Housing Law Update – The Court of Appeal provide guidance on the penalties for breaching an Anti-Social Behaviour Injunction
In July 2020, the Civil Justice Council produced a report which highlighted several inconsistencies in the way the County Courts dealt with sentencing for breach of injunctions made under the Anti-Social Behaviour Crime and Policing Act 2014.
Until now, the courts have adopted the sentencing guidelines intended for breaches of Criminal Behaviour Orders / Anti-Social Behaviour Orders. However, this was always an unsatisfactory position as the powers available to Judge’s for dealing with breach of an ASBO were far beyond those available to Judge’s sitting in civil courts dealing with sentencing for breach of an injunction. It often led to a wide disparity from Judge to Judge in the sentences being imposed.
Of concern was that Judges often felt it appropriate to make an order for a suspended custodial sentence, in cases where the breach was likely not serious enough to reach the custody threshold. This is simply because the alternative would be to make no order at all, which would have often felt unjust given that there had been a breach of an injunction order.
However, in a recent case in the Court of Appeal, Lovett v Wigan Borough Council [2022] EWCA Civ 1631, it was held that the previous Sentencing Council Guidelines can only be relevant to breach of anti-social behaviour injunctions in a very generalised sense, given the differences in the level of maximum penalty which could be imposed, and therefore these were no longer the most appropriate guidelines to be used.
The Court of Appeal confirmed that Judge’s should now adopt the sentencing guidance contained in the Civil Justice Council report of 2020, which are set out in the table below. When sentencing for breach, consideration of the level of harm and culpability still remains the correct approach.
| Harm | Culpability A (very serious or persistent breach) | Culpability B (deliberate breach falling between A & C) | Culpability C (minor breach / breach just short of reasonable excuse) | |
| 1 (breach causes very serious harm or distress / breach demonstrates a continuing risk of serious criminal and/or anti-social behaviour) | Starting point | 6 months custody | 3 months custody | 1 month custody |
| Range | 8 weeks to 18 months custody | Adjourned consideration – 6 months custody | Adjourned consideration – 3 months custody | |
| 2 (cases falling between categories 1 & 3) | Starting point | 3 months custody | 1 month custody | Adjourned consideration |
| Range | Adjourned consideration – 6 months custody | Adjourned consideration – 3 months custody | Adjourned consideration – 1 month custody | |
| 3 (breach causes little or no harm or distress / breach demonstrates a continuing risk of minor and/or anti-social behaviour) | Starting point | 1 month custody | >Adjourned consideration | Adjourned consideration |
| Range | Adjourned consideration – 3 months custody | Adjourned consideration – 1 month custody | No order / fine – two week’s custody |
This will undoubtedly provide much needed clarity for social housing providers, given the guidance provides a clear and more systemic approach to sentencing. However, it should still be emphasised that sentencing for a breach will continue to be determined by several contributing factors, and any sentence must still be considered proportionate when taking into account the relevant factors of each breach. Nevertheless, landlords can now consider more accurately the likely sentence that would be imposed for a breach if they pursued committal proceedings and will have a more realistic idea as to when a custodial sentence may be imposed.
It is important to note that custody remains reserved for the most serious of breaches, and for less serious cases, where other methods of securing compliance with the order have failed. A custodial sentence should not be imposed if an alternative sentence is sufficient and appropriate to the nature of the breach.
The Court of Appeal have also made clear that these guidelines relate to breaches under Part 1 of the Anti-Social Behaviour Crime and Policing Act 2014. It therefore remains to be seen whether these guidelines will also be applied in committal proceedings for other breaches of injunction, such as breach of tenancy injunctions.
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