Civil Injunctions were introduced by the Anti-Social Crime and Policing Act 2014 (“the Act”), replacing their predecessor : Anti-Social Behaviour Injunctions (ASBIs). If the Claimant can persuade the Court that the Defendant has or threatened to engage in anti-social behaviour and it is just and convenient to grant the injunction for the purpose of preventing further anti-social behaviour, then a Civil Injunction should be made.
An injunction is ultimately an Order of the Court telling the Defendant to either do something (positive/mandatory) or not to do something (negative/prohibitory). So what happens if the Defendant does not comply with the Order? Generally, the preferred remedy will be to apply for the Defendant’s committal to prison for contempt of Court.
It is worth noting that other options are available to the Court other than committal, where it is found that the Defendant has breached an Injunction. These include the imposition of a fine or sequestration (seizing) of their assets. Those familiar with obtaining Civil Injunctions in the context of anti-social behaviour will recognise that these other sanctions will usually have little or no success or impact upon Defendants in these cases, who will often be of limited means, leaving committal to prison the most effective sanction.
Another consideration will be whether it is appropriate to apply for committal immediately, or whether a warning letter may be more suitable. It is not mandatory for the Claimant to apply for committal for each and every alleged breach of the Injunction; the Claimant has complete discretion over whether to do so or not (NB below re Power of Arrests attached to Injunctions). The Court is unlikely to look favourably on a Claimant who applies for committal for a first time technical or very minor breach. In these circumstances, a warning letter is more likely to be suitable, which can be attached to any future committal application where there are repeated breaches to demonstrate the Claimant’s reasonable and measured approach.
Of absolute key importance before committal proceedings should be contemplated is insuring that the Injunction Order has been personally served on the Defendant (even where the Defendant was present at the hearing). Good practice is to ensure this is done immediately after the Injunction Order is received and then arrange for the person who served the papers to complete an Affidavit of Service, which is then filed with the Court.
How a committal application will be dealt with will depend upon whether there is a Power of Arrest attached to the Injunction or not.
Injunctions with Power of Arrest attached
Where the police exercise a Power of Arrest, it is necessary to produce the Defendant to the Court within 24 hours of arrest (excluding Sundays and Bank Holidays). This means the Claimant is likely to receive a call informing them of the arrest and the imminent production to Court at very short notice. Ideally, the Police may have liaised with the Claimant before taking a decision to arrest, but this may not be possible or feasible on some occasions. It will be noted that this takes the decision to pursue a contempt of Court out of the Claimant’s hands. If the Claimant disagrees with this action, then it can seek the Court’s permission to dismiss, however this is at the Judge’s discretion as ultimately the alleged contempt is against the Court.
The police ought to have obtained their own evidence (usually witness evidence) to support their decision to arrest, which ought to be handed over to the Claimant or their legal representative before or at the hearing. This must also be filed with the Court at the earliest opportunity. The Claimant or their legal representative should formulate ‘Allegations of Breach’ to submit to the Court on arrival based upon the evidence provided by the Police.
When the claimant is produced before the Court, the Defendant will be asked by the Judge to confirm whether they admit or deny the Allegations of Breach. Where the breach is are admitted, the Judge will usually sentence there and then.
When the allegations are denied, the matter should be set down for directions to allow the Defendant the opportunity to respond. It is very important to ensure at this stage that there is compliance with CPR 65.47 (3)(a) which requires that the matter be dealt with within 28 days of the Defendant appearing in Court. This provides a very tight timescale for directions, as you may wish to have a direction for the Claimant to file all of its evidence in Affidavit format (see below). The Defendant will need to file and serve his/her own Affidavit evidence in response and final hearing must be listed all within 28 days. If this deadline is passed for whatever reason, it will become necessary to effectively ‘re-apply’ for committal using the procedure below.
At the final hearing, the Judge will make findings on the allegations of breach. Where a breach is determined, the Judge will usually sentence at the end of the hearing. If a custodial sentence is imposed, the Court should make arrangements for the Defendant’s transport to prison straight away.
Injunctions without a Power of Arrest attached
Where there is no Power of Arrest attached to the Injunction, the process to apply for the Defendant’s committal due to an alleged contempt of Court (i.e. a breach of the Injunction) will be to make a Part 23 application within the same proceedings the Injunction was obtained in. This must be supported by evidence in Affidavit format and must comply with all of the procedural requirements of CPR 81.
The application will be listed by the Court in the usual way, and the papers sent back to the Claimant’s Solicitors to arrange personal service upon the Defendant. Again, this ought to be evidenced by way of an Affidavit of Service which is filed with the Court.
At the first hearing, it is open to the Court to deal with the matter in the Defendant’s absence where the Defendant does not attend. Where a Committal Order is made, a Warrant of Arrest will also be issued. Alternatively, where the Judge requires the attendance of the Defendant before determining the application, a Warrant of Arrest may be issued for execution, to bring the Defendant before the Court.
Where the Allegations of Breach (which will already be set out in the application form) are denied by the Defendant, the matter will be set down for directions and a final hearing, but there are no time constraints for dealing with the application in contrast to where a Power of Arrest is exercised. After making findings of breach, the Judge will usually sentence at the end of the hearing.
eastlaw’s team of experienced and dedicated Solicitors and in-house Counsel, regularly deal with applications for committal, securing lengthy custodial sentences against Defendants. If you wish to consult eastlaw with regards to securing an Injunction and/or what to do when your Injunction has been breached, please contact us at firstname.lastname@example.org.