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
		28 April 2005

Mr Justice Pitchers :

1. This is an application for judicial review of a decision of Acton Youth Court on 1 June 2004 when they made the Claimant, then aged 14 years subject to an anti-social behaviour order ("ASBO") under section 1C of the Crime and Disorder Act 1998.

The statutory framework

2. The power to make anti-social behaviour orders was introduced by Section 1 of the Crime and Disorder Act 1998 ("the 1998 Act") which came into force on 1 April 1999.  It was originally available only as a standalone order which did not require a conviction for a criminal offence before it was made. Section 1 provides as follows:

(1) 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 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 relevant persons from further anti-social acts by him.
……..

(3) such an application shall be made by complaint to the Magistrates' Court whose commission area includes the local government area or police area concerned.

(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 ("an anti-social behaviour order") which prohibits the defendant from doing anything described in the order. 
……….

(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons (whether relevant persons or persons elsewhere in England and Wales) and further anti-social acts by the defendant. 

(7) An anti-social behaviour order shall have effect for a period (not less than 2 years) specified in the order or until further order. 
….

(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is [guilty of an offence] and liable.

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or both." 

3. Section 1 was considered by the House of Lords in R(McCann and others) v Crown Court at Manchester [2003] 1 AC 787 ('McCann') They concluded that proceedings under the section as it then stood were civil and thus that hearsay evidence was admissible in those proceedings. In dealing with the standard of proof required, Lord Steyn said at paragraph 37:

"pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard"

4. The Police Reform Act 2002, by section 64, inserted a new section 1C into the 1998 Act. The section came into force on 2 December 2002 and applies to offences committed after that date and is in the following terms:

(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.


(3) The court may make an order under this section whether or not an application has been made for such an 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.

(5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.


(6) An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged.


(7) In the case of an order under this section made by a magistrates' court, the reference in subsection (6) to the court by which the order was made includes a reference to any magistrates' court acting for the same petty sessions area as that court.


(8) No application may be made under subsection (6) for the discharge of an order before the end of the period of two years beginning with the day on which the order takes effect.


(9) Subsections (7), (10) and (11) of section 1 apply for the purposes of the making and effect of orders made by virtue of this section as they apply for the purposes of the making and effect of anti-social behaviour orders.


(10) In this section-
'the commencement date' has the same meaning as in section 1 above;
'the court' in relation to an offender means- 
(a) the court by or before which he is convicted of the relevant offence; or
(b) if he is committed to the Crown Court to be dealt with for that offence, the Crown Court; and
'relevant offence' means an offence committed after the coming into force of section 64 of the Police Reform Act 2002."

The facts of this case.

5. The Claimant was born on 27 August 1989.

6. On 1 June 2004, he appeared before Acton Youth Court and pleaded guilty to taking a vehicle without consent, driving without insurance, driving without a licence and not wearing protective headgear. By way of penalty for taking without consent, he was made subject to a curfew order. No separate penalty was imposed for the other driving offences though his licence was endorsed with the appropriate penalty points.

7. The justices were then invited by the prosecution to consider making an ASBO under s1C of the Act based upon a statement submitted by the police officer, PC McNair who was the Anti-Social Behaviour Co-ordinator for the area. That statement had been given to the solicitor representing the Claimant that morning. PC McNair also provided a draft of a series of proposed terms of the order.

8. The statement runs to 4½ single spaced pages setting out 32 separate incidents. Many are based upon hearsay, often taking the form of reports of behaviour from local residents who were unwilling to give evidence. In several cases, the hearsay was from other police officers but in five PC McNair could give direct evidence of what had occurred.. Two of the incidents had led to convictions. The last had resulted in a sentence for offences of harassment from the Isleworth Crown Court on 30 April 2004. W had there been made the subject of a Supervision Order for 12 months, a two month curfew and tagging order and a five year restraining order to prevent him further harassing his victim.

