In this series of posts, we are looking at antisocial behaviour. We’ve already talked about what antisocial behaviour is and why it happens. Today we’re going to look at how authorities tackle antisocial behaviour. We will also see what you can do to protect yourself if you find yourself on the receiving end of an accusation.
This post is about Community Protection Notices. Sections 43 to 58 of the Anti-social Behaviour, Crime and Policing Act 2014 govern these notices. A Community Protection Notice can be issued by the police, council officers and some social landlords. Theses notices aim to stop people carrying out behaviour that spoils local’s quality of life.
The person issuing the notice should ensure it is necessary. We have found that council “investigations” can be poor and even non-existent. Failure to obey the notice is a criminal offence. So, it is always worth taking legal advice to see if you can challenge a Community Protection Notice.
What is the test for issuing a Community Protection Notice?
The officer issuing the notice must satisfy themselves of several things. First, that there has been some sort of antisocial behaviour in the past. Secondly, that the behaviour has had a detrimental effect on the quality of life of those living in the area. Thirdly, that the behaviour has been persistent in the past or is something that is still ongoing. Finally, the officer must conclude that the behaviour is unreasonable.
Let’s look at each point so we understand what they all mean.
Detrimental effect on quality of life
This requires evidence from locals about the impact the behaviour has on them. This will usually be in the form of nuisance or harm caused to them. It is not enough that people in the area might find somebody’s behaviour a bit annoying.
There is no legal definition of what a detrimental effect on quality of life is in these cases. The court will approach each case on its own facts. Courts have decided that things like: 1. illegal Traveller camps, 2. aggression, and 3. anti-abortion protests can reduce people's quality of life.
The impact may affect both locals and occasional visitors to an area. See the case of Dulgheriu and another v Ealing London Borough Council (National Council for Civil Liberties (trading as Liberty) intervening) [2020] 3 All ER 545.
Persistent or continuing nature
Judgements on whether behaviour is persistent or continuing are made case by case. The more frequent the behaviour the more likely it is to count.
Let’s take a couple of examples. If somebody has been storing rubbish in their front garden for several months and the rubbish is still there, it is clearly a continuing behaviour. Things are more complicated where the alleged behaviour takes place on different occasions. In the case of Staffordshire Moorlands District Council v S [2020] EWHC 962 (Admin), the council imposed a Community Protection Notice on a mother because her son would got into fights, set fire to public benches and swore at passers-by. That order was successfully appealed because the mother was not the person doing the act. But there was no dispute that the behaviour was persistent.
Recently we represented a man accused of persistently having his dog out of control. There were two incidents three-years apart. We appealed because two incidents three-years apart was not continuing or persistent. I should add that our client also denied that his dog had ever been out of control on either occasion. We also pointed out that the council officer had not undertaken any investigation. She issued the Community Protection Notice before contacting our client, so obviously wasn’t interested in his account at all.
Unreasonable behaviour
Interestingly, the government has issued guidance on Community Protection Notices. It gives an example under this heading of a baby crying in the middle of the night. The guidance points out that it will rarely be reasonable to issue a notice. I would suggest the author of the guidance has misunderstood this test. The Act creating these notices talks about the reasonableness of the behaviour. It is not concerned with the reasonableness of the order. Although that is something to consider at appeal.
I’d suggest some different examples. First, let’s say you live by a pub that plays music in its beer garden. It might be entirely reasonable for them to play the music at a sensible level during the day and early evening. But, most people might think it unreasonable if the pub played music outside loudly or late at night. Another example might be the storage of rubbish. It might be wholly unreasonable to store trade waste in the front garden of your home for months on end. However, storing the same waste on business premises might be completely reasonable.
In the case I mentioned earlier with our client’s dog. We argued that our client’s behaviour was reasonable because both times it was him and his dog who were attacked. He had photographs of the injuries he and his dog suffered to prove it. In that context, the retaliation from his dog was as reasonable as self-defence would be if one human attacked another.
A officer can only reach these conclusions after a proper investigation. They should get evidence to prove each of the points above. The court is not involved in making these orders. So, officers have a lot of power over those in their communities.
Penalty for breaching a Community Protection Notice
Breaching a notice is a criminal offence.
An appropriate officer can issue a fixed penalty notice of up to £100. Alternatively, a court can fine you up to £2,500 plus prosecution costs.
It is not a defence to say the officer should not have issued the notice! Therefore, if you don’t think a notice should be issued you must challenge it in court ASAP.
Appealing a Community Protection Notice
When the officer issues the notice, you have 21 days to appeal to the magistrates' court. If you are outside of this time, then there seems to be no power for the court to extend the deadline.
