England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(MR RECORDER KERSHAW)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd May 2008

Lord Justice Rix:

1. This is an appeal from the ASBO Order made by Mr Recorder Kershaw on 18 October 2007. The order is against Mr David Fawcett, the appellant in this court. The order was obtained by the respondent here, Leeds City Council, of whom Mr Fawcett had been a tenant. He had lived on the Henshaw Estate in Yeadon, Leeds. He was the tenant and had been since 1996 of a two bed-roomed semi-detached house at 33 Henshaw Oval.
2. From about 2004 or thereabouts he had had a relationship, which we can refer to as a partnership, with a near neighbour, Miss Nelson, who lived at 75 Henshaw Avenue on the same estate. Henshaw Oval is a crescent-shaped road, which runs from and back to Henshaw Avenue. Mr Fawcett's and Miss Nelson's houses had back-to-back gardens, such that each could go from their separate home into that of the other through the gardens.
3. The summary of incidents upon which Leeds City Council obtained the ASBO in question covers incidents which in the main begin in the summer of 2004. Indeed, during observations in court immediately after giving his judgment in this case, the judge referred to the fact that he had had in mind incidents from the middle of 2004. Those incidents were essentially of a kind of general harassment and intimidation of neighbours, which usually took as their starting point a dispute between Mr Fawcett and Miss Nelson. These disputes would give rise to anger on the part of Mr Fawcett. His abuse of alcohol also generally put him into an angry state of mind, and the consequence of disputes with his partner and/or abuse of alcohol led to his conduct, his angry, aggressive, intimidating conduct, which led to the distress and complaints of his or her neighbours.
4. In particular evidence was given at the two-day trial before the learned Recorder by three close neighbours, one of whom had already moved away from the area and two of whom said that they would move if they could. One could not because that family had bought their house and could not sell it within a certain period of time without losing at least some part of the discount which they had obtained in connection with the right to purchase their house.
5. This conduct came to a head in August 2006, when Mr Fawcett held a bladed instrument, variously described as a machete or bill hook or other gardening implement of some kind, to the throat of a neighbour. His case was that it occurred in his garden, but the evidence was that it occurred in the street and was seen by a number of neighbours and led to a charge of affray. On the same day, in the continuing fit of bad temper, Mr Fawcett kicked a car of a visitor to the estate, a partner of a woman who lived on the estate and was a neighbour. That led to a further charge of criminal damage. In the end, on his plea of guilty to those charges, Mr Fawcett was sentenced to a term of imprisonment of one year. That was on 23 January 2007.
6. Those were the essential matters which the learned Recorder accepted as proved. The evidence of the neighbours can be illustrated by a passage in the detailed witness statement of one neighbour who said this:

"We have been harassed and intimidated while living in our home doing normal day-to-day things. During the summertime we were always on edge. We could not relax because we just didn't know what Dave was going to do next.

Dave is aggressive, unpredictable and very frightening. Whatever we have done to avoid Dave, it has made no difference and he has continued to target us. I dread to think what would have happened if we had challenged Dave's behaviour or shouted back at him when he was shouting at us."