9. Taken as a whole, the statement undoubtedly provided ample material from which, if the justices accepted it, they might consider that an ASBO was necessary.

10. Mr Baird, solicitor for W, sought a short adjournment to take instructions. He was given 12 minutes. During that time, he ascertained from W that he denied the allegations against him.

11. Mr Baird did not ask for a further adjournment. He argued before the Court that

i) PC McNair's statement should not be admitted;

ii) The proposed order was unnecessary and excessive bearing in mind the restrictions contained in the sentence passed at the Crown Court in April.

12. The justices retired and, on their return, without (it would seem) giving reasons, made an order under s1C in the terms asked for. Those were as follows:

"The court orders that the Defendant is prohibited from:

1. Not to assault, abuse, threaten, harass or act in such a manner as to cause alarm or distress to any person in England or Wales.

2. Not to damage or threaten, or attempt to damage, or take any property belonging to anyone in England or Wales.

3. Not to sit in any vehicle without the owners consent, in England or Wales.

4. Not to be a passenger in or on any vehicle, whilst any other persons is [sic] committing a criminal offence in England or Wales.

5. Not to associate with any person or persons whilst such a person or persons is [sic] engaged in attempting or conspiring, to commit any criminal offence in England or Wales.

6. Not to associate with the following named persons: [the name and address of a juvenile is here given].

7. Not to enter the following areas: Watery Lane, Edward Road, Bancroft Court, Lime Trees Park open space, Grange Court and it environs, Northolt UB5".

13. The Claimant gave notice of appeal. That appeal has been adjourned at the Crown Court to await the decision of this court.

The issues.

14. Counsel for the Claimant advances a series of arguments which arise, he contends, from the application of the law as I have outlined it to these facts. He argues that

i) These proceedings are criminal not civil.

ii) Hearsay evidence was therefore inadmissible.

iii) The proceedings before the Magistrates were procedurally flawed. In particular

a) The justices should have adjourned to give the Claimant time to give full instructions to his solicitor.

b) The terms of the order were too wide.

c) The terms of the order were not sufficiently clear.

d) The justices did not give proper reasons for their decision.

Were the proceedings civil or criminal?

15. The argument advanced by the Claimant that the evidence of PC McNair should not have been received by the justices requires a decision on this issue. In that respect, this case is different from C v Sunderland Youth Court [2003] EWHC 2385 (Admin) where Sullivan J, in giving judgment, recognised the importance and general interest of the issue but found that it was unnecessary to decide it for the purposes of determining the application in that case.

16. The compass of this argument can be considerably narrowed. As I have indicated already, this issue was considered by the House of Lords in McCann in relation ASBOs made under section 1 of the Act. Section 1C did not at that time exist. Mr McDonald on behalf of the Claimant must, and does, argue that the power under section 1C which can be exercised only when there has been a conviction for a relevant offence is so different in kind from an order under section 1 that this court is not bound by McCann and the proceedings should be regarded as criminal. He relies, in particular upon the role played by the prosecution in an order under section 1C and the fact that it must follow what is beyond question a criminal proceeding, namely a conviction for a criminal offence.

17. In my judgment, this argument cannot be sustained. Both the general and the particular reasoning of their Lordships applies to this sort of order as well. Lord Steyn, in a passage of his speech headed 'The legislative technique', said this

17 The aim of the criminal law is not punishment for its own sake but to permit everyone to go about their daily lives without fear of harm to person or property. Unfortunately, by intimidating people the culprits, usually small in number, sometimes effectively silenced communities. Fear of the consequences of complaining to the police dominated the thoughts of people: reporting incidents to the police entailed a serious risk of reprisals. The criminal law by itself offered inadequate protection to them…….

