England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		11 October 2005

1. LORD JUSTICE SCOTT BAKER: This is an application by Claire Louise Mills, for judicial review of a decision of Deputy District Judge Jenkins, sitting in the Birmingham Magistrates' Court on 2 December 2004 when he made an Anti-Social Behaviour Order against her following a conviction for theft.
2. The application is unopposed in that the magistrates' court has taken no part in the proceedings other than acknowledging service and giving some information explaining why the order was made. The Crown Prosecution Service, who sought the Anti-Social Behaviour Order in the first place, has been served as an interested party but has taken no part in the proceedings and has not responded to correspondence. In my judgment, it is unhelpful if the Crown Prosecution Service apply to the court to make such an order, but then when an order is made and judicial review is sought they take no steps to assist the court in those proceedings.
3. The facts of the case are simplicity itself. The claimant was observed in a Next store at Birmingham City centre to take three pairs of gloves from a display and leave without paying. She was observed by a plain-clothed police officer who happened to be at the store. He followed her outside and questioned her, taking her to Steelhouse Lane Police Station, where she was subsequently charged with theft. At no point was she obstructive or abusive to the police or to anyone else, and it was not suggested that she was other than fully cooperative to the police. When she was brought before the court the claimant pleaded guilty to theft. The court was told that she had numerous convictions of a similar kind. The prosecution applied for an Anti-Social Behaviour Order under section 1(c) of the Crime and Disorder Act 1998.
4. The information put before the court in the CPS request for an Anti-Social Behaviour Order appears to have been on the basis that such an order was part of her sentence for "theft from shops within Birmingham City Centre":

"The CPS remind the court of its powers to make an anti-social behaviour order against the defendant, to prohibit her from, 'Entering any retail premises within the boundaries of Birmingham City Centre as defined by the inner ring road including retail premises within the Bullring, Pallasades, Pavillions, City Plaza and the Mailbox, unless she has written authorisation from West Midlands Police.'"

The court was told that she had previous convictions, comprising 68 for theft and kindred offences and seven others. Twenty-nine of these were committed in the Birmingham City centre. The note continues:

"MILLS has received a variety of sentences including community-based orders and imprisonment in an attempt to curb her offending nature. This has failed to prevent her from re-offending. These offences do cause harassment alarm and distress to security and sales staff owing to her presence in the store. The cost of retail crime is passed onto the public who pay for the losses incurred by the store. This incorporates the cost of increased security and electronic surveillance equipment and the time of store detectives.

It is necessary and proportionate for the order to be granted in order to protect the public and the wider community who use the facilities within the area. This order should not be seen as a punishment but an effort to assist her rehabilitation. The order is requested to deter her from committing further offences in a focused location. By granting this order it sends out a positive message that this type of behaviour will not be tolerated in Birmingham.

The prohibitions have been carefully drafted to take in the needs of the community and the human rights of the individual. MILLS will still have access to all the facilities within the city centre including travel, hospitals and municipal buildings."

5. The magistrates' court had this to say in the acknowledgment of service:

"2. The Claimant was a Class A drug Addict and had numerous convictions for theft (shoplifting) including since the 1st April 1999. Many of her convictions related to offences in the Birmingham City Centre area, though there were some of these in Birmingham City Centre prior to the 1st April 1999. The Claimant's previous convictions were updated by reference to a theft (shoplifting) conviction on or about the 25th November 2004 at Birmingham Magistrates' Court, in relation to which she had been made subject to a drug treatment and testing order.

3. The Crown asked the court to make an order in respect of the Claimant under section 1(c), of the Crime and Disorder Act, 1998, maintaining that by this act of theft the Claimant had acted in an anti-social manner as defined in that section, their basis being that the Claimant had acted in a manner likely to cause harassment alarm or distress and that section 1(c)(II)(b) was made out in her case. The order sought by the Crown was in the terms eventually made by the court."

