England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		19th May 2005

1. LORD JUSTICE ROSE: Mr Crane J will give the first judgment.
2. MR JUSTICE CRANE: This is a case stated by the West Hertfordshire Youth Court. The Director of Public Prosecutions seeks to challenge preliminary rulings made by the magistrates as a result of which no evidence was offered against the two respondents and the charges against them were dismissed. The case concerns Part 4 of the Anti-Social Behaviour Act 2003, which deals with the dispersal of groups.
3. The facts assumed, for the purpose of the preliminary ruling, were these. First of all, on 12th March 2004, Superintendent House of the Hertfordshire Police signed an authorisation pursuant to section 30(1) of the Act. Section 30(1) reads:

"This section applies where a relevant officer has reasonable grounds for believing -

(a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in his police area (the "relevant locality"), and

(b) that anti-social behaviour is a significant and persistent problem in the relevant locality."

4. The authorisation that in fact was issued by Superintendent House is annexed and indicates that he had reasonable grounds for believing "that ... members of the public had been intimidated, harassed, alarmed or distressed" in the way set out in section 30(1). He also recorded reasonable grounds for believing the contents of section 30(1)(b). Accordingly, he gave an authorisation pursuant to section 30. He set out certain difficulties that had arisen and he then proceeded to define six zones that also appear on a map which was issued and made public. Those six zones all form part of the South Oxhey area, but they are not contiguous. We are told that the distance across the area that includes the six zones is approximately one mile.
5. The remaining facts, which the magistrates were asked to assume, were these: Included in Zone 2 was part of Prestwick Road. At 22.28, on 23rd March 2004, Police Constable Hemmings saw the two respondents, together with four other youths, in that part of Prestwick Road covered by the authorisation notice. He directed all six youths to leave the area and not to return to any of the sick zones in the next 24-hours. The respondents were aware of the order to disperse and not to return, although one of them at the time ran off.
6. At 20.50 hours, on 24th March 2004, Police Constable Hemmings saw L in the same zone and at 21.00 hours, on 24th March, he saw N in the same zone. Neither of the two respondents had a place of residence in any of the six zones.
7. The remaining subsections of section 30 that are relevant are these:

"(2)The relevant officer may give an authorisation

that the powers conferred on a constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months:

(3) Subsection (4) applies if a constable in

uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.

(4) The constable may give one or more of the

following directions, namely

...

(b) a direction requiring any of those persons whose place of residence is not within the relevant

locality to leave the relevant locality or any part of the relevant locality (either immediately or by such time as he may specify and in such way as he may specify), and

(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24-hours) from the giving of the direction as he may specify ...,"

8. The first issue is whether Police Constable Hemmings was entitled to exclude the two from all six zones. The submission of the Crown is that the purpose of the Act is to protect local residents from anti-social behaviour. They submit that to require a separate authorisation in respect of each of the six zones would allow those intent upon indulging in anti-social behaviour to move from one zone to another with impunity and a separate direction would be needed each time such people moved to a new zone. It was pointed out that the Act was preventative in character. It was not therefore necessary to prove that any members of the public were actually "intimidated, harassed, alarmed or distressed" before an officer is entitled to give a direction under section 30. In his submissions today Mr O'Sullivan relies particularly on the difficulty that would arise if each zone was, for this purpose, a separate locality and he describes what might be a cat and mouse chase by the police of those they wished to move on.
9. The submissions of Mr Carr, counsel for the respondents, were that Police Constable Hemmings had power only to exclude them from the particular zone, and that it was not possible to authorise a multiplicity of zones within a locality in the way that was done.
10. The Justices in their decision said that they were not satisfied that a multiplicity of zones were within the definition of relevant locality under the Act and whilst aware of the problems in the South Oxhey community resulting in anti-social behaviour of youths in that area, were of the view that the response by the police had to be proportionate and there had to be a balance between protecting the public and civil liberties. They therefore preferred the submissions of the respondents as opposed to the appellant on this point.
11. We have been referred to the Practice Advice produced on behalf of the Association of Chief Police Officers by the National Centre for Policing Excellence in relation to Part 4 of the 2003 Act. The guidance says under the heading:

"Defining the Area

The relevant locality should be considered in terms of a specific geographical location. Authorising officers should define the area accurately. The relevant locality should be described by identifying the streets bounding the area."

