The High Court considered an appeal by way of case stated brough by AM, a 14-year-old who was found to have breached the terms of a civil injunction made under section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). AM appealed on two grounds; that the Chief Constable failed to comply with the obligation to consult with the youth offending team (“the YOT”) and that the terms of the order were unclear. The Court rejected both grounds of appeal, finding on the facts that the contact between the police solicitor and the YOT before the hearing amounted to consultation, and that whilst the order could have been made clearer, there was no doubt AM was in breach.
On 2 July 2019 an anti-social behaviuor injunction (“ASBI”) was made against AM on the application of the Chief Constable of West Midlands Police. AM was 14 at the time of the application, which was granted by Birmingham Youth Court. The order prohibited AM from having contact with four named individuals, and from entering an area shown on a map provided to AM. A power of arrest was attached to these prohibitions. There was a duty to consult YOT before the application was made, and it was not suggested that this was not complied with.
On 13 July 2019 police were called by a member of the public who reported an incident taking place at a location within the area which AM was prohibited from entering. On 19 July police reviewed video footage and identified that AM had been present at the location on 13 July. AM was arrested at 8pm on 30 July on suspicion of having breached the injunction.
In accordance with the terms of the injunction, AM was detained overnight to be brought to a magistrates’ court within 24 hours of his arrest. The terms of the injunction specified that he must then be remanded to appear before Birmingham Youth Court where the breach would be determined. This hearing was due to take place on 2 September 2019 but was adjourned, eventually taking place on 30 September 2019.
AM accepted that he had been present at the location on the 13 July, but denied breaching the terms of the injunction, arguing that the prohibition lacked clarity. It was also submitted on AM’s behalf that the Chief Constable had failed to comply with paragraph 1(3)(a) of Schedule 2 to the 2014 Act which required the Chief Constable to consult with the YOT before making an application for AM to be made subject to a supervision order or a detention order if found guilty of the breach.
The Chief Constable provided evidence in the form of a statement from a police solicitor who stated that she had contacted the YOT on 31 July 2019 before AM appeared in court to explain the nature of the breach. The YOT confirmed that they would need a two-week adjournment to prepare a report if the breach were accepted. As the breach was denied, the hearing was adjourned. The solicitor contacted the YOT again on 25 September, to ask specifically about the issue of the detention/supervision order. YOT again responded saying that if the breach were proved they would require a two-week adjournment to prepare a report.
The District Judge in the Youth Court found this contact to amount to consultation as required by the 2014 Act, and the High Court agreed. The High Court noted that the YOT were aware of the breach proceedings and were able to express their views on the appropriateness of seeking a supervision/detention order, or indeed whether the breach proceedings should continue at all.
Separately, in respect of the clarity of the terms of the injunction, the High Court found that the version of the map provided to AM was not clear enough. A clearer map had since been provided, however the issue in this case was the boundary of the exclusion zone which the High Court found to be clearly delineated on the map provided. This ground of appeal was therefore rejected.
This case, whilst turning largely on its own facts, highlights the injustice of imposing Anti-Social Behaviour Injunctions on children and young people. In this case, an injunction was imposed on a 14-year-old which carried not only the power of arrest for associating with named individuals and/or entering a prohibited area, but also required the arresting officer to detain him overnight to be brought before a magistrates’ court within 24 hours. The injunction also required AM to be remanded to appear before the youth court who had made the injunction. It is unclear in this case how long AM spent in custody, but it is entirely disproportionate that a child or young person should spend any length of time in custody on suspicion of breaching a civil injunction.
The key question arising from this appeal relates to the role of the YOT in advising on the appropriate sentence for a breach of an injunction of this sort. The drafting of the 2014 Act does not appear to properly reflect the manner in which equivalent decisions are made in criminal proceedings, which may account for some of the confusion in this case. The 2014 Act permits the youth court to impose a supervision order or a detention order where it is satisfied to the criminal standard that the injunction has been breached. However, it requires the Chief Constable to make an application for the court to impose an order of this sort. This appears to be a confusing hybrid of civil and criminal procedure. Whilst the Chief Constable is permitted to apply for a young person to be made subject to a detention or supervision order, they can only know which order to apply for after YOT have prepared a full report on the appropriateness of either order.
It would therefore seem reasonable, and consistent with criminal procedure, that upon finding that the breach to be proven, the YOT is consulted as to the appropriateness of the order to be imposed as a result. After this consultation, and consideration of the YOT’s report, the Chief Constable will have the information required to make an application for the appropriate order.
The fairly minimal contact taken to constitute “consultation” with the YOT in this case is cause for concern. Particularly if this level of consultation would also be deemed sufficient at the point at which the initial application for the Anti-Social Behaviour Injunction was being considered. There appears to be a real need for guidance on effective consultation procedures to assist police and YOT officers in these sorts of cases.
The wording of the 2014 Act lacks clarity as to the point at which the Chief Constable is deemed to be making the application for the order, which means that there is uncertainty as to the point at which the YOT should be consulted. In this case, the YOT was notified of the alleged breach in advance of both the first appearance and the contested hearing, and the High Court found this to be consistent with the requirements of the 2014 Act. However, it is likely that the intention of paragraph 1 of Schedule 2 was to ensure that no child or young person is made subject to supervision or detention order without the YOT being consulted – suggesting that the point at which YOT should be consulted is after the breach has been proven and the order (equivalent to a sentence) is being considered.
It is not entirely clear whether that happened in this case, however given the earlier indications from the YOT it would seem likely. The case serves to highlight the lack of clarity in the drafting of the 2104 Act, and the wider question of whether civil injunctions of this sort are appropriate for children and young people, particularly given the safeguards that exist in the criminal justice system which may not be in place in proceedings of this nature.
Jack Thorne, Senior Associate, Paul Hastings
Vivien Cochrane, Senior Associate, Kingsley Napley