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
		2nd November 2005

Wednesday, 2nd November 2005

1. MR JUSTICE CALVERT-SMITH: In this case the appellant appeals by way of case stated a decision of the Kidderminster Justices to dismiss his application for an Anti-Social Behaviour Order ("ASBO") against the respondent.
2. Four questions are set out in the case. First:

"Whether we were correct in law that evidence of events that took place more than six months before the application for the anti-social behaviour order was made should only go to the issue of whether an order was necessary?"

I jump to the third question, since it is the mirror image, in a way, of the first:

"Whether we were correct in law in refusing to admit evidence from outside the period covered by the complaint which might assist in proving that behaviour within the relevant period was in fact anti-social?"

The second question:

"Whether we were correct in law to require proof of an incident or incidents within the six month time-frame which were objectively anti-social?"

The fourth question:

"Whether on a decision as to the first limb to be satisfied for an anti-social behaviour order it was sufficient to state that we were not satisfied beyond reasonable doubt that the defendant had acted in a manner likely to cause harassment, alarm or distress, or whether we ought to have made findings of fact as to (a) the Respondent's actual behaviour and (b) whether that behaviour caused or was likely to cause harassment, alarm or distress."

3. The relevant part of section 1 of the Crime and Disorder Act 1998, which concerns the making of ASBOs, is as follows:

"1(1) An application for an order under this section may be made by a relevant authority if it appears to the authority...

(a) that the person has acted, since the commencement date, 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; and

(b) that such an order is necessary to protect persons... from further anti-social acts by him."

4. Subsection (4) gives power to the magistrates if satisfied that conditions in subsection (1) are fulfilled to make an ASBO prohibiting the defendant from doing anything described in the order.
5. The other relevant statutory provision is section 127 of the Magistrates' Courts Act 1980. Again quoting only the relevant parts, subsection (1) reads:

"Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."

6. So far as the four questions are concerned, the appellant has submitted that in an application for an ASBO the court should be able to receive evidence of acts committed before the beginning of the limitation period set out in section 127, both to prove conduct falling within subsection (1)(a), and to show that an order is necessary under subsection (1)(b) of section 1 of the Crime and Disorder Act.
7. In argument Miss McClement seemed really to concede that there were circumstances in which such evidence could be admissible; for instance, if, within the ordinary rules of evidence, the pre-limitation period behaviour was relevant to prove behaviour alleged to have taken place within the limitation period.
8. Insofar as the magistrates believed that in all circumstances it would be wrong for them to hear evidence, or having heard it to take it into account in deciding whether the conditions in subsection (1)(a) are made out, then they were wrong. The dictum in the case of Ryan Stevens v South East Surrey Magistrates' Court and Surrey Police [2004] EWHC 1456 (Admin) which was relied upon by the magistrates in their case stated, reads:

"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.

...

"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 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."

...

"In all the circumstances of this case, I am of the view that 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..."

9. To the extent that that is relied on as suggesting that it is only on the second limb under section 1(b) that pre-period evidence can ever be admissible, that is a mistaken finding within the quotation itself. It is perfectly clear that, for instance, similar fact evidence may go to proof of harassment, ie under subsection (1)(a).
10. What happened in this case, it appears, was that Miss McClement, who appeared for the respondent in the Magistrates' Court, asked the magistrates to decide, as a preliminary issue, whether there was any evidence at all of within-time behaviour which could justify an ASBO. In the result the justices seem to have gone further than that and found that, on the criminal standard, they were not satisfied that there were such incidents, rather than simply identifying whether there was conduct capable of amounting to such behaviour. That, in my judgment, is a wholly undesirable and mistaken way of going about the process of applying for and resisting an ASBO.
11. I can well understand what gave rise to the application; it would be possible, by analogy with criminal proceedings, where the offence is proved first and the sentence decided separately, to create a similar procedure for ASBOs. But ASBO applications are very different animals to criminal trials. It is wholly inappropriate to have two trials for what is one application simply because there are two criteria which need to be met in order for the ultimate order to be imposed. In my judgment magistrates are perfectly capable of hearing all the evidence, whether it goes to both issues or to only one issue, and making up their minds whether they are satisfied on limb 1 and, if so, whether to go on and make an order under limb 2.
12. In those circumstances it is perfectly clear that pre-period evidence will be heard. As Auld LJ said in Stevens, it will then be for the magistrates to admit it at all on a given issue, and, if they do, to give it the appropriate weight. What is clear, and again what may have motivated, understandably, Miss McClement in the Magistrates' Court, is that there has to be a finding in due course that there is in-time conduct which justifies an order. That is common ground between appellant and respondent in this case.
13. If, for instance, the pre-period behaviour was so outrageous, so dramatic that it put into the shadow some less serious behaviour committed within-time, then it might well be that it would be quite wrong to consider it; there would be the danger of an effective circumvention of the limitation period.
14. In this particular case the court has not been supplied with sufficient information to know what weight, if any, the magistrates should have attached to any pre-period behaviour, because of the way in which the matter proceeded and the way in which the case is stated.
15. Thus, my answer to the first question is one in theory, in that, in principle, any evidence which may be relevant to either limb of section 1 should be admitted during the hearing of the application. Therefore, by mirror image, in the generality of cases, it is wrong to exclude, as far as question 3 is concerned, pre-period evidence merely because it is pre-period evidence.
16. Question two: the issue of objective or subjective evidence. A passage was cited in argument from the speech of Lord Steyn in R v Manchester Crown Court & Anr and Clingham v Kensington and Chelsea Royal London Borough Council [2003] 1 AC 787. In argument there was no dispute between the parties as to effectively what that passage was attempting to convey. In describing the procedure which we are concerned with in this case at paragraph 22 of his speech, Lord Steyn said this:

"The starting point is that in proceedings under the first part of section 1 [that is of the Crime and Disorder Act 1998] the Crown Prosecution Service is not involved at all. At that stage there is no formal accusation of a breach of criminal law. The proceedings are initiated by the civil process of a complaint. Under section 1(1)(a) all that has to be established is that the person 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'. This is an objective inquiry, mens rea as an ingredient of particular offences need not be proved. It is unnecessary to establish crime liability. The true purpose of the proceedings is preventative."

17. These remarks were made in the context of one of the two principal points in the case before the House of Lords which was: are ASBO proceedings civil or criminal? The first part of Lord Steyn's decision was that they are in fact civil proceedings.
18. The word "objective" in the context in which Lord Steyn used it, went to the question of whether mens rea, guilty mind, needed to be shown in the person against whom the ASBO was being sought. In other words, it is no use the drunken lout saying that he did not mean to cause harassment, alarm or distress, that he was only having a laugh, if in fact he was causing such harassment, alarm or distress. Likewise, it is perfectly clear that the requirement cannot be based solely on the evidence of a member of the public who claims that he or she was caused harassment, alarm or distress. A reasonable view has to be taken, both as to the decision in subsection (1)(a), as well, of course, as to the eventual decision that an order is necessary to protect persons.
19. To that extent, of course, the test is an objective one in the sense that the court has to make its mind up as to whether the conduct complained of was such as to cause, or likely to cause, harassment, alarm or distress. This is the sort of test that magistrates' courts are performing all the time in the context of the Public Order Act 1986 and related offences.
20. Finally, the fourth question. Article 6 of the European Convention on Human Rights, which has been part of our law now for some five years, places a duty on courts to give reasons for their decisions. The degree to which reasons have to be given varies according to the decision that has been given and the question of whether the reasons are perfectly obvious from the surrounding circumstances and the like.
21. In the case stated the justices say at 6:

"(b) In relation to the first limb of the application we were aware of our responsibility to give reasons for our findings. We were also aware that what was in dispute between the parties did not materially centre on what the Respondent had or had not done (as opposed to the interpretation sought to be attributed to his actions by the complainants) but instead on whether that behaviour could be said to be anti-social; in our view, it could not.

"(c) We found 'we are not satisfied beyond reasonable doubt that within the timescale the defendant acted in a manner likely to cause harassment alarm or distress, the application is therefore dismissed'.

"(d) We consider it to be implicit from our ruling on the admission of evidence and our decision on the first limb, that the actions of the defendant (within the time-frame) did not cause harassment alarm or distress (as opposed to merely being likely to do so), whether or not such harassment alarm or distress was experienced by the complainants.

"We accordingly dismissed the application."

22. Having heard counsel on both sides, and having heard the way in which, mistakenly (as I have found), the proceedings had actually proceeded until that moment, I find no fault in the way in which the justices expressed themselves because of the very limited question which they were then being asked to consider.
23. In general terms, however, it is, of course, desirable that when hearing an ASBO application, whichever way the decision goes, reasons are given for it. Once again the difference between civil and criminal proceedings comes into play here. In a criminal trial in the Crown Court the jury do not give reasons for their decision, whether it is an acquittal or a conviction, and there are good reasons for that. In the magistrates' court in a criminal trial it is more desirable, since the tribunal which convicts is also going to be the tribunal that sentences, that it gives reasons for its decision so that the appropriate sentence can be passed in view of the findings of fact that have been made. So far as an acquittal is concerned, the normal procedure is for no reasoned judgment to be given.
24. Here there are two parties to the case. Effectively standing behind the chief constable in this case are three members of the public. They have an entitlement to reasons in the average case if the application is refused. No doubt if it is granted the reasons will be clear from the terms of the order that is eventually granted. But in this particular case, with this very narrow issue apparently before them, I cannot say that the reasoning in the case statement is faulty.
25. In the result, the one error into which the justices fell, partly caused by the circumstances in which they were hearing the case, was the question of the breadth of evidence which they are entitled to consider. Having found that, I am asked to remit the case to the justices so that at least the chief constable can decide whether he wishes to proceed or to drop the application.
26. Having heard a good deal about the way in which the case progressed, it is perfectly clear, as Mr Johnson conceded, that this is by no means the strongest case for the grant of an ASBO, indeed in my judgment it is right at the very bottom end of the scale of "anti-social behaviour" which might be made subject to such an order. Indeed, as Miss McClement pointed out strongly, the principal piece of behaviour within the period was behaviour which had been discovered in a way in which itself gave rise to questions as to the legality of the obtaining of the evidence, being a long-range lens pointed into the private home of another person. In the circumstances I am not inclined to order the magistrates to rehear this case.
27. MR JOHNSON: My Lord, we are grateful for that. We have no application in respect of costs.
28. MISS McCLEMENT: I am grateful, my Lord, thank you.
29. MR JOHNSON: My Lord, I think my learned friend may need a Legal Services Commission detailed assessment of her costs.
30. MR JUSTICE CALVERT-SMITH: Yes, I was expecting something to come from that quarter. If you need one you can have one.
31. MISS McCLEMENT: I am very grateful.