Then at paragraph 6:

"The court made the order being satisfied (as required) that theft is behaviour capable of causing harassment alarm or distress and that even given the particular facts of this case this theft was behaviour likely to cause harassment and that an order was necessary in the particular circumstances of this Claimant to protect persons in the Birmingham City Centre from further anti-social acts by her."

6. The Anti-Social Behaviour Order itself records that:

"The court found:

(i) the defendant had acted in the following anti-social manner, which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household of himself,"

and the behaviour is entered -

"Entered store selected items from the display and left making no offer of payment and that

(ii)an order was necessary to protect persons in England and Wales from further anti-social acts by him."

This is obviously a standard form of order with particular behaviour added to it.

7. Section 1C of the Crime and Disorder Act 1998 provides, so far as is material, as follows:

"(1) This section applies where a person (the 'offender') is convicted of a relevant offence.

(2) If the court considers -

(a) that the offender has acted, at any time 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 an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,

it may make an order which prohibits the offender from doing anything described in the order.

(4) An order under this section shall not be made except -

(a) in addition to a sentence imposed in respect of the relevant offence; or

(b) in addition to an order discharging him conditionally."

8. The maximum penalty for breach of an order under section 1C is five years' imprisonment. Section 1C of the 1998 Act was introduced by the Police Reform Act 2002. It should be noted that the conduct necessary to justify a criminal Anti-Social Behaviour Order under this section is expressed in precisely the same terms as that necessary to justify a civil Anti-Social Behaviour Order under section 1 of the 1990 Act. It is therefore pertinent to note what the House of Lords said in R (McCann) v Manchester Crown Court [2003] 1 AC 787. Lord Hope said at paragraph 71:

"The conduct which requires to be demonstrated is not necessarily conduct which would be capable of being treated as criminal. It has to be shown that the defendant has acted in a manner that caused or was likely to cause harassment, alarm or distress. But in order to prove that an offence under section 4A(1) of the Public Order Act 1986 was committed by him it would be necessary to go further and prove that he intended to cause these consequences. In order to prove that an offence was committed under section 1 of the Protection from Harassment Act 1997 it would be necessary to prove that he was engaged in a course of conduct which in fact amounted to harassment and that he knew or ought to have known that his conduct amounted to harassment."

Lord Hutton said at paragraph 85:

"My Lords, section 1 of the Crime and Disorder Act 1998 was enacted to remedy a grave social problem. In some parts of England, particularly in urban areas, there are vulnerable people who live in constant fear and distress as a result of the anti-social behaviour of others. The anti-social behaviour can take different forms and may consist of insults and abuse and threats or assaults or damage to houses by stone throwing or the painting of graffiti. Those who are victims of such behaviour are often too frightened to be willing to go into the witness box in criminal proceedings to give evidence against those who make their lives a misery, because they fear that they will be harassed or intimidated for so doing."

At paragraph 86:

"The remedy provided by section 1 of the 1998 Act is to give power to a magistrates' court to make an order which imposes on the defendant the prohibitions which are necessary for the purpose of protecting persons in the local area from further anti-social acts by him. Such an order will frequently prohibit the defendant from entering a defined area where he has been particularly troublesome and from using or engaging in any abusive, insulting, offensive, threatening or intimidating language or behaviour or from threatening or engaging in violence or damage against any person or property within a somewhat wider area."

