QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE GOLDRING
| THE CHIEF CONSTABLE OF LANCASHIRE
|- and -
|LISA MARIE POTTER
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Michael Hayton (instructed by Inghams) for the Respondent
Crown Copyright ©
Lord Justice Auld:
The legislative scheme
"(1)… (a) that the person has acted, since the commencement date, 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 such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section …. which prohibits the defendant from doing anything described in the order." [my emphases]
" that such an order is necessary to protect relevant persons from further anti-social acts by him",
and defines "relevant persons" in section 1(1B). Section 1(6), which describes the prohibitions that may be imposed by an anti-social behaviour order, has been correspondingly immaterially amended and simplified so as to refer to "prohibitions … necessary for the purpose of protecting persons … from further anti-social acts by the defendant".
1) whether, in order to prove that a defendant's conduct was "likely" to cause harassment, alarm or distress to another person or persons, it is necessary to prove that likelihood to the criminal standard of proof, or, put another way, what does "likely" mean in this context;
2) whether, in considering an application for an order under the second or third constituents, it is permissible to aggregate the defendant's behaviour with that of other persons who have engaged at the material time and in the same area in that or similar behaviour; and
3) whether, in any event, the Deputy District Judge's finding that the defendant's conduct was not likely to cause harassment, alarm or distress, was perverse.
The decision challenged
"(E) … I found that her mere presence when loitering or soliciting in the problem area sufficed for her conduct to have been the cause of the problem because it contributed to the presence of the prostitutes as a whole and to the presence of kerb crawlers. …
(G) I could not tell from the evidence what attitude the Respondent had towards other people when she was seeking trade as a prostitute. I doubted that many of those prostitutes who conduct their business in a typical way intended to cause harassment, alarm or distress: I thought that they were probably indifferent as to what effect their activities had on respectable people in the area.
(H) There was no direct evidence before me that any individual had actually been caused harassment alarm or distress by the behaviour of the Respondent. …
(I) I heard no direct evidence at all from any local resident or person. All the evidence I heard was from police officers. The evidence contained hearsay evidence from unidentified people ….
(J) In finding the facts on which to base my decision when the evidence on behalf of the Appellant was hearsay evidence. I had to make an evaluation of the weight it was proper to attach to the various relevant parts of the evidence (bearing in mind that although it had been subject to cross-examination there was no conflicting evidence on behalf of the Respondent).
(K) I considered and applied section 4 of the Civil Evidence Act 1995 …
(N) I considered harassment, alarm and distress (those words bearing their normal meanings) to be quite high-level emotions, even accepting that there may be degrees within each one and that they may be transient or continuing. In my view, reactions to the problem … could include harassment alarm or distress, but others would not amount to any of those emotions.
(N) [sic] I also considered that a person's experience or perception of the problem associated with prostitution may have been based on some of the aggravated behaviour not associated with the Respondent and which I had decided should not be taken into account.
(P) I decided that the weight I should estimate to be properly applicable to the evidence meant that I could not be sure that anyone had actually been caused harassment, alarm or distress by the Respondent's behaviour."
"(Q) I then considered whether notwithstanding that no harassment alarm or distress had been proved, it would be a proper finding that it would have been likely to have been caused to someone. Even if I were to accept that the areas affected were likely to contain a broad normal distribution of resident and visitors based on age, gender and other characteristics, I decided that the answer was 'not necessarily'. To have found otherwise would effectively mean that anyone in the Respondent's position who has conducted her trade in any residential street would always be deemed to have been likely to have caused harassment alarm or distress to someone and be quite unable to prove the negative to defend herself. That seemed to me to be an unfair position. Given that evidence could properly have been introduced to support a finding of 'likely' harassment, alarm or distress without relying on such a principle, I was of the opinion that it would have been unfair to have drawn such a conclusion to the standard of proof necessary. Certain behaviour, especially of the 'threatening, abusive and insulting words or behaviour' kind which is the subject of criminal offences can more easily lend itself to a finding of likely harassment alarm or distress for the purpose of an application such as this, … but in my opinion the behaviour which this case was dealing with did not. The situation which came nearest to establishing likely harassment, alarm or distress was the 'lone female would feel intimidated/be afraid to walk in the problem area' opinion evidence … but I considered that this was a situation which ought to have been described to me by real examples rather than opinion for it to achieve the standard of proof. [my emphases]
(R) I considered whether the tests I had applied to evaluate the evidence were too strict and whether they would require too heavy an onus on the Applicant when gathering evidence for such an application. I decided that while it would require the case to be prepared more thoroughly, this was consistent with the nature of the application. The order sought would have substantial consequences if the Respondent breached it; courts always regard breaches of court orders as serious offences and substantial sentences result from them. … … I considered that the evidence presented was simply too vague and that it did not adequately focus on the issue of the causation by the Respondent of the actual or likely harassment, alarm or distress. If, as I had been told, the problem represented a quality of life issue in Preston then there ought to have been an abundance of evidence available which could have been presented to prove actual or likely harassment, alarm or distress. Direct evidence from an interested or affected person willing to attend court in person might have been forthcoming but even if this were not so, actual statements, given anonymously if so requested … but nevertheless using the maker's own, original, words would be admissible as hearsay evidence and the court could then properly decide exactly what was affecting the makers of them, and what that effect was, and why. [my emphasis]
(S) For all those reasons I decided that the evidence I had heard, whilst I did not actually disbelieve it, could not in the circumstances properly be estimated to have sufficient weight to entitle me, on applying the correct standard of proof, to find that the Respondent's behaviour was anti-social as defined in section 1 of the Act. …" [my emphases]
"… can I properly be sure, basing a finding on 'common sense' principles, that the likely effect of prostitutes operating in their neighbourhood and behaving in the way Miss Potter has behaved has been [as I read the paragraph - likely] to cause harassment alarm or distress to someone "
he made the following significant comment, not all of which appears in the statement of case:
"I can see some merit in such an argument. But in my view the correct answer is 'not necessarily' having regard to the range of emotions which might be caused. On a balance of probabilities I would answer the question as 'yes' but since I am applying a high standard of proof, 'not necessarily' amounts to 'no'. [my emphasis]
The issues in the appeal
1) Was he correct to ignore evidence of aggravated conduct shown by other prostitutes when deciding whether the Respondent's actions had caused harassment alarm or distress, or were likely to do so, to another person?
