England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		14 May 2004

1. LORD JUSTICE AULD: The claimant, Ryan Stevens, seeks permission to challenge by way of judicial review the making by the South East Surrey Magistrates on 16th September 2003 of an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998, Hooper J (as he then was) having adjourned the application to a Divisional Court and for a full hearing to follow if permission is granted. We grant permission and we treat the arguments submitted to us on the application as the arguments in the claim.
2. Section 1 of 1998 Act gives magistrates power to make anti-social behaviour orders, the purpose and effect of which typically are to place restrictions on the freedom of movement of individuals who have acted in an anti-social manner, namely:

"1...

(1)(a) ... 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."

3. Applications for such orders are, by section 1(3) of the 1998 Act, made by way of complaint and are thus, when made in the Magistrates Courts, subject to section 127 of the Magistrates Courts Act 1980 which provides for a six month time limit from the occurrence of the matter the subject of the complaint to the making of it. Section 127 reads so far as material:

"... a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within six months from the time when the information was committed, or the matter of the complaint arose."

4. The suggested single issue in the case is whether section 127 of the 1980 Act prevents an authority in an application for an anti-social behaviour order from adducing evidence of anti-social behaviour that occurred more than six months before the making of the complaint.
5. I turn briefly to the facts. In support of the application the Surrey Police sought to rely on documentary hearsay evidence of 30 alleged incidents of anti-social behaviour, eight of them within the six months period and 22 before it, the oldest going back to some three years before the hearing itself. The evidence took the form of police incident reports, computerised crime reports and victim statements. There was also a witness statement from a neighbourhood specialist police sergeant responsible for policing the area who had collated all that material and had interviewed victims and complainants of Mr Stevens' behaviour. Many of them, he stated, were unwilling to attend court for fear of reprisals. The police indicated that they were not relying on evidence of the "out-of-time" incidents as similar fact evidence in support of the eight "within-time" incidents and that they did not put them forward as essential background evidence to those incidents. They relied on them solely to support that part of their case going to the necessity under section 1(1)(b) of the Act for making an order.
6. Mr Lionel Blackman, Mr Stevens' solicitor, asked the magistrates to exclude that evidence, arguing that the police were wrongly putting the "out-of-time" incidents on the same basis as the eight "within-time" incidents, though none of the "out-of-time" incidents had ever been proved by, for example, certificates of conviction, civil proceedings or by way of admission. The only way in which they could have had probative value, he submitted, was for the magistrates to try each of the allegations - and that they had no jurisdiction to do by virtue of section 127. He also argued that to admit such evidence, especially in hearsay form, was in any event unfair to Mr Stevens because he was in no position to meet such stale allegations.
7. The magistrates rejected Mr Blackman's submissions, ruling that it would be a matter of weight for them when considering the evidence. And they proceeded to try the matter taking into consideration all the documentary evidence on the 30 incidents on which the police relied. They found the eight "within-time" incidents proved and made an anti-social behaviour order in respect of them of two-and-a-half years, subject to specified prohibitions.
8. Before this court Mr Blackman repeated the submissions he had made to the magistrates and elaborated upon them. Essentially he maintained that this was a simple "temporal" objection, namely that the police had wrongly persuaded the magistrates to try 22 "out-of-time" alleged incidents when, by virtue of section 127, they had no jurisdiction to do so. He submitted that unless such out-of-time allegations were separately proved on their facts in the conventional way of direct evidence or certificate of conviction, they were not admissible simply because they were out-of-time by virtue of section 127. However, he conceded that if the allegations were conventionally proved they could in an appropriate case be admissible on the first question as similar fact evidence. The effect of those submissions, paradoxically, required a more rigorous method of proof for the "out-of-time" allegations than that for those within-time. But, he sought to justify that paradox by contending that use of documentary hearsay evidence to establish incidents extending back over a period of three years was unfairly prejudicial to Mr Stevens and in violation of his right to a fair hearing under Article 6 of the European Convention of Human Rights.
9. Mr Stephen Morley, on behalf of the Surrey Police, prefaced his submissions with the observation that proceedings for anti-social behaviour orders are rarely commenced in relation to isolated incidents of such behaviour. They are, by their very nature, normally concerned with prolonged and persistent anti-social behaviour consisting of a series of incidents - a course of conduct. He submitted, first, that provided the most recent act or acts of a course of anti-social behaviour the subject of the complaint occurred within a six month period, magistrates have jurisdiction to hear it. He submitted, second, that the complainant authority, where the court has held that it has jurisdiction, may adduce relevant evidence of other incidents outside the time limit, the fairness of admitting it and the weight to be given to it if admitted being a matter for the magistrates. It is, he said, a purely jurisdictional matter, not, as Mr Blackman seemed to be suggesting, where there is jurisdiction, a filter for stale evidence.
10. In support of his submissions Mr Morley pointed to the twofold requirement for the making of the order, namely that under section 1(1)(a), that a person has acted in an anti-social manner, and that under section 1(1)(b), that it is necessary for the protection of others to make the order and, if so, in what form or what prohibitions to impose. He submitted that, unless magistrates could consider the whole of a defendant's relevant conduct, they would not be equipped to make a judgment as to the necessity of making an order, or to determine what prohibitions on his conduct it should include.
11. Mr Morley referred the court to a number of reported cases in which orders were made seemingly without any issue having been taken in relation to behaviour extending outside the six month period. These included S v Poole Borough Council [2002] EWHC 244 Admin - 18 months; Clingham v Kensington and Chelsea Royal London Borough Council - ... months; R v Manchester Crown Court ex parte McCann and others [2003] 1 AC - 7 to 8 months, and R (Luke Kenny) v Leeds Magistrates Court and others [2003] EWHC 2963 Admin, in which Owen J, at paragraphs 51 and 52 of his judgment, expressed himself as satisfied that evidence of behaviour, including that outside the six months period, formed an entirely proper evidential basis for the making of an interim order. However, as Mr Morley acknowledged, in none of those cases was an issue taken or arguments specifically addressed to section 127.
12. The only authority to which he could refer the court where the issue was touched upon was Baron v CPS, an unreported decision of the Divisional Court on 13th June 2000. In that case the appellant had been found guilty of a course of conduct consisting of the writing of two letters within a six month period. But the magistrates also admitted into evidence the writing of an earlier letter outside the period. He challenged his conviction, relying on section 127. But the court dismissed his appeal, seemingly accepting that evidence of the first letter was admissible as relevant to or supportive of the conduct charged. However, having drawn the court's attention to all those cases Mr Morley does not claim that they give any authoritative or direct guidance for the court on the matter before it today.
13. Before turning to my conclusion on the submissions I should set out three basic propositions by way of clearing the legal thicket.
14. First, section 127 is concerned with jurisdiction, not with the admissibility of evidence once magistrates have properly accepted jurisdiction, as they have done here in relation to the last eight of the 30 incidents on which the police relied when applying for the order.
15. Second, where the matter is one of a continuing nature, as that alleged here, the section appears to operate differently according to whether the proceedings are begun by information or complaint. In the case of an information the weight of authority suggests that time runs from the date of each day, charged as a separate offence; see most recently R v Chertsey Justices ex parte Franks [1961] 2 QB 152. In the case of proceedings begun by complaint, as these are, somewhat old authorities in quite different and special contexts suggest that time does not begin to run until the matter is complete in every way - see most recently McVittie v Rennison [1941] 1 KB 96, which was a case concerning recovery of tax costs. As I have said, there are two basic constituents for making an anti-social behaviour order: first, harassment whether by a single incident or course of conduct; and second and importantly in the context of this appeal, a necessity to make the order in order to protect others. It was only if the magistrates were satisfied that the total course of anti-social behaviour they had found proved brought about such necessity that the basis for making an order was complete.
16. And third, the House of Lords held in McCann that an application for an anti-social behaviour order is a civil proceeding under our domestic law and not a criminal proceeding for the purpose of Article 6 of the European Convention of Human Rights. Nevertheless, as the House also held:

