Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-25T05:17:49.446Z Has data issue: false hasContentIssue false
  • English
  • Français

Anti-Social Behaviour: Local Authority Responsibility and the Voice of the Victim

Published online by Cambridge University Press:  11 August 2003

Susan Bright  and
Chara Bakalis
Susan Bright
Affiliation:
St. Hilda’s College, Oxford and St. Hilda’s College, Oxford
Chara Bakalis
Affiliation:
St. Hilda’s College, Oxford and St. Hilda’s College, Oxford
Get access

Extract

Anti-Social behaviour sits at a strange juncture in the law. Maybe this is because of the many forms that it takes—noise nuisance, fouling public areas, aggressive and violent conduct. Some of this is simply non-neighbourly whereas some is quite clearly criminal. The legal responses to anti-social behaviour also take many forms, but the main focus—notwithstanding that anti-social behaviour affects the whole community—has been to see it as a problem to be tackled by local authorities wearing their “housing management” hat. Even the much trumpeted anti-social behaviour order (asbo), which looks in many respects like part of a criminal code, can be applied for by local authorities and other registered social landlords. This focus on the housing dimension may well have fed the notion that it is council tenants who cause anti-social behaviour, and council tenants alone who the local authority is responsible to, and for.

Type
Articles
Information
The Cambridge Law Journal , Volume 62 , Issue 2 , 01 July 2003 , pp. 305 - 334
Copyright
Copyright © Cambridge Law Journal and Contributors 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

We would like to thank Jaswinder Kaur, Worcester College, for her help with research.

References

1 Proceedings for asbos are civil proceedings but subject to the heightened civil standard of proof, which is indistinguishable from the criminal standard of proof: Clingham v. Kensington & Chelsea; R. v. Manchester ex p McCann [2002] UKHL 39; [2002] 3 W.L.R. 1313.

2 (1997) 96 L.G.R. 548, 567. Rejecting the victim's claim in Hussain v. Lancaster C.C. [2000] Q.B. 1, 28, Thorpe L.J. remarked that the perpetrators were “legion and in some instances clearly not in legal relationship with the council”.

3 Page Motors Ltd. v. Epsom and Ewell B.C. (1982) 80 L.G.R. 337; Winch v. Mid Bedfordshire D.C. [2002] All E.R. (D) 380.

4 Hussain v. Lancaster City Council [2000] Q.B. 1.

5 Mowan v. Wandsworth [2001] L.G.R. 228.

6 The focus in this article is on the victim's voice. There are many definitions of anti-social behaviour. Here the concern is with behaviour that causes suffering to individuals, such as harassment and other conduct which has a significant impact on quality of life.

7 Hussain v. Lancaster City Council [2000] Q.B. 1, 28.

8 Mowan v. Wandsworth [2001] L.G.R. 228.

9 The Anti-Social Behaviour Bill (Bill 83) requires local authority landlords to prepare and publish policies and procedures on anti-social behaviour (cl.12), strengthens injunction powers (cl.13), and enables local authorities to apply for a secure tenancy to be ended by a “demotion order” following anti-social behaviour (cl.14). Other suggestions include placing a general duty on local authorities to take action against anti-social behaviour (Law Commission “Renting Homes 1: Status and Security” (Law Commission Consultation Paper No. 162, 2002)).

10 Through powers to evict nuisance tenants, the introductory tenancy regime and section 152 injunctions. Details of these are given below.

11 In particular, the ability to apply for anti-social behaviour orders. See below.

12 For example, the DTLR consultation paper notes that anti-social behaviour is a wide social problem found in all tenure groups yet the consultation is limited to the action that social landlords take to deal with the problem (D.T.L.R. “Tackling Anti-Social Tenants, A Consultation Paper” April, 2002).

13 This applies from January 2003, see Housing Act 1996, s. 160A, introduced by the Homelessness Act 2002. Before that date, the power to exclude persons with a history of antisocial behaviour from their waiting lists was in Housing Act 1996, s. 160 and Department of Environment/Department of Health “Code of Guidance on the Housing Act 1996, Parts VI and VII”, para. 4.27, London, D. of E. The study by Hunter et al. found that just over half of the local authorities operated exclusion policies, but the criteria for exclusion varied considerably: C. Hunter, J. Nixon, S. Shayer “Neighbour Nuisance, Social Landlords and the Law” (Chartered Institute of Housing, 2000).

