this webinar looks at community protection notice. Is there a fairly recent development but their affect criminal lawyers, whether you're dealing with the legal aid end of the market, particularly with people involved in antisocial behavior or street drinkers. But it also has knock on effects if you're dealing with the private pain end of the market. Community protection notices are being used for all sorts of reasons by local authorities on the police in particular. For example, there are reports of people being prohibited from sleeping in doorways and shops in city centres. They've been used to prevent eccentric elderly people from feeding pigeons to which causes annoyance to neighbours. But they also have use in dealing with other forms of anti social behaviour. So let's begin by looking at who can issue warm. First and foremost, we need to know the legislative background those coming up on your slide and you can see that it's the anti social behavior, crime and policing at 2000 and 14. That creates the provision for a local authority or police to impose such a notice. There's some guidance on your slide. New guidance on the use of anti social behaviour, crime and policing out. It's quite often the case that local authorities in the police rely upon the guidance on. Sometimes they want to use it in criminal proceedings. But remember, it's purely guidance. It's little more than opinion evidence, and even then it's not admissible because it's simply the opinion of the person who wrote the documents. And so if you're defending one of these matters, make sure that you take the point that the guidance is not admissible evidence. It's purely guidance. So who can issue the notice? Section 43 tells us that they have to be unauthorized person. And Section 53 which contains a few definitions, tells this that either a community protection notice or its little brother the fixed penalty notice could be issued by a constable, and that would include a PCs, I, all the relevant local authority or a person designated by the relevant local authority for the purposes of this section. So perhaps that would be something like social housing. So if the person issuing the notice isn't a constable or PCs oh or the relevant local authority, you're going to want to identify the statutory basis upon which this notice was issued because plainly, if there's no power to issue the notice, the notice is likely to be in ality and that means no criminal proceedings comfortable for breach. So let's look at further definitions for the purposes of a community protection notice. The relevant local authority here is the local authority within the WHO's area. The conduct specified in the notice has, according to the notice being taking place. So if somebody sleeping in doorways in the city center to the annoyance of residents or other people using the area then is going to be the local authority where this the door stop that is going to be the local authority whose territory includes the doorway since is the subject of complaints. If it's a fixed penalty notice and we look at the difference in shortly, then it's going to be the local authority within whose area the offense in question is alleged to have taken place. What, therefore are the grounds issue? Well, either could be a suit on section 43 1 providing it you're dealing with an individual of stage 16 or over or a body. So something like a business providing that the authorize person is satisfied on reasonable grounds that the conduct of the individual body is having a detrimental effect off a persistent and continuing nature on the quality of life of those in the locality Onda. The conduct is unreasonable. Well, the difficulty of course there is defining unreasonable to local authority. Things that attract complaints and things that cost money to put right may well be perceived as unreasonable. One reason was an objective standard, not simply what one person thinks is unreasonable. And they may, of course, be grounds to challenge in due course by judicial review, or will look at the set statutory procedure for challenging a notice in due course. But your main challenge is either going to be the factual basis for issuing the notice under 43 1 a or under 43 1 b unreasonableness. So on the basis that somebody has decided that the notice is going to be issued, what can they require to be done under the terms of the notice? Well, 43 3 tells us that they can impose a requirement to stop doing specified things. For example, stop feeding pigeons or stop congregating in an area notorious for street drinking all the might be a requirement to do. Specify things like, for example, tidying up a derelict building in the middle of a city centre that's having an effect on the quality of life of the locality. Perhaps it's attracting squatters or other antisocial behavior, and C means imposing a requirement to take reasonable steps to achieve specified results. So perhaps the derelict building has a means of entry and exit, and it's attracting schoolchildren, smoking and getting up to other things during the day to the annoyance of neighbors. Then perhaps a requirement to take all reasonable steps to prevent trespass is from entering could be imposed. But the requirements of limited under section 43 4 the person issuing the notice kind of only impose requirements that are reasonable for this aim. To prevent the detrimental effect recurring or continuing, or to reduce the detrimental effect or to reduce its continuance or recurrence. So the requirements to do things or not to do things have to be reasonable and proportionate to the aim. And of course that indicates a ground for challenge. The idea that what's being required or forbidden is disproportionate to the detrimental effect at what point. Therefore, will a local authority or other authorised person want to issue a community protection notice? Section 43 5 tells us that a person may issue a community protection notice, so there's a discretion they don't have to. But first of all, they need to demonstrate that the intended recipient has been given a written warning, threatening to issue a notice unless their conduct