Case No: CO/5838/2003
QUEEN'S BENCH DIVISION
IN THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Luke Kenny)
|Leeds Magistrates Court
|Leeds City Council
||First Interested Party
|West Yorkshire Police
||Second Interested Party
|R (on the application of M by his mother
as litigation friend)
|(1) The Secretary of State for Constitutional Affairs and the Lord Chancellor
(2) Leeds Magistrates Court
|Leeds City Council
Mr Pete Weatherby (instructed by Davies Gore Lomax) for the 2nd Claimant
Mrs Wendy Outhwaite (instructed by The Treasury Solicitors) for the First Defendant
Mr Charles Garside QC and Mr Anesh Pema (instructed by Leeds City Council) for the Interested party
Hearing dates: 20th and 21st November 2003
Crown Copyright ©
Mr Justice Owen :
By July 2003 the West Yorkshire Police Force had become increasingly concerned at the problem of drug dealing and abuse and associated criminal behaviour in the area of Leeds known as Little London ('the area'). A thriving street trade in drugs, in particular heroin and crack cocaine, had become established. The area was very difficult to police effectively given its geographical layout which enabled dealers to place lookouts to warn of the approach of the police, and the numerous side streets affording escape routes for suspects. The open dealing in drugs had brought large numbers of drug users into the area with associated crime, as drug users commit acquisitive crime to fund the purchase of drugs, and may also themselves be the victims of crime. Analysis of crime statistics showed high levels of violent crime within the area. The presence of drug dealers and their customers had had a very serious impact on the neighbourhood, with complaints from residents of lawless behaviour, and of the detritus associated with drug abuse, in particular discarded used syringes. In consequence the area had deteriorated with residents seeking to move out, and potential tenants of the Leeds City Council refusing to move in.
"1. Acting in a manner which causes or is likely to cause nuisance, harassment, alarm or distress to any person in the area of West Yorkshire.
2. Abusing, insulting, harassing or threatening any person in the area of West Yorkshire.
3. Using or threatening violence towards any person in the area of West Yorkshire.
4. Entering or remaining within the area(s) marked in red on the attached map(s).
5. Being in possession of a drug or substance described as controlled by the Misuse of Drugs Act 1971.
6. Being present when controlled drugs (as defined by Misuse of Drugs Act 1971), or substances are traded, sold, supplied (commercial or otherwise) or otherwise distributed in any place to which the public have access.
7. Encourage or inciting others to carry out any of the prohibited acts on your behalf.
8. Having contact with, in public, whether by being in a group with, talking to or otherwise associating with any of the following -…"
There then followed a list of 13 names. The order stated that it would end on 15 December 2003, and further ordered the claimant to attend at the magistrates court on 15 September 2003.
Section 1 of the Crime and Disorder Act 1998 ('the 1998 Act') as amended provides that:
"1. (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
and in this section 'relevant authority' means the council or the local government area or any chief officer of police any part of whose police area lies in that area.
(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 sub-section 1(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 purpose of determining whether the condition mentioned in sub-section 1(1)(a) 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 from 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 sub-section 9(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 2 years beginning with the 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 shall be liable –
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term of not exceeding 5 years or to a fine, or to both."
It is not necessary for present purposes to set out sub-sections (11) and (12).
65. Interim Orders
(1) After section 1C of the Crime and Disorder Act 1998 … there shall be inserted –
1D Interim Orders
(1) The applications to which this section applies are
(a) an application for an anti-social behaviour order; and
(b) an application for an order under section 1B
(2) If, before determining an application to which this section applies, the court considers that it is just to make an order under this section pending the determination of that application ('The main application'), It may make such an order.
(3) An order under this section is an order which prohibits the defendant from doing anything described in the order.
(4) An order under this section –
(a) shall be for a fixed period;
(b) may be varied, renewed or discharged;
(c) shall, if it has not previously ceased to have effect, cease to have effect on the determination of the main application.
(5) Sub-sections (6), (8) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders under this section as they apply for the purposes of the making and effect of anti-social behaviour orders."
(2) In section 4(1) of that Act (appeals), after 'an anti-social behaviour order' there shall be inserted 'an order under section 1d above'.
"4 (1) An appeal shall lie to the crown court against the making by a magistrate's court of an anti-social behaviour order or sex offender order.
(2) On such an appeal the crown court –
(a) may make such orders as may be necessary to give effect to its determination of the appeal; and
(b) may also make such incidental or consequential orders as appear to it to be just.