7. That was the evidence of Mrs Gill, to whose evidence the learned Recorder said in his judgment he paid particular attention. Her evidence was all the more pertinent in that it was detailed, and a theme of her evidence as a whole was as to how far she and her husband had gone to avoid any contact or confrontation with Mr Fawcett. That is referred to in the passage which I have quoted, but it is a general theme of her evidence as a whole.
8. Before I turn to the way in which the judge expressed his findings and conclusions in his judgment, I should perhaps give some further details of what happened between 18 August 2006, when the affray and criminal damage occurred, and the ASBO trial on 17 and 18 October 2007 which led to the order in this case.
9. Mr Fawcett was, I think, almost immediately arrested following the offences, but he was again almost immediately bailed back to his home in Henshaw Oval, subject to a special condition not to go on Henshaw Avenue. On 4 December 2006 Mr Fawcett pleaded guilty to the two charges. There was then an adjournment for reports and on 16 January 2007 the clinical psychologist assessment report, commissioned by the court and made by Dr Simon Hamilton, came forward. This clear and comprehensive report threw considerable light upon difficulties which Mr Fawcett had experienced in his childhood, for which the judge himself expressed sympathy, if they were true, sympathy with which I can easily join. It is also right to observe that in 2005 and 2006 Mr Fawcett's parents died, which may have created additional stress upon him, albeit those deaths also set the opportunity for Mr Fawcett to talk for the first time about the difficulties of his childhood, which opening up brought with it, as Dr Hamilton discussed in his report, hopes for therapeutic intervention and improvement.
10. Nevertheless Dr Hamilton concluded that without engagement with such therapeutic improvement, risk of re-offending -- and there I think Dr Hamilton was talking about criminal re-offending, which is beyond the general intimidation of neighbours -- would be "moderate to high". Dr Hamilton, in his conclusions, repeatedly refers to the risk of offending.
11. That report came forward, as I have said, on 16 January 2007. The day before, on 15 January, Leeds City Council, in separate proceedings, had obtained an injunction against Mr Fawcett which we are told was based on existing bail conditions; and that injunction forbade Mr Fawcett from threatening, assaulting or causing or threatening violence to any resident or visitor of Henshaw Oval or approaching witnesses in the case.
12. On 23 January Mr Fawcett was sentenced and went into custody. Towards the end of April 2007 he was released on licence to reside with a sister. On 4 May 2007 an interim ASBO was made in these proceedings. That followed the essential form of the previous bail conditions and injunction in prohibiting certain conduct such as generally behaving in a manner which causes or is likely to cause nuisance, harassment, alarm or distress, also from approaching or contacting certain individuals who had been witnesses or had made witness statements in the proceedings, and also continued with prohibitions of playing amplified music and drinking in any open space. That was an interim order made in the first place for a few weeks, but which I assume ultimately was continued down to the hearing of the trial below.
13. At some time in or around July 2007 Mr Fawcett was returned to custody from licence. This was because he had fallen out with his sister or sisters, possibly as a result of discussions of his childhood; but he was finally released, we understand, in or about January 2008. That chronology indicates that there was a time, but not perhaps a very long time, when Mr Fawcett was both at liberty and residing in his home on the estate and perhaps a further time when he was at liberty and residing off the estate, but able possibly to enter the estate and join up with his partner, at any rate, through his home. I am not sure about that. And it is common ground that during this period, longer or shorter as it may have been, Mr Fawcett observed the conditions of his bail or the injunction against him or the interim ASBO as they variously existed, and caused no further upset to his neighbours; and those are matters which on this appeal, Mr Simon Read, who appears on his behalf, relies strongly upon.
14. The judge heard, as I have said, the evidence of three close neighbours of Mr Fawcett and Miss Nelson. He also heard Mr Fawcett and Miss Nelson give evidence, and in a short but clear judgment he expressed his findings of fact and conclusions in these terms, which I can take directly from that judgment. He said:

"1. … I am satisfied that his behaviour has caused a general atmosphere of intimidation over a number of years. On his own admission, there have been frequent noisy quarrels with his partner, sometimes lasting all day, with the frequency, at worst, of once a week, involving loss of temper in drink and loud obscene abuse.

2. One witness in particular impressed, Mrs Gill. She was initially so intimidated that she was not prepared to be named…

3. …He has acted in an antisocial manner that was likely to cause harassment, alarm and distress to one or more persons, not of the same household, since the commencement date of the act.

4. Is it necessary to protect relevant persons from further antisocial acts? In my judgment it is, having regard to the nature of the conduct, its frequency and duration, its impact. The witnesses say 'Either he goes or we go' and one of them has already gone. It is necessary because the steps short of an antisocial behaviour order application, namely calling the police and reports to housing, are shown to be no more than first aid and not an effective way of dealing with the problem.

5. There is a likelihood of repetition in my judgment. Although Mr Fawcett is no doubt sincere, and wishing for the best, and is acknowledging that it is up to him to avoid further complaints, he is an emotional man. He has an unresolved drink problem. His relationship in the past with Mrs Nelson has been turbulent and a high likelihood of repetition exists in my view until those matters are resolved. It is right to observe that he has not breached the Interim Order…

6. I take into account his age -- this is not a young man in the throes of growing up, it is a mature adult. His personal characteristics, he has unresolved issues from his childhood… As a human being, of course, he has potential for change. One hopes that that change occurs. But, having regard to his relevant previous convictions, I am satisfied that it is necessary to impose an order to protect relevant persons from further antisocial acts.