14 Housing Act 1996, s. 16.

15 A survey based on figures for 1997/8 found that just under a third of local authorities were making use of introductory tenancies, but terminations of them were usually explained as being for rent arrears and only one in five was terminated for neighbour nuisance: C. Hunter, J. Nixon, S. Shayer “Neighbour Nuisance, Social Landlords and the Law” (Chartered Institute of Housing, 2000).

16 Housing Act 1996, ss. 124-130. Housing Action Trusts can also operate introductory tenancy regimes. The introductory tenancy regime has been unsuccessfully challenged on human rights grounds: see R. (on the application of McLellan) v. Bracknell Forest B.C. [2001] EWCA Civ. 1510; [2002] 1 All E.R. 899 (note, leave has been given to appeal to the House of Lords). The government is consulting on whether there should be a power to extend the starter phase where there is evidence of anti-social behaviour: D.T.L.R. “Tackling Anti-Social Tenants, A Consultation Paper” (April 2002) 21.

17 Housing Act 1996, s. 153. Injunctions are often perceived to be advantageous over possession proceedings: they can be obtained more quickly on an interim basis, they cover specific behaviour and they avoid the loss of a home. Their use is, however, patchy: some landlords make frequent use of them, others use them rarely. Following public consultation (D.T.L.R. “Tackling Anti-Social Tenants, A Consultation Paper” (April, 2002) 20) changes are being made to the injunction powers of local authorities by the Anti-Social Behaviour Bill (Bill 83). See also Law Commission “Renting Homes 1: Status and Security” (Law Com. Consultation Paper No. 162, 2002), paras. 13.63-13.68.

18 See Housing Act 1985, Ground 2, Sched. 2. Registered social landlords and private landlords are able to recover possession on the same grounds: Housing Act 1988, Ground 14, Sched. 2. The Anti-Social Behaviour Bill (Bill 83) will make further changes. When a court is considering whether it is reasonable to grant a possession order under a nuisance ground for possession, the court must give particular consideration to the actual or likely effect which the anti-social behaviour has had or could have on others (cl. 16).

19 C. Hunter, J. Nixon, S. Shayer “Neighbour Nuisance, Social Landlords and the Law” (Chartered Institute of Housing, 2000).

20 Various changes are contained in the Anti-Social Behaviour Bill (Bill 83) introduced into the House of Commons on 27 March 2003.

21 Mowan v. Wandsworth [2001] L.G.R. 228.

22 C. Hunter, J. Nixon, S. Shayer “Neighbour Nuisance, Social Landlords and the Law” (Chartered Institute of Housing, 2000).

23 For example, D.T.L.R. “Tackling Anti-Social Tenants, AConsultation Paper” (April, 2000) 34.

24 Anti-Social Behaviour Bill, cl. 12, implementing a proposal from the D.T.L.R. “Tackling AntiSocial Tenants, A Consultation Paper” (April, 2002).

25 The perpetrator does not need to have any connection with the council housing, Nottingham C.C. v. Thames [2002] EWCA Civ. 1098, [12] (Ward L.J.). The provisions contained in the Housing Act 1996, s. 152, are to be replaced by a new section 153A (Anti-Social Behaviour Bill, cl. 13). This will enable social landlords to apply for injunctions against any person whose behaviour could cause nuisance or annoyance to tenants, visitors, or housing management staff of the landlord. A power of arrest can be attached if there is threatened violence and a significant risk of harm (s. 153C, to be inserted by Anti-Social Behaviour Bill, cl. 13).

26 Housing Act 1996, s. 152. See also previous footnote.

27 “It is a remedy designed for the council for the good management of their housing estate rather than for the protection of a particular tenant of council accommodation”, Nottingham

28 Enfield v. B [2000] 1 W.L.R. 2259. Waller L.J. reached this conclusion based on linguistic construction. Buxton L.J. relied on purposive construction, noting that this narrow reading is supported by the fact that the power is located in a housing statute. It cannot be used to protect housing officers from abuse whilst they are in their offices: Nottingham C.C. v. Thames [2002] EWCA Civ 1098. The Court of Appeal in Nottingham v. Thames would have preferred, but for Enfield, to use the section to protect any victim in the vicinity of council housing [17]. The D.T.L.R. considered removing this limitation so that section 152 can be used to exclude non-tenants from non-residential premises: D.T.L.R. “Tackling Anti-Social Tenants, A Consultation Paper” (April, 2002). Section 153C, to be inserted by Anti-Social Behaviour Bill, cl. 13, enables the court to include in the injunction a prohibition from entering particular premises or a specified area.

