Sanctions imposed for breach of Anti-Social Behaviour Injunctions (ASBIs) raise profound issues of social justice and abuse of power.
Criminal Behaviour Orders were introduced in the Anti-Social Behaviour, Crime and Policing Act 2014 to replace the Anti-Social Behaviour Order regime, together with a civil injunction to prevent nuisance and annoyance (IPNA). Local councils, the police or any social landlord can apply for an IPNA to stop anti-social behaviour. Further, a court may grant an IPNA if it is satisfied on the balance of probabilities that a person has engaged, or threatens to engage, in anti-social behaviour, and it is just and convenient to grant the injunction for the purpose of preventing anti-social behaviour.
In March 2015, Part 1 of the Anti-Social Behaviour Crime and Policing Act 2014 came into force. It introduced new powers for the police and the courts, including the imposition of a civil injunction, an ASBI or Anti-Social Behaviour Injunction. Breaching an injunction is not a criminal offence but can carry significant penalties imposed in civil proceedings. Cases are heard in the county courts as a civil matter – breach of an injunction, if proven, is contempt of court, it is not a crime. The court may issue a fine or impose a suspended or immediate term of imprisonment of up to two years, with the contemnor generally serving half the sentence. None of the usual protections available under the criminal law − a pre-sentence report, for example − are available in these civil court hearings. The Civil Justice Council produced a report in July 2020: representation is difficult to obtain, criminal legal aid is not available, civil legal aid is very difficult to find. Half the defendants are unrepresented.
Here is a note on data regarding people who have been sanctioned because they have breached an ASBI, reported in the Courts and Tribunals Judiciary Daily Digest Bulletin.
My study covers 67 cases of housing nuisance where an Anti-Social Behaviour Injunction was imposed and then breached, between 2019 and 2023.
There are 67 cases, 43 men and 24 women. The sanctions imposed were:
- Men: 24 immediate imprisonment, 18 suspended imprisonment, 1 fine
- Women: 11 immediate imprisonment, 11 suspended imprisonment, 1 fine, 1 no penalty
- Floyd Carruthers was diagnosed with schizophrenia in 2003. In April 2021 he breached an Anti-Social Behaviour Injunction (ASBI) by banging twice on his neighbour’s door, first at 17.30 and again at 19.30, shouting ‘Are you coming down? Who is up there with you?’ The Court found he had breached an ASBI and he was remanded in custody. When the case came again before the Birmingham County Court on 6 May 2021 the judge said ‘there is no evidence of criminality’. Nevertheless, Mr Carruthers was committed to prison for 66 days. He had an infected heart valve; in the prison he did not eat for four days. No medical personnel were called. When prison officers entered his cell they found he had collapsed. He was taken from HMP Birmingham to hospital, where he died on 14 June 2021.
It is clear from the transcript of the judgment that he did not understand the judge’s decision.
Judge: The sentence I have passed is one that you have an entitlement to appeal − Mr Carruthers: Have I been found guilty? Judge – without the need to obtain permission to appeal.
- Charlotte N: Breach: allowed her flat to become dilapidated, and used obscene and racist language. On 19 October 2021, Milton Keynes County Court ordered her to be taken from a psychiatric hospital to serve a prison sentence of six months. The judge said: ‘You remain an inpatient on a ward at the hospital in Warrington where several patients have tested COVID positive. I am concerned about your vulnerability and safety.’ ‘You were a looked-after child from aged four due to your mother’s own mental health difficulties and you were placed in various care homes and foster care placements between aged 4 -14yrs. Whilst in a children’s home you were the subject of sexual assault, including gang rape by older males. As an adult, you had a short marriage during which you suffered sexual and domestic abuse. You have a history of overdosing and self-harming behaviours.’ She had breached an ASBI by making a noise with a wheelie bin, let the property become dilapidated, and directed a flow of vile, obscene, racist abuse at an employee of the housing trust as he was doing his job by trying to enter her flat. She had been told by the court to engage with mental health services but had not done so.
