England and Wales High Court (Administrative Court) Decisions

R v. MARYLEBONE MAGISTRATES COURT ex parte ANDREW CLINGHAM [2001] EWHC Admin 582 (11th January, 2001)

Case No: CO/4441/2000

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (QUEEN'S BENCH DIVISION - DIVISIONAL COURT)

ON APPEAL FROM David Kennett Brown D.J.

sitting as a magistrate

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 11^th January 2001

LORD JUSTICE SCHIEMANN:

The Background

1. Before the court is an appeal by way of case stated from a decision of David Kennett Brown D.J. sitting as a magistrate to admit some evidence. The appellant submits that the evidence should not be admitted. The magistrate did not proceed with the hearing, wishing first to await the adjudication of this court on the question whether he was right to allow that evidence to be admitted.

2. The case arose out of the desire of the respondent council to persuade the magistrate to make an anti-social behaviour order under the Crime & Disorder Act 1998

3. Section 1. The following subsections show the broad scheme of the Act:-

(1) An application for an order this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person .... namely -

(a) That that person has acted ... in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) That such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him.

..................

(4) If, on any such an application, it is proved that the conditions mentioned in sub-section (1) above are fulfilled, the Magistrates' Court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order.

..........

(6) 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 -

(a) persons in the local government area: .....

(7) An anti-social behaviour order shall have effect for a period (not less than 2 years) specified in the Order or until further order.

...........

(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable ...... on conviction on indictment to imprisonment for a term not exceeding 5 years or to a fine, or to both.

4. What the complainant local authority wished to do was to put before the magistrate a whole lot of material which indicated that a lot of persons whom it either could not or would not identify had complained about anti-social behaviour on the part of Mr. Clingham. It seems that at the initial hearing at which the complainant sought to obtain the order, Mr. Fraser who appeared for Mr Clingham, submitted that the rules relating to the admission of hearsay evidence had not been complied with since the appropriate notices had not been served. Counsel for the complainant accepted that they had not. The magistrate ruled that an appropriate notice should be served within 14 days. He gave an indication of the form that the notice should take. Counsel for the complainant then drafted a notice which was served on Mr Clingham. However, when some weeks later the case came back before the magistrate, before any submissions had been made to him, he said that his position had changed from that which he had adopted at the previous hearing and that he was of the view that in circumstances such as the present the rules simply had no application. His reasoning was that the evidence which the complainant local authority sought to adduce was not hearsay evidence. This conclusion was one with which, perhaps understandably, the complainant's counsel was not minded to argue. However counsel told us that he was now, as he had been before the magistrate, content to accept that the evidence which it was sought to adduce was hearsay evidence and that therefore the relevant rules applied. He submitted however that this fact even coupled with the fact that the authors of the primary evidence were not identified in the notice did not prevent the material from being admissible. It went to weight.

5. It is useful first to set out the relevant statutory and regulatory provisions governing the definition and admissibility of hearsay evidence. Since it is submitted that, by virtue of section 3 of the Human Rights Act 1998, those provisions ought to be construed and given effect to in a way which is compatible with Article 6 of the Convention I shall also set that out in so far as it is relevant.

The rules

6. The relevant rules were made under the Civil Evidence Act 1995. The following are the most relevant provisions:-

1. (1) In civil proceedings evidence shall not be excluded on the grounds that it is hearsay.

(2) In this Act -

(a) "Hearsay" means a statement otherwise than by a person while giving oral evidence in the proceedings which is intended as evidence of the matters stated; and

(b) references to hearsay include hearsay of whatever degree.

2. (1) A person proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings -

(a) such notice (if any) of that fact, and

(b) on request, such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matter arising from it being hearsay.

(2) Provisions may be made by rules of court

(a) .....

(b) as to the manner in which (including the time within which) the duties imposed by [subsection (1)] are to be complied with .....

(4) A failure to comply with subsection (1), or with rules under subsection (2) (b), does not affect the admissibility of the evidence, but maybe taken into account by the court -

(a) ....

(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.

3. Rules of Court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first mentioned party and as if the hearsay statement were his evidence in chief.

4.(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following -

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matter stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

5.(1) Hearsay evidence shall not be admitted in civil proceeding if or to the extent that it is shown to consist of, or to be proved by means of, a statement made by a person who at the time he made the statement was not competent as a witness.

