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
		29 January 2007

1. MRS JUSTICE DOBBS: This is an appeal by way of case stated in relation to the making of an anti-social behaviour order against this appellant on 20 February 2006.
2. The history of this matter, is that on 6 September 2005, an application was made for an ASBO to be made against this appellant. On 27 September an interim ASBO was made, both on this appellant and his partner, Kirsty Smith. The full application was heard in respect of both of them on 9 February 2006, with the order being made on 20 February 2006. The application contained a catalogue of prohibitions preventing, inter alia:- the appellants being in each other's company; any contact between the two, save through a representative of social services of Hammersmith and Fulham; having contact with members of each other's families; using abusive, offensive, threatening or intimidating language or behaviour; threatening violence towards each other or other residents of the streets in which they resided; unlawfully damaging property; throwing stones, eggs or other objects at each other, other persons or property; and in the case of Kirsty Smith, prohibitions on entering the London Borough of Hammersmith and Fulham, save to attend court or to see solicitors by private appointment; and banging on the windows of private properties.
3. The deputy district judge having heard from three witnesses called by the respondent, and having also considered a bundle of documents which included witness statements from the appellant and his partner, made a number of detailed findings of fact which in essence boil down to the following:- the appellants had been involved in a volatile and abusive relationship with each other, which had been going on for some time. The appellant is the father of the then unborn child and one of the two other children of Kirsty Smith. The children did not live with them. In the 12 months prior to the application, this relationship had given rise to a large number of incidents of violence and abuse towards each other. Frequent arguments took place between the two of them, involving shouting and abusive language. There had been 39 calls to the police in that period, mainly from Kirsty Smith about violence used on her by this appellant, but also complaints by the appellant about Kirsty Smith. Most of the calls were from the couple themselves, although there had been some reports by members of staff at a Family Centre where supervised contact with the children took place.
4. Whilst initially the complaints made by Kirsty Smith were treated as if they were the truth, there were doubts expressed by the police about her, as well as doubts about the veracity of the appellant. Most of the arguments were in private, but also spilt out into the public domain and would carry on in the street. The behaviour caused distress to neighbours and members of the public, especially when the arguments were at night, when neighbours were prevented from sleeping for fear of something serious possibly happening to Kirsty Smith. At times children of the neighbours had been too tired to attend school because of the disturbance caused by the night-time arguments between them.
5. The deputy district judge found that their behaviour was such as to cause harassment, alarm and distress to neighbours, who had to endure their loud and persistent arguing and the debris from their many disputes. She found also that at least one such incident took place at a Family Centre where the appellant and his partner were having supervised access with their daughter. She found it inevitable that members of the public who would have been present during some of the many disputes which took place in public areas would have been caused harassment, alarm or distress. She found there was no evidence of propensity to damage property, nor evidence that the appellant had caused any difficulties with members of Kirsty Smith's family. Whilst she found that there was evidence that Kirsty Smith had thrown eggs and stones at the appellant's property, there was nothing to suggest that she had thrown anything at anyone else's property. She also found that there was no evidence that Kirsty Smith had banged on the windows of the appellant.
6. The submissions of law made at the hearing were, on behalf of the appellant, that the respondent (that was the applicant in the case) was unable to discharge the burden of proof required under section 1 of the Crime and Disorder Act, and reference to the word "household" in section 1 precluded the making of ASBOs in domestic circumstances. Allegations concerning the appellant and his partner alone should be discounted by the courts as they did not impact upon the wider community. The making of the order was not necessary to protect others from anti-social acts by the appellant. The making of the orders would interfere with the appellant's Article 8 rights and would not be proportionate. The proposed prohibitions were too widely drawn and the behaviour to be prohibited must be unlawful.
7. The order required that the one reported the other, which would be wrong in principle and would be unenforceable as it would require the parties to report each other. The order stood or fell as a whole, and unless the respondent showed that all the prohibitions should be made out, then none of them should be. The purpose of an ASBO is preventative and not punitive, and its purpose must be to prevent anti-social behaviour developing into criminal behaviour. The impositions of prohibitions which prevented the appellant and his partner from doing anything which would amount to a criminal offence, where it would lead to an increase in the penalty for committing that offence, was wrong in principle. The purpose of making the order should address prevention of criminal acts and/or anti-social behaviour, as once the criminal offences/anti-social behaviour has taken place it was too late, therefore the making of an order which prohibited behaviour which was already a criminal offence was wrong in principle.
8. On behalf of the respondents, it was submitted that, on the undisputed evidence relied on by them, the appellant had on numerous occasions acted in an anti-social manner and thus the test in section 1 was satisfied to the criminal standard. The orders were necessary to prevent relevant persons from further anti-social acts committed by the appellant and Kirsty Smith. Their rights under Article 8 had to be balanced against those of the public, in particular neighbours. Parliament had not expressly excluded the application of ASBOs to domestic situations. It would have done so had it so intended. The interim orders have proved successful in preventing further anti-social behaviour. Each of the prohibitions had to be considered individually. The order did not stand or fall alone. The purpose of the order was preventative and not punitive, but the effect of the behaviour (which falls just short of a criminal offence) on the public must be considered. There is also no ban on a prohibition, which also constitutes a criminal offence.
9. Having heard submissions and the relevant authorities, the deputy district judge was satisfied that the criteria in section 1 of the Act had been met, and that it was necessary to make ASBOs for the prevention of further harassment, alarm or distress to the neighbours and other members of the public in light of the fact that the couple wanted to be together. In her view, there was an overwhelming likelihood that, if the relationship continued, they would continue to behave in a similar manner in which they did before the interim ASBO was made, and thus a demonstrable need to protect others from this behaviour and its consequences.
10. The deputy district judge then went through all the proposed prohibitions, explaining why she had either rejected or accepted them. The orders were made in the following terms. In relation to the appellant, prohibiting him from using abusive, insulting, threatening or intimidating language or behaviour towards Kirsty Smith, and secondly using or threatening violence against her.
11. In similar terms, prohibitions were made in relation to Kirsty Smith concerning her behaviour towards the appellant, and there was a third prohibition, namely throwing stones, eggs or any other objects at the appellant or his property or any property where he resides. The orders were to run until February 2008, being the minimum period that can be made under this regime.
12. The questions for the High Court are:

