EHJ December 2004, pages 386-388

Local authorities are increasingly looking at attaching antisocial behaviour orders to convictions, especially in cases involving noise nuisance. Dave Strevens, noise team leader for Greenwich LBC, explains how the new orders work and lists what to look out for if you are thinking of using the new power

EHPs involved in noise nuisance will tell you that some offenders treat court fines as an affordable cost. Abatement notices are breached, fines are paid, seized equipment is replaced and the noise just does not go away. This can lead to cases rumbling on for years causing distress and frustration to neighbours and in extreme cases even violence.

But now help may be at hand. Since December 2002, local authorities have had the power under the Police Reform Act 2002 to ask the courts for an antisocial behaviour order on conviction. Dubbed a criminal antisocial behaviour order, or Crasbo, it allows courts to impose strict conditions, similar to a conventional antisocial behaviour order, once the defendant has been convicted of a criminal offence.

The appeal of the new court order is that it is relatively simple to obtain because the hard work, getting the conviction, is behind you. An order can be for an unlimited period, but has to last a minimum of two years. It is also powerful because anyone breaching a Crasbo faces arrest and possible imprisonment for up to two years.

The police have been using these new powers for some time. A high profile case involved the West Midlands police issuing a Birmingham prostitute with a Crasbo, preventing her from loitering anywhere in England and Wales for three years or from entering the Edgbaston area of Birmingham. In another case, a Tyneside resident has been prohibited from drinking alcohol in any outdoor public place in the country.

At present, local authorities have issued only a handful of Crasbos, but interest is growing in this new power to tackle offences such as graffiti, fly tipping and noise nuisance. Here in Greenwich, the noise team tried to get an Asbo on conviction against a defendant who had prompted over 60 calls to the council noise line over five years, along with 20 witnessed nuisances. The noise affected up to 10 complainants with the neighbour immediately below complaining of unreasonably heavy footfalls. In this case, the judge opted for the maximum three-year conditional discharge with substantial costs. Although we were unsuccessful in achieving a Crasbo, we felt it was worth trying.

Hammersmith and Fulham LBC had better luck in April with a defendant whose music equipment had been seized four times in the past year. The council had received 50 complaints from nine sources with 10 witnessed breaches of abatement notices. The noisemaker, who was prosecuted for four breaches of the notice, pleaded guilty but tried to argue that he was a "music producer and DJ" and he only played loud music on the odd occasion. He was fined, and the Asbo on conviction granted.

Similarly, Rochdale MDC got its first successful Crasbo in June 2004, in a case that had been on-going since 1999. The defendant had been previously prosecuted for a noise offence and had already had music equipment seized. He was prosecuted for four breaches of a noise abatement notice. Once found guilty, the environmental protection act solicitor sat down and the specialist antisocial behaviour solicitor jumped up. The noisemaker was then made subject to a three-year antisocial behaviour order prohibiting him from:

• Harassing, alarming or distressing one or more persons not of the same household as himself.
• Using, demonstrating or threatening violence against any such person.
• Playing amplified entertainment at an excessive volume so as to cause nuisance to neighbouring properties.
• Playing amplified entertainment between the hours of 11.00pm and 7.00am on Sunday night to Thursday night inclusive and 12 midnight to 8.00am on Friday night to Saturday night inclusive.
• Consuming alcohol in any public street or open place.
• Using abusive, insulting, offensive, threatening or intimidating language or behaviour in a public place or any place to which the public have access.

While successful, this case does throw up one note of caution. The defendant is currently appealing the conviction, which in normal circumstances would not be funded by legal aid. However, as a breach of an antisocial behaviour could result in prison when an order is attached to a conviction, legal aid was made available.

The Greenwich noise team is currently considering how to fully integrate the Asbo on conviction into its prosecution procedure. It is possible that the noise team will be requesting Asbos in almost every prosecution, apart from those involving vulnerable members of the community. After all, almost every noise prosecution contains the essential elements for an Asbo - there has been a pattern of antisocial behaviour, and what the wider public needs is to be protected from that behaviour (see below for tips on Crasbos).