(3) Any order of the crown court made on an appeal under this section (other than one directing that an application be re-heard by a magistrates court) shall, for the purposes of section 1(8) or 2(6) above, be treated as if it were an order of the magistrates court from which the appeal was brought and not an order of the crown court."
5(1) An application for an interim order under section 1D, may, with leave of the justices clerk, be made without notice being given to the defendant.
(2) The justices clerk shall only grant leave under paragraph (1) of this rule if he is satisfied that it is necessary for the application to be made without notice being given to the defendant.
(3) If an application made under paragraph (2) is granted, then the interim order and the application for an anti-social behaviour order under section 1 (together with a summons giving a date for the defendant to attend court) shall be served on the defendant in person as soon as practicable after the making of the interim order.
(4) An interim order which is made at the hearing of an application without notice shall not take effect until it has been served on the defendant.
(5) If such an interim order made without notice is not served upon the defendant within 7 days of being made, then it shall cease to have effect.
(6) An interim order shall cease to have effect if the application for an anti-social behaviour order is withdrawn.
(7) Where the court refuses to make an interim order without notice being given to the defendant it may direct that the application be made on notice.
(8) If an interim order is made without notice being given to the defendant, and the defendant subsequently applies to the court for the order to be discharged or varied, his application shall not be dismissed without the opportunity for him to make oral representations to the court.
"6(1) This rule applies to the making of an application for the variation or discharge of an order made under section 1, 1C, or subject to rule 5(8) above, 1D.
(2) An application to which this rule applies shall be made in writing to the magistrates court which made the order, or in the case of an application under section 1C to any magistrates' court in the same petty sessions area, and shall specify the reason why the applicant for variation or discharge believes the court should vary or discharge the order as the case may be.
(3) Subject to rule 5(8) above, where the court considers there are no grounds upon which it might conclude that the order should be varied or discharged, as the case may be, it may determine the application without hearing representations from the applicant for variation or discharge or from any other person.
(4) Where the court considers that there are grounds upon which it might conclude that the order should be varied or discharged, as the case may be, the justices chief executive shall, unless the application is withdrawn, issue a summons giving not less than 14 days notice in writing of the date, time and place appointed for the hearing.
The District Judge gave reasons for his decision to make interim ASBOs applicable to all of the cases before him. He held that he was satisfied "that this application meets the criteria required for consideration of the making of an interim order not on notice", and went on to say that he had heard detailed representations from counsel and live evidence from DS Thompson. He said that he had read "a detailed bundle of statements and viewed a video taken of the alleged drug dealing in the area." The reasons continued -
"Mr Pema (Counsel for the Applicant) has referred to each and every defendant in turn and has demonstrated the live evidence against them. He also referred me to hearsay evidence and evidence which is more than 6 months old.
I am satisfied on the submissions and evidence that I have heard that there is a large scale problem of anti-social behaviour and drug-dealing in the Blackman Lane and surrounding areas of Leeds and that the scale of the problem is demonstrated by the evidence put before me.
I am satisfied that the defendants are inextricably linked and entwined and it is therefore proper that the applications should be heard together. I consider that the maximum protection needs to be afforded to the community and at least this can be achieved by the making of the orders.
Having considered therefore all the evidence and submissions I am prepared to make the orders as requested with amendments in respect of the mobile phones and certain motoring offences to be excluded from the interim orders. I have come to this conclusion for the following reason.
(a) The public and the community as a whole have an urgent need to be protected from the acts of anti-social behaviour which I am told continue on an almost daily, if not more frequent, basis.
(b) That need to be protected needs to be achieved without notice in the first instance. Without this protection it is likely that further alleged anti-social behaviour will continue.
(c) The orders need to be granted together and without delay to obviate 65 hearings on notice with the potential evitable delay.
(d) I am of the view that unless the orders are made as a whole the lesser members and participants may well take the place of the more prolific members and the problems will thus continue.
(e) The public community at large need to know that swift action has been taken easing the burden on those members of the public providing evidence in these proceedings.
(f) Without interim orders there is likely to be problems in policing the area.
I am therefore quite satisfied that the evidential burden that there is sufficient evidence that the main application is properly made and it is just to make an interim order until resolution of the full applications.
Finally I have considered the implications of the Human Rights Act and in particular the issue of proportionality. I am satisfied that the application is proportionate and that the defendant and their right to a private life and a fair trial have not been offended and it is therefore proper in my view that I should grant the application."