(1) Was the district judge entitled to make orders in respect of the appellant on the particular facts of this case?

(2) Are the terms sufficiently clear and capable of being understood?

(3) Is an order preventing someone from using abusive, insulting, threatening or intimidating language or behaviour simply a way of preventing what is already criminal behaviour or can it be said that such an order is desired to prevent anti-social behaviour?

13. I turn to deal with the submissions of the parties in this appeal. The essence of the appellant's appeal is that the terms of the ASBO are punitive and not preventative, and thus not within the meaning of the Crime and Disorder Act 1998. Further, or in the alternative, the terms of the ASBO are disproportionate, unenforceable and contrary to the purpose of the Crime and Disorder Act 1998, and thus the ASBO should be quashed.
14. The submissions are developed in the appellant's skeleton argument and further before me today. One of the questions raised by the appellant is whether the relevant body has the right to seek an ASBO when a volatile private relationship causes or is likely to cause harassment, alarm or distress to third parties, who are also relevant persons within the meaning of the Act, as the behaviour in this case was not aimed at others but at themselves. It is submitted that, although there may be evidence to properly support the test which has to be satisfied before the regime can be invoked, it is argued that the terms of the order have to be aimed at preventing the anti-social acts complained of from recurring, namely acts affecting third parties and that they have to be enforceable. It is submitted that, in the context of the facts of this case and in the light of the second limb of the statutory test, the ASBO is unenforceable.
15. The second limb is really the thrust of the appeal. The reasons for this are as follows. The two terms prohibit the appellant from acts which mirror public order offences under sections 4 and 5 of the Public Order Act 1986, although the sections exclude behaviour which takes place in a dwelling. The second prohibition, it is submitted, is a prohibition effectively on committing the offence of common assault or battery. Section 5 is punishable by a fine only, and section 4 and common assault are punishable with six months' imprisonment. Relying on the case of Kirby [2005] EWCA 1228 (Crim) and others cases which have since followed that case, the appellant submits that the imposition of an ASBO, which in fact mirrors a criminal offence, is inappropriate, in particular where it is a device to circumvent statutory maximum terms. It is submitted that the behaviour complained of in this case is covered by the criminal law. To truly prevent the anti-social behaviour, the deputy district judge would have had to prevent the two of them from associating, which was recognised by her as breaching Article 8.
16. In the alternative, it is submitted that even if the prohibition is considered to be necessary for the protection of relevant people from further anti-social acts, the court must also consider whether it is proportionate, in particular where a fundamental human right is engaged.
17. On the facts of this case, it is submitted that the terms are disproportionately wide for two reasons. Firstly, the anti-social behaviour complained of would seem to have occurred in a relatively small and delineable area, and at the very most within the London borough of Hammersmith and Fulham, and thus they have no geographical limit. Relying on the case of Boness [2005] EWCA Crim 2395, it is submitted that there is no good reason for not having a limit on the facts of this instant case.
18. Secondly, the deputy district judge found the first limb satisfied on the basis of harassment, alarm or distress caused to third parties as a result of the public nature of the arguments and fighting between the appellants. The terms as currently drafted include a prohibition on behaviour which would cause harassment, alarm or distress only to each other. In order to protect others, the prohibition need only be in a public area. Finally, it is submitted that, in order to be effective, the terms have to be enforceable; that those who will enforce the order have to identify and prove breach. In this case it is clear that most of the incidents have been reported by Kirsty Smith and that both parties are in the habit of complaining about each other and not necessarily being truthful. It is open to both of them to complain alleging breach, and given the views taken in the past of their veracity, it will be impossible to identify or prove the breach.
19. On behalf of the respondent, the following submissions are made. On the basis of the facts found by the deputy district judge, she was entitled to find that the appellant had fulfilled the test, namely that he had acted in an anti-social manner which caused harassment, alarm or distress to neighbours and other members of the public, and that the order was necessary to protect those people from further anti-social acts by him. The court, when considering necessity, must consider it at two stages: (a) whether an order is necessary in principle to protect relevant persons from further anti-social behaviour by him; and (b) whether the individual terms of the order are necessary. It is submitted that the two prohibitions in the terms set out were necessary and proportionate given the significant effect of this behaviour on the appellant's neighbours and those at the Family Centre; given the longstanding nature of the behaviour, such behaviour continuing despite police intervention; and given the proven effectiveness of the interim ASBO imposed in September 2005. It was submitted that there was no question but that the terms are clear.