Once appealed, the court may quash the notice, change it, or dismiss the appeal.
Appeals can address defects in the issuing process, or the facts relied upon by the person issuing the notice.
Defects in the notice
Before a Community Protection Notice can be issued, there must have been a written warning issued first. There must then be evidence that the behaviour continued after the notice was issued and that enough time has been given to remedy the situation. Only at that point can a notice be issued.
Thus, if the warning is given because of rubbish, the officer cannot then issue a notice the following day unless it is reasonable to expect the rubbish to be cleared so quickly.
We identified a defect in a notice issued to one of our clients because it provided incorrect details of the address to be cleared.
Issued to the wrong person
The notice must be issued and addressed to the correct person, i.e. the person responsible for the behaviour.
In the case of Staffordshire Moorlands District Council v S, mentioned above, it was held that the council had issued the Community Protection Notice to the wrong person. In that case, they issued it to the mother requiring her to address her son’s behaviour. The court held that the real target of the notice was the son’s behaviour not the mother’s failure to prevent it.
Unreasonableness of the notice requirement
Where the requirements themselves are unreasonable you will have an appeal.
Let’s imagine a nuisance being caused by a takeaway food business because of customers littering and making a noise when they leave the premises at night. A reasonable requirement might be for the business to put up signs telling customers to be quiet and to put bins outside their premises. An unreasonable requirement might be to order the business to close at night.
Appeals addressing the facts
There are five appeal points under this heading.
Behaviour did not take place
First, you can argue that the behaviour alleged did not take place at all.
We represented a gentleman who was issued a notice because of fly tipping. His offence was to be caught on a council’s hidden camera depositing items at a recycling point on a few occasions. The council subsequently found several items had been left on the floor around the recycling point. Our client challenged the notice on the basis that he had correctly deposited his waste and had not put any of the items on the ground. The council officer was unable to point to any evidence that our client was the person who left items on the ground – in the videos the tipped waste seemed to be there before our client arrived. The notice was overturned.
No detrimental impact on quality of life
The fact this appeal point exists shows why it is important for issuing officers to properly investigate and gather evidence. Neighbours may find rubbish in a neighbouring garden annoying but is it impacting their quality of life? Without evidence it’s impossible to conclude that it is affecting them.
Not persistent nor continuing
As we’ve seen already, there must be evidence that the behaviour is either persistent or that it is continuing before a notice can be issued.
You may accept that the behaviour complained of has happened but dispute whether it amounts to persistent or continuing behaviour. There is no hard and fast rule, so the courts will consider each case on its own merits.
In Summers v Richmond upon Thames London Borough Council [2018] EWHC 782 (Admin), the court held that persistent or continuing, “plainly excludes one-off activities, or those which might occur more than once, but rarely.” In the dog case we have mentioned a few times in this post, it was plainly hard to see two incidents separated in time by three-years as either persistent or continuing.
The conduct is reasonable
It’s important to be clear that here we are talking about the behaviour being reasonable. A little earlier we tackled a similar appeal point but that was focusing on whether the conditions set out in the notice were reasonable.
Let’s think about a noise complaint. Your neighbour has complained about banging that has been going on for several weeks and that he says is having a detrimental impact on his quality of life. If this banging is because you get into a rage and hit the walls with a hammer to relieve your frustration, then that is unlikely to be reasonable behaviour. If you have been renovating your home and the banging is part and parcel of those renovations, then it may be reasonable for you to make that noise.
Where the accusation is that you have been allowing your dog to foul on the pavement and you haven’t cleared it up then it’s difficult to see how that would be reasonable.
You cannot be expected to control or affect the behaviour
There are somethings that happen and impact others but which we cannot control.
In the Staffordshire Moorlands District Council v S case, much of the behaviour of S’s son occurred at school. Although it wasn’t argued in that case, you might think it would be difficult for Mrs S to control her son’s behaviour when he is in the care of the school.
In the case of a takeaway food shop owner whose customers drop litter around the local area. There is only so much a shop owner can do to prevent that happening. If the owner has provided bins but litter is being dropped some distance from his shop, then he may reasonably argue that he cannot affect the behaviour of adults when they leave his premises.
Conclusion
In summary, Community Protection Notices can be issued by the police, council officers, and some social landlords. The notice can only be issued after a warning has been given and then only when there is evidence of the offending behaviour continuing.
Breaching a notice is a criminal offence so it is important that you challenge the notice within 21 days if you think it ought not to have been issued to you.
If you have been issued with a Community Protection Notice, you can get expert legal advice today by calling us on 020 8242 4496 or by visiting our contact page.