29 Crime and Disorder Act 1998, s. 6.

30 Crime and Disorder Act 1998, s. 1. The police are also able to apply for asbos. A parenting order can also be issued alongside an asbo.

31 R. (on the application of M (A Child)) v. Manchester Crown Court [2001] 1 W.L.R. 358 (Lord Woolf C.J.).

32 By 31 December 2001, 588 asbos had been made: Clingham v. Kensington & Chelsea', R. v. Manchester ex p McCann [2002] UKHL 39; [2002] 3 W.L.R. 1313 [1] (Lord Steyn).

33 Contained in the Police Reform Act 2002, ss. 61-3, and the Anti-Social Behaviour Bill, cl. 36.

34 S. Campbell “A Review of Anti-Social Behaviour Orders, Home Office Research Study 236” (London, 2002) 17-19.

35 S. Campbell “A Review of Anti-Social Behaviour Orders, Home Office Research Study 236” (London, 2002).

36 The Policy Action Team, for example, recommended a three-pronged attack: prevention, enforcement and resettlement, “National Strategy for Neighbourhood Renewal, Report of Policy Action Team 8: Anti-Social Behaviour” (March 2000). See also D.T.L.R. “Tackling Anti-Social Tenants, A Consultation Paper” (April 2002).

37 See ROOF (Jan/Feb 2002) 33.

38 S. Campbell “A Review of Anti-Social Behaviour Orders, Home Office Research Study 236” (London, 2002) 37.

39 Page Motors Ltd. v. Epsom and Ewell B.C. (1982) 80 L.G.R. 337.

40 See Smith v. Scott [1973] Ch. 314; Hussain v. Lancaster City Council [2000] Q.B. 1. For further discussion see S. Bright, “Liability for the Bad Behaviour of Others” (2001) 21 O.J.L.S. 311.

41 The continuation approach to liability set out in Sedleigh-Denfield v. O’Callaghan [1940] A.C. 880, 894: “an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge he fails to take any reasonable means to bring it to an end …” (Viscount Maugham). Although this case involved landowner responsibility for a nuisance caused by the physical state of the property, this approach has also been applied to nuisance involving antisocial behaviour of third parties: see Page Motors Ltd. v. Epsom and Ewell B.C. (1982) 80 L.G.R. 337; Lippiatt v. South Gloucestershire Council [2000] Q.B. 51; Winch v. Mid Bedfordshire D.C. [2002] All E.R. (D) 380. For criticism of extension of the continuation approach to bad behaviour cases see S. Bright, “Liability for the Bad Behaviour of Others” (2001) 21 O.J.L.S. 311.

42 Page Motors Ltd. v. Epsom and Ewell B.C. (1982) 80 L.G.R. 337. Although liability was founded on the fact that they had not taken reasonable steps to end the nuisance within a reasonable time, a direct application of Sedleigh-Denfield, it could be argued that by providing facilities to the gypsies with the knowledge that they were already causing a nuisance, the Council had impliedly authorised the nuisance and that this is a better explanation as to why there should be liability.

43 Winch v. Mid Bedfordshire D.C. [2002] All E.R. (D) 380.

44 Lippiatt v. South Gloucestershire Council [2000] Q.B. 51; Winch v. Mid Bedfordshire D.C. [2002] All E.R. (D) 380.

45 See F. Newark, “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480; Hunter v. Canary Wharf [1997] A.C. 655.

46 Long v. Southwark L.B.C. [2002] EWCA Civ. 403 [65]; [2002] 15 E.G.C.S. 133, applying Marcic v. Thames Water [2002] EWCA Civ. 65, [2002] Q.B. 929.

47 Long v. Southwark L.B.C. [2002] EWCA Civ. 403 [65]; [2002] 15 E.G.C.S.133, applying Marcic v. Thames Water [2002] EWCA Civ. 65, [2002] Q.B. 929.