(1) it engages the right to a fair trial under Article 6.1; (2) the use of hearsay evidence, admissible in such proceedings under the Civil Evidence Act 1995, is not unfair and, therefore, does not violate that right; but

(3) given the serious nature of such proceedings, the court should not find that a defendant has acted in an anti-social manner unless it is satisfied to the criminal standard of proof that he has acted in that way; but also

(4) hearsay evidence depending on its legal probativeness may be sufficient to meet such standard of proof; and

(5) there is a distinction between the first constituent under section 1(1)(a) of a finding of anti-social behaviour and the second in section 1(1)(b) as to the necessity for making an order, with the result, as Lord Steyn stated at pages 1329G to 1330A, that the latter does not involve a standard of proof but an exercise of judgment and evaluation.

17. This is how Lord Steyn, with whom the other Law Lords briefly agreed, put, at 1329G-1330A, points (4) and (5):

"But 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 enquiry 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 direct 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)."

It may be that a jurisdictional argument could be made for the earlier 22 incidents in their own right on grounds that this is not strictly a criminal proceeding and that, as the Surrey Police argued before the magistrates, they went only to the second constituent of which the magistrates have to be satisfied before making the order and necessity for it, a matter which, as Lord Steyn has said, is not so much a matter of proof but of an evaluative judgment. Those considerations, coupled with recourse to the old authorities to which I have referred, albeit mostly in a different context of recovery of expenses of removing dangerous structures or of tax costs, might provide a jurisdictional way out, based on the fact that this procedure is invoked by way of complaint and that it is the completion of a course of conduct that starts the clock ticking. However, I am not confident that such an approach is intellectually sound or that the authorities in the limited context to which they applied could justify, cases of an alleged course of anti-social behaviour in the magistrates courts, removal of the jurisdictional constraint of section 127.

