Neutral Citation Number: [2004] EWHC 554 (Admin)
Case No: CO/551/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 19th March 2004 

Before:

THE HONOURABLE MR JUSTICE STANLEY BURNTON
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The Queen on the application of

	A (a child by his father and litigation friend)	Claimant	
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	Leeds Magistrates’ Court	Defendant	
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	Leeds City Council	Interested Party	

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Ian Wise (instructed by Harrison Bundey & Co) for the Claimant
Anesh Pema (instructed by the Department of Legal Affairs, Leeds Civic Council) for the Interested Party

Hearing date: 10 March 2004
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Judgment
Mr Justice Stanley Burnton: 
Introduction
1.	This is an application by A, who was born on 23 July 1987 and is therefore under the age of 18, for permission to apply for judicial review of interim Anti-Social Behaviour Orders (“ASBOs”) made against him on the application of Leeds City Council (“the local authority”) by District Judge (Magistrates’ Court) Darnton at Leeds Magistrates’ Court on 2 September and 11 December 2003.  I shall refer to the order of 2 September as “the first order” and that of 11 December as “the second order”.
2.	Both orders were interim orders made under section 1D of the Crime and Disorder Act 1998 as amended by the Police Reform Act 2002. The local authority’s application on notice for a full ASBO under section 1 of the 1998 Act was due to be heard on 16 March 2004. The present proceedings were commenced on 3 February 2004 with a request for expedition. On 9 February 2004 Sullivan J ordered that the application for permission to apply for judicial review be heard on 10 March 2004 with the substantive hearing to follow immediately if permission was granted. On that date, I heard argument on behalf of A and the local authority as Interested Party on the application for permission and on the substance of the claim for judicial review. As is usual, the Magistrates’ Court did not appear. At the conclusion of the hearing I refused permission to apply for judicial review of either the first or the second order, and stated that I should give my reasons in writing. These are my reasons. 
The facts and chronology
3.	On 26 August 2003 the local authority applied without notice for interim ASBOs against a total of 66 persons. Some were under 18, others over that age. The applications for ASBOs were known as “Operation Cape”, the background for which is helpfully summarised in the judgment of Owen J in R (Kenny and M) v Leeds Magistrates Court [2003] EWHC 2963 (Admin), to which I refer later in this judgment:
“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.”
4.	It was to combat this situation that the local authority applied for the ASBOs. On 27 August 2003, the Magistrates’ Court gave the local authority leave to apply without notice pursuant to rule 5 of the Magistrates’ Court (Anti-Social Behaviour Orders) Rules 2002. On 2 September 2003 the District Judge made interim ASBOs against all 66 persons against whom they were sought. That made against the Claimant contained 10 prohibitions. They are set out in the Appendix to this judgment. The District Judge gave written reasons for his decision to make the orders.  He accepted that the skeleton argument of counsel for the local authority correctly set out the applicable law. He refused to include in the orders certain of the prohibitions sought by the local authority, and summarised his reasons for concluding that it was just to make interim orders. Those reasons included the following:
“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.”
5.	The local authority’s skeleton argument stated that an interim order could be made if the court considered that “it is just” to make the order pending the determination of the main application. It reflected the wording of section 1D(2) of the 1998 Act. It did not distinguish between the test to be applied to children and that to be applied to adults.
6.	The ASBO against A was served on him and on his parents on 4 September 2003. The written Order stated that the prohibitions were to be effective until 15 December 2003, when the Order would come to an end. It also stated:
“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.”
7.	Neither the Claimant nor his parents nor anyone on his behalf attended Leeds Magistrates’ Court on 3 October 2003, the return date specified in the summons served with the order. His case was adjourned until 8 October, and notice of the adjourned hearing sent to him by the magistrates’ court. Again, neither the Claimant nor either of his parents nor anyone on his behalf appeared at court that day.
8.	On 31 October 2003, solicitors acting for Luke Kenny filed on his behalf a claim form seeking judicial review of the ASBO made against him on 2nd September 2003 and a subsequent order of District Judge Darnton dismissing his application for discharge of that order. His solicitors were the same solicitors as those now acting for A. On the same date, Owen J directed that his application for permission to apply for Judicial Review be considered at an oral hearing, with a substantive hearing to be heard immediately after if permission was granted. On 4 November 2003, another of the subjects of an ASBO, M, filed an application for judicial review against his ASBO. A similar order to that of Owen J was made in respect of his application on 10 November 2003. 
9.	On 6 November 2003, A was arrested for a breach of his ASBO alleged to have been committed the previous day. Neither he nor his parents had previously contacted solicitors in relation to the ASBO or taken any step to challenge it.