In referring to the size of the problem, the guidance said this:

"Problems have been experienced by forces already using the legislation. The size of particular localities can draw complaints in respect of human rights and a lack of access to facilities for some individuals. Although areas such as a town centre may be too generalised and non-specific for the purpose of justifying an authorisation, it should be noted that authorising a whole town centre may, on occasions, be the only practical way of controlling anti-social behaviour. Where this is the case, and justification for it in terms of proportionality and necessity are present, this may be the only feasible course of action."

12. The magistrates pose for our consideration these questions:

b. Did PC Hemmings have the power to exclude the Respondents from all six zones for a period of up to 24-hours or was his power limited to a direction to exclude only from Zone 2?

c. If there was no power to exclude the respondents from all six zones does it make any difference that they returned to the same zone in which the direction had been given the previous day?

13. Question (b) in fact requires the court, in my judgment, to consider whether an authorisation may, as a matter of principle, specify a "locality" as consisting of two or more zones that are not contiguous. Section 31 makes certain supplemental provision in relation to the authorisations. Subsection (2) envisages different parts of a "locality" being within different local authority areas. Subsection (9) envisages a further authorisation relating to only part of the locality. But nothing in section 31 offers clear guidance on this issue and nor does the Practical Advice, to which I have referred.
14. I accept that at first sight the word "locality" does indeed suggest a single contiguous area.
15. However, section 30(1), which sets out what an authorising officer must consider, envisages that the relevant problems may have arisen in "public places" (plural) within a locality. In other words, there may be several trouble spots. In a situation such as that faced by Superintendent House, it would have been open to him, it seems to me, to draw a single line encompassing all six zones. There could, it seems to me, have been no valid objection to that, and indeed that is not suggested today. Clearly, as a matter of principle, restrictions under the Act should be no wider than is necessary. There is much to be said for concentrating an authorisation in the parts of an area in which the main problems exist. In that sense the use of non-contiguous zones is less draconian than a single larger area. There may, for example, be good reasons why two or more zones should be chosen, for example, where a railway line runs through an area.
16. Another reason for reaching such a conclusion is that under section 30(4)(b) a direction cannot be given to any person whose place of residence is within the locality. A single, but wider, area will thus tend to reduce the effectiveness of an authorisation because more individuals are likely to be found to have places of residence within the locality. Clearly the authorisation is more effective if only the real trouble spots are included.
17. Moreover, if there are separate authorisations for localities that are close together, for example here, for each separate zone, a person dispersed from one can simply go to another close by. That consideration could encourage authorising officers to chose authorisations for single but wider areas.
18. The crucial question is whether the words "relevant locality" can properly be interpreted to apply to two or more non-contiguous zones. I think that in this context they can. In my judgment there is nothing in the scheme of the Act to prevent what was done here, provided that in making an authorisation the maker stands back and asks himself whether the zones taken together can sensibly be said to amount to a locality. An authorisation such as this is, in my judgment, lawful and appropriate.
19. I fully accept the Act cannot be used to establish a large number of zones over a wide area such as the Metropolitan Police area. That would, in my judgment, not be a single locality. But the kind of behaviour to which the Act is directed is likely to be concentrated on particular residential estates or town centres.
20. I also accept that there are considerations of simplicity and clarity which may well, in some areas, point to the establishment of a single contiguous locality rather than a series of zones. That is a matter of judgment. Simplicity and clarity, and a need to restrict the extent of authorisations, all need to be considered. However, in my judgment this was a lawful authorisation and it follows that Police Constable Hemmings had, so far as section 30(4)(b) is concerned, power to disperse those he saw either from the whole of the locality, in other words all zones, or part of it. There was nothing, in principle, unlawful in what he did. However, I emphasise that he had the power to disperse either from the relevant locality or from any part of it. Police officers need to consider whether they can limit their directions to a particular zone or other part of a locality rather than from a wider area.
21. The answer, however, in my view, to question (b) is yes and on that basis question (c) does not arise.
22. I turn to the question of reasonable grounds. The submission by the appellants is that the Justices were wrong to reach the conclusion as they did on page 6 at b where they said:

"With regard to there being reasonable grounds for believing under Section 30(3) that the presence or behaviour of the group had resulted or was likely to result in the public being intimidated, harassed, alarmed or distressed, the Crown was relying on PC Hemmings' local knowledge as the Community Officer and the authorisation given by Superintendent House on 12th March 2004. This was not a sufficient basis upon which to found a reasonable belief."

