BLOG: Part 81: Reform of committal applications and the enforcement of anti-social behaviour injunctions

Gerard Pitt considers the new CPR Part 81 and the Civil Justice Council’s report ‘Anti-Social Behaviour and the Civil Courts’.

On 01 October 2020 the new Civil Procedure Rules Part 81[1] came into force, condensing and simplifying the rules for what are now aptly entitled ‘contempt applications’.

The reforms may be welcomed by criminal practitioners. The old regime was dauntingly impenetrable to those drafted in to assist individuals arrested for breaching anti-social behaviour injunctions (ASBIs). In that context, contempt applications have become one of the principal methods of enforcement for law enforcement and other public agencies seeking to prevent serious anti-social behaviour.

On 08 October 2020 the Civil Justice Council published its report ‘Anti-Social Behaviour and the Civil Courts’. This detailed, informative and timely report raised serious concerns about the widespread use of injunctions and identified further issues around the capacity of the civil courts and the legal aid sector to ensure defendants are treated fairly.

This article will consider the new Part 81 in the context of anti-social behaviour injunctions, drawing together key themes and developments of 2020.

The new Part 81

The new CPR Part 81 for contempt applications replaces 38 Rules, 2 practice directions, a Practice Guidance (PG) document from the Lord Chief Justice[2] and no fewer than 27 prescribed forms with 10 condensed rules and 4 new forms.

The simplification has largely been achieved in two ways: firstly, by removing the subdivision of the rules based on the different types of jurisdiction and the different types of contempt; and secondly, by removing all the rules which attempted to reflect the nuance of the substantive law of contempt.

The new Part 81 was expressly intended to make the process of contesting a contempt application more intelligible to the unrepresented. ‘Applicant’ and ‘respondent’ have been dispensed with in favour of ‘claimant’ and ‘defendant’. Committal applications are now called contempt applications, and the various procedural safeguards are now incorporated into a comprehensive list and set out in plain English under rule 8.4 “Requirements of a contempt application”.

The new Part 81 also sets out in simple language what powers the court has to deal with contempt, including what are now called ‘orders of committal’ and ‘warrants of committal’, which can be suspended. The new rules also make clear that hearings must be in public unless the court otherwise directs, advocates and the judge shall be robed in all hearings (formerly only included in the practice direction) and judgments must by read into the record, transcribed and published on the judiciary.gov.uk website. This is all seen as pointing toward a refocus on these proceedings as grave matters meriting appropriate judicial resources.

The introduction of Part 81 has not been without its teething problems in contempt applications arising from ASBIs. For example, rule 81.3 (2) has been widely interpreted as meaning that contempt applications made in the County Court, which includes all contempt applications arising out of ASBIs, must now be heard by a Circuit Judge of the County Court.[3] The Working Party of the Civil Justice Council, considering this proposal in July, were “unaware of the reasoning behind this decision” and the Civil Procedure Rules Committee consultation document circulated in March 2020 states that they had not then formed a view on the question.[4]

This has caused a great deal of confusion, with many District Judges erring on the side of caution, and numerous conflicting articles published on the subject. The question was resolved during the 09 October 2020 meeting of the Civil Procedure Rules Committee that the jurisdiction of District Judges to hear contempt applications in ASBI cases should be restored as a matter of urgency.[5]

It is likely that we will see other issues arising on a case by case basis and claimants should be careful to ensure that procedures and documents are updated to reflect the new rules. 

Civil Justice Council Report on Anti-social Behaviour injunctions

In 2018 the Civil Justice Council (‘the Council’) arranged a Working Group to investigate the effectiveness of the widespread use of ASBIs and contempt proceedings. In July 2020 the Council published its report Anti-Social Behaviour and the Civil Courts (‘the Report’). The Council concluded that current practices are “clearly unsatisfactory and require immediate and significant redress”.

The Report highlights a number of challenges within the ASBI regime linked to limited public resources and a lack of multi-agency working.