18 There is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties, when it enacted section 1 of the Crime and Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour order would be civil and would not attract the rigour of the inflexible and sometimes absurdly technical hearsay rule which applies in criminal cases. If this supposition was wrong, in the sense that Parliament did not objectively achieve its aim, it would inevitably follow that the procedure for obtaining anti-social behaviour orders is completely or virtually unworkable and useless. If that is what the law decrees, so be it. My starting point is, however, an initial scepticism of an outcome which would deprive communities of their fundamental rights: see Brown v Stott [2003] 1 AC 681, per Lord Bingham of Cornhill, at p 704e-f; per Lord Hope of Craighead, at pp 718g, 719b-c; my judgment, at p 707g-h.

18. He then went on to examine domestic and Convention law and concluded that the Act properly achieved Parliament's intention. Those general comments apply to an order under section 1C as much as they do to an order under section 1. The rest of the House reached the same conclusion.

19. In the remainder of paragraph 17 of his speech, which I have omitted from the citation above, Lord Steyn considered other similar types of orders:

"There was a model available for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and making a breach of the injunction punishable by penalties. It may be that the Company Directors Disqualification Act 1986 was the precedent for subsequent use of the technique. The civil remedy of disqualification enabled the court to prohibit a person from acting as a director: section 1(1) of the 1986 Act: R v Secretary of State for Trade and Industry, Ex p McCormick [1998] BCC 379, 395c-f; Official Receiver v Stern[2000] 1 WLR 2230. Breach of the order made available criminal penalties: sections 13 and 14 of the 1986 Act. In 1994 Parliament created the power to prohibit trespassory assemblies which could result in serious disruption affecting communities, movements, and so forth: see section 70 of the Criminal Justice and Public Order Act 1994 which amended Part II of the Public Order Act 1986 by inserting section 14A. Section 14B which was introduced by the 1994 Act, created criminal offences in respect of breaches. In the field of family law, statute created the power to make residence orders, requiring a defendant to leave a dwelling house; or non molestation orders, requiring a defendant to abstain from threatening an associated person: sections 33(3)(4) and 42 of the Family Law Act 1996. The penalty for breach is punishment for contempt of court. The Housing Act 1996 created the power to grant injunctions against anti-social behaviour: section 152; section 153 (breach). This was, however, a power severely restricted in respect of locality. A broadly similar technique was adopted in the Protection from Harassment Act 1997: section 3; section 3(6) (breach). Post-dating the Crime and Disorder Act 1998, which is the subject matter of the present appeals, Parliament adopted a similar model in sections 14A and 14J (breach) of the Football Spectators Act 1989, inserted by section 1(1) of and Schedule 1 to the Football (Disorder) Act 2000: Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 459. In all these cases the requirements for the granting of the statutory injunction depend on the criteria specified in the particular statute. The unifying element is, however, the use of the civil remedy of an injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of criminal penalties in the event of disobedience."

20. In that passage, Lord Steyn did not distinguish between those orders that can only be imposed following a conviction and those that are not triggered by a conviction. The Football Spectators Act 1989 (as amended) to some extent mirrors section 1 and section 1C of the Act in that it provides for a banning order to be made either on conviction for a relevant offence (section 14A) or on complaint (section 14B). In Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 459, expressly approved by Lord Steyn, Laws LJ held that banning orders under both s14A and s14B did not involve penalties and therefore were civil in character.

21. Lord Steyn also cited with approval B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340. That was a decision in relation to section 2 of the Act (repealed by the Sexual Offences Act 2003). That section was different from section 1C to the extent that it was not necessarily triggered by a conviction but it did require the person against whom the order was sought to be a convicted sex offender. Therefore a similar question arose as to whether proceedings under the section were civil. Lord Bingham of Cornhill CJ held, at p 352, para 25:

"The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be."

22. In my judgment, for the reasons set out above, proceedings under section 1C are civil proceedings.

Was hearsay evidence admissible?

23. This question is, of course, answered in large measure by my conclusion in respect of the first issue. As Lord Steyn made clear in McCann at paragraphs 35:

"if the proceedings in question are civil under domestic law and Article 6 [of the European Convention on Human Rights], it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 allow the introduction of [hearsay evidence] under the first part of section 1. The weight of such evidence might be limited. On the one hand, in its cumulative effect it could be cogent. It all depends upon the particular facts."

