Closure Orders, Anti-Social Behaviour and County Lines

by Louise Arnold, Regulatory and Enforcement Solicitor

What does County Lines mean?

County lines refers to the movement of gangs who are affiliated with drugs moving from large cities to small towns in order to expand their operations. This often results in violence to drive out members of the local community and the exploitation of young and vulnerable individuals, it can also lead to problems with cuckooing. (Cuckooing refers to the process by which a property – generally that of a vulnerable occupier, is taken over by drug gangs who use the property as a base for distribution. The occupier is often not aware of what is happening or too afraid to speak out.)

Tackling County Lines and Anti-Social Behaviour

In 2018 the North West Leicestershire Police, North West Leicestershire District Council (NWLDC) and other partners identified a link between drug activity and anti-social behaviour within the community. Intelligence sharing identified that individuals from Nottingham, Coventry, London and Leicester were being sent into the local community. This led to Operation Camel.

In September 2018 NWLDC and the Police set a new record for the number of closure orders obtained and executed in any one day.

In total Operation Camel has to date resulted in 14 closure orders, 11 evictions, 11 warrants and 19 arrests, providing a united message from each key authority that anti-social behaviour and drug related behaviour will not be tolerated within the local community and the protection of vulnerable individuals is a key priority.

What are Closure Orders?

Since October 2014 police and local authorities have had the ability to close premises which are associated with nuisance and disorder pursuant to part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014).

Anti-social behaviour is a significant and growing issue for local authorities and the wider public. The tools to tackle anti-social behaviour have been evolving over the last few years. Part 4 of the ASBCPA 2014 gives local authorities and the police powers to quickly close premises that are being used, or are likely to be used to commit nuisance or disorder.

There are two stages to the Act – stage 1 is a Closure Notice and stage 2 is a Closure Order.

Stage 1 – Closure Notices

Before exercising closure powers under the ASBCPA 2014 the Applicant (either a local authority or the police) must be satisfied that either;

  • the use of the premises has resulted, or if a closure order is not issued is likely soon to result, in nuisance to members of the public, or
  • there has been, or if a closure order is not issued is likely soon to be, disorder near those premises associated with the use of those premises, and
  • the closure notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring (Section 76 ASBCPA 2014).

Closure notices can be used as a preventative measure not just in cases of existing anti-social behaviour. For example, if police gathered intelligence to suggest that disorder was likely to occur in the vicinity of a nightclub on a specific night or over a specific period then they could issue a closure notice as a way of preventing the anti-social behaviour from happening.

Before issuing a Closure Notice the Applicant should make reasonable efforts to inform those living in, and anyone who has control or responsibility of, the premises that a Closure Notice is going to be served (section 76(6) ASBCPA 2014). In addition before issuing a Closure Notice the Applicant must consult any body or individual that they think it would be appropriate to consult. If the Applicant is the Police they should consult with the local authority and vice versa.

The information that should be contained in the Closure Notice is set out in section 76(5) ASBCPA 2014.

Stage 2 – Closure Orders

An application for a Closure Order must be heard in the Magistrates Court within 48 hours of the Closure Notice being served unless the Notice has been cancelled under section 78. The court needs to be satisfied that one of the following applies:

  • that a person has engaged, or if the Closure Order is not made is likely to engage, in disorderly, offensive or criminal behaviour on the premises
  • the use of a particular premises has resulted, or if the Closure Order is not made is likely to result, in serious nuisance to members of the public, or
  • there has been, or if the Closure Order is not made is likely to be, disorder near those premises associated with the use of those premises and
  • the Closure Order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring (Section 80(5) ASBCPA 2014).

A Closure Order prohibits access to the premises for the period specified on the Order – a maximum (initially) of 3 months. The 3 months can be extended, upon evidence, for a further (maximum) of 3 months. 

The introduction of the ASBCPA 2014 provided more flexibility by allowing the Order to prohibit access for everyone (i.e. a full Closure Order), for those named or for everyone but those named in the Order (i.e. a partial Closure Order)(Section 80(7) ASBCP 2014).

Once the Order has been made and served in accordance with the Act and the premises has been closed and secured a person commits an offence if they:

  • obstruct anyone serving a Closure Order or anyone trying to secure the premises, or
  • remain at or enter the premises subject to the Closure Order

The offender is liable on summary conviction to imprisonment, and/or an unlimited fine (Section 86 ASBCPA 2014).

Post Closure Order – Possession Proceedings

Within 3 months of a Closure Order ending an Applicant can apply to the court for possession under the Housing Act 1985, section 84(A), Condition 4 which is a mandatory ground.

NWLDC successfully relied on this mandatory ground to gain possession from all of the NWLDC tenants who were subject to Closure Orders.

