QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DAVID CLARKE
| Crown Prosecution Service
|- and -
for the Appellant
Adam Fullwood (instructed by Kaufman and Company) for the Respondent
Hearing date : 22 February 2006
Crown Copyright ©
Lord Justice Richards :
The factual background
"On the complaint of the Council of the City of Manchester, Town Hall, Albert Square, Manchester, M60 2LA
It is adjudged that this Order is necessary to protect persons in the City of Manchester local government area from further anti-social acts by him/her.
T shall not, by himself or by instructing, encouraging or inciting any other person:
1. Act in an anti-social manner in the City of Manchester.
2. Use abusive, insulting, offensive, threatening or intimidating language or behaviour in a public place or in any place to which the or to which the (sic) public has access. Approach, threaten, intimidate, or communicate directly or indirectly with … [there followed a list of names]
3. Enter the area in red on the plan attached, MARKED A
4. Congregate in a group numbering greater than three persons in the area marked red on Map B.
5. Associate in any way in a public place, or a place to which the public has access, with … [there followed a list of names] or any of them in the area marked in red on Map B.
The order shall continue from the date of this order until midnight on 24 October 2005.
NOTE: If without reasonable excuse the Defendant does anything which he is prohibited from doing by this order, he shall be liable on conviction to a term of imprisonment not exceeding five years or to a fine or to both."
"It is all the more unfortunate that it appears to be their counsel who triggered the decision of the Recorder and this application. The time and money that this has taken would have been far better spent, firstly, in considering the merits of the Anti-Social Behaviour Order, and, secondly, in using those funds for the excellent work undertaken by the many people involved in considering the making of Anti-Social Behaviour Orders and the teams that do so much good and hard work prior to the matter ever reaching court".
The proceedings before the District Judge
"8. I heard submissions based on the skeleton arguments and considered the authorities referred to by both parties, specifically the cases of :
(a) R (on the application of W) -v- D.P.P.  EWHC 1333 (Admin).(b) B -v- Chief Constable of Avon and Somerset (2001) l WLR 340.
9. Additionally I considered the case of Regina -v- P (Shane Tony) (2004) EWCA Crim 287 and paid particular attention to paragraphs 19, 20 and 34 of that Judgement (sic).
10. Further, in coming to my decision, I considered the Home Office Publication 'A Guide to Anti-Social Behaviour Orders' (attached hereto) as well as Lord Justice Thomas's 'A Guide on ASBOs for Judges Sitting in the Magistrates', Crown and County Courts' of May 2005, laying particular emphasis on paragraph 2.2.
11. I was of the following opinion:
(a) That clarity was essential in the drafting of prohibition in an anti-social behaviour order.(b) That any prohibition should be precise and target the specific behaviour that had been committed by the defendant.(c) That an anti-social behaviour order can include a general condition prohibiting behaviour which is likely to cause harassment, alarm or distress.(d) That whilst interfering with a motor vehicle on another's property is behaviour which could properly and easily be understood by some to be inherently anti-social, that was not what I had to decide in this case.(e) That I had to direct my mind to the generality of the question i.e. I had to decide if a prohibition not to act in an anti-social manner without any qualifying or defining words, e.g. "that is in a manner likely to cause harassment, alarm or distress to another not of the same household" was too vague, and lacked clarity and as such was invalid and unenforceable.(f) That the prohibition not to act in an anti-social manner not otherwise defined could not easily be understood by a defendant in particular one aged 15 years.(g) There was no evidence before me that the Court when making the anti social behaviour order had explained to the Respondent in this case what behaviour constituted acting in an anti-social manner.(h) I could not distinguish the principles enunciated in the decisions in the cases of R (on the application of W) -v- D.P.P. 2005 EWCA Civ 1333, B -v- Chief Constable of Avon and Somerset (2001) 1 WLR 340 and Regina -v- P (Shane Tony) (2004) EWCA Crim 287 with regard to the questions of clarity and specificity of a prohibition not to act in an anti-social manner with the issues arising in this case.(i) That the prohibition 'not to act in an anti-social manner' was too vague, lacked clarity and was therefore unenforceable and void.(j) In view of the above that by committing the offence of interfering with a motor vehicle the Respondent could not therefore be in breach of a prohibition not to act in an anti-social manner.(k) That the charge of breaching the Respondent's antisocial behaviour order should be dismissed.(l) That an appropriate sentence in this case, and having regard to all the circumstances, for the offences of interfering with a motor vehicle was a Supervision Order for 12 months together with an electronically monitored curfew order for one month each day between the hours of 9 p.m. and 7 a.m."
"Did the learned District Judge err in law in concluding that a prohibition contained within an anti social behaviour order made under S.1 Crime and Disorder Act 1998 'not to act in an anti-social manner in the City of Manchester' was invalid and unenforceable as being too vague, lacking clarity and too widely drawn, and was therefore incapable of being understood, without additional qualifying or defining words specifying what behaviour could amount to anti-social behaviour, e.g. 'that is in a manner which caused or was likely to cause harassment alarm or distress …'?"
The decision in R (W) v DPP
"11. The next question we have to decide is whether it was appropriate or necessary for the Magistrates to take into account a submission that the order was plainly too wide. Both counsel have accepted in their submissions that an order like the anti-social behaviour order in this case is to be treated as a valid order unless and until it is varied, and that it is only if an order is invalid, as opposed to an order which might have been made in some other form, that any question arises as to whether the court considering an allegation of breach of the order can take into account submissions relating to its validity. It is accepted by Mr Gelbart, who appears for the Crown, that the case of Boddington v British Transport Police  2 AC 143 gives authority for the proposition that if an order of this type is plainly invalid, then the Magistrates can consider submissions to that effect in the same way as they can consider submissions that a byelaw was ultra vires without the necessity of prior proceedings or concurrent proceedings in the High Court for the purpose of identifying and declaring the invalidity.
12. I would stress that anything I say in this case must be understood as referring only to an order as plainly invalid as one which contains a restraint preventing a defendant from committing any criminal offence. There is great force, in my judgment, in the submission that we have received from Mr Gelbart to the effect that there will be a danger of opening floodgates if challenges to anti-social behaviour orders could be made in breach proceedings, but in all these cases there are exceptions which are as plain as the exception in this case. I am satisfied that clause 6 of this order was unenforceable.
13. Therefore, in answer to the first question asked by the District Judge, namely:
'Was I correct in law in holding that, although the prohibition in the anti-social behaviour order was in my opinion far too wide and unnecessary for the purposes of protecting others from the appellant's behaviour, it was unambiguous and a valid order unless appealed against or varied?'
I would answer, 'No, it was open to him to hold that it was not a valid order.'"
The jurisdictional issue
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it …. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order that was null and irregular and who might be affected by it was plain. He should come to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham LC in Chuck v Cremer (1846) Cooper temp. Cott. 205, 338)."
"There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction …. There is simply no room for error going to his jurisdiction, nor … is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court …."
"If it had been an injunction, no question could have arisen before him as to whether the injunction was rightly imposed. That could only have arisen if the defendant had either appealed against the injunction if one had been granted or, which is the equivalent in the case of an undertaking, had been asked to be released from his undertaking. It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place."
The terms of the ASBO
"If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed."