England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		8th February 2005

Tuesday, 8th February 2005

1. MR JUSTICE HENRIQUES: The claimant, Manchester City Council, challenges the decision of a legal adviser at the Manchester City Magistrates' Court, namely Louise Williams, acting under delegated authority of the justices' clerk whereby she refused to give leave for an application for an interim Anti-Social Behaviour Order (ASBO) to be made without notice. Permission to bring judicial review proceedings was granted by Forbes J on the papers on 1st November 2004.
2. The claimant seeks a quashing order and a mandatory order directing that leave be given under Rule 5(2) of The Magistrates' Courts (Anti-Social Behaviour Orders) Rules 2002, thereby requiring the Magistrates' Court to hear the application for an interim ASBO without notice. Since the application has not been pursued pending the outcome of the judicial review proceedings, it is appropriate that I should not disclose the identity or address of either the complainant or the defendant in the ASBO proceedings.
3. The claimant is today represented by Mr Christopher Baker of counsel. The defendant, Manchester City Magistrates' Court, has not appeared.
4. The making of an Anti-Social Behaviour Order by a Magistrates' Court is governed by section 1 of the Crime and Disorder Act 1998 as amended. Section 1(1) provides:

"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 antisocial 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 order is necessary to protect [relevant] persons from further anti-social acts by him."

5. The test to be applied to the making of an ASBO is set out in section 1(4):

"If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section... which prohibits the defendant from doing anything described in the order."

6. The power to make an interim ASBO was added by section 65(1) of the Police Reform Act 2002 and is contained in section 1D of the Act which, by sub-paragraph (a), applies to applications (amongst others) for an ASBO. The test to be applied is set out in section 1D(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."

7. The nature of an interim order under section 1D is set out in section 1D(3):

"An order under this section is an order which prohibits the defendant from doing anything described in the order."

8. The procedure for without notice interim ASBO applications is governed by Rule 5 of the Magistrates' Court (Anti-Social Behaviour Orders) Rules 2002. Rule 5(1) provides:

"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." Rule 5(2) provides:

"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." Rule 8 provides for the delegation of functions by the justices' clerk.

9. The background and chronology to this matter is as follows. On 7th October 2004 Mrs F made a written statement to one of Manchester's case development officers in which she complained that Mr M, who lives in the house which backs on to hers, had behaved in an anti-social manner towards her and most particularly that earlier that same day, about 9.55am, Mr M had repeatedly shouted very aggressively to her using the following foul language:

"If you don't fucking shut up I'll burn your fucking house down, I'll fucking kill you."

"If that doesn't work I'll find another way of fucking killing you."

"I'll pull your fucking knickers over your fucking ugly face in a minute. I'm gonna tie my dog up on the gate outside your house so you won't be able to go out of your house."

10. In her statement Mrs F said that she had then called the police who attended at 11.25am. They spoke to Mr M but he denied having said anything. The police told Mrs F that Mr M was "a nasty piece of work" and advised her to call if there were any further problems.
11. Mrs F lives alone, her husband having died 12 months previously, of which Mr M is aware. She stated that the effect of Mr M's conduct was that she was extremely frightened and worried about the threats he was making and that she felt extremely intimidated and distressed by his threatening behaviour.
12. The circumstances in which the above incident occurred were that on returning home on the morning of 7th October from her stint as a lollipop lady, Mrs F had been worried about Mr M's large Alsatian dog which she had earlier seen roaming outside on its own. She saw a council van parked next to her house and asked the three men standing by it whether they had seen the dog. It was at this point that she realised that one of the men was Mr M who then became abusive.
13. This was not the first occasion that Mrs F had cause to be upset and fearful of Mr M and his dog. In her statement she recalled that Mr M had been extremely abusive towards her in the past when she had complained about him leaving rubbish and mess in the entry to her house. As a result she had been reluctant to approach him even though she had also experienced problems with him leaving his wheelie bin in the entry to her house. Mr M also allowed his dog to roam around outside without a collar and it was aggressive and barked which caused Mrs F to be afraid of it.
14. On 8th October 2004 Manchester consulted with the Greater Manchester Police about making an application for an ASBO against Mr M. On the same day, acting on the information from Mrs F, Manchester's solicitors applied for an ASBO against Mr M. Manchester's application included an application for an interim ASBO in relation to which they asked for leave for it to be heard without notice. The reasons given for the latter request were:

"This application is made on a without notice basis due to the threats of violence. The Complainant... lives on her own and is extremely worried for her safety and is extremely concerned that there may be further incidents of a similar nature if the protection of the Court is not granted. The Applicant Council is also concerned that there is a real risk of reprisal if the Defendant is given full notice of this application and wishes to minimise the risk."

15. On 11th October 2004 the application for leave for the interim ASBO to be heard without notice was considered by Ms Williams. She refused the application and endorsed the following on Manchester's solicitors' letter:

"11/10/04

Ex parte refused

No actual violence

Louise Williams

Designated clerk"

16. By fax dated 13th October 2004 Manchester indicated an intention to make an urgent application for judicial review to challenge the above decision but asked for confirmation that the decision would be reviewed. On 14th October 2004 Ms Williams hand wrote a two-page document which was faxed to Manchester's solicitors that day. After setting out a summary of the evidence the document concluded as follows:

"I have refused [to give leave] for the following reasons:

(i) limited number of incidents.

(ii) nature/scale of limit [crossed out] incidents low albeit [next six words were inserted] on the face of it is anti-social.

(iii) no actual violence.

(iv) even though defendant knows where complainant lives he has never approached that property and did not do so after police went round.

Louise Williams.

14/10/04."

17. On 29th October 2004 Manchester issued these proceedings including an application for urgent consideration. On 1st November 2004 permission was granted.
18. On 15th November 2004 the Magistrates' Court filed an acknowledgment of service contesting the claim with a witness statement by Ms Williams. Thereafter there has been no further contact with the court or with the claimants. In particular there has been no indication as to whether the two-page document of 14th October 2004 involved a reconsideration of the application or whether the document was merely an enlargement of the earlier note dated 11th October.
19. In R (on the application of Luke Kenny) v Leeds Magistrates' Court and Ors [2003] EWHC 2963 (Admin), Owen J addressed the test for making an interim ASBO saying:

"38. Consideration of whether it is just to make an order without notice is necessarily a balancing exercise. The court must balance the need to protect the public against the impact that the order sought will have upon the defendant. It will need to consider the seriousness of the behaviour in issue, the urgency with which it is necessary to take steps to control such behaviour, and whether it is necessary for orders to be made without notice in order for them to be effective. On the other side of the equation it will consider the degree to which the order will impede the defendant's rights as a free citizen to go where he pleases and to associate with whosoever he pleases.

"39. It is submitted on behalf of the Claimants that such relief can only be granted in exceptional circumstances, and that there must be compelling urgency to justify an application without notice. In my judgment that would be an unwarranted and unnecessary gloss upon the test set out in section 1D. But it is implicit in the balancing exercise that the considerations that weigh in favour of injunctive relief must be sufficiently serious to warrant what may amount to a serious interference with the civil rights of a defendant."

20. On appeal in one of the two cases heard by Owen J R (M) v Secretary of State for Constitutional Affairs and Lord Chancellor [2004] EWCA Civ 312; [2004] 1 WLR 2298, the Court of Appeal dismissed the appeal. In a judgment handed down by Kennedy LJ the Court of Appeal stated the test to be adopted by a Magistrates' Court, when deciding whether or not to make an interim order, must be the statutory test, whether it is just to make the order. That itself involves consideration of all relevant circumstances including, in a case such as this, the fact that the application has been made without notice. Obviously the court must consider whether the application for the final order has been properly made, but there is no justification for requiring the Magistrates' Court, when considering whether to make an interim order, to decide whether the evidence in support of the full order discloses an extremely strong prima facie case.
21. Mr Baker, on behalf of the claimant, submits that Ms Williams applied the wrong test. She refers, in her statement, to conducting a balancing exercise as outlined in paragraphs 36 to 39 of Owen J's judgment. It is said that in paragraph 38 Owen J was concerned with the balancing exercise under section 1D, namely as to whether it was just to make the interim order.
22. Ms Williams was not engaged in that exercise. She was engaged in deciding, under Rule 5(2), whether it was necessary for the application to be made without notice, which, whilst again involving a balancing exercise, is a different exercise which may well overlap but should not be confused with the exercise to be carried out in due course by the justices.
23. The balancing exercise to be carried out by Ms Williams under Rule 5(2) is simply as to the manner of the first hearing of the interim application and it is submitted is a less stringent test. The justices' clerk is required to consider merely whether there is sufficient reason on the papers for concluding that the interests of the complainant, the processes of the court and the public interest justify having the application determined without the defendant having the opportunity to be heard at that stage. It is submitted that the approach taken by Ms Williams did not recognise sufficiently or at all the urgency or the extent of the risk of harm to Mrs F.
24. Mr Baker's submission is, in my judgment, clearly correct. Paragraphs 36 and 37 of Owen J's judgment deal with the role of the justices' clerk as the heading in the judgment so indicates. The justices' clerk shall only grant leave if he is satisfied that it is necessary for the application to be made without notice.
25. The balancing exercise referred to in paragraph 38 relates to the court's function, as opposed to the clerk's function, in the actual making of the order without notice. Since there will be cases where courts hear applications without notice and decline to make interim orders, the court will necessarily adopt a more stringent or selective approach than the clerk. I am satisfied that Louise Williams used the wrong test or balancing exercise when she referred in her witness statement to paragraphs 36 to 39.
26. Turning to the facts to which she had regard, Ms Williams stated that there had only been three incidents in a three or four year period. In fact the statement of Mrs F states that Mr M rented his property out and only moved back about 12 months ago. Frequency of misconduct is, of course, a relevant factor and it is clear that Ms Williams failed to have regard to relevant information.
27. There is no reference in her statement to the risk of further incidents in the event of notice being given. The point is made that Ms Williams has considered the history but has not sought to consider the likely reaction of Mr M should he receive notice of an interim application. She fails in particular to mention that the two homes are adjoining and that the period between the receipt of notice by Mr M and the hearing would necessarily be extremely stressful for Mrs F. The critical consideration for a justices' clerk must surely be: what effect will the giving of notice have upon each of the parties?
28. Further, whilst Ms Williams correctly refers to the right of the defendant to know about the proceedings against him, nowhere does she refer to the counterbalancing protections for the rights of the defendant, namely the ineffectiveness of the order until served, the limited period of time the order is effective, and the defendant's right of application to vary or discharge.
29. Further, there is no indication from her evidence that she gave any consideration to the nature of the prohibitions which the council sought to include in the order. That is conduct which, in any event, Mr M should not have been committing, such as using or threatening violence. If made without notice such prohibitions would involve a very limited interference with Mr M's substantive rights and were accordingly much less intrusive.
30. In his skeleton argument Mr Baker alleges irrationality by Ms Williams when she concludes that Mr M's alleged misconduct was at the lower end of the scale. It may well be that Ms Williams is considering only those cases which come before the Manchester City Magistrates' Court. A guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts issued by the Home Office in November 2002 under the heading "Types of behaviour for which ASBOs have been used" cites:

"The most common behaviour tackled by ASBOs is general loutish and unruly conduct such as verbal abuse, harassment, assault, graffiti and excessive noise. ASBOs have also been used to combat racial harassment, drunk and disorderly behaviour, throwing missiles, vehicle crime and prostitution. Many other problems, for instance the use of air guns, would also lend themselves to this approach."

31. There were here alleged threats to kill and to destroy a person's home which, within the range of conduct tackled by ASBOs, cannot, in my judgment, properly be described as at the lower end of the scale. Indeed, if proved, Mr M's conduct was serious criminal conduct graver in nature than any of the acts referred to in the Home Office publication. The conduct cannot, in my judgment, properly be described as at the lower end of the scale and in this respect Ms Williams' conclusion is properly described as irrational.
32. Complaint is also made that the short manuscript note, dated 11th October 2004, and the longer note, dated 14th October 2004, are not easily reconcilable and do not disclose whether or not there was a reconsideration on 14th October. Further, the statement of Ms Williams also fails to indicate whether there was such a reconsideration. Even allowing for the pressures of those in court, the original note was less than informative. The note of 14th failed to indicate whether a reconsideration had taken place.
33. I am quite satisfied that the alleged conduct of M, having regard to his proximity to Mrs F, and to all other relevant considerations, should have persuaded Ms Williams that it was necessary for the interim application to be heard without notice. Accordingly I make a mandatory order that leave be granted under Rule 5(2).
34. By way of postscript, and by way of supplement to paragraphs 35 and 36 of Owen J's judgment, a justices' clerk, when deciding if he is satisfied that it is necessary for the application to be made without notice pursuant to Rule 5(2), would be well advised to have regard, inter alia, to the following factors (this list not being exhaustive), namely:

(1) the likely response of the defendant upon receiving notice of such application;

(2) whether such response is liable to prejudice the complainant having regard to the complainant's vulnerability;

(3) the gravity of the conduct complained of within the scope of conduct tackled by ASBOs in general as opposed to the particular locality;

(4) the urgency of the matter;

(5) the nature of the prohibitions sought in the interim ASBO;

(6) the right of the defendant to know about proceedings against him;

(7) the counterbalancing protections for the rights of the defendant, namely:

(a) the ineffectiveness of the order until served;

(b) the limited period of time the order is effective;

(c) the defendant's right of application to vary or discharge.

35. Thank you Mr Baker.
36. MR BAKER: My Lord, I am very much obliged for all of that. One final matter is the question of costs.
37. MR JUSTICE HENRIQUES: Yes.
38. MR BAKER: Ordinarily, of course, the Magistrates not appearing, they would not be the subject of an order for costs in proceedings like this, but exceptions have been made to that and the Court of Appeal, in a recent case in which your Lordship may be aware, reviewed the state of the authorities. In fact, it was a case involving coroners; I can hand up a copy if your Lordship needs it?
39. MR JUSTICE HENRIQUES: Yes, thank you.
40. MR BAKER: It was the decision of the Court of Appeal comprising Brooke LJ along with Sir Martin Nourse, in the case of the Crown on the application of R (Davies) v HM Deputy Coroner for Birmingham & Ors. In the course of giving judgment, Brooke LJ in particular surveyed the history of orders for costs against inferior tribunals and coroners and the like. The summary of that appears perhaps most clearly at paragraph 47 in the judgment on page 557 of the report:

(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings."

41. Then further exceptions are stated in the following paragraphs which are not here immediately relevant.
42. In view of your Lordship's judgment I would respectfully invite consideration to two matters that --
43. MR JUSTICE HENRIQUES: Sorry, I have found in Brooke LJ's "the established practice". If we remained at paragraph 47(i) then under that established practice the justices could say that having filed a statement and served an acknowledgment of service, they might have an expectation of not being ordered to pay the costs.
44. MR BAKER: Yes.
45. MR JUSTICE HENRIQUES: But where do I find an amended practice?
46. MR BAKER: Well, further considerations appear in the subsequent paragraphs, but I do not rely on those for the purposes of this application. I am content to rely on the principle of sub-paragraph 1. The two matters which I would respectfully refer to in support of an application for costs in this particular case are that your Lordship's finding as to irrationality takes this case beyond the ordinary case. This, we would say, was a flagrant instance of something that was so unreasonable that it was irrational. The second matter which we would point to is the insufficient and inadequate nature of the records that were given by the Magistrates' Court and the state of the evidence that was put in response to the application, which we respectfully say leave a number of significant questions unanswered in the course of this application.
47. MR JUSTICE HENRIQUES: Particularly, you did not know which decision you were seeking to quash.
48. MR BAKER: No, and we would also respectfully say that as the matter has emerged in the course of, first of all, the initial note, then the later statement of reasons, and, finally, the written evidence, it is apparent that the goalposts, we would say, have been moved and those three documents cannot easily be reconciled one against the other. We are therefore left in a very unsatisfactory state of affairs as to what went on in this case.
49. So for those two particular reasons we would respectfully say that this is an exceptional sort of case which falls within the first principle elicited there by Brooke LJ.
50. MR JUSTICE HENRIQUES: I am not prepared to find that it goes so far as being a flagrant instance of improper behaviour.
51. MR BAKER: So be it.
52. MR JUSTICE HENRIQUES: Unfortunate, bordering on the discourteous, but not a flagrant instance of improper behaviour explicable by pressures of work in an extremely busy Magistrates' Court.
53. MR BAKER: So be it. I am obliged, my Lord.
54. MR JUSTICE HENRIQUES: Yes. I am particularly grateful for your assistance. Thank you very much indeed.