10.	On about 24 November 2003, the social services department of the local authority wrote to A and to his parents offering an assessment of his need under the Children Act 1989. No response to this letter was received before the hearing of 11 December.	
11.	Owen J heard the cases of Kenny and M on 20 and 21 November 2003. Both of Kenny and M had been infants when the ASBOs had been made on 3 September 2003. Kenny had since become an adult; M was still a child. The issues before Owen J were the following:
(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. 
12.	In the case of Kenny, Owen J decided:
(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 [1998] 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.
13.	I was told by Mr Wise, who appeared on behalf of Kenny before Owen J, that counsel for M adopted the submissions made on behalf of Kenny. Owen J did not, however, address this issue in relation to him: see paragraphs 50 to 53 of his judgment. The Judge held that there was a proper evidential basis for an interim order to be made against him and for the District Judge’s refusal to discharge it; he gave permission to him to apply for Judicial Review, but dismissed his claim. M applied to Owen J for permission to appeal on the ground, among others, that his infancy had not been properly considered. Owen J thought that the point had not been taken on his behalf, and refused permission to appeal. Application was made to the Court of Appeal for permission to appeal against Owen J’s judgment in the case of M, but not on the infancy point. Permission to appeal was granted. The Court of Appeal dismissed the appeal on 18 March 2004. Its judgment ([2004] EWCA Civ 312) does not refer to M’s infancy. The Court held that the correct test for the making of an interim order is that laid down by the statute, namely that it is just to make the order.
14.	Owen J handed down judgment in Kenny and M on 5 December 2003. On the same date there was a pre-trial review hearing in the magistrates’ court. Mr Message, the solicitor representing A, stated that he had had difficulty in obtaining instructions and requested an adjournment, which was granted.
15.	On 11 December 2003, the local authority applied to District Judge Darnton for renewal of the interim ASBO (effectively a further interim order) against A. He was again represented by Mr Message, but he did not appear personally or provide a witness statement. Only 5 renewals were contested, including that in respect of A. The District Judge made a further interim ASBO, which will have affect until 16 March 2004. 
16.	Following the District Judge’s decision of 11 December 2003, A’s solicitors applied for public funding of his application for judicial review. On 12 December 2003, funding was refused. A’s solicitors appealed to the CLS review committee in Leeds, who considered the matter on 16 December 2003 and recommended to the regional director that funding be granted. A’s solicitors were informed of the result of the appeal but did not know the terms of the funding certificate that would be issued. They received the funding certificate, dated 17 December 2003, on 12 January 2004. On the following day, a letter before claim was sent on A’s behalf with a request for the notes of the clerk to the District Judge. The clerk to the Justices responded on the 14 January 2004. Following a further letter from A’s solicitors, by letter dated 20 January 2004, the clerk informed them that his notes were “not so full as on previous occasions and I fear not of much use - nor do I have a note of Mr Darnton’s full pronouncement on granting the local authority’s application”.
17.	A has been charged with assault occasioning actual bodily harm allegedly committed on 17 February 2004; he has been bailed to appear at the magistrates’ court on 16 April 2004. The assault is alleged to have been committed within the prohibited area the subject of prohibition 4 in the ASBO, and if committed would also constitute a breach of prohibition 3.
18.	The claim form in these proceedings was filed with the Court on 3 February 2004.
The grounds for judicial review
19.	The Claimant does not contend that the evidence before the District Judge on 3 September or on 11 December did not justify the making of an interim ASBO against him. He contends that in deciding whether to make an interim or final ASBO against an infant defendant, a judge must have regard to the defendant’s best interests as a primary consideration; that in making both the first order and the second order the District Judge failed to do so, and thereby applied the wrong test and erred in law; and that in consequence both orders should be quashed.
Delay and alternative remedies: (a) delay
20.	Delay in commencing judicial review proceedings may lead to a refusal of permission under section 31 of the Supreme Court Act 1981 or under CPR Part 54.5. Notwithstanding the statements of Lords Steyn and Hope in R (Burkett) v Hammersmith & Fulham LBC [2002] UKHL 23; [2002] 1 WLR 1593, it remains the law that delay may debar a claimant from relief, even if he commences his proceedings within the 3 month time limit stipulated by CPR Part 54.5(b): see the decision of the European Court of Human Rights in Lam v UK (application no. 41671/98) in which the Court upheld the validity of the requirement of promptness under Order 53 Rule 4(1) of the Rules of the Supreme Court, the predecessor of Part 54.5, and the statement of Pill LJ in R (Young) v Oxford City Council [2002] EWCA Civ 990 at paragraph 38.
21.	In the present case, when considering the issue of delay, the Court has to take into account the fact that the Claimant might have, but did not, apply to the magistrates’ court at any time to vary or to discharge the first order. He could have appeared at the court on 3 October 2003 for that purpose, or made application separately before or after that date. He chose not to do so. I infer from his failure to take any steps until after his arrest on 6 November that but for that arrest he would not have made the present application in relation to the first order. 
