the LPU, who will advise as to the proper course of action. 84. However, an appeal against a Youth Court decision to grant an ASBI is made to the Crown Court. (s.15(1)). On appeal, the Crown Court has wide discretion to make whatever orders are necessary to give effect to its determination of the appeal and make whatever incidental or consequential orders appear to it to be just. Arrest without warrant 85. If an ASBI is granted with a power of arrest under section 4, then a constable (police officer) may arrest the defendant/respondent without warrant if they 25

26 have reasonable cause to suspect that the defendant/respondent is in breach of the provision, namely the terms of the ASBI. 86. If a police officer arrests the defendant/respondent, they must inform the LPU. 87. The arrested defendant/respondent must be brought to the relevant court within 24 hours of the time they are arrested. In calculating when the period of 24 hours ends, Christmas Day, Good Friday, and any Sunday should not be included (s.9(4) ASBCPA 2014). 88. The person should be brought to the court as follows: To a judge of the High Court or County Court, if the ASBI was granted by the High Court. The judge may remand the person if the matter is not disposed straight away. To a judge of the County Court, if the ASBI was granted by the County Court or if the ASBI was granted by the Youth Court but the defendant/respondent is now aged 18 or over. The judge may remand the person if the matter is not disposed straight away. To a justice of the peace (i.e. Magistrates Court), if the ASBI was made by a Youth Court and the defendant/respondent is under the age of 18 (s.9(3) ASBCPA 2014). In this instance, the justice of the peace must remand the person to appear before the Youth Court that granted the injunction. Issuing of arrest warrant 89. If the defendant/respondent is in breach of the terms of the ASBI, then the LSMS may apply through the LPU for the issue of a warrant for the defendant/respondent s arrest. 90. The application for an arrest warrant must be made as follows: To a judge of the High Court, if the ASBI was granted by the High Court. 26

27 To a judge of the County Court, if the ASBI was granted by the County Court or if the ASBI was granted by the Youth Court but the defendant/respondent is now aged 18 or over. To a justice of the peace (i.e. Magistrates Court), if the ASBI was made by a Youth Court and the defendant/respondent is under the age of 18 (s.9(3) ASBCPA 2014). 91. Upon the application, a judge or a justice of the peace may issue a warrant for arrest only if the judge or justice has reasonable grounds for believing that the defendant/respondent is in breach of a provision of the injunction. 92. The warrant of arrest will generally require the defendant/respondent to be brought to the court that issued the warrant as follows: To a judge of the High Court, if the warrant was issued by the High Court To a judge of the County Court, if the warrant was issued by the County Court If the warrant was issued by the justice of the peace (i.e. Magistrates Court), then the defendant /respondent should be brought i. to the Youth Court, if under the age of 18 ii. to the County Court, if aged 18 or over. 93. If the defendant/respondent is brought before any of the three courts by virtue of an arrest warrant and if the matter is not disposed straight away, the court may remand the defendant/respondent. (s.10(8) ASBCPA 2014). After the ASBI 94. All information relating to an ASBI being granted, varied or discharged should be made available to the LSMS and the LPU. The LPU will ensure that details of ASBIs are kept on their casefile database from the outset. This information will be available to all NHS security management staff upon request. 27

28 Annex A You should use the template below when making a witness statement in support of an application by NHS Protect's Legal Protection Unit for an Anti Social Behaviour Injunction. When completing the witness statement you should refer to the guidance in Practice Direction 32 to the civil procedure rules, which is available at 28

29 1st statement: Witness name Date Exhibits Ref: (e.g. JT1 JT7) IN THE COUNTY COURT AT XXXXXXX Case Ref: /2015 IN THE MATTER OF S.1 ANTI-SOCIAL BEHAVIOUR, CRIME AND POLICING ACT 2014 BETWEEN: NHS PROTECT LEGAL PROTECTION UNIT The Claimant - V - DEFENDANT S NAME The Respondent/Defendant FIRST WITNESS STATEMENT OF [WITNESS NAME] I, [witness name], [LSMS or other role] of [location/trust name] make this witness statement in support of the application by NHS Protect s Legal Protection Unit ( the Claimant ) for an Anti-social Behaviour Injunction ( ASBI ) against [defendant name], [job if known] of [address] pursuant to section 1 of the Anti-social Behaviour, Crime and Policing Act ( ASBCPA ) The matters to which I herein refer to are true and within my information, knowledge and belief save otherwise where stated. If I refer to information provided to me by other sources, I will confirm the source. 29

30 3. I am the [provide short description of role and responsibilities] Legal power 4. NHS Protect is a body that is specifically recognised and has been provided with the power to apply for an ASBI as per section 5(h) of the ASBCPA Facts: set out the facts of the case in a clear and concise manner with reference to exhibits produced formally. 6. Set out the evidence in support of establishing that the defendant/respondent has engaged or threatens to engage in anti-social behaviour. 7. Set out, based on the evidence, why it is just and convenient to grant an injunction for the purpose of preventing the defendant/respondent from engaging in anti-social behaviour. 8. Set out the terms of the ASBI sought. Explain whether it will interfere with the defendant/respondent s work or education. 9. Set out who will be responsible for monitoring/supervising the ASBI, if granted. 10. Set out whether this is an application on notice or without notice, and the reasons for it. STATEMENT OF TRUTH The facts stated in this witness statement are true to the best of my knowledge and belief. Signed: Name:.. Dated:.. 30