48 See Goldman v. Hargrave 1967] 1 A.C. 645; Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] Q.B. 48; Marcic v. Thames Water [2002] EWCA Civ. 65, [2002] Q.B. 929; Long v. Southwark L.B.C. [2002] EWCA Civ. 403 [65]; [2002] 15 E.G.C.S.133.

49 “… the acts complained of unquestionably interfered persistently and intolerably with the plaintiffs’ enjoyment of the plaintiffs’ land, but they did not involve the tenants’ use of the tenants’ land and therefore fell outside the scope of the tort”. Hussain v. Lancaster City Council [2000] Q.B. 1, 23 (Hirst L.J.).

50 See Lippiatt v. South Gloucesthure Council [2000] Q.B. 51, 64-65; J. Morgan, “Nuisance and the Unruly Tenant” [2001] C.L.J. 382 at 397-400; M. Davey, “Neighbours in Law” [2001] Conv. 31, 55.

51 It is unclear why a different approach is adopted when the landowner is landlord of the nuisance creator, but there is a long line of authority supporting this: see, for example, Malzy v. Eicholz [1916] 2 K.B. 308; Southwark L.B.C. v. Tanner [2001] 1 A.C. 1. For further discussion, see J. Morgan, “Nuisance and the Unruly Tenant” [2001] C.L.J. 382; M. Davey, “Neighbours in law” [2001] Conv. 31; S. Bright, “Liability for the Bad Behaviour of Others” (2001) 21 O.J.L.S. 311.

52 [1973] Ch. 314.

53 [1973] Ch. 314, 321 (Pennycuick V.C.). See also Rich v. Basterfield (1847) 4 CB 783. In Smith v. Scott [1973] Ch. 314 the Court of Appeal also rejected the argument that there had been a breach of a duty of care.

54 98% of agreements according to the study by J. Nixon, C. Hunter, S. Shayer, “The Use of Legal Remedies by Social Landlords to Deal with Neighbour Nuisance” (CRESR, Paper No. H8, May 1999) 12.

55 The specimen secure tenancy agreement supplied by Manchester City Council states: “We must give you, and anyone living with you, help and advice if you report anti-social behaviour. We will investigate your complaints, keep you informed and take appropriate action to tackle the problem”.

56 Law Commission, “Renting Homes 1: Status and Security” (Law Com. Consultation Paper No. 162, 2002).

57 There are usually express covenants, but if not they will be implied.

58 Henry L.J. emphasises that the duty not to derogate from grant is “firmly founded on the bedrock of fair dealing, rather than a restrictive straitjacket of individual restrictions”, Chartered Trust v. Davis [1997] 2 E.G.L.R. 83, 85. In Southwark L.B.C. v. Tanner [2001] A.C. 1, the House of Lords acknowledged that the covenant for “quiet enjoyment”, traditionally seen as to do only with disturbing title and possession, can be breached by noise. See also Hilton v. James Smith & Sons (Norwood) Ltd. (1979) 251 E.G. 1063; Petra Investments Ltd. v. Jeffrey Rogers plc (2001) 81 P. & C.R. 21.

59 Chartered Trust v. Davis [1997] 2 E.G.L.R. 83, 88. Henry L.J. refers to the “discredited view” that a landlord's acts of omission are not capable of founding a derogation from grant (87).

60 And in Hilton v. James Smith & Sons (Norwood) Ltd. (1979) 251 E.G. 1063 the landlord had to pay damages for not taking action to clear an access road obstructed by tenants.

61 The classic statement is found in Harmer v. Jumbil (Nigeria) Tin Areas [1921] 1 Ch. 200, 226 (Younger L.J.): “It must be such as, in view of the surrounding circumstances, was within the reasonable contemplation of the parties at the time when the transaction was entered into, and was at that time within the grantor's power to fulfil”.

62 Many local authorities now have published procedures for dealing with anti-social behaviour, some fairly explicit. The web-site for Great Yarmouth B.C. states: “The Council will ensure that all victims of nuisance or antisocial behaviour receive swift effective support which leads to a resolution of the problem. Note: Great Yarmouth Borough Council will do all that is possible to persuade those causing nuisance to stop before going to court. However, persistent failure to comply with tenancy conditions will inevitably lead to the Courts ordering an eviction”.