7. The terms of the order will include an exclusion zone. Without it the situation could simply be the same as that which gave rise to the all the complaints in the first place and the order would be of really no effect. There can be no enforcement of an order for only limited access to Mrs Nelson's family home, it will have to be exclusion. I am satisfied that it is an order to give the necessary protection. I am satisfied that it is necessary for the exclusion zone, as marked in red on the draft plan, to be enforced."

15. In his helpful submissions today, the burden of Mr Read's argument is that the judge was disproportionate in excluding Mr Fawcett from Miss Nelson's home. So far as the exclusion zone as a whole is concerned, that was -- with certain exceptions, which I must mention in a moment -- not a problem; but Mr Fawcett's essential concern was not to have his family relationship with Miss Nelson and her two children broken -- who were in effect siblings along with his own daughter who visited him at weekends and other occasions, although in the care of their mothers -- and to preserve, if he could, the family unit which he had enjoyed with Miss Nelson's family for the last few years.
16. The other exceptions to the exclusion order which have been a matter of concern to Mr Fawcett, but which are agreed, are these. These are matters, which were not realised at the time of the making of the order. It was not appreciated that the school where Miss Nelson's two children go is just within the northern part of the exclusion zone, and Mr Fawcett would wish to be able to go to the school of Miss Nelson's children to take those children to school or to collect them from school. That is now agreed, so that the ASBO needs to be amended to take that into account. Another matter which Leeds City Council have been willing to take into account is that his former employment, which unfortunately he lost as a result of his custodial sentence, was in the southern part of the exclusion zone. Although Mr Fawcett is at present without employment and has not recovered his previous employment, he would wish to have permission to re-seek employment where he had it before, within the zone, and therefore it has been agreed that the terms of the exclusion, which are at present in these words:

"…and may not enter or attempt to enter the full exclusion zone as marked in red on attached map until 18 October 2012."

-- that is to say for five years -- should be amended and replaced by the words "and may not enter or attempt to enter the following roads in Yeadon, Leeds and may not enter or attempt to enter any part of any property which fronts those roads: Henshaw Avenue, Henshaw Crescent or Henshaw Oval, until 18 October 2012".

17. The ASBO -- which perhaps incorrectly has been drawn up and said to be under Section 1(d) of the Crime and Disorder Act 1998, which I think is the section dealing with interim ASBO's; I suspect that the order should properly have been drawn up under Section 1(b) -- also contains a prohibition on directly or indirectly contacting a number -- about a dozen -- of stated individuals. There is no dispute about that. It does not contain, but that appears to be an error, what the judge expressly stated following his judgment it should contain, namely a general prohibition which the judge put in these terms:

"…you must not behave in a manner which causes, or is likely to cause, harassment, alarm or distress to any person not of the same household in the Leeds City Council local government area, nor must you encourage or incite others to do so."

18. Mr Read accepts that the ASBO should contain that prohibition. Subject to those amendments, the burden of Mr Read's submissions is, as I have said, that the ASBO should be further amended so as to permit Mr Fawcett to visit Miss Nelson in her home at 75 Henshaw Avenue. He has therefore suggested that the ASBO, either in its original state or as it will now be amended by consent, could be further amended so as to contain a proviso such as, say, to permit entering the exclusion zone solely for the purpose of entering or leaving 75 Henshaw Avenue, even if that proviso was further qualified by conditions such as a prohibition on residence or even an overnight stay in that house or some form of curfew hours upon visiting. At any rate, he should be permitted to visit Miss Nelson and her children in their home at 75 Henshaw Avenue.
19. Mr Read had of course to address in his submissions the manner in which he would say that the judge had erred. A judge who is asked to make an ASBO has to make an exercise of judgment or evaluation, as Lord Steyn has put it in Clingham (formerly C (a minor) v Royal Borough of Kensington and Chelsea (on Appeal from the Divisional Court of the Queen's Bench Division); Regina v Crown Court at Manchester Ex p McCann (FC) and Others (FC) [2002] UK HL 39 and [2002] 3 WLR 1313, at 37. This may not be a matter of pure discretion, but it is in any event clear that it arises out of the findings of fact made by the trial judge. It arises out of his evaluation of all the matters before him and of course he has to consider the statutory question of necessity, which is built into the statute, and also the question of proportionality which interference with family or private life gives rise to, both under the common law of England before the Human Rights Act, and now expressly under Article 8 of the European Convention on Human Rights.
20. It may not be a wholly accurate summation of the limits which curtail the interference by this court in such an evaluation and disposition, but it will not be far wrong to say that those limitations make it extremely difficult for this court to interfere in the judge's evaluation unless the court can see that the judge has plainly erred in some way, either in his assessment of the facts or in applying the wrong test or leaving out of account matters which he was required to take into account.
21. Mr Read has said that the judge has promoted the neighbours fears of further conduct into something different, namely further conduct which falls within the purview of the act. For these purposes he drew our attention to section 1(6) of the Prevention of Crime and Disorder Act 1998, which reads:

"The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant—"

22. and then the statute names the persons who may be protected by such an order. Mr Read submitted that the neighbours' fears did not amount to those further antisocial acts which the court must be concerned with if it is to find that it is necessary to protect the neighbours from the defendant's future conduct. Nevertheless it is plain that the judge was addressing the fears of the neighbours as being a natural consequence of the antisocial and indeed criminal conduct of Mr Fawcett in the past and the likelihood, as the judge repeatedly stated, of there being further such conduct in the future. It is plain to me that the judge approached his order with the right test in mind, that he had to be concerned about further antisocial acts by Mr Fawcett and that he should only make an order if that order was necessary for the purpose of protecting the neighbours from those further antisocial acts. It seems to me that there was in Mr Fawcett's past conduct, and the reasons for it, namely the turbulence of his relationship with Miss Nelson, his abuse of alcohol, his own personal problems arising out of his childhood and the unresolved issues which those gave rise to, the future need of therapeutic assistance if he was to surmount those difficulties. The judge was clearly conscious that all those matters could rightly satisfy him, both of the likelihood of further antisocial acts, indeed possibly criminal conduct, and the need to protect the neighbours against him.
23. How could he protect the neighbours against him? The judge directly and expressly addressed, no doubt in answer to Mr Read's urgent submissions at the time of trial, the question of whether he could, for the sake of Mr Fawcett's ability to visit Miss Nelson's home at 75 Henshaw Avenue, limit his exclusion in some way. He specifically addressed that in paragraph 7 of his judgment in the passage which I have cited above; but he concluded that it would be impossible to enforce such a proviso to the exclusion.
24. In my judgment, he was entirely entitled to come to that conclusion. The core, both geographical and in terms of causation, of Mr Fawcett's outbursts of anger, which he felt himself unable to avoid directing towards his neighbours as well, was the turbulence of his relationship with Miss Nelson. Therefore to allow Mr Nelson back into the exclusion zone for the purpose of permitting his access to Miss Nelson's home would be to fail to deal with the very centre, both geographical and otherwise, of the cause of Mr Fawcett's antisocial conduct. It would be a recipe for disaster, and, seeing that a breach of the ASBO can be visited by a term of imprisonment of up to 5 years, it would be potentially a disaster for Mr Fawcett as well.
25. Of course Mr Fawcett was entitled to say that from 18 August 2006 onwards he had behaved himself: he had complied with all conditions of bail; he had not breached the injunction against him; he had not breached the interim ASBO made against him. As the judge remarked, those orders, no doubt, were of assistance to him; but if the ASBO which the judge made in this case were to permit him to have access to Miss Nelson's home, then, despite his good behaviour over an admittedly limited time in the past, time when he was facing his criminal trial and then his possession action and antisocial enforcement action of the council, he would be likely in the judge's judgment to fall prey to the difficulties of his relationship and of his own personality again.
26. The judge, it seems to me, took into account the strength of Mr Fawcett's concern to limit interference in his personal and family life. The judge took into account the good behaviour of Mr Fawcett since 18 August 2006, but he nevertheless considered that the order that he made was necessary. He repeated the word 'necessary' at least four times in the last two paragraphs of his judgment. In this context the test of necessity encompasses, in my judgment, all that the test of proportionality brought into play by Article 6 would require a judge to take into account. I can find no error of principle in the judge's approach to the matter. I can find no important matter which the judge has left out of account. I do not agree with Mr Read's submission that the judge failed to take the question of proportionality into account, because that, as I have said, is bound up with the question of necessity in this context. Therefore I am unable to conclude that the judge has erred.
27. I would conclude this judgment simply by saying this: that quite apart from general principles which would discourage this court from interfering with a judge who has heard and evaluated the witnesses on both sides of the argument before him before coming to his conclusions, and has had to make an evaluative judgment such as is involved in the questions of necessity and proportionality, it would be very undesirable if this court were, save in a plain case, to be asked to second-guess a judge dealing with an ASBO on the detailed prohibitions of his order. Antisocial behaviour orders have now been in effect for a number of years. There are a number of judgments, some reported, perhaps most unreported, in which the principles upon which ASBO's should be formulated have been considered. One of them, albeit arising in a criminal context, is that of this court in Boness v Bebbington (EWCA Crim 2395, 19 August 2005) of the Criminal Division of this Court. In his judgment in that case Hooper LJ repeatedly emphasises the importance of making orders which are clear and readily enforceable. The importance of these qualities for the prohibitions contained in an ASBO are both so that the person against whom the order is made should know clearly what he can and cannot do and also so that for the protection of those for whom the order is made the order can if necessary be readily enforced.
28. For those reasons, as Hooper LJ explains in his judgment, ASBOs which deal clearly with matters such as exclusion zones, so as to prevent the defendant from ever getting into the position where he might offend or cause harassment or intimidation to his neighbours, are a preferred form of prohibition. Conduct prohibitions are much harder for the defendant himself to evaluate and for the neighbours or the local council or the police as may be necessary to enforce.
29. The learned recorder may or may not have had Hooper LJ's judgment drawn to his attention, but whether or not it was, the learned recorder shows, in my judgment, a shrewd appreciation, in his order and in reasons that he gave for it, of the matters discussed by Hooper LJ in that judgment. For those reasons I would dismiss this appeal.