- Timothy L: use of obscene and racist language. Mr L had been under psychiatric care going back fifty years. His jailing was reported as follows: A mentally ill man has been jailed for 10 days for contempt in the face of the court after yelling racist abuse at a judge at Bristol Magistrates’ Court. The judge took into account evidence that imprisonment might have a ‘negative effect’ on Mr L’s mental state and trigger episodes of aggression but said that the matter had passed the ‘custody threshold’. Delivering judgment at Bristol County Court, the judge said Mr L shouted abuse on entering the court before committal proceedings for breach of an injunction could commence. The defendant was removed from the court and proceedings continued in his absence. The judge imposed an eight-week jail sentence on Mr L, suspended for a year. The judge said Bristol City Council had initiated proceedings ‘long in the past’ against Mr L, a ‘compulsive hoarder’. The hearing where the abuse was shouted was part of ‘long-running injunctive proceedings’ related to Mr L’s council tenancy. When Mr L came before the court again he was given a sentence of 10 days immediate imprisonment.
- Natalie Breach: making a noise outside her flat. Ms W was sentenced in July 2021 at Bristol County Court. Her baby had died, and the court commented on her mental health issues, stating that due to the Covid pandemic no mental health help was available to her. The judge said: ‘I am very sorry to see her in such a distressed state’ and went on to say that he hopes she will get help. The court imposed four months suspended imprisonment.
- Geraldine T Breach: arguing, using threatening, abusive and offensive language, shouting at excessive volume. On 8.9.21 Birmingham County Court sentenced Geraldine T. to four weeks immediate custody. She is mentally ill and had been sectioned.
- Nicholas M fed pigeons on his balcony, causing mess from birds: he was committed to 15 weeks’ immediate custody on 12 June 20
- Darren J: fed pigeons. On 5 April 2022 Birmingham Civil Justice Centre sentenced Darren J. to 6 weeks imprisonment suspended, stating ‘He has a number of physical and mental health issues and he has a history of chronic pain due to spinal difficulties’
- Mark T. : threatened neighbours. On 22.2.2022 Barrow in Furness County sentenced Mark T to 26 weeks immediate imprisonment for breach of an ASBI. At an earlier court hearing Preston Crown Court heard that he suffers with paranoid schizophrenia and runs up to 30km and works out daily to relieve his symptoms.
Elderly and ill-health
- Evelyn C Breach: making a noise, banging doors, shouting and swearing.On 16 December 2020 Central London County Court dealt with Evelyn C’s breach of an ASBI. She was not present and was not represented. The Court imposed four weeks’ suspended imprisonment. The judgment states: ‘Ms C is 76 years old and has various medical conditions. The behaviour amounting to contempt may be indicative of underlying mental health issues, and the Court noted the previous involvement of mental health professionals. The Court recognised the stress caused by these proceedings, which was exacerbated by the Covid-19 pandemic, and that as a result of her anti-social behaviour Ms C is at risk of losing her home through possession proceedings which have been brought by CC Housing Trust.’
- Karen M Breach: disturbing her neighbours. On 14.5.21 Coventry Combined Courts sentenced Karen M to two weeks immediate custody for disturbing her neighbours. She suffers serious ill-health, could not stand in court, and is a wheelchair user. The Judge said: Clearly, you have a lot going on in terms of your personal health. You should be at home dealing with those issues. I should not be sending a lady like you to prison but, unfortunately, the background to this matter leaves me no choice.
- Nadine B: addiction to alcohol and drugs. Nadine B. was accused of anti-social behaviour (September 2021 Bristol County Court). She was not represented in court. Sentencing Ms B the judge said: There is no doubt at all that Ms B is at significant risk of losing her home [through eviction proceedings]. Ms B tells me that, not least by reason of the loss of her children, [taken into care by social services] she has struggled with drink and drugs and that may very well explain some of her behaviour and some of her own anti-social behaviour. It appears she is still continuing to struggle with these problems of addiction. The court imposed a four-week suspended prison sentence.
- Michelle P: drug addiction. 6 December 2021 Swindon County Court imposed seven months immediate imprisonment on Michelle P, who is addicted to drugs, stating: ‘The Defendant expressed remorse for her actions and explained the assistance she was seeking to deal with her addictions.’
