It’s Almost Criminal!
Posted on 9th December 2015
Under Part 1 of the new Anti-social Behaviour, Crime and Policing Act 2014, injunctions can be obtained for, you guessed it…anti-social behaviour! This consequently replaced the old system of pursuing these injunctions under the Housing Act 1996.
Injunctions are available to pursue in the County Court or High Court for adults and in the Youth Court, sitting in its civil capacity, for those Defendants under the age of 18. As with the old system, breach of an injunction will be punishable as civil contempt of court. For adults, this will be dealt with in the County Court or High Court, and for under-18s, proceedings will again be heard in the Youth Court. Procedurally, the new mechanism for pursuing an injunction and enforcing it is the same as it was previously. The problem with the new legislation lies primarily in a legal representative’s ability and restrictions to act on behalf of Defendants in committal matters.
Since the changes took effect on 15 June 2015, representation for a Defendant to an application for committal has become a criminal matter by virtue of regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013 (as amended). As a result, it is now necessary for an application for public funding to be made to the National Courts Team in Nottingham. There is also a new requirement that the instructing solicitor’s practice holds a criminal contract to carry out any work in relation to the application, though civil practitioners still have the opportunity of applying for an Independent Case Contract (ICC) should they not hold one. It is important to note that under criminal legal aid, it is not possible to use one’s delegated functions to grant emergency funding, though the processing time for such applications is greatly reduced. However, this does not alleviate the risk of solicitors going unpaid should an application be refused for any reason, though the threshold for the merits element of a legal aid assessment is greatly reduced given that the client is at risk of being imprisoned.
These changes have been both welcomed and criticised by civil practitioners.
In the 18 responses it received, the majority of which were from representative bodies of the legal profession, the Government were advised that there should be no limitation on who undertakes breach proceedings. Civil as well as crime providers should be able to undertake breach proceedings on the basis that this is how the system works presently. If it’s not broken, why fix it? Some respondents also took the view that civil rather than crime providers should undertake breach proceedings on the basis that these were civil proceedings, and heard by the civil courts. Surely this makes sense? We have civil practitioners, arguing in the civil courts, before civil judges, but at criminal rates under criminal legal aid certificates.
In response to these recommendations, the Government advised that as breach of a Part 1 injunction will be punishable as contempt of court with the potential to invite a prison sentence, and subject to the criminal standard of proof, it makes sense that it be categorised as a criminal matter. Logistically, this is a strong argument in favour of the changes, especially as the Government has advised that it does not intend to exclude civil providers from undertaking breach proceedings if they elect to do so. As mentioned earlier, civil providers could represent Defendants in breach proceedings under an ICC where the provider has had substantial involvement in the original injunction proceedings.
Despite the recommendations made in those 18 responses, the Government decided to proceed on the basis set out in their initial consultation. I know…shocking! This means that all applications of a breach of a Part 1 injunction will be remunerated at fixed rates payable under the criminal legal aid scheme for representation in the Magistrates’ Court. These rates will apply to both civil and criminal legal aid providers for proceedings in whichever Court the matter may be heard in. However, defending the initial application for the Part 1 injunction will still be paid at civil rates. Interestingly, the Government failed to address or consider the case where these cases are heard concurrently.
For example, the Social Housing team were recently instructed by a client where a local authority were pursuing both a Part 1 Injunction, and applying to commit the same client to prison for breach of an injunction it had previously obtained under the old Housing Act.
When the case commenced, the changes were still relatively new, and few practitioners were aware of the new procedure. After enquiries were made to the Legal Aid Agency, advice was given that breach of the old Housing Act injunctions were still covered by civil legal aid and paid at the civil rates, though shockingly, the legal aid advisor’s advice was incorrect. Following many tears, tantrums and tiffs with the Legal Aid Agency, the forms were finally sent to the correct legal aid offices…2 months later. Slow by even their standards! Thankfully, the National Courts Team backdated the criminal certificate so that we could claim for the full extent of our work, but this did not prevent the initial administrative nightmare it had caused, nor the one it is currently causing our billing teams.
As mentioned above, defending injunctions are paid at civil rates under a civil certificate, and committal proceedings are paid at criminal rates under a criminal certificate. Not only do we have the logistical nightmare of apportioning costs to two different matters that were dealt with as one, we also have the horrible task of applying two different cost rates and having two billing teams claiming for work done on these files with very little guidance on how to do so. As a result, our billing departments are now required to liaise with one another to ensure it is billed and apportioned correctly, which in itself is a bigger onus on costs teams than under the previous law.
Surely a potential middle ground to keep injunctions as a civil matter with committals dealt with as a criminal matter as the changes have purported to do, but where these matters are dealt with in a single set of proceedings, then a single certificate at a single rate, would make much more sense? Making sense does not appear to be the current government’s forte! Though it appears that the Government advises that committals are now a criminal matter, they are still dealt with under the civil procedure, casting doubt on whether these matters are in fact civil, criminal…or, in my opinion, just plain crass!