22.	Promptness in making an application is particularly important in cases such as the present. An ASBO is an order of the magistrates’ court that the defendant must comply with unless and until it is set aside, and which the local authority and the police are entitled and bound to treat as valid unless and until it is set aside. Disputes as to the lawfulness of such orders should be resolved as soon as possible. Secondly, if an ASBO is set aside, the local authority is able to apply to the magistrates court for a new order that, if granted, from its date gives some protection to the public. Particularly in a case such as the present, where it is conceded that the magistrates’ court could properly make an order against the Claimant, it is important that the local authority should be able to make such a renewed application, if so advised, earlier rather than later. Delay in bringing proceedings for the judicial review of an ASBO is therefore liable to be detrimental to good administration within the meaning of section 31(6) of the Supreme Court Act 1981.
23.	In this case, the Claimant did not instruct solicitors until more than 2 months after the first order. There is no explanation or justification for that delay, which of itself is sufficient to justify a refusal of permission to apply for judicial review.
24.	Mr Wise submitted that the delay between the Claimant instructing his solicitors after his arrest on 6 November and the judgment in Kenny and M on 5 December is excusable because the solicitors involved in them treated those cases as test cases, so that it was sensible to await the judgment of Owen J before issuing proceedings raising the same issue. In general, a claimant should not unilaterally decide to delay issuing proceedings. A solicitor who wishes to delay commencing judicial review proceedings until the result of another case is known should inform the proposed defendant and any interested parties of that proposal. Doubtless, in many cases they will agree to the deferral of proceedings. But there will be cases where they have good reason to insist on the proceedings being commenced immediately; and in any event they are entitled to know that there is a challenge to the order or decision in question, so that they can themselves consider what action is appropriate. In the present case neither the magistrates’ court nor the local authority were informed that judicial review proceedings on behalf of A were contemplated until after the second order had been made. However, the impression given by paragraph 7 of the first witness statement of Gillian Marshall, a solicitor employed by the local authority, is that she appreciated that if the claims in Kenny and M succeeded, other defendants would seek to follow their example. She states that “there was close co-operation between many of the firms representing various defendants and the two cases were widely regarded as test cases”. In these circumstances, I should not have refused permission on the basis only of the delay in commencing proceedings between the date that the Claimant instructed his solicitors and judgment in Kenny and M.
25.	On the other hand, it is no answer to the failure to take steps to bring proceedings immediately after judgment in Kenny and M that the Claimant was entitled to await the outcome of the hearing of 11 December 2003 before seeking judicial review. The District Judge had no power to revoke the first order, but only to vary, refuse to renew or to discharge it: section 1D(4)(b) of the 1998 Act. To await his decision on the application to renew or to continue the first interim order was not consistent with an application to set that order aside. 
26.	There was a further period of delay between 16 December 2003, when the CLS review committee referred the application for funding back to the LSC regional director, and 12 January 2004, when the funding certificate was received by the Claimant’s solicitors and steps were taken to prosecute his claim for judicial review. I sympathise with his solicitors’ concern not to incur costs until they were aware of the terms of the certificate and what costs were covered by it. I take into account that it is unreasonable to expect the normal level of resources to have been available in the solicitors’ office between 24 December 2003 and Monday 5 January 2004. Nonetheless, given the need for promptness in issuing the present proceedings, and given that A’s solicitors knew the result of their appeal to the CLS review committee on 16 December, when by, say, 18 December 2003 they had not received the certificate, they should have ascertained its terms by telephone inquiry, or, preferably, by asking for a copy to be faxed to them, or if necessary by sending a messenger to collect a copy. 
27.	In these circumstances, there is no justification for an extension of time to apply for judicial review of the first order, and I should have refused permission in respect of it on that ground alone.
28.	The issue of delay in respect of the second order is best considered in conjunction with the question of alternative remedies, to which I now turn.
(b) Alternative remedies
29.	A defendant aggrieved by the making of an interim ASBO without notice to him has the following procedures available to him:
(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.