24. Those last words are, in my judgment, important. Even though the evidence may be admissible, the justices must still consider its weight. They must distinguish between hearsay which, on examination, they find to be cogent and what is more properly to be regarded as unreliable tittle tattle.

25. The justices in this case could weigh up the material in PC McNair's statement against the background of facts which were admitted or proved by other evidence and after it had been tested by any cross-examination and set against any evidence called by the Claimant.

Were the proceedings procedurally flawed?

26. This is an application for judicial review. It is therefore not enough for the Claimant to demonstrate that there were some errors in procedure or that the terms of the order can be criticised. He has his remedy for such things by way of appeal to the Crown Court. To succeed in having the order quashed by judicial review, he must demonstrate that the process before the Magistrates was so flawed that the making of the order amounted to an excess of jurisdiction.

27. Before looking in detail at the particular criticisms made of the way in which the case proceeded before the justices, I wish to make a number of general observations about the making of ASBO's .

28. The Anti-Social Behaviour Order is a powerful weapon and meets a real need which is not met or not fully met by other orders at the Courts' disposal. The social problem was described by Lord Steyn in McCann in the following terms at paragraph 16:

Before the issues can be directly addressed it is necessary to sketch the social problem which led to the enactment of section 1(1) and the technique which underlies the first part of section 1. It is well known that in some urban areas, notably urban housing estates and deprived inner city areas, young persons, and groups of young persons, cause fear, distress and misery to law-abiding and innocent people by outrageous anti-social behaviour. It takes many forms. It includes behaviour which is criminal such as assaults and threats, particularly against old people and children, criminal damage to individual property and amenities of the community, burglary, theft, and so forth. Sometimes the conduct falls short of cognisable criminal offences. The culprits are mostly, but not exclusively, male. Usually they are relatively young, ranging particularly from about 10 to 18 years of age. Often people in the neighbourhood are in fear of such young culprits. In many cases, and probably in most, people will only report matters to the police anonymously or on the strict understanding that they will not directly or indirectly be identified. In recent years this phenomenon became a serious social problem. There appeared to be a gap in the law. The criminal law offered insufficient protection to communities. Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law failed them. This was the social problem which section 1 was designed to address.

29. The ASBO is a powerful weapon in part because of the gravity of the consequences for the person who is made subject to the Order. The prohibitions which it may contain can be very wide. Many prohibit what would, in any event, be criminal behaviour but not all. For example, there may be a curfew, exclusion from a specified area or a prohibition on associating with named individuals. Thus, for someone who obeys the order, there may be a significant restriction on his liberty. For someone who breaches the order, the consequences can be severe: for an adult, imprisonment up to six months in the Magistrates' Court and five years in the Crown Court.

30. The actual and potential consequences for the subject of an ASBO make it, in my judgment, particularly important that procedural fairness is scrupulously observed.

31. I turn now to the particular complaints made in this case.

Failure to adjourn.

32. The solicitor for the Claimant and, notionally at least, the Claimant himself arrived at court knowing that the justices had power to make an ASBO whether it was asked for or not. However, they had had no notice of the nature or extent of the allegations which were, for the first time, raised at the hearing.

33. It hardly needs to be said that anyone faced with allegations which can lead to an order of the sort made in this case must have sufficient time to consider and, if necessary, challenge those allegations. What is sufficient time will vary from case to case. There will be cases where no unfairness would arise if the possibility of the making of an order is raised for the first time and dealt with as part of one hearing. For example, if the matters relied on are previous convictions or appear in the witness statements in the instant case as part of the history but do not form the basis of charges.

34. However, there will be cases, and this is one such, where the allegations are far wider than the facts of the instant or previous convictions. In such cases, the Defendant must be given adequate time to prepare himself to meet those allegations. If notice of the allegations is given well before the day of the hearing, that would ordinarily provide adequate time. In other cases, a short adjournment may be enough. Sometimes, if the statement is only served on the day of the hearing, an adjournment to another day will be necessary.