7. In due course the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 were made. The most relevant provisions are the following:-

3.(1) ...... A party who desires to give hearsay evidence at the hearing must, not less than 21 days before the date fixed for the hearing, serve a Hearsay Notice on every other party ....

(4) A Hearsay Notice must -

.............

(d) identify the hearsay evidence;

(e) identify the person who made the statement which is to be given in evidence; and

(f) state why that person will not be called to give oral evidence.

4.(1) Where a party tenders as a hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence; the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents.

8. Article 6 of the European Convention on Human Rights provides:

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing .....

(3) Everyone charged with a criminal offence has the following minimum rights:

............

(d) to examine or have examined witnesses against him ....

What the Convention requires

9. In the case of The Queen on the application of McCann & Manchester Crown Court (Lord Woolf C.J. and Mrs. Justice Rafferty decided by this court on 22.11.2000 CO/3055/2000) the court had to decide whether proceedings under section 1 of the 1998 Act to obtain an anti-social behaviour order were criminal proceedings so as to attract the protection which our law including Article 6 gives to those accused of crimes. The court after a full argument and after considering the decision of this court (Lord Bingham of Cornhill C.J. and Mr. Justice Astill in B & Chief Constable of Avon & Somerset Constabulary 95 April 2000 CO/5064/99) held that the proceedings were civil proceedings both under our domestic law and the jurisprudence of the European Court of Human Rights. Mr. Fraser, who appeared for the appellant, wished to retain his right to argue that that case was wrongly decided. Should the present case go to a higher court he is of course entitled so to do. He also attempted to persuade us to depart from that decision on the basis that it was distinguishable. This was mainly on the basis that the activities complained of in the present case were of a higher order of gravity than those complained of in McCann and that therefore any breach of any order which might be made would be liable to give rise to higher penalties. In my judgment his attempts at distinguishing the case of B have no force. Whether something is properly characterised as a civil or a criminal proceeding cannot depend on either the likely severity of the impact of the order or the likely consequences of any breach of the order. To make either of those the test would be to introduce an element of vagueness quite unsuited to any legal proceedings.

10. Faced with McCann Mr Fraser then put his submission slightly differently. It was common ground that the appellant was entitled to a fair trial since on any basis his civil rights were in issue. It was submitted on his behalf that, since the notice did not identify the primary complainants and they could therefore not be cross-examined a fair trial was not possible. It was submitted that the proceedings for an anti-social behaviour order are akin to criminal proceedings and therefore fairness required that evidence which was not admissible in criminal proceedings should not be admitted in proceedings in which the complainant seeks the making of an anti-social behaviour order.

11. It was thus submitted that to admit this evidence would be a breach of a citizen's rights under Article 6 to a fair trial. We do not think that there is anything in the Human Rights Act 1998 or the jurisprudence of the E.Ct.H.R which leads either to the automatic exclusion of hearsay evidence in civil proceedings or to any requirement to give the civil evidence legislation any meaning which it does not naturally bear. The fact that some of the evidence is hearsay without the possibility of cross-examination does not have the automatic result that the trial is not a fair trial as Article 6(1) requires. Nor was the complainant local authority acting in breach of the appellant's rights under Article 6 in seeking to adduce the hearsay evidence. Even in the context of a criminal case there is no such automatic exclusion - see cases cited in Clayton & Tomlinson The Law of Human Rights para 11.253.

Was the evidence hearsay?

12. The magistrate took the view that the evidence which the complainant sought to introduce was not hearsay evidence. He puts his reasoning thus in paragraph 8 of the Case

(c) The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 apply to the situation where the respondent seeking an anti-social behaviour order wishes to put before the court a statement by a witness who is not to give live evidence. In this case the only witnesses proposed to be called are police officers who will refer to what various civilians and other officers have told them, as well as their own first hand evidence.

(d) Since the respondent does not seek to put in evidence the statement or a witness who is not going to be called to give live evidence the Rules do not apply. The proposal of their live witnesses to mention what was said to them by others does not require the service of a hearsay notice.

(e) The proposal by the live witnesses to refer to what others have told them will mean that such evidence lacks the cogency and strength that would arise from live evidence and cross-examination. The trial court will have regard to this in determining whether the respondent has met the appropriate civil standard of proof.

