The irony of injunctions to prevent nuisance and annoyance

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An IPNA; an injunction to prevent nuisance and annoyance. Not yet law but something in which the government is set on implementing in the Antisocial Behaviour, Crime and Policing Bill. The IPNA is set to replace the pre-existing ASBO (Anti-social behaviour order); however, in doing so the goalposts are being immeasurably widened. For instance, in order for a court to grant an ABSO they have to be satisfied beyond reasonable doubt that anti-social behaviour has taken place, whereas, the standard of proof for an IPNA to be granted is only on the balance of probabilities. In addition, although breaching an order will not be a criminal offence, it can still carry a custodial sentence. As a result of breaching an IPNA it is proposed that, without committing a crime, you can be imprisoned for up to two years. Furthermore, children who cannot currently be detained for contempt of court, will be subject to an inspiring new range of punishments for breaking an IPNA, including three months in a young offenders’ centre. It is proposed that an IPNA could be made against anyone of 10 or over. An excellent article outlining some of the behaviours which could me made the subject of an IPNA can be found here http://www.parentdish.co.uk/2014/01/08/my-children-are-annoying-will-they-get-an-ipna/

The main proposals put forward in the bill are to:

  • Permit injunctions against anyone who ‘has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person’.

 

  • Requiring the recipient to discharge positive obligations. In other words, they can impose a kind of community service order on people who have committed no crime, which could, the law proposes, remain in force for the rest of their lives.

 

  • Introducing public space protection orders, which can prevent either everybody or particular kinds of people from doing certain things in certain places. It creates new dispersal powers, which can be used by the police to exclude people from an area (there is no size limit), whether or not they have done anything wrong.

 

Lord Macdonald, formerly the director of public prosecutions, stated that ‘it is difficult to imagine a broader concept than causing ‘nuisance’ or ‘annoyance’. The phrase is apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law’. Protesters, buskers, preachers: all, he argues, could end up with IPNA’s. He went on to say that IPNA’s would amount to “gross state interference” with people’s private lives and basic freedoms. 

It is clear from the language used in the bill that it will be capable of extremely wide interpretation, allowing for an immeasurable number of activities to fall within it. Lord Morris of Aberavon said the ‘nuisance or annoyance’ definition was so elastic that “if applied widely… would catch all sorts of people who really should not be before the courts”. Such wide language, capable of covering situations in which one might not foresee themselves to be doing anything wrong could be subject to an order; if one does not know which actions are within or outside of the law then how can one abide by the law? Such ambiguity conflicts with the Rule of Law and as such amounts to an erosion of one’s basic human rights. This is a recurrent Government theme.

The Home Office’s assurance that the new injunctions would not be imposed in an unreasonable way does not instil a great deal of faith, bearing in mind how ASBOs have operated in practice. ASBOs have been imposed prohibiting a 13-year-old boy from using the word ‘grass’ in England & Wales, a soup kitchen from feeding the homeless, a prostitute from carrying condoms, and an elderly man from being sarcastic to his neighbours. If this is the Home Office’s definition of ‘reasonable’, it is no wonder there are concerns over the proposed introduction of IPNAs.

A campaign group, Reform Clause 1, has sprung up in opposition to these proposals, claiming it’s a step too far by the Nanny State. The legal opinion they commissioned explains: “Tolerance of low-level non-criminal behaviour that may be capable of causing some person annoyance or nuisance, is an important feature of an open and democratic society governed by the rule of law.”

The irony of an injunction to prevent nuisance and annoyance is therefore made out. Such an injunction is in itself a nuisance and annoying; a nuisance to the Rule of Law and wholeheartedly annoying juxtaposed with many basic and fundamental human rights. Reviewing the Antisocial Behaviour, Crime and Policing Bill resembles déjà vu of watching a video of a horrific car crash.

On the bright side, it must be noted that as with any government proposal it must be passed by majority in both the House of Commons, as well as the House of Lords. On Wednesday 8th January 2014, the government suffered a big defeat in the House of Lords where peers voted by 306 to 178, majority 128, against the plans. It is not yet known what the government plan to do next. Campaign group, Liberty, declared, ‘The House of Lords has once again stood firm against sloppy, chilling legislation’. Now the issue will return to the Commons and Liberty states ‘hopefully ministers will think again’.

 

Dale Timson

LLB (Honours) Student & Aspiring Barrister

16/01/2014

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