ceases to have the detrimental effect that's being complained off. The person issuing the notice then has to be satisfied that the intended recipient has had enough time to deal with the issue. But nevertheless the problems continues. Andi, before anybody does issue a community protection notice, they must inform any body or individual they think is appropriate so that maybe someone connected. Let's imagine that the premises being used for anti social behaviour is let to somebody the people who could receive the notice requiring them to stop the trespass in the nuisance will therefore be the person leasing the building, all potentially the freeholder of the building. It might be that there are varying degrees of letting and subletting and assigning of leases, and so it may be appropriate first and foremost to consult with the person who owns the building or one of the other lessees or less sores. It may also be appropriate to consult, perhaps with other bodies interested in the welfare of Children or body is interested in public safe day. So let's imagine that the consultation on various other stages have been gone through, and now it's coming to drafting in issuing the notice. What more needs to go in it? Well, 43 Subsection seven says that the conduct referred to i e. The subject of the complaint has to be identified. Otherwise, the recipient to the noticed doesn't know for sure what they're being asked to do or to stop doing. It must explain the effects of Section 46 to 51 ru Means of challenge and remedies will look at those in a minute. Andi. It must specify periods or time limits, requiring anything just be stopped or to be completed by. So there may be several different dates. It a notice, depending on what needs doing to prevent the situation recurring. How are you going to serve next? Well, if you're dealing with the owner of a premises of building that's going to be fairly straightforward. If you're dealing with itinerants, perhaps street drinkers and people sleeping in shop doorways, it might be a little bit more difficult. But what the act requires that Section 55 is that it's either handed to the person it's left at their proper address, which will be difficult with itinerant people. Or it could be posted. Or it could be issued in the case of a body corporate and served on the secretary or clark of the body. If you're dealing with a partnership subsection three, it says that it may be a suit to a pulp. No, all a person with control or management. So perhaps the practice manager. When dealing with service by post, the usual provisions of Section seven of the Interpretation Act apply, So delivery to the last known address is good service. And depending on whether it's posted through the letter box or whether it's first or second class service, they'll be different dates by which the document is deemed served. It could be served in the case of a body corporate, but the registered or principal office address or, in the case of a partnership, the principal office will survives. So who can be served well, a personal body according to the legislation we looked at at the beginning of the slide, so that might be individuals. It might be businesses. It might be premises where the complaint is of antisocial behavior, like noise, for example, a club or a pub when dealing with premises from where the nuisances emanating, Section 44 says that there are a variety of people who are potentially liable and therefore can be the subject of a community protection motives. So you have the choice, the owner, somebody leasing the property or someone letting it an occupier, someone in control or someone operating or someone maintaining the premises that might require the local authority or the police to do some investigations. The land registry might prove ownership. It might prove certain types of leasehold, but it won't proved a factor occupation, and they may in fact not be any formal documentation. For example, let's imagine it's a late night kebab shop, causing annoyance to local people, and somebody is simply running it for a friend for the time being. In those sorts of situations, you don't always get any formalities at all. It's simply a word of mouth agreement. And so if you're defending or you wish to challenge one of these notices, you're going to want to demonstrate that the person served with the notice doesn't have the degree of control or ownership envisaged under Section 44. For them to be able to have any influence or any control over the anti social behavior, there's also a caveat that subsection three and that's the the person issuing the notice can treat an individual's conduct conduct is that of somebody else's if they don't have any power to control it themselves. So if the loan lord is responsible for the upkeep of the building and surrounding land and the complaint is, the condition of the lands or the property is causing the detriment of nuisance, then the tenant can't be expected to make good any complaint. They don't have the influence or control. Suppose you can't find or can't identify the owner of property. Let's say it's an area where no all land is registered, so the lamb registry isn't going to help us. Let's say it's derelict and it's impossible to see anybody coming and going well in this situation. It's a bit like dealing with squatters, you can simply attach the notice to the property, nail it to the front door, fly posted. What have you and services then deemed to take place at the time it's affixed to the property. So let's imagine party has now been served with a notice. What can they do? Well, your grand challenge start under Section 46 of the act. There's 21 days to appeal to the Magistrates Court that time running from the date of service. No legal aid is available in this situation, and there are only limited grounds of appeal. Firstly, that the conduct didn't take place, so there was never a factual basis to receive the notice. Secondly, it hasn't had a detrimental effect on the quality of life of those in the low quality or it hasn't been persistent or continuing. Oh, it's not unreasonable. All the recipient of the notice can reasonably