"..having regard to the central role performed by magistrates' courts in administering the criminal justice system and to the absence of any supervisory jurisdiction by the Crown Court over their proceedings, it was the more important to retain the Divisional Court's supervisory jurisdiction to ensure the maintenance of high standards of procedural impartiality and fairness; that where a party complained of procedural irregularity or bias, he should not, by denial of leave to move for judicial review, be required to pursue such rights as he might have in the Crown Court, and that, accordingly the existence of a right of appeal to the Crown Court, particularly if unexercised, should not ordinarily weigh against the grant of leave to move or of substantive relief."
In this case it is submitted on behalf of the Claimants that the proceedings before the District Judge were flawed by procedural irregularity, and in my judgment it is appropriate for the supervisory jurisdiction of this court to be invoked for the reasons set out in the judgment of Lord Bingham in Rowlands.
The 2nd Claimant submits that the 'without notice' procedure introduced by Rule 5 of the 2002 Rules does not comply with Article 6 of the ECHR, and also that it is unlawful at common law, although the latter argument adds little if anything to the Article 6 submission. He seeks a declaration that Rule 5 is unlawful; and invites me to quash it.
"For my part, in the light of the particular use of the civil remedy of an injunction, as well as the defendant's right under Article 8 to respect for his private and family life, it is clear that a defendant has the benefit of a guarantee applicable to civil proceedings under Article 6(1). Moreover, under domestic English law they undoubtedly have a constitutional right to a fair hearing in respect of such proceedings."
Similarly at paragraphs 79 and 80 Lord Hope said –
"79. At first sight an order which prohibits a person from behaving in an anti-social manner has nothing to do with his civil rights and obligations. He has no right in domestic private law to use or engage in abusive, insulting, offensive, threatening language or behaviour or to threaten or engage in violence or damage against any person or property, which are among the acts which the defendants have been prohibited from doing in the McCann case. But as Lord Nicholls of Birkenhead said in Re S (minors)(Care Order: implementation of care plan)  2AC 291, 320, para 71, By virtue of the Human Rights Act 1998 the right to respect for private and family law which is guaranteed by Article 8 of the convention is now part of a person's civil rights in domestic law for the purposes of Article 6(1). In my opinion the same can be said of the rights to freedom of expression of assembly and association which are guaranteed by Articles 10 and 11
80. Section 1(6) of the Crime and Disorder Act 1998 sets no limits to the prohibitions that may be imposed, except that they must be necessary for the protection of people in the local government area against further anti-social acts by the defendant. Among the range of orders that might reasonably thought to be necessary are orders which may interfere with the defendant's private life, his freedom to express himself either by words or conduct and his freedom to associate with other people. Although the jurisprudence of the Strasburg Court appears to me as yet to be unclear on this point, I would hold that the fact that prohibitions made under section 1(6) of that Act may have this effect is sufficient to attract the right to a fair trial which is guaranteed by Article 6(1). This means that the court must act with scrupulous fairness at all stages within the proceedings. When it is making its assessment of the facts and circumstances that have been put before it in evidence and the prohibitions, if any, that are to be imposed, it must ensure that the defendant does not suffer any injustice."
"RIGHT TO A FAIR TRIAL
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 within a reasonable time by an independent and impartial tribunal established by law.
Paragraphs 2 and 3 of Article 6 provide specific safeguards for the protection of those charged with a criminal offence.
a. a decision as to whether convention rights are engaged, then
b. a decision as to whether there has been an interference with convention rights, and then
c. a decision as whether any interference with convention rights is lawful (i.e. whether it is in accordance with law, necessary in a democratic society, in pursuit of a legitimate aim and proportionate)
The 'effect' test propounded on behalf of the 2nd Claimant merely addresses the issue of whether convention rights have been engaged. The remaining components of a determination cannot be resolved on a without notice application for an interim order.
"Determination or "decisiveness" in relation to civil rights and obligations refers to the decision on the merits of a case and its finality. Proceedings which are not determinative are not subject to Article 6 guarantees. It has been held that the following are not "determinative": applications for interim relief…"
"As regards the interim measures requested by the applicant, the commission recalls its case law according to which a decision on such measures does not constitute a determination of 'civil rights and obligations'"
In Österreichische Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria (unreported) the claimant attempted to rely upon Article 6 in a challenge to a without notice interim injunction preventing it from using the word 'Camel' or using a picture of a camel in their anti-smoking campaign. The application was declared inadmissible. The commission said -
"As regards the applicants' complaints about the interlocutory proceedings, the commission finds that in these proceedings, the applicants' rights and obligations were not determined, but only an interim decision taken pending the main proceedings. The interim injunction proceedings therefore fall outside the scope of Article 6 of the convention…the applicants' complaint is accordingly incompatible ratione materiae with the provisions of the convention and must be rejected under Article 27 para 2."