63 In Chartered Trust v. Davis [1997] 2 E.G.L.R. 83 it was behaviour in the shopping mall; in Hilton v. James Smith & Sons (Norwood) Ltd. (1979) 251 E.G. 1063 it was the blocking of a common access road.

64 Cf. Wandsworth London B.C. v. Winder [1984] 3 All E.R. 976.

65 Southwark L.B.C. v. Tanner [2001] 1 A.C. 1, 10.

66 Harbour Park Limited v. Arun District Council, 23 October 1998, Mr. S. Tomlinson Q.C.

67 [1911] 1 Ch. 219.

68 D.T.L.R. “Tackling Anti-Social Tenants, A Consultation Paper” (April, 2002), 46.

69 R. v. Home Secretary, ex p Urmaza [1996] C.O.D. 479, R. v. Home Secretary, ex p Gangadeen [1998] 1 F.L.R. 762. These cases refer to general policies. For instances of promises to individuals or groups of individuals, see discussion under heading C, Expectations Based on Assurances, below.

70 R. v. Secretary of State for the Home Department, ex p Asif Mahmood Kahn [1984] 1 W.L.R. 1337.

71 Judicial review “is not an appeal from a decision, but a review of the manner in which the decision was made”, Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155, 1174 (Lord Brightman). See also Council of Civil Service Unions and Others v. Minister for Civil Service [1985] A.C. 374, 414 (Lord Roskill).

72 Associated Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 230 (Lord Greene M.R.). Sedley J. in R. v. Home Secretary, ex p Urmaza [1996] C.O.D. 479 suggested that rationality was only one of the tests that the courts could use to test the legality of the decision, but this was rejected in R. v. Home Secretary, ex p Gangadeen [1998] 1 F.L.R. 762 where Wednesbury unreasonableness became the standard for review.

73 Cf. Lord Greene M.R.'s example in Associated Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229.

74 See the remarks of Lord Brightman in relation to the Housing Act 1977 in R. v. Hillingdon LBC, ex p Puhlhofer [1986] A.C. 484, 518. Similar views have been expressed in relation to challenges to possession actions under older Housing Acts: Sevenoaks District Council v. Emmett (1979) 79 L.G.R. 346 and Bristol D.C. v. Clark [1975] 1 W.L.R. 1443. The statutory regime now operates quite differently and the court does now have an active role in deciding whether or not to grant possession.

75 R. v. M.O.D., ex p Smith [1996] Q.B. 517, 554 (Sir Thomas Bingham M.R.).

76 Three months (C.P.R. Part 54.5) compared to one year under the Human Rights Act 1998, s. 7(5)(a).

77 Northampton B.C. v. Lovatt (1997) 96 L.G.R. 548.

78 Hussain v. Lancaster City Council [2000] Q.B. 1.

79 Bristol D.C. v. Clark [1975] 1 W.L.R. 1443 (Lord Denning M.R.). See also Cannock Chase District Council v. Kelly [1978] 1 W.L.R. 1, Sevenoaks District Council v. Emmett (1979) 79 L.G.R. 346. All of these involved a tenant challenging a possession action brought against him, rather than challenging a decision not to evict but there is nothing to stop such a challenge being made. Changes to housing law since the date of these cases means that there are no housing cases illustrating this post O’Reilly v. Mackman [1982] 2 A.C. 237.

80 Council of Civil Service Unions and Others v. Minister for Civil Service [1985] A.C. 374, 410— 411.

81 Padfield v. Minister of Agriculture, Fisheries and Food and Others [1968] A.C. 997.

82 See ROOF (Jan/Feb 2002) 33.

83 R. v. Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 A.C. 513. Although the statutory duty was not legally enforceable, it was required that the duty be kept in mind when exercising discretion. See discussion below on Bromley v. G.L.C. [1983] 1 A.C. 768.

84 “Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. This is not a judgment which the court can make” R. v. Cambridge Health Authority, ex p B [1995] 1 W.L.R. 898, 906 (Sir Thomas Bingham M.R.).

85 See discussion above on Wednesbury unreasonableness. See also discussion on super-Wednesbury.

86 R. v. Deputy Industrial Injuries Commissioner, ex p Moore [1965] 1 Q.B. 456 (fair hearing); R. v. Secretary of State for the Home Department, ex p Doody [1994] 1 A.C. 531 (duty to give reasons).

