QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SULLIVAN
|C (BY HIS MOTHER AND LITIGATION FRIEND, C)||(CLAIMANT)|
|SUNDERLAND YOUTH COURT|
|CROWN PROSECUTION SERVICE||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR G DUFF (instructed by CPS) appeared on behalf of the INTERESTED PARTY
MR J CROW (instructed by Treasury Solicitor) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
MR JUSTICE SULLIVAN:
The statutory framework
"(1) An application for an order under 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 aged 10 or over, namely-
(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 relevant persons from further anti-social acts by him.
(1A) In this section and sections 1B and 1E 'relevant authority' means --
(a) the council for a local government area;(b) the chief officer of police of any police force maintained for a police area;(c) the chief constable of the British Transport Police Force; or(d) any person registered under section 1 of the Housing Act 1996 as a social landlord who provides or manages any houses or hostel in a local government area.
(1B) In this section 'relevant persons' means --
(a) in relation to a relevant authority falling within paragraph (a) of subsection (1A), persons within the local government area of that council;(b) in relation to a relevant authority falling within paragraph (b) of that subsection, persons within the police area;(c) in relation to a relevant authority falling within paragraph (c) of that subsection.(i) persons who are on or likely to be on policed premises in a local government area;(ii) persons who are in the vicinity of or are likely to be in the vicinity of such premises;(d) in relation to a relevant authority falling within paragraph (d) of that subsection.(i) persons who are residing in or who are otherwise on or likely to be on premises provided or managed by that authority; or(ii) persons who are in the vicinity of or likely to be in the vicinity of such premises.
(3) such an application shall be made by complaint to the Magistrates' Court whose commission area includes the local government area or police area concerned.
(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 ("an anti-social behaviour order") which prohibits the defendant from doing anything described in the order.
(5) For the purposes of determining whether the condition mentioned in subsection (1A) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.
(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons (whether relevant persons or persons elsewhere in England and Wales) and further anti-social acts by the defendant.
(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.
(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.
(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with date of service of the order.
(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is [guilty of an offence] and liable.
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or both."
Subsections (11) and (12) are not relevant for present purposes.
"(1) This section applies where a person (the; 'offender') is convicted of a relevant offence.
(2) If the court considers-
(a) that the offender has acted, at any time 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 an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him it may make an order which prohibits the offender from doing anything described in the order.
(3) The court may make an order under this section whether or not an application has been made for such an order.
(4) An order under this section shall not be made except-
(a) in addition to a sentence imposed in respect of the relevant offence; or(b) in addition to an order discharging him conditionally.
(5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.
(6) An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged.
(7) In the case of an order under this section made by a magistrates' court, the reference in subsection (6) to the court by which the order was made includes a reference to any magistrates' court acting for the same petty sessions area as that court.
(8) No application may be made under subsection (6) for the discharge of an order before the end of the period of two years beginning with the day on which the order takes effect.
(9) Subsections (7), (10) and (11) of section 1 apply for the purposes of the making and effect of orders made by virtue of this section as they apply for the purposes of the making and effect of anti-social behaviour orders.
(10) In this section-
'the commencement date' has the same meaning as in section 1 above; 'the court' in relation to an offender means-
(a) the court by or before which he is convicted of the relevant offence; or(b) if he is committed to the Crown Court to be dealt with for that offence, the Crown Court; and 'relevant offence' means an offence committed after the coming into force of section 64 of the Police Reform Act 2002."
Section 64 came into force on 2 December 2002.
"The cases were adjourned until 8 May 2003 for a further pre-sentence report to be prepared when again I represented the prosecution. Joanne Gatens attended for the defendant. I outlined the full circumstances of the offences to the court and reminded them of their power under section 64 of the Police Reform Act 2002. The magistrates sentenced the defendant to a 12 month supervision order with ISSP [90 days' intensive surveillance and supervision programme], disqualified him from driving for a period of two years and until an extended driving test was passed. Furthermore they made a parenting order for 3 months. They chose not to impose an anti-social behaviour order as part of the sentence."
"This report relates to the above named suspects who are due to appear at Sunderland Magistrates on 8 May 2003. It is the intention of Northumbria Police in conjunction with yourself to apply for anti-social behaviour orders on the above named when they next appear at court.
