09/08/2008

ASB corner

The August 2008 Legal Action contains a couple of cases concerning anti-social behaviour possession claims that weren’t recorded elsewhere.

Ealing LBC v Jama B5/08/0104 was a Court of Appeal matter. Mrs Jama was Ealing’s secure tenant of a two bed property. The household included her husband and six children. Ealing sought possession on allegations of ASB including noise nuisance, ten instances of flooding into the flat below, problems with rubbish disposal and urination in the lift. At the County Court, the judge accepted Mrs Jama had faced some harassment, but did not accept her evidence on the flooding. The judge accepted the evidence of a plumber that the flooding was not due to defective water system. The judge held it was reasonable to make a possession order because there had been two substantial breaches of the tenancy – the flooding and serious and persistent noise nuisance. Mrs Jama appealed.

The Court of Appeal found it was impossible to hold that the noise was ‘domestic noise’. Reasonableness was a matter for the judge at first instance and the Court of Appeal would not interfere unless the judge had erred in law. For that reason the judge’s decision could not be attacked. But in any case the decision not to suspend the order was clearly right.

High Peak BC v Purser Buxton County Court 26/11/2007, like North Devon Homes v Batchelor, concerned a conviction for posession of drugs. Ms Purser was a secure tenant with two children. In Jnauary 2006 she was convicted of possession of cannabis resin. In October 2007, she pleaded guilty to supply of ecstasy, possession and supply of amphetamine and possession and supply of cannabis resin, all at the property. She received a nine month sentence, suspended and a 12 month supervision order. She was engaged with professional drug support and family support services and drug test were negative.

In the possession proceedings, DJ Jolly found it was reasonable to make a possession order, but in view of the evidence that suggested there was a ‘real hope’ for the future, the order was postponed for two years on condition Ms Purser comply with the tenancy agreement.

Also in Legal Action, R v Edwards [2008] EWCA Crim 1172 (not on Bailii) did not concern possession proceedings, but rather an ASBO excluding Ms Edwards from the home she owned for ten years. The ASBO was made on the basis of ‘extreme harassment’ of a neighbour, including damage to their car, throwing rubbish and excrement at their house, loud singing and banging. She had breached an injunction, a restraining order and had been sentenced to imprisonment three times.

The Court of Appeal upheld the ASBO. An order excluding someone from their home that they own is very much a last resort, but that point had been reached. The order was necessary and proportionate, considering Art 8.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. Francis Davey

    ASBO’s excluding individuals from their own home seem relatively unexceptionable in some courts I know and for rather less serious conduct (or in the case of an interim ASBO, alleged conduct) than this.

    Reply

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