18. But on the facts of this case - and I suspect many such applications based on a long course of alleged anti-social behaviour - the fairer and possibly more intellectually respectable approach is not one going to jurisdiction, but to the propriety and fairness of reliance on evidence of "out-of-time" incidents in relation to "in time" incidents alleged to constitute a course of anti-social behaviour. It is here where Lord Steyn's distinction between magistrates' function when determining the facts of such behaviour and what, if anything, it is necessary to do about it comes into play, the latter not dependent on proof so much as an evaluative judgment. In making that judgment it makes sense for them to look at what has happened in the past, just as courts do in addition to relying on reports when considering sentence in criminal cases where it may be necessary to form a view whether the convicted man is likely to be a danger to the public. But of course all depends on the quality of such information, how relevant and reliable it is to the issue of the need for protection of others and, if so, the nature and range of prohibitions to secure that protection.
19. An important factor going both to relevance and hence admissibility, and possibly to reliability, going to its weight, is the age of the earlier "out-of-time" incidents to which magistrates are asked to have regard on this issue. (This also applies to evidence of such incidents where it is a candidate for admission as similar fact evidence in support of proof of harassment under section 1(1)(a).) If they are very old and amount to only a single or very few incidents they may have little relevance or weight however reliable the evidence of them may be, looking at each incident on its own. On the other hand, if, as here, they indicate a solid and consistent line of anti-social behaviour beginning possibly well out-of-time and ending within-time they would usually be highly relevant to the decision whether an order is, in the circumstances, necessary and to what form it should take.
20. As to reliability, it is plain that such orders are most usually sought as a result of complaints from vulnerable and/or frightened neighbours who have a reasonably based fear of reprisals if they volunteer to give evidence or even provide witness statements that could identify them. In this connection, it is interesting to note from the neighbourhood police officer's witness statement that he felt it necessary to ask that Mr Stevens should not view a CCTV camera tape of some of his behaviour the subject of the "in time" conduct, lest it reveal its location and lead to reprisals against the occupiers of the property where the camera had been fixed. It is clearly for this reason that documentary hearsay evidence has been held to be admissible in proof of both constituents of an anti-social behaviour order. The only question is whether, in the individual circumstances of each case, it is fair to admit such evidence of "out-of-time" conduct or what, if any, weight to give to it once admitted in order to persuade magistrates of the necessity for making an order if the "within-time" anti-social behaviour is proved to the criminal standard.
21. Before turning to the particular finding in this case, we should observe that section 127 relates only to proceedings for an anti-social behaviour order in the magistrates courts. There is provision in the Act, in section 1B, for county courts to make an anti-social behaviour order if satisfied of the same two constituents following the making of an order in the county court proceedings. There is similar provision in section 1C of the Act, for a Crown Court judge, if satisfied of the two constituents necessary for making an order, to, as counsel put it in their submissions, bolt it on to any sentence imposed on conviction in the Crown Court. In neither of those cases would any time limit of the sort provided for the magistrates courts by section 127 apply. It would be curious if that section were to have an additional role as an "evidential filter" for conduct outside the six months' limit denied to the county court and crown court.
22. In the circumstances of this case, I am of the view that the magistrates were entitled to admit the documentary hearsay evidence of the "out-of-time" incidents for the purpose of considering the necessity to make an order despite the age of many of them. They reveal a fairly regular and consistent pattern of "out-of-time" anti-social behaviour, continuing seemlessly into the eight course of conduct "within-time" incidents. In the various and sometimes overlapping evidential forms they were, in my view, capable of being regarded by the magistrates as relevant and as reliable indicators of what was needed by way of protection of the public.
23. Given the purpose of this legislation to provide effective protection to those vulnerable to and frightened by anti-social behaviour in their locality, I can see no unfairness in the magistrates' decision to admit this comprehensive and cogent evidence when considering the necessity for their protection. Accordingly, I would dismiss the claim.
24. MR JUSTICE PITCHERS: I agree.
25. LORD JUSTICE AULD: We are grateful to you, Mr Blackman, and Mr Morley, for your assistance.
26. MR BLACKMAN: My Lord, my client is legally aided. I wonder whether I should ask for an order.
27. LORD JUSTICE AULD: If you need an order you may have it, Mr Blackman. You may not need it.
28. THE ASSOCIATE: According to the claim form he is not CLS funded.
29. LORD JUSTICE AULD: Apparently you are not funded by the commission for legal services.
30. MR BLACKMAN: I have informed the court that I am.
31. LORD JUSTICE AULD: Have you produced a certificate?
32. MR BLACKMAN: Yes, my Lord.
33. LORD JUSTICE AULD: You have. Well if you are funded then you may have an order for taxation of those costs. If you are not you have a problem.