30.	Of these procedures, judicial review is the least suitable in a case such as the present, where it is not disputed that the evidence before the magistrates’ court justified (although it did not necessarily require) the making of the order. In such a case, if the claimant establishes that the District Judge applied an incorrect test, the only relief this Court can grant is to quash the ASBO. In judicial review proceedings, the High Court cannot consider the evidence before the District Judge (or any evidence subsequently available) and itself decide whether, applying the correct legal test, the order should be upheld, save in cases in which no District Judge properly applying the law could have come to any conclusion other than that the order should be made. Nor can the High Court vary the terms of the ASBO so as to accommodate the contentions successfully made by the claimant. The High Court cannot substitute its discretion for that of the magistrates’ court.
31.	In all of the other procedures listed above, the situation is different. On an appeal to the Crown Court, it has the wide powers conferred by section 4(2) of the 1998 Act. Moreover, both the local authority and the Claimant would have been able to adduce evidence in that Court. On an appeal by way of case stated, the High Court may “affirm, set aside or vary” the ASBO: CPR Part 52.10(2), as well as order a new hearing. The power to affirm or to vary an order on grounds different from those relied upon by the magistrates’ court will, in my judgment, be more readily exercised in the case of an ASBO, which has continuing effect and has as its object the protection of the public while it is in force. The High Court may be the more ready to make a decision which the magistrates court might have made in a case, such as the present, where the decision below did not depend on any conflict of oral evidence.
32.	Judicial review proceedings have a further disadvantage. There is often no reliable record of the reasons given by the magistrates’ court for its decision. The decision of 11 December 2003 is a case in point: I shall have to refer to the evidence below. Where however a case is stated, the District Judge has the opportunity to set out the facts on which he based his decision and his reasons for making the order.
33.	Parliament has specifically provided in the 1998 Act for applications to the magistrates’ court to discharge or to vary interim orders and for appeals to the Crown Court. In my judgment, it follows that these are the primary routes for challenging an interim order. Appeal by way of case stated is appropriate where a legal issue arises which is suitable for determination by the High Court. The proper scope for judicial review appears from the judgment of Lord Bingham CJ in R v Hereford Magistrates Court, ex p Rowlands to which I referred above. He referred to the earlier case of Ex parte Dowler [1997] QB 911, which some had considered as authority for the denial of judicial review of the decisions of magistrates courts save in exceptional circumstances, and stated, at [1998] QB 110, 125:
“While we do not doubt that Ex parte Dowler [1997] 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. 
34.	It does not follow from the judgment of the Divisional Court in Rowlands that judicial review is appropriate in a case such as the present. It is not alleged in the present case that there was any procedural unfairness or bias on the part of District Judge Darnton. The error alleged by the Claimant is substantive: an alleged failure to apply the correct legal test to the facts before him. Such a failure is in general not an appropriate subject for judicial review where, as here, more appropriate procedures are available. I accept that it would not have been appropriate for A to apply to the District Judge for the discharge of the second order on the ground that he had failed to apply the correct legal test; but he could have appealed to the Crown Court as of right, or sought to appeal to the High Court by way of case stated. (I say nothing as to the desirability of appeal by way of case stated in a case such as the present) 
35.	I have not ignored the contention of the Claimant that judicial review provided a preferable remedy for him because an appeal to the Crown Court would not have led to the revocation of the first order, and would have left him liable to proceedings for the alleged breach of that order on 5 November 2003. I have refused permission to apply for judicial review of the first order in any event on the ground of delay, but for the sake of completeness I should state that I have little sympathy with this contention. An ASBO is an order of the court, and is to be complied with unless and until it is set aside or discharged. A breach of an ASBO by a defendant who has not applied for its variation or discharge may well be good reason for the Court to refuse judicial review, and in general is not a reason to grant it when otherwise it would be refused.
36.	In Kenny and M there was an issue argued as to procedural irregularity, namely whether the procedure relating to interim ASBOs made without notice complies with Article 6 of the Convention and the common law. It should not be assumed that if the other issues before Owen J had stood alone, permission to apply for judicial review would have been granted.
37.	The availability of alternative remedies and the delay in applying for judicial review led me to refuse permission to apply for judicial review of the second order. I should have refused judicial review of the first order on the same ground. Consideration of the substantive merits of A’s claim reinforced this decision; indeed, had I granted permission to apply for judicial review of the second order, I should have refused judicial review on substantive grounds. Since the case was argued, I shall briefly set out my reasons.
The merits
38.	The first question is whether the District Judge failed to take into account the best interests of A as a primary consideration in deciding whether to make the second order.
