At Swinburne Maddison LLP, we are increasingly being instructed to advise clients on the possibility of including an exclusion zone as part of an Injunction application under the Anti-Social Behaviour, Crime and Policing Act 2014 (“the Act”). The use of an exclusion zone can be particularly effective, especially when seeking to protect a particular group of people or where the Respondent is repeatedly engaging in anti-social behaviour in a particular place.
In this article we consider the legal basis for the inclusion of such a provision, and some practical tips when drawing on our experience.
Applications of this nature are brought under Part 1 of the Act and the power to grant such Injunctions can be found in Section 1.
Section 1(4) details that an Injunction under that Section can prohibit the Respondent from doing certain things and/or can require the Respondent to do certain things. It is well established that the prohibitions or requirements included within an Injunction Order must be limited to the extent necessary to prevent the Respondent from engaging in the anti-social behaviour complained of.
It was clearly envisaged by the Government that a potential prohibition, as provided for in Section 1(4)(a) may include a prohibition on entering a particular area, as this is specifically listed as an example within Paragraph 116 of the Explanatory Notes to the Act. It was also frequently a tool used under the previous Housing Act Injunction regime.
Consideration must also be given to Section 13 of the Act which grants the Court powers to include a provision within an Injunction which has the effect of excluding the Respondent from their home, in very specific circumstances. This can only occur if the Respondent is aged 18 or over, and where the Applicant is a local authority, the Chief Officer of the local police force, or the relevant housing provider, and where the Court thinks that the anti-social behaviour engaged in includes the use or threatened use of violence against another person or where there is a significant risk of harm to other persons from the Respondent. In the event an Applicant wishes to utilise the provisions of Section 13, specific evidence must be included to satisfy those tests.
Factors to consider
Applications which include a provision seeking to exclude the Respondent from their home, in our experience, will only be granted in very limited circumstances. Some Judges view this as an attempt to secure possession “by the back door” and therefore will need to be convinced that it is reasonable and proportionate to include such a provision over and above any other prohibitions included within the Injunction Order. In circumstances where there is already a prohibition on violent conduct, or threats of violence, particularly where a Power of Arrest is attached, and bearing in mind that a proven or admitted breach of such terms would then give rise to a mandatory ground of possession, often it is difficult to satisfy a Judge that an exclusion zone which includes the Respondent’s home can be justified.
Other exclusion zones are however somewhat easier to secure. This is particularly the case if the Respondent has been engaging in anti-social behaviour with others within a particular area, especially if that area houses elderly or vulnerable residents. If the Respondent has no good reason to attend such a location, a Judge will often be satisfied that it is appropriate to make an Order which includes an exclusion zone.
We would suggest that the following matters are carefully considered before including a provision for an exclusion zone within Injunction applications:
- Ensure that the evidence in support of the application, normally in the form of witness evidence, clearly explains the nature of the behaviour and why the exclusion zone is necessary to ensure the curbing of that behaviour and/or to protect others, particularly if they are vulnerable.
- Ensure that the exclusion zone being sought is no wider than is necessary to curb the behaviour and/or protect vulnerable parties. The Judge is obliged to ensure the terms of the Order, including the geographical area of any exclusion zone, is no wider than is necessary to deal with the anti-social behaviour.
- Ensure a very clear plan is attached to the Draft Order showing the wider locality and identifying precisely the exclusion zone being sought. Ensure you are prepared to explain and justify the extent of the exclusion zone with reference to specific instances of anti-social behaviour.
- Ensure when marking the exclusion zone that a coloured line is used so it can be clearly identified, and ensure that the line is precise. A small-scale plan with a wide marked line can cause confusion as to exactly where the Respondent can and cannot enter. A Judge will need to be satisfied that the Respondent is in no doubt as to the extent of any limitations being imposed upon them.
It must be borne in mind that the worst a Judge can do is refuse to grant the exclusion zone, if they are not satisfied it is appropriate to include that within the Order, and it does not follow that the remainder of the application will be unsuccessful. We would therefore suggest that in any case where you feel an exclusion zone may be of benefit, it is worth seeking to include that within the Draft Order, so long as there is evidence to support that request.
If you would like to discuss any of the issues raised in this article, please contact David Low (firstname.lastname@example.org) or Lewis Brown (email@example.com), or call 0191 384 2441. Alternatively, please visit our website at www.swinburnemaddison.co.uk.
With a broad client base that includes private landlords, registered providers of social housing and local authorities, the Swinburne Maddison team are experienced in providing specialist advice on a wide range of matters from property management issues and enforcement matters to volume housing disrepair claims.
This article is for general information only. It does not, and is not intended to, constitute legal or professional advice. The law may have changed since this article was published and we would always recommend that you seek specific advice on any particular legal issue.