13. It is common ground that he was correct in what he said in subparagraph (e) but I fear he fell into error in what he said in the other two subparagraphs.

14. I have already set out the definition of hearsay in the Civil Evidence Act. We have seen the Notice in question. It identifies the hearsay evidence in three categories of situation.

1. Where the source is unknown to the complainant.

2. Where the source is known to the complainant but is withheld.

3. Where the source is purportedly identified but is in itself merely a recipient of second hand information.

15. It is clear from the notice and the case that what was sought to be adduced by the policemen in the witness box was evidence of complaints made by third parties to the police. Whether this evidence was hearsay evidence or primary evidence depends on of what fact it is that the complaints were intended to be evidence. If it had been merely intended to prove that complaints had been made then this matter could be proved merely by calling the policeman to say that he had received such and such complaints. This would not be hearsay evidence of the fact that complaints had been made, it would be primary evidence of that fact. However, in the present case the local authority were seeking to prove that Mr Clingham had acted in an anti-social manner. That is what needed to be proved before the anti-social behaviour order could be made. The best evidence of that matter would be by persons who had seen the behaviour in question. If the policeman could only say that he had been told by such persons that Mr Clingham had behaved in an anti-social manner that would be hearsay evidence of the behaviour.

16. It follows that the magistrate erred in his view that the material which the complainant wished to adduce was not hearsay evidence.

The consequences of the evidence being hearsay evidence

17. Had he realised his error as to what was hearsay he would have ruled that the Rules applied. The most obvious effect of a recognition that the evidence in question is hearsay evidence is that, in considering what weight to give to the evidence s.4 of the Civil Evidence Act will need to be borne in mind. It is ironic that the judge in paragraph 8(e) in effect recognised this. However, there may be other effects in the sense that applications can be made under the Rules upon which decisions may have to be taken. It would not be right for this court to speculate in advance as to what these applications might be.

But must the hearsay evidence be excluded anyhow?

18. Mr Fraser submits that, even given that the Rules applied because the material sought to be adduced was hearsay, the judge should nevertheless have excluded the material because in the particular circumstances to admit it would be to deprive the appellant of a fair trial. In substance his submission was that, in the absence of the possibility of cross-examination, the weight to be attributed to evidence whose maker could not be cross-examined was nil and therefore, since evidence should not be admitted unless it was probative, we should declare that the evidence was inadmissible and therefore that the magistrate was wrong to admit it.

19. I do not accept that in all circumstances evidence which can not be cross-examined is not probative of anything. Such a holding would be contrary to the Common Law - which has always allowed hearsay evidence in some circumstances - and to the Civil Evidence Act section 2(4). Nor do I think it a sensible course for a court to look at particular evidence and, if it comes to the conclusion that its weight in all the circumstances is so negligible that it is not probative, then to exclude it. This is an artificial complication. The evidence can be admitted. If its weight is slight or it is not probative the judge can say so. If he comes to an unlawful conclusion his decision can be appealed.

Conclusion

20. In the light of this judgment, it is unnecessary for us to make any order. The matter will remain to be dealt with by the magistrates court. That court will consider the evidence on the basis that it is hearsay evidence and therefore subject to the criticisms which can be made of hearsay evidence. The court will have to consider what weight to give to the evidence in the light of those criticisms. I do not consider it appropriate for this court to express any views as to weight.

MR JUSTICE POOLE:

21. I agree. It seems clear, for the reasons argued by Mr. Fraser, that "statement" should not be confined to its narrow meaning. On the other hand, I am less impressed by his argument on s. 2 (4). It seems to me that when, in a case of non-compliance with the Rules, resort is had to this subsection, it cannot be easily argued that the material considered thereunder, provided always that it is relevant, should be given no weight at all.

22. The effect of s. 2 (4), read together with s. 1, in my judgment, is that weight will ordinarily attach to such material, but that the precise degree of that weight will depend on all the circumstances of the case and the detailed consideration given to those circumstances by the court, as enjoined by subsection 2 (4) (b) and section 4. That weight may or may not be sufficient for the making of an order. But it is hard to picture a case where the material, if relevant, will have no weight at all.