39.	Both the local authority and the Claimant were represented on 11 December. As a result of the judgment in Kenny and M, Nicola Phillipson, counsel for the local authority, expressly accepted that in deciding whether it was just to make further interim ASBOs against those of the defendants who were infants, including A, the District Judge was required to take into account their respective best interests as a prime consideration. The solicitor appearing for the Claimant agreed. The District Judge was provided with a copy of Owen J’s judgment and retired to read it. In those circumstances, it is unlikely that he would have decided the issues before him in any other way. Indeed, it would have been perverse of him to do so, and I should have required clear evidence that he did so. In fact, the evidence points the other way.
40.	According to the first witness statement of Miss Marshall:
“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.”
41.	Miss Marshall’s contemporaneous note records the local authority’s counsel making the following submission in relation to the Claimant:
“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.”
42.	Miss Marshall’s note records the short judgment of District Judge Darnton as follows:
“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.”
43.	Those notes entirely support Miss Marshall’s witness statement. Miss Marshall’s evidence is supported by the witness statement of Miss Phillipson herself.
44.	I also have the note of hearing made by Mr Message after the hearing. According to his note:
“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…”
45.	In taking into account the observations of Mr Justice Owen, District Judge Darnton must have been referring to his statement in relation to the principle that the best interests of the child are a primary consideration. Although the magic phrase “the best interests of the child are a primary consideration” do not appear, the principle is implicitly referred to. The only contrary indication is said to be found in the Acknowledgement of Service of the Magistrates’ Court. The summary of grounds for contesting Judicial Review were signed by the District Judge’s clerk, whose notes of the hearing were defective. According to the summary grounds:
“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.”
46.	This summary is not sufficiently inconsistent with Miss Marshall’s contemporaneous note or the other evidence to which I have referred above to establish that the District Judge failed to take account of the interests of the Claimant as a primary consideration. 
47.	Lastly, Mr Message, in his witness statement made on 9 March 2004 states:
“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.
48.	It follows that the Claimant has failed to establish any error of law on the part of the District Judge in making the second order.
Other matters
49.	I make two further observations. First, the District Judge was undoubtedly right in treating the interests of A as a primary consideration, but not as the primary consideration. The interests of the public are themselves a primary consideration. 
50.	Secondly, it is by no means obvious that any of the prohibitions contained in the first order or the second order were contrary to the best interests of the Claimant. This applies in particular to prohibitions 3, 5 to 7 and 9 and 10. At the hearing on 11 December 2003, Mr Message, not being able to call the Claimant, and not having a witness statement from him, could only make a submission in the most general terms that (as summarised in his note) “it was not just to make an order which restricted his liberty, freedom of movement and associations.” There was thus nothing before the District Judge to show that any prejudice, except of the most general kind, was caused by the imposition of any of the prohibitions, including prohibitions 4 and 8. 
51.	If it is contended that the special interests of a child require either that there be no order, or an order in terms different from those proposed by the local authority, it is incumbent on a defendant to provide an explanation of his case and some relevant evidence. There will be cases where it is inappropriate to make any ASBO in respect of a child by reason of his age. That is not the present case: as I have stated, it is not contended that the evidence before the District Judge did not justify the making of an order against the Claimant, who was aged 16 and was allegedly participating in seriously anti-social behaviour. The phrase “the best interests of the child as a prime consideration” is not a magic talisman which, if not pronounced in a case concerning a child, will necessarily invalidate the order made.
Reporting this judgment
52.	In view of the issues that are addressed in this judgment, it may be reported, notwithstanding that permission was refused.
53.	I express my appreciation to both counsel for their able submissions. That applies particularly to Mr Wise, who had the more difficult task, and whose competence and candour were in the best traditions of the Bar.
Appendix: prohibitions in the Anti-Social Behaviour Order
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) save for the purposes of direct access to and from your home and then only by the route marked in blue.

5.	Being in possession of a drug or substance prescribed as controlled by the Misuse of Drugs Act 1971.

6.	Being present when controlled drugs (as defined by the 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.	Possessing or distributing “dealer cards” namely cards bearing a name and/or mobile telephone number of a drug supplier (commercial or otherwise).

8.	Possessing or using a “2 way” radio, walkie-talkie, open band radio or radio scanner.

9.	Owning or possessing any form of firearm or replica firearm including a “BB” gun or CS Gas Canister, Tazer or other device for emitting noxious substances.

10.	Encouraging or inciting others to carry out any of the prohibited acts on your behalf.