9. Mr Simblett essentially takes three points. One, that there was nothing about the circumstances of this case that disclosed any behaviour that was capable of fulfilling the test in section 1(c)(ii). The court therefore had no power to make the order; it was ultra vires. The second point is - and it is really I think another way of making the same point - the order was perverse, there was no evidence of anti-social behaviour as defined by the 1998 Act. His third point is that in any event the extent of the order was disproportionate because of the wide geographical area and time that it covered.
10. Mr Simblett also pointed out that there are two criteria under the section. First, it is necessary for the anti-social behaviour criterion to be met; and second, it is also necessary for it to be established that an order is necessary to protect persons from further anti-social acts by the defendant.
11. The question is whether the deputy district judge was justified that the claimant had acted in a manner that caused or was likely to cause harassment, alarm or distress. It is not suggested that what she did actually caused harassment, alarm or distress. Indeed no employee of Next was even aware of the theft until the police officer took the gloves back to the shop and told them. Further, I find it quite impossible to say that by stealing the gloves unbeknown to the store the claimant had done anything that was likely to cause either harassment, alarm or distress within the meaning of the section. It is apparent from the terms of the order that the deputy district judge essentially pinned the anti-social behaviour order to this particular theft and the circumstances of it.
12. The court says in the acknowledgment of service that this particular theft was likely to cause harassment. Whilst I accept that the circumstances of some shopliftings or other thefts may very well fall within the relevant words of section 1C(2), it does not seem to me that harassment, alarm or distress inevitably follows or is likely to follow. Particularly is that so in the circumstances of the present case. There was, in short, nothing about the facts of this theft to trigger the section. Were the section to have been triggered in this case, it would be difficult to imagine any shoplifting that did not likewise trigger the section; and, in my judgment, that is plainly not the situation.
13. Mr Simblett's second point is that there was no evidence of anti-social behaviour and the order was perverse. Again it seems to me that he has made out in substance that ground.
14. In these circumstances, for my part, I think that the application for judicial review must succeed on both grounds 1 and 2. It is not in these circumstances necessary to go on to consider the question of proportionality on ground 3. Accordingly, I would allow the application and quash the Anti-Social Behaviour Order.
15. MR JUSTICE OWEN: I agree.
16. LORD JUSTICE SCOTT BAKER: Thank you very much, Mr Simblett.
17. MR SIMBLETT: My Lord, there are two applications in consequence of your Lordship's order. The first is that the claimant is publicly-funded. The certificate is in your Lordships' bundle, so I seek an order that the claimant have public funding taxation. But the other matter - and it is part of my obligation also to the Community Legal Service - is to deal with the question of costs between the parties. Now, it is not professional to seek costs against the Magistrates' Court, and I do not. It is open to the court to order costs against the interested party, and indeed in this case it may be appropriate for such order to be made since, as your Lordships appointed out, first, the application came about because the Crown Prosecution Service asked for it; and thereafter, knowing that the matter has been under challenge and having been informed at every stage by the courts and the claimant's solicitors of the challenge to the order, they have taken no steps to defend it. In those circumstances it is appropriate, in my submission, in the exercise of the court's discretion, that the claimant's costs be paid by the Director of Public Prosecutions.
18. LORD JUSTICE SCOTT BAKER: That has some significance, I think, does it not, for the lawyers acting for the claimant?
19. MR SIMBLETT: I know your Lordship has dealt with the Boxall case. I have to say it does not have any significance for me. It may have some significance -- well ...
20. LORD JUSTICE SCOTT BAKER: I thought the position was that where costs are paid by the public funding authorities they are paid on a lower scale than they are if they are paid by one of the other parties.
21. MR SIMBLETT: At the moment I think that does not affect counsel. Your Lordship has the point. But in fact it is irrelevant your Lordship should approach it from the perspective as if Miss Mills was paying those instructing counsel out of her own pocket, because of the discretion. So in my submission she is somebody who was entitled to bring this claim, has succeeded fairly and squarely on it, and there are particular conduct issues as to why this case is appropriate she should have her costs.
22. MR JUSTICE OWEN: Did those instructing you warn the interested party that if your application was successful an application for costs would be made?
23. MR SIMBLETT: No. But costs are in the court's discretion, and of course you can take account in your discretion of conduct issues. In my submission, not turning up and not doing anything about the application may well be a conduct issue. We have had to come to court to get an order.
24. LORD JUSTICE SCOTT BAKER: Yes, you can have your costs against the interested party, to be subject to detailed assessment if not agreed, and public funding assessment of the claimant's costs.