1. What was the test that ought to have been applied by the justices clerk in giving permission to apply interim relief without notice?
2. Did the justices clerk apply that test in giving such permission?
3. What was the test to be applied by the District Judge in considering the applications for interim ASBOs?
4. Did the District Judge apply the appropriate test, both in general and specifically in relation to each of the claimants?
By Rule5 (1) of the 2002 Rules, an application for interim relief without notice may only be made with leave of the justices clerk. Rule 5(2) provides that the justices clerk shall only grant leave " … if he is satisfied that it is necessary for the application to be made without notice …"
The material put before the justices' clerk, Mr Martin Lee, at the application made on 27 August 2003 is set out in paragraphs 9-10 of the witness statement of Ruth Gaborak dated 17 November, and filed on behalf of the Leeds City Council. The information before him was to the effect that a very serious problem existed in the area with regard to drug dealing and associated crime and disorder. I am satisfied that on the basis of that material he could properly conclude that the imposition of an interim order was urgently required to provide some regulation of the anti-social behaviour, and that it was necessary for the application to be made without notice. Insofar as the 2nd Claimant claim amounts to a challenge to the decision of the justices' clerk, they are without foundation.
The test for making an interim order under section 1D of the Act is whether it is just to do so pending the determination of the main application. That is to be contrasted with the test under section 1(4) whereby an order may be made by a magistrates' court if it is proved that the conditions mentioned in sub-section (1) are satisfied, namely that the person has acted in an anti-social manner and secondly that such an order is necessary to protect persons in the relevant area from further anti-social acts by him.
"(1) Children shall have the right to such protection and care as is necessary for their well-being.
(2) In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration."
"Such measures (the measures taken with regard to those detained in YOIs) must strike a fair balance between the competing interests of the particular child and the general interests of the community as a whole…but always having regard to;
(i) first, to the principle that the best interests of the child are at all times a primary consideration."
"The inquiry under section1(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard 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."
"Anti-social behaviour has a wide legal definition … among the forms it can take are … dealing with drugs, with all the problems to which it gives rise."
"The benefit of the interim order is that it enables a court to order an immediate stop to anti-social behaviour and thereby to protect the public more quickly. It reduces the scope for witness intimidation by making it unlawful for the offender to continue the behaviour whilst the ASBO application is being processed. It also removes any incentive for delaying the proceedings on the part of the perpetrator. The interim order will send a clear message to the community that swift action against anti-social behaviour is possible.
The orders can be made at the outset of proceedings for an application for an ASBO if the court considers that it is just to make such an order. The applicant authority should request an interim order at the same time as submitting an application for a full order.
When considering whether to make an interim order the court will be aware that it may not be possible at the time of the interim order application order to compile all the evidence that a full ASBO is necessary. Rather the court will determine the application for the interim order on the question of whether the application for the full order has been properly made and whether there is sufficient evidence of an urgent need to protect the community.
Applications for interim order will be appropriate, for example, in cases where the applicant feels that persons need to be protected from the threat of further anti-social acts which might occur before the main application can be determined.
Where an interim order is granted ex parte (without notice of proceedings to the defendant) it is expected that the court will usually arrange an early return date. An individual who is subject to an interim order will have the opportunity to respond to the case at the hearing for the full order.. The defendant is also able to apply to the court for the interim order to be varied or discharged. In this instance the matter will be dealt with at a hearing dealing specifically with the interim matter."
Such guidance is entirely consistent with the statutory scheme.
Leading counsel for the Leeds City Council took the preliminary point that in M's case the application is academic as he is now detained in custody. He invited me to refuse permission to apply for judicial review on that basis alone. In my judgment it is not appropriate to do so. I cannot rule out the possibility that he might be discharged from custody during the period for which the interim order will continue to run.
Mr Wise, who appeared for Mr Kenny, undertook a careful and comprehensive analysis of the evidence laid before the District Judge. The evidence was in two parts, first evidence as to the nature and extent of the problem and in general terms as to the involvement of the 66 defendants, and secondly an analysis under the heading "incident specific evidence" detailing the evidence relied upon in relation to the individual defendants. The general evidence from Detective Sergeant Thompson with regard to Luke Kenny was in the following terms –
"A very close associate of Comrie and McIntosh also commits street-robberies using drug-dealing as his cover. Kenny is another male who associates on a regular basis with known drug dealers and street robbers. He is regularly in the company of Comrie."
But in the detailed allegations made in relation both to Comrie and McIntosh no mention is made of Kenny. Nor was there any evidence specifically linking him to either Comrie or McIntosh.