THINGS TO NOTE WHILE TAKING AN ASBO ON CONVICTION:

• An Asbo on conviction can be made by the court as long as the defendant is sentenced or given a conditional discharge.

• To start the process ask the court after the magistrate or judge has given a guilty verdict. If you have time, do this in writing, copied to the defence.

• The case then moves seamlessly from a criminal trial into a civil hearing of the Asbo application. Generally, this means that civil evidential rules apply - hearsay evidence can be used as long as it is notified to the defence.

• The defence must be notified that you intend to ask for an Asbo on conviction. Try to notify the court so it can estimate time for the case. A good time to do so is during the disclosure process as the court will expect you to be as reasonable as possible.

• Do remember that this form of Asbo is intended to be a very fast process and the court can impose the order immediately upon conviction, with no notice and only a very short adjournment (literally minutes) so the defence can prepare their submission.

• You will need to produce a draft order, which must be necessary, reasonable and proportionate in scope. The defence must be given a copy of this draft order, as must the court.

• Generally, the order will prohibit the offending behaviour. It can also ban the defendant from defined areas or places. The issues on the order will probably be directly linked to the prosecution, but they can be broader. For example, the order could mirror a noise abatement notice giving the defence little scope for objection as their client has just been found guilty of breaching those very requirements.

• You can also expand on the notice requirements - perhaps introducing types of noise-making behaviour not prosecuted but subject to another abatement notice. You may include other noise-making behaviour on which you have evidence but have not served a notice. The order could address alcohol or drug abuse if associated with noise. It could prohibit harassment, threats and other antisocial behaviour, which accompanied the noise. It could prohibit certain persons from associating with, or visiting the defendant - perhaps they were part of the noisy behaviour.

• To gain the order, you need to satisfy the court that the offender has acted in an anti-social manner and that an order is necessary to protect people in England or Wales from further antisocial acts.

• The above criteria will shape your evidence. Showing that statutory noise nuisance is likely to cause distress should be easy. After all, how far is that from showing nuisance effects on the average person? You will also need to show that antisocial behaviour is likely to continue unless the Asbo is issued.

• You do not have to bring in lots of new evidence. Try to show a pattern of antisocial behaviour possibly using previous convictions. Be careful about introducing previously uncontested evidence. Keep it to the minimum and summarise it. Don't start introducing exhibits and witness statements, but rather produce a clear, concise summary of the complaint history - numbers of events, numbers of calls to your out-of-hours noise service (and/or to the police), number of witnessed events of nuisance, length of complaint history, etc. Bring the entire case file with you in court, and show it to the court.

• Disclose new evidence to the defence. This is one of the advantages of a criminal prosecution, as you will already have followed the disclosure requirements of the Criminal Procedure and Investigations Act. You will have already disclosed the whole history of the case, including material not used in the criminal conviction - because it was out of date, or simply allegations (complaints) from the public. All this material can now be used. If necessary, you can show the whole history of the case.

• You are allowed to use hearsay evidence to build up a picture of serious nuisance. Without having to bring in complainants to give evidence, you could use: records of complaints alleging nuisance, diary evidence from complainants, records of witnessed nuisance which are out of date, evidence of other forms of antisocial behaviour which, while not directly relevant to the noise prosecution, show the wider pattern of antisocial behaviour.

• While the Asbo on conviction can only be based on evidence in the past six months, prior material can be persuasive in showing a pattern of behaviour.

• You do not have to go through the formal procedure of multi-agency meetings with police and social services that is required for "full" Asbos. It is simply not appropriate where the legislation intends the court to be able to make a simple order immediately on conviction. However, consultation with the appropriate landlord is still essential and should be part of the prosecution decision-making process, along with gathering information on the noisemaker's circumstances such as their state of mental health, level of substance abuse and additional antisocial behaviour.