23. Mr Carr, on behalf of the respondents, submits that the agreed facts referred only to the presence of the total of six youths in the area and did not, at that point in the stated case, refer to Police Constable Hemmings' local knowledge, but the question we are asked at (a) is as follows:

"Was the existence of an authorisation notice under the Act together with PC Hemmings' local knowledge as a Community Beat Officer capable of giving him reasonable grounds for believing that the risks envisaged within Section 30(3) might come to fruition or must there have been something about the conduct of those to whom the direction was given to cause him to fear those things before he was entitled to give the Respondents notice to and not return."

24. We have been referred by Mr O'Sullivan to the case of O'Hara v Chief Constable of the Royal Ulster Constabulary (1997) AC 286, which involved consideration of what could amount to reasonable grounds for suspicion under section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984. At page 298D Lord Hope of Craighead said this:

"The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."

The passage in the speech of Lord Stein at page 293C to D is to the same effect.

25. Mr Carr refers us to the Code of Practice at A.2.2 under the Police and Criminal Evidence Act 1984, the Code which relates to powers of stop and search. A.2.2 reads as follows:

"Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind or, in the case of searches under section 43 of the Terrorism Act 2000, to the likelihood that the person is a terrorist. Reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or information or some specific behaviour by the person concerned. For example, a person's race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone, or in combination with each other as the reason for searching that person. Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity."

26. It is important to refer back to section 30(3) and to look at what it is that the constable has to have reasonable grounds for believing. The belief must be related to two or more persons in any public place. He need not have regard to their behaviour. He is entitled to consider only what is likely to result from their presence. He is asking himself whether any members of the public are likely, as a result, to be "intimidated, harassed, alarmed or distressed". In my view if one looks at that test, at a minimum, he must be considering what their presence may lead to and what is likely to result from their presence.
27. In the light of the O'Hara case it is clear, in my view, that the police officer may take into account all information available to him. Not only what he sees and hears, but his local knowledge, what he knows about the particular individuals in the group before him and the existence of the authorisation itself. What may be reasonable grounds in a particular case will vary greatly. In addition he must bear in mind that there must be reasonable grounds for belief, not merely reasonable grounds for suspicion. If he is challenged in court his reasons can be tested and a bare reliance on a phrase such as "local knowledge" is not likely to be enough.
28. The considerations set out in the Code of Practice relate, of course, to a situation in which suspicion about a particular person, who may be stopped and searched, is in question: a somewhat different situation from the situation that a police officer under section 33 is considering. Nevertheless, the indication that stereotypical images of certain groups or categories of people are not going to be enough is certainly a good principle for a police officer to bear in mind.
29. In my view the answer to the first part of Question (a) is yes, the authorisation notice together with Police Constable Hemmings' local knowledge were capable of giving him reasonable grounds for believing what he needed to believe. It was not necessary that there should have been something about conduct of those to whom the direction was given to cause him to fear those things before he was entitled to give notice to and not return. In my view the question should be answered in the way that I have described.
30. LORD JUSTICE ROSE: I agree and add only this: there may be different reasons for the relevant officer to identify a particular zone in the relevant locality. For example, in one zone prostitutes, in another drug dealers, in another drunks or in another muggers, may be the source of, in the terms of section 30(3) likely intimidation, harassment, alarm or distress to the public in the area.
31. By virtue of section 30(4), as my Lord has pointed out, a uniformed constable may give a direction prohibiting return to all or part of the relevant locality. In deciding whether to give such a direction in relation to the whole of the relevant locality, the officer may be called upon to exercise carefully his discretion as to the nature of the direction which he gives. It is unlikely to encourage good relationships between the police and the local community if officers prohibit a group in one zone from going to all the other zones in the relevant locality in circumstances where the reason for such likely intimidation, etc, is different in relation to the other zones.
32. It follows that this case will be remitted to the West Hertfordshire Youth Court for consideration by a differently constituted bench of justices, in accordance with the judgments of this court.
33. Is there anything else?
34. MR CARR: My understanding is that I am legally aided and I have to request taxation. Is that correct?
35. LORD JUSTICE ROSE: I am not sure you have to make that request. You have a representation order?
36. MR CARR: My Lord, yes.
37. LORD JUSTICE ROSE: That I think will suffice for your purposes.