Court of Appeal clarifies legal standards surrounding anti-social behaviour and ASBIs in Swindon Borough Council v Abrook [2024] EWCA Civ 221

Citation: [2024] EWCA Civ 221
Judgment on

Introduction

The case of Swindon Borough Council v Abrook [2024] EWCA Civ 221 addresses the nuanced legal interpretation of ‘anti-social behaviour’ within the context of the Anti-social Behaviour, Crime and Policing Act 2014 (‘the Act’). This case explores whether ‘passive’ begging constitutes anti-social behaviour and examines the appropriateness of the scope of anti-social behaviour injunctions (ASBIs). The appeal provides clarity on the application of ASBIs and underscores the need for proper procedure and assessment when issuing and considering these legal instruments.

Key Facts

Swindon Borough Council obtained an ASBI against Mr. Abrook, which prohibited him from activities such as begging and other related conduct. The ASBI was later discharged by District Judge Hatvany, who determined that Mr. Abrook’s ‘passive’ begging did not meet the threshold for anti-social behaviour unless accompanied by ‘aggressive’ elements. Swindon Borough Council appealed the decision, leading to the examination of the correct interpretation and application of the Act.

The Court of Appeal undertook a detailed analysis of several key legal principles, including:

  1. Definition of Anti-social Behaviour: Central to this case is the definition of anti-social behaviour as per the Act, which includes conduct that is likely to cause harassment, alarm, or distress to any person. The Court iterated that while context matters, a distinction between ‘aggressive’ and ‘passive’ begging is not legally useful.

  2. Standard of Proof for Anti-social Behaviour: The Court emphasized that the standard for determining anti-social behaviour is the balance of probabilities. The definition involves a causative impact of the conduct on others, and evidence should be specific, going beyond general assertions.

  3. Just and Convenient Test: Beyond classifying behaviour as anti-social, the Court must also find it ‘just and convenient’ to impose an ASBI for the purpose of preventing such behaviour in the future. This includes ensuring that orders are proportionate to their aim of preventing anti-social behaviour.

  4. Power of Arrest and Without Notice Applications: The Court noted that powers of arrest should not automatically be attached to every ASBI and that without notice applications should only be made in exceptional circumstances to prevent serious harm to any victim.

  5. Use of Discretion and Proportionality in Sentencing: In referencing Lovett v Wigan Borough Council, the Court advised that sentencing for ASBI breaches should be proportionate and informed by the standard sentences for criminal offences.

  6. Procedural Requirements: The Court highlighted procedural errors in the lower court’s approach, noting that Order 5 could not be discharged on the court’s own motion without a specific application from either party, and advance notice should have been provided for any such intention.

Outcomes

The Court of Appeal allowed the appeal on all grounds, finding that the District Judge did not have the power to discharge the ASBI on his own motion, and even if he did, he failed to follow proper procedure. The case was remitted to the county court for Mr. Abrook to be sentenced for admitted breaches of the ASBI.

Conclusion

The ruling in Swindon Borough Council v Abrook elucidates the legal standards for defining and addressing anti-social behaviour and underscores the need for judicial discretion and proportionality when issuing and managing ASBIs. It also emphasizes the importance of due process and procedural correctness in judicial decision-making. This judgment will serve as guidance for UK legal professionals when considering ASBIs, especially in the nuanced area of beggary and public conduct.

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