Any strong antisocial behaviour (“ASB”) case, whether the remedy sought be an Injunction or possession, rests on the presentation of detailed and compelling witness evidence at Court of both the incidents of ASB behaviour and the impact upon residents.
Unfortunately the nature of these cases means that often victims of antisocial behaviour are reluctant to attend Court. Sometimes the actual or perceived threat of violence and intimidation is such that residents are not even prepared to put their name to a statement, let alone attend a hearing where they may come face to face with the perpetrator.
The best evidence for the Court will always be direct evidence, presented as a written signed statement that the witness can add to or clarify as necessary via oral questions from the judge or legal representatives at Court. Ideally a witness will be able to recount specific incidents and give detail about the time, location and a full description of what happened. Diary sheets may be provided for residents to keep a record of what happened as memory can be unreliable. However, now that many people have smartphones, diary sheets are becoming redundant as victims can email or text during or immediately after an ASB event and this can prove to be valuable contemporaneous evidence of ongoing nuisance behaviour.
If a witness is not willing to come to Court then the evidence will by necessity be indirect. Here an officer of the landlord will give evidence that they had been told by the resident that they had seen or heard an incident occurring. As it is second hand evidence and difficult for a Defendant to challenge, it will be given less weight by the Court when deciding the case.
When a landlord starts to receive complaints of anti-social behaviour, one of the first questions that should be asked is whether the complainants are prepared to come to Court and give evidence. If the answer is “No” then the officer should explain the importance of this evidence of the complainant’s experience for any resolution to the problem. If the potential witness is still insistent they will not attend Court then the officer should note down the reasons given for that insistence. A genuine fear of going to Court may well be good evidence of intimidation by the perpetrator. Landlords should bear in mind that witnesses may become more ready to come to Court as the case develops, for example if other witnesses step forward, and those witnesses should be approached again in the run up to trial to see if they have changed their mind.
It is possible to file witness evidence anonymously and also possible now to apply for special measures to be put in place at Trial to assist them to give evidence without being identified. Such measures can include for example physical screens being put in place in the court room, a live link through televised link to the Court room, giving evidence via pre-recorded video and so on.
If witnesses are prepared to give written signed statements but want to remain anonymous then statements can be taken for them with redacted details and referring to them as, for example “Resident X”. It is important to ensure the witness is aware that evidence will be treated as hearsay (second-hand) evidence and will not be given the same weight as first hand evidence when the judge makes their decision in the case. Note that whilst certain identifying details can be redacted, if the incidents are very specific and involve particular confrontations between the witness and the perpetrator then the chances are that the perpetrator will be able to identify the witness anyway.
If witnesses are very fearful and there is evidence of intimidation by the perpetrator, landlords should consider any practical measures to assist the victims of the anti-social behaviour. Additional security measures that a landlord may want to consider offering might include additional locks, spyholes, internal letter box flaps or other appropriate measures. Very rarely there may be serious and warranted concerns about physical safety in which case it may be worth considering a temporary or permanent move, depending on resources.
Occasionally problems can occur when witnesses feel frustrated with the perceived lack of action in anti-social behaviour cases. They often do not appreciate the hurdles that social landlords need to jump over to take these cases to Court. In these circumstances the landlord may want to consider instructing solicitors to gather evidence and speak to witnesses on their behalf. They can act as buffer between the landlord and the residents and can explain the issues involved in litigating a possession or Injunction claim, for example the delays that are commonly involved. Further, a fresh pair of eyes and ears often uncovers crucial incidents which may have been missed or long filed away. If budgetary constraints rule against it then perhaps allocating the case to a different officer within the organisation may provide enough distance to build up trust again.
Finally, when trial is finally approaching, do not forget to give clear instructions on the practical aspects of getting to Court – all witnesses should know which Court to attend, to arrive there early and who they will be meeting. With more Court centres having shut in recent years then if there are difficulties in witnesses travelling to Court, then it may be prudent to arrange transport for them. Lastly, when speaking to witnesses it is important to suggest that they may want to read through their statement again, bearing in mind it may have been prepared weeks or months before the final hearing, and thank them for giving up their time to attend the hearing as the Court’s final decision may well rest of the evidence that they have given.
- Upon receiving initial complaints, ensure the complainant knows who to contact and that they can email a specified address at any time. Alternatively provide them with diary sheets.
- Follow up initial complaints and actively contact potential witnesses rather than waiting for them to contact you.
- If problems persist and legal proceedings become necessary then explain the remedy being sought and the way that it should help them. Be honest with residents about time scales for court proceedings.
- Empathise with witnesses, they may have to live next to the perpetrator after the Court proceedings have run their course.
- Tell witnesses how valuable their evidence is for the case – thank them for giving up their time to give a statement and come to Court.
Anna Bennett is a Solicitor in the Housing Management department at Devonshires Solicitors LLP, with over 10 years’ experience in ASB litigation.
This article was first published in issue 79 of Resolution Magazine, a publication produced by Resolve ASB (http://www.resolve-asb.org.uk), on 14 September 2016.