England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand. London. WC2A 2LL
		9th July 2007

Lord Justice Latham:

1. This is the judgment of the Court,
2. In September 2004, on the application of the appellant, the magistrates sitting at the Leeds Magistrates' Court imposed a "stand alone", as opposed to a "post-conviction", anti social behaviour order ("Asbo") on the respondent, then aged 13, pursuant to section 1(1) of the Crime and Disorder Act 1998 ("the Act") and set its duration at two years, the minimum length provided for in section 1(7) of the Act. It was due to expire on the 30^th November 2006. On the 24^th October 2006, the appellant sought what was described as a "variation" inviting the magistrates to extend it until the 30^th November 2009. On the 21^st November 2006 the magistrates refused the application, holding that they had no power to extend the length of the Asbo.
3. The appellant appeals that order by way of case stated. The question for the opinion of this court is:

"Did the court have power pursuant to section 1(8) of the Crime and Disorder Act 1998 to vary by extending the duration of an Anti-Social Behaviour Order made pursuant to section 1(1) of the Crime and Disorder Act 1998 (as amended)?"

4. Section 1 of the Act provides:

"(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 ten 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 householder as themselves; and

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

(4) If, on such an application, it is proved that the conditions mentioned in sub-section (1) are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant doing anything described in the order:

….

(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order....."

5. Mr Pema on behalf of the appellant submits that the wording of section 1(8) should be given its ordinary meaning. The "order" in question was an order in particular terms for a period of two years. The period is as much a part of the order as the other terms. The appellant was accordingly entitled to apply for its length to be "varied" pursuant to the sub-section. He relies, by analogy, on the decision of this court in DPP -v-Hall [2005] EWHC 2612 (Admin) where this court considered whether section 5(4) of the Protection from Harassment Act 1997 permitted the extension of an existing order. This provision reads, so far as is relevant:

"The prosecutor, the defendant, or any other person mentioned in the order may apply to the court for it to be varied or discharged by further order."

6. In paragraph 6 of his judgment Scott Baker U said:

"Nowhere does the sub-section say there is no power to extend the order for a s-peciflc term ...."

7. He went on at paragraph 8 to say:

"It seems to me that the duration of the order whether it be for a specified period or without limit of time, is just as much a term of the order as any specific provision, for example restraining the defendant from going within the specified distance of a place. The purpose of the provision was to protect the victim or potential victim from harassment. In my judgment, the subsection should be construed so as to enable the court to do that in the most simple and expeditious way possible."

8. Miss Sikand for the respondent, contends that an application to vary an Asbo by extending its duration is essentially an application for a new Asbo, and that the subsection could not have been intended to permit such an application, which would bypass the requirements of section 1(1) of the Act. Further, the Act makes no provision for any appeal against any variation under sub-section (4). The only remedy for an aggrieved defendant in such circumstances would therefore be for an appeal by way of case stated or judicial review. She further relies upon the provisions of section ID of the Act inserted by the Police Reform Act 2002 making provision for interim orders, which in sub-section 4 enables such an order to be "varied, renewed or discharged" (our emphasis).
9. Miss Sikand submits that this reinforces her argument that the word "varied" in section 1(8) of the Act cannot have been intended to include an extension in its length.
10. We have considered with care the helpful submissions by both counsel who are extremely experienced in this area. Whilst Scott Baker LJ was dealing with a different Act in DPP -v- Hall the word "varied" which appears in that Act appears in precisely the same context as the word "varied" in section 1(8) of the Act with which we are concerned. He, in our view rightly, concluded that the ordinary meaning to be given to the word in that context, which accorded with the general purpose of the Act, entitled the court to extend the period of a relevant order. We can see no justification for departing from that construction in the present case. We should strive to give the word its ordinary meaning save and in so far as we are driven to conclude that it has a special meaning in the context of this Act.
11. In our view, the only possible argument for giving it a restricted meaning is the provision made in relation to interim orders in section 1D(4). But it seems to us that the use of the word "renewed" in relation to such an order is explicable by the fact that interim orders are likely to be expressed to run until the date of a proposed hearing. In normal circumstances the result would be that the order would expire on that date. It is readily understandable, therefore, that Parliament should have felt it necessary to enable a court, without further procedural problems, to provide for the possibility that there may be an adjournment, in which case the order would need to be renewed, as opposed to varied. It should also be noted that the rules for making applications pursuant to section 1D(4) of the Act are headed "Application for Variation or Discharge", and are expressed as applying only to an application "for the variation or discharge of an order made under section 1C or ...D". Whether or not that is simply an omission per incuriam, it nonetheless suggests that the word "renewed" was not intended to have the significance which Miss Sikand attached to it.
12. The fact that there is no appeal from any variation is a matter which has caused us concern. But it seems to us that this is insufficient in itself to justify a departure from the clear meaning of the subsection. The protection for a defendant is, in our view, provided by the fact that an application to vary, if it imposes more stringent obligations (such as greater length) on a defendant can only succeed if the applying authority can put before the magistrates material which justifies the extension as necessary in order to achieve the statutory objective. The usual burden and standard of proof will apply to the determination of that question. Further, in the case of an application to vary length the applying authority will have to persuade the magistrates that it is appropriate to vary the length of the existing Asbo rather than make application for a new one. There would be a clear rationale for example, for asking for an extension of an Asbo for less than two years, on the basis that the authority did not consider that it was necessary to have a further period as long as the minimum period of 2 years which would be necessary were a fresh Asbo to be ordered. Accordingly, although the magistrates were, in our view, wrong to conclude that they had no power to vary the length of the Asbo in question we would expect them to be looking with some care at the justification for applying, by way of variation, for an extension of three years, as opposed to making an application for a fresh Asbo.
13. We would accordingly answer the question posed in the case stated in the affirmative.