Retail injunctions are rising from the ASBO ashes, says resident law firm DWF

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Our resident business law firm, DWF, provides retailers with topical legal advice. Here Kevin Feehan and James Haddleton, retail specialists at DWF, advise retailers on the measures they can take to deal with anti-social behaviour in their stores

Haddleton: legal advice for retailers

Haddleton: legal advice for retailers

Feehan: retail specialist

Feehan: retail specialist

Since their introduction in 1998, Anti-Social Behaviour Orders (ASBOs) have been the subject of intense discussion. The 2011 public consultation to tackle anti-social behaviour highlighted the deficiencies of the current ASBO system and statistics showed that 50% of all ASBOs issued had been breached. 

In addition to falling public confidence in the ASBO system, retailers have found it has been ineffective in tackling the issues of persistent theft, burglary and damage to property. ASBOs are not available to retailers who are dealing with issues of trespass, and retailers have found where ASBOs can be applied, there is a lack of common policy and co-operation between police forces from different areas, meaning it can be difficult to keep offenders out of stores in different areas.

As a result of increasing pressures from retailers, the public and MPs, a number of new measures have been proposed, all designed to stamp out anti-social behaviour. This new toolkit includes community trigger responses, community protection orders and police direction powers, as well as criminal behaviour orders and crime prevention injunctions. 

It is the latter two that may be most relevant and of help to retailers, and have been designed to ban individuals from certain places or interacting with premises, and carry prison sentences and fines where they are breached. The Criminal Behaviour Order is available to courts following an offender’s conviction and requires the subject to address their anti-social behaviour; if breached, the order carries a maximum of a five year prison sentence. The Crime Prevention Injunction can be applied for by the police or other agencies, and holds a lower burden of proof than ASBOs as it is a civil action, making it easier to secure. If breached, adults can face imprisonment or fine, whilst those under-18 face curfews, supervision or detention.

Whilst these proposed measures are a step in the right direction there is concern they do not go far enough to protect retailers. It is important that where public order offences occur, retailers feel confident the cost of pursuing civil actions will prove worthwhile. In order to ensure this is the case, retailers must concentrate on those individuals and groups who repeatedly target their stores. In order to tackle anti-social behaviour, retailers can pursue an injunction to prevent the offenders from entering their premises and a monetary claim for any resulting loss and damages, and allows retailers to deal with the use of trespass.

There is a common misconception pursuing such civil claims is prohibitively expensive, especially for retailers who regularly find themselves the target of anti-social offenders. However, with the right support from their legal providers, retailers can access fixed-fee costs and remain in full control of the injunctive process, deciding when to apply for an injunction, the terms of the order sought and what action to take should the injunction be breached. The costs of the “retail injunction” can be claimed in any civil monetary claim. By securing an injunction, retailers can prevent offenders from entering some or all of their stores, and send a clear message to others who may be looking for an ‘easy target’. If the order is breached, the police can be called on to arrest offenders, and if a conviction is secured, it can lead to a maximum prison sentence of two years.

As well as helping to secure the store, by taking out a ‘retail injunction’ shop owners can help to reassure staff and the public alike they are doing everything in their power to make their shop and in turn, the local shopping area, as safe as possible.