Trainee Solicitor Laura Tanguay and Associate Solicitor Jean Parkinson comment on the proposed injunction to prevent nuisance and annoyance.
The Government’s plans to create Injunctions to Prevent Nuisance and Annoyance (“IPNAs”) have been featured in the news recently, raising concerns that (to quote the Telegraph) “Children could get in trouble with the law simply for being ‘annoying'”. However. what is this new weapon in the armory and is it, as some believe, just in essence an ASBO by another name?
What are IPNAs?
IPNAs, along with a number of other potential measures, have been introduced by section 1 of the new Anti-social Behaviour, Crime and Policing Bill 2013 – 2014 (“the Bill”). Further to being debated at its second reading last month, the Bill is currently being considered by the House of Commons.
The aim of an IPNA is likely to be familiar to most people, in that it seeks primarily to stop the engagement or threat of engagement in “conduct capable of causing nuisance of annoyance to any person”. It is capable of being granted against anyone aged 10 or over and, perhaps surprisingly, can be granted for an unlimited duration.
Whilst there are those who will suggest that this is simply a new name for an old remedy, there are some subtle differences between an IPNA and the soon to be replaced ASBO. Perhaps most importantly is the fact that the wording serves to widen the parameters within which an order could be granted. Unlike an ASBO, the IPNA does not restrict itself to the “act” of nuisance or annoyance: section 1 of the Bill provides that an IPNA can be granted if it is proved on the balance of probabilities that the person has engaged, or threatens to engage, in conduct capable of causing nuisance or annoyance to any person.
As drafted, this means that at one end of a broad spectrum, a court could grant an IPNA against a 10 year old child who may in the future engage in conduct that is annoying to any person. ‘Nuisance’ or ‘annoyance’ have not otherwise been defined in the Bill and no examples of conduct that would reach this threshold have been provided.
Consequences of breaching an IPNA
Part 5 of the Bill sets out new grounds for absolute possession of secure tenancies (i.e. the eviction of tenants from their council homes). Clause 84A(1) states that a court must make an order for possession in the event that it is satisfied that any of a number of conditions have been met.
One of these conditions is when “a person residing in or visiting the dwelling-house” is in breach of an IPNA.
Therefore, if a 10 year old is in breach of his or her IPNA, this could lead to the eviction of an entire family from their council home. Equally, similar to the housing provisions under ground 2 to Schedule 2 of the Housing Act 1985, the responsibility extends to the behaviour of visitors to the property, and the IPNA is therefore wider in its implication than the ASBO in this regard.
Voices of concern
Last month the Public Bill Committee heard representations from JUSTICE, an independent law reform and human rights organisation, who voiced several concerns about the new Bill.
JUSTICE aver that the criminal standard of proof should apply to legal findings about whether or not anti-social behaviour is likely (i.e. it should be beyond reasonable doubt rather than on the balance of probabilities).
The organisation were also of the opinion that the ‘nuisance and annoyance’ threshold was much too low, and suggested that it be replaced with the ‘harassment, alarm or distress’ test which is currently used in other legislation. There have also been suggestions put forward that the use of these orders may be used inappropriately to essentially criminalise young children.
Comment
What remains certain is that anti-social behaviour continues to be a problem which needs to be tackled; whether IPNAs can provide the solution will only be determined following the passage of time. They will arguably continue to be seen by some as a very draconian measure – not least because they can be granted indefinitely (or for a period of up to 12 months in the case of under 18s) and because it appears that there is no safeguard of reasonableness which you would usually expect to see in legislation of this kind. Advocates for action on anti-social behaviour, however, are likely to take the view that this type of sanction is exactly what is needed to enable the judiciary to provide a short, sharp shock to those guilty of anti-social behaviour.
If you would like to discuss any of the issues raised in this article, please contact Laura Tanguay or Jean Parkinson.
