Saturday, 25 October 2014

Changing the rules

As the first gang injunctions begin to be issued, Daniel Skinner outlines how the new orders work

With the recent publicity garnered by possible changes to ASBOs, the new powers to obtain gang related injunctions, introduced on 31 January, seem to have slipped by somewhat unnoticed.

These are new powers available to the police (including transport police) and local authorities. They are not available to registered providers.

They do not contain a great deal that could not be obtained under ASBO powers. However an important difference is that they are based only in the county court (whereas stand alone ASBOs are based in the magistrates’ court system). This may make them cheaper and easier to obtain and make enforcement, by contempt of court proceedings, more effective.

What do you need to show?

An applicant needs to show the respondent (the person against whom the injunction is being sought) has engaged in, or encouraged or assisted, gang-related violence.

The case only has to be proved on the balance of probabilities. Violence though has to be shown. Other gang activities are not covered.

A gang has to consist of 3 or more people and must use a name emblem or colour or have another characteristic enabling its members to be identified by others as a group, and be associated with a particular area.

To get an injunction you also need to show it is necessary to prevent the respondent from engaging in or encouraging or assisting gang-related violence OR to protect the respondent from such violence.

Like ASBOs consultation has to take place before an order is obtained. This can be waived if a without notice application is made but it must then happen before the full on notice hearing.

An interim order can be made by the court if the case is adjourned.

What can the court order?

The court has powers to prohibit the respondent from doing things including:-

  • being in a particular place
  • being with particular people in such a place
  • being in charge of certain animals (e.g. attack dogs) in such a place
  • wearing particular clothing there
  • using the internet to facilitate or encourage violence

The court may require the respondent to:-

  • notify the applicant of a change in address
  • be at a certain place at certain times (but not for more than 8 hours a day)
  • present him or herself to a particular person (e.g. at the police station) between particular times on particular days

The court can attach a power of arrest to an order. If they do, then an officer can arrest without warrant for any breach. They have to be brought before the court within 24 hours.

Any prohibitions or requirements cannot last more than 2 years.

If they are to last more than one year then there has to be a review hearing within the last four weeks of the first year.

The order must be personally served but if the respondent is at court they can be ordered to wait until it is prepared and can be served on them.

The papers should be issued in the local county court but on notice hearings will normally be held at certain specified courts that are deemed to be more secure.

Enforcement

Once the order has been served its details should be entered in the police national computer.

Breach is contempt of court. It has to be proved beyond reasonable doubt.

During committal proceedings the judge can remand in custody for eight days or up to three weeks at a time if a medical examination is necessary.

The sanction available is a sentence of two years in prison or an unlimited fine.

Gang related injunctions can be publicised but applicants should consider the benefits of deterrence, increased likelihood of enforcement and public reassurance against issues of safety and human rights.

Further information

The legislation is within the Policing and Crime Act 2009 but the relevant detailed guidance is made by the secretary of state.  It can be found on the Home Office website. The court rules are contained at Part 65 of the Civil Procedure Rules.

Daniel Skinner is head of social housing at Batchelors Solicitors

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