"Both defendants are charged with various offences including affray, escape from lawful custody and criminal damage which occurred on 17 January 2003. Since that day both have been arrested on a further number of occasions."
The note then refers to the driving offences which had been committed by the claimant and continues:
"Both would be considered to be persistent offenders who have little or no regard for authority and are regularly involved in youth disorder which occurs in or around [a particular estate]."
"When the magistrates returned from their deliberations the chairman indicated that his colleague had been able to give more detail about the offence than the prosecutor and they imposed 24 hours reparation and an anti-social behaviour order for two years. This apparently was because by chance one of the magistrates had sat on the hearing on 8 May involving [the claimant]. What she told her colleagues was never said in court nor disclosed to [the claimant] or me in any other way. This order was not geographically defined and prohibited [the claimant] from exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress."
"The bench of magistrates consisted of a male chairman and a female wing magistrate. The female magistrate had sat on the bench at the applicant's trial for escaping lawful custody. One of the reasons given by the Chairman for imposing the anti-social behaviour order was that the magistrates had considered information provided by the female magistrate during their deliberations. Precisely what was discussed was not announced."
"The order made is too wide in its geographical ambit and should be quashed for that reason."
Notwithstanding the fact that those complaints were made, they have not been answered by any witness statement from the justices themselves. It is an unfortunate feature of this case that Ms Ward's witness statement, which is the only evidence supplied by the court, was filed not directly with this court by the Magistrates' Court, but via the CPS. It is vital that Magistrates' Courts not merely keep at arm's length from the parties, but are seen to do so. That said, there is, as a consequence, no explanation before this court as to the magistrates' reasons for making the order, and in particular, why they considered it appropriate to make an order on 12 June when the previous court had not made such an order, the claimant's anti-social behaviour having been fully explained to them on 8 May. The acknowledgment of service states that the magistrates found inter alia that the claimant was a persistent offender and:
"In the light of their findings the magistrates were satisfied that the defendant having been convicted of an offence committed after 2 December 2002 [escaped from lawful custody committed on 17 January 2003 having been arrested for an offence of affray], he had acted at any time in an anti-social manner since 2 December 2002, and having regard to the defendant's previous convictions together with the matters they were dealing with, the defendant satisfied the criteria for the imposition of an anti-social behaviour order pursuant to section 1C of the 1998 Act, in that persons require protection from further anti-social acts by him."
"Mr Dickson, the Chairman, indicated to me as I accompanied the justices back to court that Mrs Robson had been one of the three justices who sat on the joint trial of [the claimant and B] for the offence of escape from lawful custody. From court records I can confirm that B pleaded guilty to the offence of affray. Mrs Robson therefore was not in a position to bring matters extraneous to the offences of the claimant to the attention of the Chairman, Mr Dickson, on 12 June 2003. More specifically, there had been no trial of the affray allegation which could have given Mrs Robson information over and above that which she received during the trial of the escape from lawful custody."
"You must not exhibit any behaviour towards any individual or group which would cause them harassment, alarm or distress."
Sunderland Magistrates Court
Date: 12th June 2003
Defendant: [the claimant]
Address: [the claimant's address]
[The words 'On the complaint of: Chief Constable of Northumbria Police' are then crossed out].
Complaint: The defendant has acted in an anti-social manner on divers dates before the 17.01.03, on 17.01.03, 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
And it is further adjudged that this order is necessary to protect persons in the following local government area(s), Sunderland, from further anti-social acts by him.
And it is ordered that the defendant is prohibited from:
Exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress.
FOR A PERIOD OF TWO YEARS.
NOTE: If without reasonable excuse the defendant does anything which he is prohibited from doing by this order, he shall be liable on conviction to a term of imprisonment not exceeding five years or to a fine or both.
These rules provide forms in relation to anti-social behaviour orders (from 1 April 1999) . . . and make provisions for applicants to vary or discharge such orders."
A preliminary issue is raised
Submissions and conclusions
"An order under this section takes effect on the day on which it is made . . . .
This is to be contrasted with subsection (9) of section 1 which provides that the two year period is to begin 'with the date of service of the order'."