be expected to have any control or effect upon the problem. The other ground of complaints will be the requirements in the notice or the time period allowed are unreasonable. The Commute challenge. If there's a material defect or error in connection with the notice or a final argument is that the notice was issued to the wrong person. There is, of course, the possibility of judicial law review because this is a public law power being exercised plainly, it's quicker and cheaper to challenge the matter in the Magistrates court, Judicial Review or an appeal by where, Kay stated may well like thereafter. What's the effect, however, of lodging an appeal? Well under Section 46 3 any requirement to stop doing something remains effective, but a lot. The other requirements fall away e g. Remedial work pending appeal. So it holds the status quo but doesn't impose a positive obligation, for example, to start to make repairs or clean up the nuisance. The core on hearing the appeal can quash the notice. It could modify it, or it could dismiss the appeal. What happens if the notice is not challenged? All the challenges dismissed on the recipient then goes on to breach the terms of the notice. Section 47 makes it a criminal offence as the Section 48. Let's have a look at the consequences. Now off breach of a notice. Section 47 commits the local authority to undertake remedial expense on the cost of this could be charged to the person who's breached the notice. There is a right of appeal against the size of the bill in those circumstances. For other breaches, Section 48 imposes a level for fine. For an individual, we're up to £20,000 maximum for a body again. Legal aid isn't going to be available for the street drinker who's sleeping into shop doorways or sitting in the street during the day shouting, making a nuisance of himself because it's only a financial penalty, there are some statutory defences. Firstly, a person doesn't commit an offence if they took all reasonable steps to comply with the notice or there's some other reasonable excuse for failing to comply. So the prosecution would have to prove to the criminal standard that the defendant didn't comply with the notice. If the defendant wants to show that they've taken all reasonable steps, all they've got a reasonable excuse. That suggests looking at cases or such a Sheldrake, that there's a legal burden on the defendant. He has to prove on the balance of probabilities that he has the reasonable, reasonable defense and the prosecution then have to satisfy the court. So they're sure that either the factual basis of the defense isn't made out all If it is, it doesn't amount to a reasonable excuse. As a matter of law on the basis the court convict, there is a power when dealing with premises to make a remedial order so the defendant could be ordered to make good whatever it is that the recurring detriments. The defendant therefore could be ordered to remedy this state of affairs complained of in the community protection notice. But that's only applicable in cases where the local authority has issued the notice. The defendant could be ordered to pay the cost of the remedial action if he ignores the order and the local authority step in and do the work themselves. But again, although there's a right of challenge within 21 days to the cost of the bill, there's no challenge by itself to the terms of the remedial order other than presumably through the Crown Court. Section 50 is a minor power. It gives the person who received the notice the power to seize articles used in commission with any offence and then there are powers to issue search warrants on to retain items pending trial with a view to a forfeiture or possibly forfeiture and destruction order. There is an alternative to issuing a community protection notice on that's a fixed penalty ticket. Local authorities may find that more attractive because that may solve the problem without them having to issue a notice and take the risk that there may be a challenge in due course. In the Magistrates Court, there has been some case law the case of Stanard in 2000 and 19. Can you challenge the legality of a community protection notice as a defense? Well, looking at the decision of Paragraph 40 the statute provides for a challenge by way of appeal, and so that suggests that you can't challenge the legality of the notice as a defense. If you want to challenge the notice, you must do it under the procedure set out when the notice issued on not leave it until criminal proceedings. Air instigated Judicial review might be a means of challenging, but of course, it's quicker and cheaper us. We've already discussed to do that in the Magistrates court. Of course, the right of appeal is an absolute Roy under section 46. If you want to go by way of judicial review, you're going to get need to get the permission of the high court, and that might not be forthcoming. So you're going to be generally better pursuing your rights under Section 46. But the court was prepared to give quite a wide interpretation to what's involved here in Section 46 when challenging by way of appeal on what standard that requires them to the local authority or police. To do is the following to serve the person at the same time as the community protection notice is served with documents setting out the following that there's a power under Section 43 to discharge or very you notice, and to bring to the attention the recipient that there's a persistent in place for reviewing notices, all reviewing their requirements. If the recipient wants to seek a variation or discharge of the notice, the recipient should be provided with all of this information when served with the community protection notice. Oh, bitter in the judgment, and you'll find this a problem 52 onwards. Notices ought to be limited in time. That's for the purposes of proportionality. And, of course, it's fundamental to English law. Orders shouldn't be of indefinite duration. The requirements in the notice must be proportionate with any limits or interference with the recipients. Ryan's on the notices must be clear.
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