35. In the present case, had the Claimant been unrepresented or had an adjournment been sought but refused by the justices, I would have concluded that there was such serious unfairness that the order should be quashed and the case sent back for a rehearing. However, the Claimant was represented and his solicitor did not seek an adjournment. In these circumstances, it would not, in my judgment, be right to impose an obligation on the justices to adjourn of their own motion. They are entitled to expect that if an adjournment is needed it will be applied for.

Were the terms of the order too wide?

36. First a general comment. An order under section 1C can be made only if it appears to the court

(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.

The first question, namely whether the Defendant has acted in an anti-social manner, attracts the criminal standard of proof. The second question namely whether an order is necessary is not a matter of standard of proof. It involves an exercise of judgment. If both questions are answered affirmatively, the court may make an order which prohibits the offender from doing anything described in the order.

37. Each condition imposed must be considered against this question: "Does it appear to the court that this condition in these terms, taken together with the other conditions to be imposed, is necessary to protect persons in any place in England and Wales from further anti-social acts by the Defendant?" I have included the words 'in these terms' to underline that it may be necessary to consider not simply whether a particular kind of prohibition is necessary but how broad it needs to be.

38. In this case, the objection raised in the Magistrates Court was to the making of any order rather than the individual terms of the order. Subject to my comments in paragraphs 39 and 40 below, it will be for the Crown Court to decide on appeal whether they should stand.

Were the terms of the order sufficiently clear?

39. Important guidance in respect of the terms of any order was provided by the Court of Appeal (Criminal Division) in the case of Shane Tony P [2004] EWCA Crim 287. Giving the judgment of the Court, which was presided over by Lord Woolf CJ, Henriques J said:

"34.       In our judgment the following principles clearly emerge:
            (1) The test for making an order is one of necessity to protect the public from further anti–social acts by the offender.
            (2) The terms of the order must be precise and capable of being understood by offender.
            (3) The findings of fact giving rise to the making of the order must be recorded.
            (4) The order must be explained to the offender.
            (5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced. "

40. In the present case, it is accepted that in several respects the wording of the order needs amendment. Paragraph 4 could lead to absurd results. In theory, the Claimant would be in breach if he travelled in a bus the driver of which, unknown to him, was driving without a PSV licence. A similar result could occur under paragraph 5 if he was associating with someone who, unknown to him, was conspiring to commit a crime. In paragraph 7, the word 'environs' is not one which the Claimant is likely to be able to understand.

41. Drafting points such as these are important but do not justify judicial review of the order. The remedy is an appeal to the Crown Court.

Did the justices give proper reasons?

42. The requirement to give written reasons contained in the Magistrates Anti-Social Behaviour Orders) Rules 2002 section 4(4) has been removed by the Magistrates Courts (Miscellaneous Amendment)Rules 2003

43. Although the requirement to give written reasons may have been abolished, it is still necessary for the justices to give reasons in some form. They may be given orally at the time of making the order. They should be sufficient to enable the person who is the subject of the order to understand why it has been made and to indicate to all that the justices have applied their minds to the correct issues. Here it would seem that nothing was said by the justices other than such words as were necessary to make the order. The supplementary reasons supplied by their clerk do not add much.

44. It would have been much better had they briefly dealt with the matters set out in paragraphs 39 and 43 above. However, the material before us does not support counsel's argument that the justices applied the wrong standard of proof.

45. Taken together, the criticisms of the procedure in the Magistrates Court and the terms of the order made do not sustain Mr. MacDonald's argument that the hearing was so procedurally flawed that we ought to quash the order.

Conclusion.

46. For the reasons set out above, I would not grant the relief sought. The Claimant still has his appeal to the Crown Court where he will be able to argue whether the order should be made at all and, if so, what its terms should be.

Lord Justice Sedley: I agree.