31 Annex B IN THE COUNTY COURT AT XXX Case ref: /2015 IN THE MATTER OF S.1 ANTI-SOCIAL BEHAVIOUR, CRIME AND POLICING ACT 2014 BETWEEN: LEGAL PROTECTION UNIT, NHS PROTECT The Claimant - V - Defendant s name The Respondent/Defendant DRAFT ORDER IF YOU DO NOT OBEY THIS ORDER YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU MAY BE SENT TO PRISON Before District Judge [insert name] on [insert date, month] 2015, the Court considered an application for an injunction UPON hearing counsel for the Claimant and the Defendant AND UPON reading the written evidence of the Claimant dated [insert date] AND UPON the Claimant giving an undertaking through his counsel promising to pay any damages ordered by the Court if it later decides that the Defendant has suffered loss or damage as a result of this order. IT IS ORDERED THAT: 1. An Anti-social Behaviour Injunction is granted pursuant to section 1 Anti-social Behaviour, Crime and Policing Act

32 2. The terms of the injunction are as follows: (example conditions only) a. The Defendant is prohibited from entering XXXXXXX Clinic without prior written approval and consent of the Claimant. b. The Defendant is required to XXXXXXXXXXX c. [insert ] d. [insert] 3. This Order shall remain in force until [insert date]at 4:00 pm unless before then it is revoked by further order of the Court. It is further ordered that: 4. Costs reserved. Notice of further hearing The Court will reconsider the application and whether the order should continue at a further hearing at the County Court [insert address] on [insert date] at 10AM [time estimate 45 min]. If you do not attend at the time shown the Court may make an injunction order in your absence. 32

33 Annex C Application for injunction (general form) 33

34 Application for Injunction (General Form) Name of court Claimant's Name and Ref. Claim No. Defendant's Name and Ref. Fee Account no. Notes on completion Tick which boxes apply and specify the legislation where appropriate (1) Enter the full name of the person making the application (2) Enter the full name of the person the injunction is to be directed to (3) Set out any proposed orders requiring acts to be done. Delete if no mandatory order is sought. (4) Set out here the proposed terms of the injunction order (if the defendant is a limited company delete the wording in brackets and insert 'whether by its servants, agents, officers or otherwise'). (5) Set out here any further terms asked for including provision for costs (6) Enter the names of all persons who have sworn affidavits or signed statements in support of this application (7) Enter the names and addresses of all persons upon whom it is intended to serve this application (8) Enter the full name and address for service and delete as required By application in pending proceedings Under Statutory provision This application is made under Part 8 of the Civil Procedure Rules This application raises issues under the Human Rights Act 1998 Yes No The Claimant (1) applies to the court for an injunction order in the following terms: The Defendant (2) must (3) The Defendant be forbidden (whether by himself or by instructing or encouraging or permitting any other person) (4) And that (5) The grounds of this application are set out in the written evidence of (6) sworn (signed) on This written evidence is served with this application. This application is to be served upon (7) This application is filed by (8) (the Solicitors for) the Claimant (Applicant/Petitioner) whose address for service is Seal * Name and address of the person application is directed to Signed This section to be completed by the court Dated To* of This application will be heard by the (District) Judge at on the day of 20 at o'clock The court office at If you do not attend at the time shown the court may make an injunction order in your absence If you do not fully understand this application you should go to a Solicitor, Legal Advice Centre or a Citizens' Advice Bureau is open between 10am and 4pm Mon - Fri. When corresponding with the court, please address all forms and letters to the Court Manager and quote the claim number. N16A General form of application for injunction (05.14) Crown copyright 2014

35 Annex D Terminology The basic terminology used in civil proceedings differs from the one used in criminal proceedings as follows: Term Claimant Defendant/respondent County Court High Court (also known as Royal Courts of Justice) Orders Consent Order Definition The claimant is the person bringing the claim. The claimant can be an individual or a body corporate, such as a company or an organisation. In the case of ASBIs it would be the LPU. The defendant/respondent is the person who is subject of the claim. The defendant /respondent can be an individual or a body corporate, such as a company or an organisation. A civil court that deals with claims that are under the value of 50,000 and involve non-complex matters. High Courts have jurisdiction over complex and high value matters and are based in London. Regional High Courts are available in Cardiff, Birmingham and Leeds. In criminal cases, even though an order can be made, the finding of guilt is known as a conviction, whereas civil court findings are known as orders or judgements of the court. These are orders of the court that are agreed between the parties to the proceedings. 34

36 Annex E Flowchart for obtaining an ASBI and power of arrest 35