QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of A (a child by his father and litigation friend)
|- and -
|Leeds Magistrates' Court
|- and -
|Leeds City Council
Anesh Pema (instructed by the Department of Legal Affairs, Leeds Civic Council) for the Interested Party
Hearing date: 10 March 2004
Crown Copyright ©
Mr Justice Stanley Burnton:
The facts and chronology
"5. The factual background
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."
"a) The public and 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."
"The court also ordered all parties to attend at Leeds Magistrates' Court … on 3rd October 2003 at 2 pm."
A summons requiring the Defendant's attendance was attached to the Order. The note to the Order explained its effects and informed the Claimant:
"You may apply to the court to end or to vary this order. You should consult a solicitor or the Court Office to find out how to do this.
You must attend court for the next hearing date, which is specified in the summons accompanying this order."
(1) Whether permission to apply for Judicial Review should be refused by reason of the alternative remedy of appeal to the Crown Court.
(2) Whether the procedure to apply for ASBOs without notice complies with Article 6 of the European Convention on Human Rights or is unlawful at common law.
(3) Whether the evidence before the District Judge justified the making of an interim ASBO.
(4) Whether, in deciding whether to grant the ASBO, the District Judge had taken proper account of the fact that Kenny was an infant.
(1) It was appropriate for the supervisory jurisdiction of this court to be invoked for the reasons set out in the judgment of Lord Bingham in R v Hereford Magistrates Court, ex p Rowlands  QB 10: paragraph 19 of his judgment.
(2) The procedure for application for ASBOs without notice did not infringe either Article 6 or any common law rule.
(3) The evidence did not justify the making of the interim ASBO against Kenny.
(4) Where a defendant is under 18, the court must have regard to the principle that his best interests are a primary consideration when addressing the question whether it is just to make an interim ASBO. However, in the light of conclusion (3), it was an unnecessary to address the issue whether the District Judge took proper account of the fact that Kenny was under 18 when the order was made: paragraph 57 of his judgment.
The grounds for judicial review
Delay and alternative remedies: (a) delay
(b) Alternative remedies
(a) He may apply to the magistrates' court for the order to be discharged or varied.
(b) He may appear before the magistrates' court and oppose the making of a further interim order (as happened in this case on 11 December 2003) or oppose the making under section 1 of a full order.
(c) He may appeal to the Crown Court: section 4(1) of the 1998 Act as amended by section 65 of the 2002 Act.
(d) He may to the High Court appeal by way of case stated.
(e) He may apply to the High Court for judicial review.
"While we do not doubt that Ex parte Dowler  Q.B. 911 was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates' court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates' courts, which have over the years proved an invaluable guarantee of the integrity of proceedings in those courts. The crucial role of the magistrates' courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained."
The emphasis is mine. Rowlands itself was a case on procedural unfairness and alleged bias, in which the decision of the justices was set aside because they had unreasonably refused to adjourn proceedings to allow defence witnesses to give evidence. The appellant had therefore been denied a fair trial.
"The District Judge retired to re-read the statements and consider the submissions made. In judgment the District Judge indicated that he had taken into account the fact that RA was a juvenile and that he had to have regard to his best interests as being a primary consideration. He referred directly to the Judicial Review decision in Kenny and M. In relation to both Turner and RA he said that they were more similar to M than Kenny as the incidents of alleged anti-social behaviour were within the area unlike in Kenny. He said that the test to be applied by him was whether it was just to make the order and that this required a balancing exercise and that he had taken into account all the factors and that it was just in the case of RA to renew the order."
"She accepts that he is a juvenile but reminds of the case of M. He was also a juvenile but his order was renewed. Proportionate even given the age. Case more comparable with M than Kenny. Incidents all in area. Drugs. Test is 'just' but interests are primary consideration. Must also take into a/c interests of community. Has been offered an assessment but has not responded."
"There is evid of ASB and drugs in this case. Can also be distinguished from Kenny as in the area.
Taken into account that he is a juvenile and that best int are prim conside. Whether it is just? Carried out the necessary balancing act.
In both cases (the Claimants and another) it is just to renew the orders."
"In the case of (A) District Judge Darnton said he took into account the fact that he was a youth and the consideration that had to be made in that regard; he took into account the observations of Mr Justice Owen. He said that he had applied the balancing test between the competing interests and he took the view that there was evidence of anti-social behaviour as alleged that he could therefore renew the order in (A) case…"
"At the hearing of the renewal application, the Appellant's solicitor did address the District Judge (MC) briefly on the issue of "the best interests of the child". The District Judge (MC) rejected the assertion that he had not considered the interests of the young persons at the initial hearing and weighing the competing factors in the case found that it was just for the interim order to remain in place pending the determination of the main application."
"I can recollect the District Judge referring to the Claimant as a juvenile but I have no recollection of him saying that the Claimant's best interests as a child were a primary consideration, although I had referred the District Judge to the reference to this principle in Mr Justice Owen's judgment in Kenny."
Mr Message's lack of recollection, so long after the event, does not displace the clear contemporaneous note of Miss Marshall or her and Miss Phillipson's witness statements.
Reporting this judgment
Appendix: prohibitions in the Anti-Social Behaviour Order