The changes to Part 81, Civil Procedure Rules only came into effect on 1 October 2020 but they have already caused issues in the county courts in matters concerning Anti-Social Behaviour, Crime and Policing Act 2014 (2014 Act). There has been a disparity in how the courts are dealing with breaches both on arrest and on application which practitioners should keep in mind.
The problem: do circuit judges have to deal with all breaches of a 2014 Act injunction?
The County Court in Central London has “seen a glut” (comment by a circuit judge at a hearing on 8 October 2020) in applications since the amendments.
Today, a district judge has indicated that the Designated Civil Judge (“DCJ”) has given guidance: all applications must be adjourned and sent to Central London. At a hearing yesterday, guidance was given that it must be assumed a circuit judge is required.
It appears many district judges are not prepared at this stage to hear arguments given the guidance.
Having said that, some judges have indicated that the rules are back before the Rules Committee in an emergency session and we may see a rule change today or, at least, very soon.
Sarah Salmon considers the rules.
Civil Procedure Rules (CPR)
Before the amendments, Part 81 contained 8 sections and 38 rules. There are now 10 rules.
Unusually, the changes did not contain the type of transitional provisions practitioners are used to seeing i.e. that the amendments do not apply to applications on foot before 1 October. There is one transitional provision not relevant to 2014 Act applications: para. 2, the Civil Procedure (Amendment No. 3) Rules 2020 (SI No. 747).
The rule causing current problems, is r. 81.3(2) which provides, under a heading “How to make a contempt application”:
“If the application is made in the High Court, it shall be determined by a High Court judge of the Division in which the case is proceeding. If it is made in the county court, it shall be determined by a Circuit Judge sitting in the county court”.
There are 2 issues with this.
- Does it apply when someone is arrested and brought before the court ie. is an arrest an “application” for the purposes of Part 81?
- In any event, given there has been no amendment to CPR Part 2 – specifically PD2B – can it only be a circuit judge that deals with an application concerning breach of a 2014 Act injunction?
Civil Justice Council
The Civil Justice Council noted the removal of jurisdiction from district judges in its July 2020 report: Anti-Social Behaviour and the Civil Courts.
“It noted that r. 81(3)(2) “removes the current jurisdiction of district judges (and deputy district judges) to hear committal applications in respect of breaches of orders under the 2014 Act. The Working Party is unaware of the reasoning behind this decision, or of any suggestions from the judiciary, practitioners or other bodies that it should be removed. The Working Party is very concerned that the change will lead to unsatisfactory delay and complications in the determination of committal applications under the 2014 Act (particularly given the need to adjourn first hearings to enable the respondent to seek legal advice/representation and also the fact that many court centres do not have a resident civil circuit judge)”: see para. 265.
On 7 October 2020, a county court refused to deal with a defendant on arrest informing the housing association that it can no longer deal with committals and these have to go to Central London. The defendant was brought before a circuit judge in Central London on 8 October 2020 but, due to issues with social distancing in the lifts, outside the requisite 24 hours following arrest (by 10 minutes).
Conversely, on 8 October 2020, a district judge sat in a different county court, was dealing with a defendant brought before them on arrest.
Section 9 of the Anti-Social Behaviour, Crime and Policing Act 2014 provides that where a power of arrest is attached to a provision of a 2014 Act injunction, a constable may arrest the defendant without warrant if he or she has reasonable cause to suspect that the respondent is in breach of the provision. Where a person is arrested, they must, within the period of 24 hours beginning with the time of the arrest, be brought before, inter alia, a judge:
- of the High Court or a judge of the county court, if the injunction was granted by the High Court; or
- a judge of the county court, if the injunction was granted by the county court.
There is no definition of “judge of the county court” within Part 1, 2014 Act.
By CPR r. 65.47, the judge before whom a person is brought following his arrest may deal with the matter or adjourn the proceedings. Subparagraph (5) of r.65.47 as it appears online provides:
“Sections 2 and 8 of Part 81 apply where an application is made in the County Court to commit a person for breach of an injunction as if references in those Sections to the judge include references to a district judge”.
However, the hard copy of the CPR 2020 sets out that subparagraph has been omitted: The Civil Procedure (Amendment No. 3) Rules 2018 (SI No. 975). In any event, Part 81 no longer exists in its previous form.
Part 81, does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law. Without getting into whether an arrest is an “application” for the purposes of Part 81, given section 9, 2014 Act, it must be arguable that a district judge still retains jurisdiction to deal with a defendant on arrest.
This appears to be supported by the Civil Justice Council’s report at para. 266:
“… given that CPR 81.3 is limited to formal applications, it does not expressly remove the jurisdiction of a district judge under CPR 65.47 to deal with a committal without an application within 28 days of arrest. This creates unsatisfactory distinctions between the jurisdiction of a district judge before and after the expiry of 28 days and also within the 28-day period between committal proceedings without a formal application and ones where a formal application has been made in respect of the breaches for which the respondent was arrested and/or additional alleged breaches…” Whether courts will be willing to do this (or even hear argument on whether they can deal with a defendant) before any rule change appears to be dependant upon the individual courts.
The 109th Update to the Civil Procedure Rules dealt with the inconsistencies in the allocation of cases to levels of Judiciary in Practice Direction 2B.
Practice Direction 2B has not been amended as part of the changes to Part 81. PD 2B provides (so far as is relevant):
“8.1 … In the first instance, the following applications for orders and interim remedies (including injunctions whether interim or final) will be allocated to a District Judge –
(c) injunctions that are to be made under any of the following provisions –
(v) Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014.
8.3 Any proceedings in which the court may make an order committing a person to prison or attach a power of arrest to an injunction or remand a person will be allocated to a Circuit Judge, unless the order, power of arrest or remand is made –
(a) In proceedings which have been or may be allocated to a District Judge pursuant to paragraph 8.1 above…”
The above provisions of PD 2B are not inconsistent with the amendments to Part 81 in so far as they provided committals will be allocated to a Circuit Judge but, thereafter, it does provide for exceptions. One such exception is, it seems, where 2014 Act proceedings have been allocated to a district judge in line with the Practice Direction.
Where does this leave us?
It was the view of Civil Justice Council’s Working Party back in July that the Rules Committee “should, as a matter of urgency, amend the revised CPR 81 and/or CPR 65 to restore the jurisdiction of district judges to deal with committal applications in respect of the breach of orders made under the 2014 Act”: at para. 267.
This was obviously not done and we are now left with the unsatisfactory position that the Civil Justice Council foresaw.
With the guidance from the DCJ, in London it must be assumed that cases will be adjourned or delayed as they are transferred to Central London. Let’s hope there is a rule change; let’s hope it is as soon as suggested.