Lady Justice Arden:

30. I agree with my Lord and with the reasons he has given. I also agree with my Lord's general observations about the evaluative nature of the judge's function when making an assessment of what is necessary or proportionate for the purposes of the 1998 Act and with what my Lord has said about the consequences of that function for an appeal to this court.
31. I would like to add just a couple of observations on procedural matters. The order as made by the Recorder, as my Lord has explained, applied to a large exclusion zone shown in red on the map attached to the order. It is now agreed that that exclusion zone should be amended. It is not entirely clear to me how the parties came to be before the Recorder with a map showing the exclusion zone as finally included in his order, but it is clearly too wide and there is nothing to suggest that that could not have been ascertained at the time. I am very glad that that parties have been able to agree the position, and the points which I wish to make arise out of these formal amendments which they wish to make to the Recorder's order. They did not of course need to appeal to implement any agreement, but it has not been suggested that the judge was in error by reason of the inclusion of the primary school or the areas now agreed to be excluded
32. I should add that it is also common ground that the order as drawn is defective because it did not include a provision which the Recorder intended to include along the lines of paragraph 1 of the Interim Order. That paragraph 1 said that the defendant was forbidden from behaving in a manner which caused or was likely to cause nuisance, harassment, alarm or distress to any person not in the same household in the Leeds City Council government area or encouraging or inciting another to do so.
33. Looking at these issues in the context of Section 1 of the 1998 Act, I see that sub-section (8) provides for an order to be varied by consent on application by the court which made the original order, and sub-section (9) provides that except, with the consent of both parties, no antisocial order shall be discharged before the end of two years, beginning with the date of the service of the order and we are of course within that two year period. However, both parties do consent.
34. If the amendments are agreed, and if my Lords also agree, it seems to me that it would be possible to make the agreed amendments by way of allowing an appeal by consent from the Recorder's order to that extent, but that would have to be reflected in the order. This may well be the sort of case in which a minute drawn up by counsel would be the best course. If that course is taken, I would like counsel to clarify (1) whether that order should be personally served on Mr Fawcett; (2) whether there is any difficulty in the court dealing with these amendments in the absence of Mr Fawcett personally, and (3) the precise terms of any new general prohibition in the light of the decision in Boness, to which my Lord has referred. Subject to those procedural points, I agree with my Lord.

Lord Justice Rimer:

35. For the reasons given by my Lord, Rix LJ, I too agree that the appeal should be dismissed.

Order: Appeal dismissed