Cracking down on disruption
Premises closure orders are a powerful new weapon for local authorities in the battle against anti-social behaviour, say Kelvin Rutledge and Kuljit Bhogal
New powers to temporarily close premises associated with anti-social behaviour came into force on 1 December 2008. Amendments to the Anti-Social Behaviour Act 2003 introduced by the Criminal Justice and Immigration Act 2008 are similar to those already available to the police to close 'crack-houses' and are intended to provide immediate respite to communities living near disruptive premises.
The new provisions, however, extend existing laws in three important respects. Firstly, closure notices may be issued, and applications for closure orders can be made, by local authorities in consultation with the police. Secondly, closure orders are 'tenure neutral'. They apply not only to residential premises, whether rented or privately-owned, but also to commercial buildings and public spaces including shops, pubs, clubs and car parks. Lastly, it is not necessary to prove that the premises in question have been used in connection with the unlawful use, production or supply of a Class A controlled drug.
Premises can be closed by a magistrates' court for an initial period of up to three months, which can be extended by the court for a further three months (see Part 1A of the Anti-Social Behaviour Act 2003 as inserted by s.118 and sched.20 of the Criminal Justice and Immigration Act 2008).
Serving a closure notice
A Part 1A Closure Notice can be served if the local authority or a police officer (not below the rank of superintendent) has reasonable grounds for believing that: (a) a person has engaged in anti-social behaviour on the premises, and (b) that the use of the premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public.
The behaviour must have taken place in the three months preceding the notice.
The local authority is required to consult with the police and vice versa. The contents of the notice are prescribed by s.11A(5), and there are detailed requirements as to service contained in s.11A(7). Service must be effected, in the case of a notice authorised by the police, a constable, and, in the case of a notice authorised by a local authority, by an employee of that authority. This possibly excludes service by an independent contractor such as a process server.
Once the notice has been served only persons who habitually reside in the premises or the owner may have access to the premises.
Following service, the police or local authority must apply to a magistrates' court for a Part 1A Closure Order under s.11B. The application must be heard by the court not more than 48 hours after the notice is served.
Defining anti-social behaviour
Anti-social behaviour in this context has the same definition as the test for an Anti-Social Behaviour Order, namely 'behaviour which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as himself'.
The Home Office has published detailed guidance on the use of these provisions (see www.respect.gov.uk) giving examples of behaviour that would qualify, including: intimidating and threatening behaviour towards residents; a significant increase in crime in the immediate area surrounding the premises; violent offences and crime being committed on or in the vicinity of the premises; excessive noise at all hours associated with visitors to the property.
Granting a closure order
A magistrates' court can make a closure order if it is satisfied that: (a) a person has engaged in anti-social behaviour on the premises in question, (b) the use of the premises is associated with significant and persistent disorder or persistent, serious nuisance to members of the public, and (c) the making of a closure order is necessary to prevent such disorder or nuisance for the period specified in the order from occurring.
If the closure order is granted, the premises can be closed to prevent access by any person including the owner and anyone habitually resident in those premises.
It is an offence to remain on closed premises or to enter closed premises punishable, on summary conviction, by imprisonment for an extendable period not exceeding 51 weeks, a fine of up to £5,000 or both.
The provisions allow for costs to be applied for within three months of the expiry of the closure order. The court has the power to order the owner of the premises to pay the costs in full or in part. The guidance suggests that it may be inappropriate to seek costs where the owner had fully co-operated with the police or local authority.
Local authorities should have a protocol in place for dealing with potential applications under the new provisions.
The local authority must have reasonable grounds for believing that a person has engaged in anti-social behaviour on the premises during the preceding three months and that the use of the premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public.
They must also be satisfied that the police have been consulted and that reasonable steps have been taken to establish the identity of any person who lives on, has control of, responsibility for, or an interest in the premises.
Evidence would normally be served at the same time as the notice. As the proceedings are civil in nature hearsay evidence is admissible, but specific justification must be given if the identity of a witness is to be withheld. The guidance suggests that a full witness statement with the name of the witness redacted is the best form of anonymous hearsay evidence. Local authorities must ensure that they have evidence which addresses, first, the behaviour, and demonstrates that it has caused or is likely to cause harassment, alarm or distress (the impact of the acts complained of) '“ medical evidence should be provided where it is practicable to do so; second, the existence of significant and persistent disorder or persistent serious nuisance (a description of the acts complained of); and third, necessity.
The guidance emphasises that the powers are not intended to be a 'fast-track' to eviction and that the powers should be used as a last resort. Local authorities must ensure that other interventions have been used or considered and rejected for good reason and where the implications, for example, to children or vulnerable adults, have been carefully considered. Where a local authority brings the proceedings, therefore, its evidence must demonstrate that these factors have been considered.
Local authorities must record the consideration given to any children or vulnerable adults occupying the property. The homeless persons unit and/or social services should be informed of the intended action and may be required to be present when the property is closed to offer advice and assistance.
For the purposes of the homelessness provisions contained in Part 7 of the Housing Act 1996, a person who is disposed of his/her home by a closure order will almost certainly be homeless, by virtue of s.175(2)(a), and possibly in priority need under s.189(1)(d).
These will be sufficient to ensure that suitable interim accommodation is secured though in the longer term issues as to intentional homelessness are likely to arise.
The authority may utilise the procedures it has in place for multi-agency meetings in context of the Crime and Disorder Act 1998.
Information for defendants
Local authorities should consider providing written information to the occupants of the property as to the potential sources of assistance, for example, the address and opening times of the homeless persons unit, social services, local solicitors' firms and other advisory services. This information must be provided on the notice but the authority may wish to repeat this information when the closure order is served. Where the premises in question are residential, the authority may also wish to warn the tenant or occupier that if a closure order is made by a magistrates' court he or she would not be permitted to return to the premises even to collect essential items and they should therefore make suitable arrangements before the hearing.
Concerns for the future
The powers are of a dramatic nature in that they allow an owner or occupier of premises to be ousted within a very short space of time. Local authorities are entrusted to make responsible use of the powers and it is vital that they are able to demonstrate that the provisions are being used as a last resort and that any vulnerable groups have been identified and suitable provision made.
Proper use of the powers will ensure that communities are afforded immediate respite from the problems caused by disruptive premises. It remains to be seen, however, whether a possession order to permanently remove an occupier can be obtained within the six month time frame of a closure order.