87 As part of the permission procedure to apply for judicial review (CPR Part 54.4), the victim will have to show that she has a “sufficient interest in the matter to which the application relates” Supreme Court Act 1981, s. 31(3). In R. v. Somerset Council and ART Southern Let, ex p Dixon [1997] C.O.D. 322 Sedley J. stated that only busybodies with no legitimate interest in the matter should be refused standing.

88 C.P.R. Part 54.5(b).

89 C.P.R. 54(1)(2)(a)(ii) includes “omissions”. In R. v. Bar Council, ex p Percival [1991] 1 Q.B. 212 it was said that inaction by a prosecuting authority in deciding whether to prosecute a complaint was reviewable but refused to define when this would be so. There was no mention of the time limit.

90 Wandsworth v. Winder 1985 A.C. 461, 509 (Lord Fraser).

91 A study of judicial review found that “in practice, applications for leave are rarely refused solely on the ground of delay”, A. Le Sueur and M. Sunkin, “Applications for Judicial Review: the Requirement of Leave” [1992] P.L. 102, 121. In Caswell v. Diary Produce Quota Tribunal [1990] 2 A.C. 738, 747 the House of Lords recommended that the issue of “hardship or prejudice or detriment” should not be discussed in too much detail at the permission stage.

92 R. v. North and East Devon Health Authority, ex p Coughlan [2000] Q.B. 213; R. (Bibi) v. Newham L.B.C. [2002] W.L.R. 237.

93 M. Elliott, “The Human Rights Act 1998 and the Standard of Substantive Review” (2001) 60 C.L.J. 301 discusses whether this is different from Wednesbury unreasonableness or simply the same test but with a greater level of scrutiny.

94 For suggestions on what tests the courts should apply see P. Craig & S. Schonberg, “Substantive Legitimate Expectations after Coughlan” [2000] P.L. 684, 698-700.

95 [2002] 1 W.L.R. 237 [64].

96 Wade, H.W.R. & Forsyth, C., Administrative Law (8th edn., Oxford 1998) 581Google Scholar.

97 As in Bromley v. G.L.C. [1983] 1 A.C. 768. Here the Greater London Council had to have regard to the London Transport Executive's duties not to accumulate deficits and to operate with due regard to economy, but even this case is not without critics: see, for example, J. Dignan, “Policy-Making, Local Authorities and the Courts: The ‘GLC Fares’ Case” (1983) 99 L.Q.R. 605.

98 Law Commission “Renting Homes 1: Status and Security” (Law Com. Consultation Paper No. 162, 2002) para. 13.30.

99 Under the Human Rights Act 1998, s. 6(1) it is unlawful for a public authority to act in any way which might be incompatible with a convention right and under s. 6(6) “act” includes a “failure to act”.

100 See especially Lee v. Leeds C.C. [2002] 1 W.L.R. 1488 [48]; W v. Lambeth [2002] EWCA Civ. 613, [2002] 2 All E.R. 901 [86]; Marcic v. Thames Water [2002] Q.B. 929.

101 X and X v. The Netherlands (1985) 8 E.H.R.R. 235; Lopez Ostra v. Spain, (1994) 20 E.H.R.R. 277; Guerra v. Italy (1998) 26 E.H.R.R. 277.

102 Hatton v. UK (2002) 34 E.H.R.R. 1. It will be a question of fact and degree as to whether the level of disturbance engages article 8. Not all polluting acts, for example, have been held to violate article 8: Moe v. Norway App. No. 32549/96, E.C.H.R..

103 Page Motors Ltd. v. Epsom and Ewell EC (1982) 80 L.G.R. 337.

104 Niemietz v. Germany (1993) 16 E.H.R.R. 97, para. 31.

105 It is not clear when the one year time limit before which proceedings must be brought under the Human Rights Act 1998, s. 7(5)(a) would run in cases of “failure to act”. Presumably it would run from the time when a complaint was first made, though the court could use its discretion under section 7(5)(b) to extend this if unfairness would result.