The Partnership between NWLDC and the NWL Police

The Police and NWLDC’s Legal, Community Safety and Housing Teams worked closely and shared staff and resources to achieve the aims of Operation Camel.

The efficient and close working partnership has played a huge role in breaking the cycle and has produced a clear and united message that anti-social behaviour and drug related activity will not be tolerated in the District of North West Leicestershire.

Three ways through the labyrinth of functions and responsibilities

Louis Sebastian

By Louis Sebastian, Team Manager, NWL Legal

Changes brought in by the Local Government Act 2000  and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 were designed to streamline local authority decision-making by mimicking central government, but they created a labyrinth of responsibilities that Councils are still struggling to negotiate.

By putting the power for specified decisions in the hands of council Executives it was intended that there would be fewer layers of authority to negotiate before getting to a conclusion, and greater accountability.

This was a reasonable proposition, but as with any reorganisation, new complexities have been created, and many local authorities still struggle with correctly allocating functions and responsibilities. That matters because an error in specifying who should take a given decision could lead to that decision being challenged and overturned.

How did we get here?

Councils themselves have certain powers exercised through full Council meetings, and they have others that fall to a Leader or elected Mayor and their Cabinet. What the 2000 Regulations do is state how powers are split between the two. Some can only be exercised by the full Council and some by the Executive, and certain powers are shared so Cabinet makes proposals that are ratified by the full Council. It was an exercise in making local government look like national government to split up decision making to ensure some accountability. Of course, as the party with a majority gets to form the Cabinet and controls the Council, the difference looks somewhat academic, particularly from a political standpoint. What is important, however, is that decisions are made in the proper place, otherwise they could be challenged.

Local authorities know this, but it is often far from clear what decisions, or even what aspects of certain decisions, should be processed where. I am often asked, “Is this a Council or an Executive decision,” by local authorities who are naturally keen to avoid decisions being challenged down the line for having been made improperly.

There have been a few cases of that happening. Just because it hasn’t happened to a Council yet doesn’t mean the process is being done well. It could have been done incorrectly for a long time without being noticed until someone wants to challenge a particular decision. It often happens in a planning situation because a lot of planning powers are contained on the Council side of the fence and delegated to officers (who also carry out executive functions). If it starts looking like the Cabinet are making the decisions, developers have enough at stake – and deep enough pockets – to mount a challenge.

One problem area is when a local authority makes a changes to its Budget in-year without getting the decision ratified by the Council. Delivering on the Budget is the Executive’s responsibility with support from all the Officers in the Council, but decisions about the Budget have to be approved by the full Council. If for example, a Council is outsourcing its leisure centres, deciding to award a contract to a particular supplier only needs to be decided by the Executive but because it’s such a big contract it affects the Budget so the Council has to approve the changes that impact the Budget. This is an example of a decision that spans both functions.

If you are not switched on and thinking of the big picture, you could be caught out. Outsourcing is always contentious. It increases the risk of a challenge. Equally, it is not the full Council’s job to award the contract or to decide to award the contract. So Officers need to report differently on the matter to the Cabinet and the Council because each only has the power to approve different elements of the overall decision.

The confusion that many Councils have with the Regulations comes from a sense that there is a waterfall of authority with powers coming from statute and trickling down. Local authorities are creatures of statute so that’s an idea that it’s hard for them to change. But instead of from statute to council to cabinet to officers, the flow of power is actually from statute to council or cabinet and from that stage to officers.

So, for example, a council’s CEO could find him or herself executing two functions from two different bodies related to the same overall matter.

Three keys to unlocking the challenge

In my experience of helping local authorities review their approach to functions and responsibilities under the 2000 Act, there are three areas where you nail down the principles in practice.

  1. A written delegation of powers: The way to avoid problems on a day-to-day basis is to have a clear and written delegation of powers that forms part of your constitution. So if you are a senior Council officer, you know where the power for any given decision rests – whether it’s a Council or Cabinet power – and whether or not you have the authority to make decisions using that power. This may be the case if certain decisions have been delegated to an officer of appropriate seniority. Higher profile or higher value decisions will be retained by the Council or Cabinet.
  1. Establish the delegation thresholds: It’s important to set out what the thresholds are in terms of value or profile (political sensitivity or geographic reach) so that officers know when they can take decisions and when to refer them to the Cabinet or Council or both.
  1. Interpretation of the Regulations: Pay close attention to tricky questions or decisions. How you decide to interpret the Regulations will help to set a protocol for similar awkward situations in future so it’s important to get it right.

In my experience of providing guidance to local authorities, it can help enormously to get a third party, expert opinion on individual questions, and to work with consultants to carry out reviews of how delegation is happening and identify any problems. Third party expertise is also useful when drawing up, or updating, written delegation of powers documents.

 

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