2) Was his estimation of the weight properly to be attached to the evidence of the effect of the Respondent's conduct defective and unreasonable and therefore erroneous in law?
3) In the face of his findings of fact and his estimation of the weight to be attached to the evidence of the effect of the Respondent's behaviour, was his conclusion that the evidence did not prove to the necessary standard required that the Respondent's conduct had caused harassment or alarm or distress to another person, or was likely to have done so, perverse and unreasonable and therefore erroneous in law?
4) Was he correct, as a matter of law, when considering whether the conduct that he had found proved was likely to cause harassment, alarm or distress, to require that he should sure of that likelihood? .
1) The meaning of "likely"
. "… in my view, pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant 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. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1) "
2) Aggregation of a defendant's anti-social conduct with that of others
Reasons for Decision
"2. There is clear evidence that residents in certain parts of Preston, and other persons lawfully there from time to time, are experiencing substantial problem as a result of the operation of street prostitutes in those areas ….
3. I can quite easily conclude that the activities as a whole of the prostitutes represent a problem to some degree to those local persons ….
4. A court has to look for much more than there being a problem when considering whether the grounds for making an … [anti-social behaviour order] has been proved …
9. When Miss Potter has operated as a prostitute in a street where such a problem is experienced she has, therefore, in my opinion by her mere presence been causing that problem in the sense of being a cause of it, though obviously the problem has had many other contributory causes and her contribution is relatively small though not insignificant. Her conduct has contributed to attracting kerb crawlers and generating hostility from local people, which are the more direct causes of the problem. So I am able to find that Miss Potter's conduct has caused the problem as it exists in the areas in which she operates.
10.What I have much more difficulty with is in concluding that her conduct has caused or was likely to cause harassment, alarm or distress. There is no evidence that anyone has directly and immediately been caused harassment, alarm or distress by anything she has done. If there has been any such harassment alarm or distress it must have stemmed indirectly from the problem which she has contributed to having caused."
"6(F) I did not consider it correct to say that the prostitutes operated in concert, even though by the nature of the activity they would tend to congregate, in a general sense, in particular areas. I decided that it would be improper to ascribe any responsibility for the behaviour of other prostitutes to her. Therefore, in deciding whether the Respondent's behaviour caused harassment, alarm or distress or was likely to do so, I decided that I must exclude whatever the effects on the local people may have been of the specific 'aggravated' incidents which had been the subjects of complaints and confine myself to the effects of her standard or typical behaviour".
3) Whether the Deputy District Judge's decision was, in any event, perverse
. "would always be deemed to have been likely to have caused harassment, alarm or distress to someone and be quite unable to prove the negative to defend herself.".
Second, he referred to the second of those two passages in which the Judge indicated that, although he had heard evidence from a police officer that lone females felt intimidated and afraid to walk in the red light districts, that ought to have been described to him by "real examples" rather than opinion evidence.
1) to reconsider, on the evidence already before him and to the criminal standard of proof, whether the appellant had proved under section 1(1)(a) either that the Respondent's conduct, whether considered on its own or in conjunction with that of the other street prostitutes, had caused, or had been likely to cause, harassment, alarm or distress to others; and, if he so finds,
2) to consider, on the evidence already before him and any further evidence that the parties might put before him, whether, pursuant to section 1(1)(b) and section 1(4) it is necessary to make an anti-social behaviour order; and
3) to determine whether, in the exercise of the discretion given to him by section 1(4), he should make such an order.
Mr Justice Goldring :