106 This is especially important for those victims whose complaints to the local authority have been ignored.

107 Hatton v. UK (2002) 34 E.H.R.R. 1, 15 [96], See also Lee v. Leeds C.C. [2002] 1 W.L.R. 1488 [48] (Chadwick L.J.).

108 R. v. DPP, ex p Kebilene [2000] 2 A.C. 326, 381.

109 R. (Alconbury Ltd.) v. Environment Secretary [2001] 2 W.L.R. 1389 [70].

110 Lee v. Leeds CC [2002] 1 W.L.R. 1488 [49] (Chadwick L.J.).

111 Southwark L.B.C. v. Tanner [2001] 1 A.C. 1, 8 (Lord Hoffmann).

112 Southwark L.B.C. v. Tanner [2001] 1 A.C. 1, 9-10 (Lord Hoffmann). See also D. Rook, “Property Law and the Human Rights Act 1998: a Review of the First Year” [2002] Conv. 316.

113 Buckley v. UK (1997) 23 E.H.R.R. 101 [103].

114 Buckley v. UK (1997) 23 E.H.R.R. 101 [76], See also Hatton v. UK (2002) 34 E.H.R.R. 1 where the failure to conduct a sufficiently thorough review of the impact of night flights on sleep disturbance and to quantify the economic interests necessitating night flights led to a violation of article 8.

115 Human Rights Act 1998, Schedule 1, Part 1, article 2.

116 Osman v. UK (1998) 29 E.H.R.R. 245.

117 R. v. C.C. Norfolk [2002] E.W.H.C. 1738: the risk needs to be real, but by immediate this is not to “mean that the threat will necessarily materialise in the very near future”.

118 Osman v. UK (1998) 29 E.H.R.R. 245 [89].

119 Osman v. UK (1998) 29 E.H.R.R. 245 [89].

120 R. v. Lord Saville of Newdigate, ex p A [2000] 1 W.L.R. 1855 [37] (Lord Woolf). This passage was cited by Butler-Sloss P. in Venables v. News Group Newspapers (2001) Fam 430, 463 to justify a finding that the court would be infringing the article 2 right of the murderers of James Bulger if it did not protect their anonymity.

121 Arguably article 2 would be engaged in Hussain’, the local authority knew about the attacks and who they were carried out by, and they had powers to do something about the behaviour. It also does not matter that Osman v. UK (1998) 29 E.H.R.R. 245 referred to police activities.

122 There may also be a breach of an article 1, First Protocol, a right to “protection of property” under the Human Rights Act 1998. This has been used in a case involving noise and light nuisance: 5 v. France (1990) 65 D.R. 250. However, a claim under article 1, First Protocol would have to show that the value of the real property has been affected in such a way that it amounts to expropriation—which in the case of local authority tenants is hard to show.

123 Venables v. News Group Newspapers [2001] Fam. 430, 463-464.

124 I. Leigh, L. Lustgarten, “Making Rights Real: The Courts, Remedies, and the Human Rights Act” [1999] C.L.J. 509.

125 Law Commission, “Renting Homes 1: Status and Security” (Law Com. Consultation Paper No. 162, 2002) para. 13.26.

126 Poplar Housing and Regeneration Community Association Ltd. v. Donoghue, [2001] EWCA Civ. 595, [2002] Q.B. 48.

127 Housing Act 1988, s. 21(4), as amended by 1996 Housing Act, s. 98.

128 Law Commission, “Renting Homes 1: Status and Security” (Law Com. Consultation Paper No. 162, 2002) para. 13.26.

129 Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155, 1174 (Lord Brightman); Council of Civil Service Unions and Others v. Minister for Civil Service [1985] A.C. 374, 414 (Lord Roskill).

130 Mowan v. Wandsworth [2001] L.G.R. 228.

131 Chartered Trust v. Davis [1997] 2 E.G.L.R. 83.

132 It is unclear from the Law Commission Consultation Paper whether the suggested duty to act in relation to anti-social behaviour will be restricted to their role as housing manager or will apply more generally, but, where applicable, it will undoubtedly be of help to the victim in her complaint as it will show that importance is attached to protecting people from antisocial behaviour.

133 The Daily Telegraph (London), October 29, 2002, p. 24. See also Letwin, O., Marenbon, J., Howe, M., Conservative Debates: Liberty under the Law (Politeia, 2002)Google Scholar.