- Kelly: alcohol addiction, homeless. Kelly breached her ASBI by being drunk and in a prohibited area. On 16 September 2020 at the Central London County Court the judge stated that she ‘is of no fixed abode, has a chaotic lifestyle’. She was under the influence of alcohol. Her drunken aggressive behaviour manifested itself in particular by shouting, swearing, lashing out with her feet and spitting. The court imposed 48 weeks immediate custody of which 28 weeks was for the breach.
- Jessica C: drug addiction. On 7 May 2020 Bromley County Court sentenced Jessica C. to four months immediate imprisonment, stating: ‘A mitigating feature is her drug addiction’. At Court she was not present and was not represented.
- Frankie S: drug addiction. On 7 May 2020 Bromley County Court sentenced Ms S to four months immediate imprisonment. She had left drugs paraphernalia around the housing estate. She was not present in court and was not represented.
- Joshua T: On 8 January 2020 Carlisle County Court sentenced Joshua T. to 16 weeks immediate custody for breaching an injunction by being intoxicated, shouting, and intimidating his neighbours.
NO PROTECTIONS UNDER CIVIL LAW
Because breaching an ASBI is a civil not a criminal matter there are none of the protections in place which apply for defendants appearing in a criminal case.
Those accused of an ASBI breach are disadvantaged compared to those who face criminal charges:
- No right to legal aid; civil legal aid is very hard to obtain, impossible for many
- No pre-sentence by probation which could reveal vulnerabilities and caring responsibilities which a court should take into consideration
- No input by probation to support the defendant and inform the court of special circumstances
- No requirement that the sanction imposed be explained to the defendant in open court in language he or she can understand, as applies in criminal cases.
THE COURT HAS VERY FEW OPTIONS
In a criminal case there are many options for magistrates and judges. They can:
- impose immediate or suspended imprisonment (any sentence between 2 weeks and 24 months can be suspended)
- make a community order, that is the defendant must be under the supervision of the probation service, and perhaps also do unpaid work in the community as reparation for the harm his or her crime has caused
- make an order for drug and alcohol treatment.
- impose a deferred sentence, that is the defendant agrees to take a new direction (taking up employment or an education course, for example) and to return to court after six months. If the court finds that the defendant has carried out the agreed course of action and not reoffended there may be no further punishment.
None of these options are available to the county court hearing a case of breach of an ASBI. In ASBI cases the court may:
- Take no action
- Impose immediate custody (up to 24 months)
- Impose suspended custody (up to 24 months)
- Impose a fine
ALTERNATIVES TO PUNISHMENT/IMPRISONMENT
I argue that imprisonment is not the solution to the problems posed by anti-social behaviour. Imprisonment for ASBIs contravenes the basic legal principle of proportionality. It violates the law as set out in S.230 (2) of the Sentencing Act 2020: imprisonment is a last resort to be used only when an offence was so serious that neither a fine alone nor a community sentence can be justified for the offence.
The basic problem is that ASBIs come within civil not criminal law. As pointed out above, under the criminal law there are protections for the defendant: pre-sentence reports, referral to probation service for support, etc. Furthermore, in criminal cases there are out of court disposals, diversion and pre-court measures available to the police to deal with less serious low-level crime. There is considerable evidence that these measures have been largely successful and have kept people subject to them out of the criminal justice system. The Birmingham Diversion Scheme the New Chance Project, for example, provides women with help for drug and alcohol problems, housing and employment issues, and mental health problems, and has been found to be effective in curbing criminal activity and lessening the harm to communities.
These approaches which have been found to be effective in the criminal justice system should be applied also to anti-social behaviour.
CHANGE MAY BE ON THE WAY
The Law Commission is currently investigating contempt of court for ASBI breach. It will shortly begin to consult relevant people and organisations, and will then make recommendations to the government for reform of a system widely recognised to be profoundly flawed.
The All Party Parliamentary Group on ASB in Housing is currently asking for the public’s opinions. You can now send in your views, the closing date is 28 February. Thanks to the Oakdale Trust for funding this research
Author: Rona Epstein
Dr Epstein is an honorary research fellow at Coventry Law School