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The benefits of a Positive Requirement

19 November 2015 • Kirsty Varley

Positive Requirements are an important part of the new legal armoury RPs use to tackle anti-social behaviour, and they’re working, bringing benefits to communities and the perpetrators of ASB – that was the assessment given by Croftons’ Associate Solicitor Kirsty Varley, speaking at the Resolve ASB National Conference earlier this month.

A key workshop delivered by Kirsty focused on the civil injunction which came into force in March this year, assessing in particular the effectiveness of the positive requirement element. She was joined by Helen Grant, Community Safety Manager at One Vision Housing, who has used this tool to good effect.

What is a positive requirement?

Positive requirements were introduced by Section 3 of the Anti-Social Behaviour Crime and Policing Act and, for the first time, allow RPs to include terms within injunctions that require a defendant to participate in a particular activity designed to tackle the root causes of anti-social behaviour.

Croftons obtained the first injunction with a positive requirement for an RP client in the country.

The case involved a female tenant with a long history of alcohol abuse who was known to the local alcohol services and the police. Complaints from neighbours centred on alcohol-fuelled arguments, noise and music. The defendant was usually remorseful when sober and had agreed with employees of the RP that she had a problem with alcohol. The client instructed Kirsty to apply to the court for an injunction order with a power of arrest due to the impact that her behaviour was having upon her neighbours – several had complained of ill-health due to sleep deprivation as a result of her behaviour.

The application also contained a clause that the defendant had to engage with the local alcohol services for an initial assessment, and then to attend any pre-arranged appointments. This allowed the alcohol service the freedom to undertake an initial assessment and then decide what level of treatment and contact would be required to assist the defendant.

The injunction order with a positive requirement for One Vision Housing followed a similar pattern, with a male, alcohol-dependant defendant who had complaints around his lifestyle and visitors. The two injunctions with positive requirements that Croftons have obtained appear to be working. Both orders contain requirements that the defendants attend alcohol treatment and neither defendant has missed any of the appointments that were arranged. And crucially the nuisance behaviour has reduced dramatically in both cases.

Tackling root causes

“Positive requirements are an important aspect of the new armoury provided to RPs by parliament,” said Kirsty. “Attempting to tackle root causes of anti-social behaviour, as well as the effects, can only serve to help keep communities safer and support defendants in turning their lives around and maintaining their tenancies – if they are prepared to comply with the terms of court orders.”

Kirsty also took delegates through the legal and evidential requirements for obtaining a civil injunction, including the need for the terms to be just. She also offered her first-hand experience of how the legislation was being interpreted by the courts and the reaction of the District Judges, noting that they are looking at applications in great detail and are particularly keen to ensure defendants were not being set up to fail when being ordered to participate in specified activities.

Best practice

Helen shared her views on best practice, which included opening up lines of communication between RPs and local partners and if necessary putting in place agreements with relevant agencies about how information provided would be used in relation to breaches. Helen was clear that a multi-agency approach assisted in One Vision’s injunction with positive requirement.

The session concluded with a question and answer session which focused on drafting terms, the enforceability of such clauses, and how they work in practice. Kirsty advised that when drafting terms, allow enough flexibility for the service providers to actually perform an assessment and formulate a treatment plan while still allowing the order to be enforceable by the courts. Other ideas were exchanged with some delegates discussing how they involve the community trigger on behalf of their residents to ensure a multi-agency approach to tacking anti-social behaviour.

If you want some advice or further information about positive requirements, or any aspect of tackling anti-social behaviour, please get in touch with Kirsty Varley.

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Croftons is the trading name of Croftons Solicitors LLP, a limited liability partnership registered in England and Wales with number OC343375. The term ‘partner’, if used, denotes a member of Croftons Solicitors LLP or a senior solicitor of Croftons Solicitors LLP with equivalent standing and qualifications. A full list of members is open to inspection at the office. Croftons is authorised and regulated by The Solicitors Regulation Authority (SRA) number 508041. Croftons has its principal place of business at The Lexicon, Mount Street, Manchester, M2 5FA.



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