Firstly, applicants are not always adequately exploring what interventions are available prior to seeking injunctions. The statutory guidance[6] suggests an escalating series of informal interventions prior to recourse to the courts, save in emergency situations characterised by rapidly deteriorating behaviour. Informal interventions can include a verbal or written warning, a community resolution, and acceptable behaviour contracts. The Report laments:

 “..problems with the (frequently) limited availability of third-party assistance for alcohol, drug and mental health problems, difficulties with confidentiality, limited funding and no systemic approach to inter-agency liaison, taken with the general difficulties of dealing with individuals with challenging behaviour and chaotic lives, means that many agencies/bodies have found it extremely difficult to provide positive support before the nature and extent of the behaviour means that court action is necessary”

Although the statutory guidance calls on claimants to consult with the relevant local agencies, the Act lacks teeth in this regard, requiring only that they inform any other body or individual the applicant thinks appropriate. The result is that relevant information in is often not available to allow the court to determine how the underlying causes of the anti-social behaviour can be addressed and what positive obligations are necessary and workable.

The Report highlights the challenges the civil courts face in dealing with the contempt applications arising from ASBIs because they lack the support enjoyed by criminal courts enabling them to deal with perpetrators of anti-social behaviour. Without Probation and NHS Liaison and Diversion services, civil courts have no means of determining what beneficial effect, if any, any punishment for the contempt would have and they are often left to rely only on the evidence from the complainant and submissions of their advocate to determine the merit of any personal mitigation put forward.

Equally concerning is the reported lack of consistency in penalties imposed with many judges reportedly believing that the only options have been a custodial penalty (whether or not suspended) or no action. The Report highlighted the case of Festival Housing v Baker [2017] EW Misc 4 (CC) where the unrepresented defendant, who was described as “vulnerable” and “a fragile individual” and “frankly, a pathetic individual who has not been able to stop herself” was given a three-month immediate custodial penalty for admitted breaches of an injunction preventing begging.

Legal aid

The fact that the new Part 81 was, in part, deemed necessary to make this hugely complex area of law more accessible to unrepresented defendants is perhaps a symptom of the devastating impact of legal aid cuts.

The Council reports a commonly held but mistaken view amongst many defendants, practitioners and judges that legal aid is not available for defendants seeking to contest an application for an injunction.

Legal aid in contempt applications is available under the Criminal Legal Aid Contract and, also commonly overlooked, automatically attracts a certificate for counsel under new Legal Aid Agency Guidance issued in February 2020.[7] However, there are worrying reports of so called ‘advice deserts’ specifically in respect of injunction applications and committals.

Working Party Recommendations

The Working Party made 15 recommendations including local plans to set out the steps to be taken by an application prior to commencing court proceedings, greater use of positive requirements, a new pre-action protocol for anti-social behaviour injunctions, an urgent review by the LAA of the availability of publicly funded advice and representation, more urgent listing procedures to avoid ex parte applications, a call for revised guidance for front line professionals, and a dedicated guideline as to penalties for contempt in a free-standing practice direction.

The Civil Procedure Rules Committee has noted the Report and will soon form a sub-committee to consider the recommendations made by the Working Party. It is likely that there will be further reforms to the ASBI regime.

Conclusions

The simplification of the rules under the new Part 81, and the guarantee of assigned counsel, may tempt more firms and practitioners into this interesting and evolving field of work.

The Civil Justice Council’s report makes for sombre but essential reading for practitioners working on both sides of civil injunctions. It deserves to be widely circulated and, where appropriate, cited to the court. The arguments advanced in the Report are likely to prove persuasive and applicants in particular should consider institutional readiness to accommodate the recommendations of the Report.

Gerard advises on the merits of anti-social behaviour injunction applications, assisting clients from the inception of proceedings through to any contempt applications.  He frequently appears in the County Court contesting such applications both for claimants and defendants. 

[1] Civil Procedure (Amendment No.3) Rules 2020

[2] Practice Direction 81—Applications and Proceedings in Relation to Contempt of Court; Practice Direction (Committal For Contempt: Open Court) [2015] 1 W.L.R. 2195, Sen Cts; Practice Guidance: Committal For Contempt Of Court—Open Court, 24 June 2015

[3] 81.3 (2) superseding Practice Direction 2B para 8.1 and CPR 65.47(5)

[4] https://consult.justice.gov.uk/digital-communications/rule-changes-relating-contempt-of-court-cpr-81/supporting_documents/cprcrule8.1consultation.pdf

[5]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/935346/cprc-mins-9-oct-2020.pdf

[6] Anti-social Behaviour, Crime and Policing Act 2014: Anti-social behaviour powers Statutory guidance for frontline professionals

[7]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/863575/civil-contempt-guidance.pdf