20. In respect of the submission that the prohibitions amount to criminal offences and thus the order is not necessary, the respondent submits that the authorities do not place an absolute bar on such a prohibition: see Hills v Chief Constable of Essex [2006] EWHC 2633 Admin at paragraph 13.
21. Further, it is argued that Lord Steyn in the case of McCann [2002] UKHL 39 clearly envisaged that the prohibitions could encompass criminal offences because the impetus behind the legislation was to offer protection where the criminal law alone offered inadequate protection, and this approach has been followed in a line of cases. Distinguishing the line of cases relied on by the appellant, namely Kirby and those which followed, on the facts of this case, it is submitted that there are no preparatory steps to the appellant's behaviour which can be addressed by prohibitions as such, and so the only effective way to properly address the anti-social behaviour complained of and to offer protection which is lacking in the criminal law is to include terms which are broadly similar to a criminal offence. In any event, it is submitted, that although the terms are largely similar to criminal offences, they do not in fact mirror the offences under the Public Order Act 1986 and the Criminal Justice Act 1988, but act to supplement the law, being necessary in the circumstances of this case.
22. Dealing with the first prohibition against the appellant, this prohibits behaviour which falls short of an offence under section 4 because proof of intent is not necessary. The absence of this element is intended to protect third parties, irrespective of the effect on the other person, namely Kirsty Smith, and removes any need for Smith to support or be involved in any prosecution. The same principles apply to section 5, and indeed to any offence of assault. It means, in effect, that in order to successfully prosecute, the police would need the co-operation of Kirsty Smith. Her credibility is in issue, and as has been seen, more often than not, she does not wish to pursue allegations.
23. The effect of the prohibition is that a member of the public who is affected and is distressed or alarmed would be able to urge the police to do something about it -- a vehicle enabling something to be done about the behaviour which falls short of a criminal offence thus is outwith the principles in Boness. Indeed, dealing in particular with the section 5 offence, that only carries a fine, and it is arguable that this is not a sufficient deterrent when one considers the necessary balancing act and the necessity for such a prohibition.
24. Further, the prohibition covers behaviour both inside a dwelling and in public, which is not covered by section 4. It is also submitted that there is no evidence that the underlying objective of the orders imposed was to give the courts higher sentencing powers. It is contended that the terms of the prohibition are necessary and proportionate, as it is clear that the behaviour travels with the couple and follows them around, and therefore it would be inappropriate to impose a geographical limit. The result would be to displace the problem as Kirsty Smith is now living in Kent.
25. It is also necessary, on the evidence in front of the deputy district judge, that the prohibition be directed to what happens inside the home as well as in public, given the effect that their behaviour has had on the neighbours.
26. Dealing with the submission in relation to enforceability, it is submitted that the credibility of the witnesses should not be confused with enforceability. If the terms are clear and the breach is capable of being proved by a third party for whose protection the order has been made, then the order must be enforceable.
27. It is submitted by the respondent that all questions should be answered in the affirmative. However, before me today Ms Watson, on behalf of the respondent, when pressed by the court, has conceded that there may be some problems in relation to clarity and specificity of the terms when dealing with the question of breach and enforceability. I will deal with that further on in my ruling.
28. I now turn to the law. Section 1 of the Crime and Disorder Act 1998 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 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 persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him..."

In this case, the relevant authority is the Commissioner of Police for the Metropolis. Relevant persons for the purpose of this case are persons within the particular police area of the applying police force.

29. The purpose of the provisions, as explained by Lord Steyn in the case of McCann at paragraph 16, was to address the increasing social problems of anti-social behaviour caused by individuals against whom the criminal law offers insufficient protection to communities. The same case addresses the standard of proof, which for the first limb of the test is the criminal standard, albeit that these are civil proceedings. The question of whether the order is necessary should the first limb be satisfied does not involve a standard of proof, but an exercise of judgment or evaluation. Section 1(4) gives the court the discretion whether to make such an order when the conditions have been found to be proved. The meaning of "likely" in the context of the first test has been laid down in the case of Chief Constable of Lancashire v Potter [2003] EWHC 2272 Admin, in which Auld LJ found that "likely" equated to "more probable than not", and that the court had to be sure that the defendant's conduct caused the likelihood.
30. Applying the law to the findings of fact made by the deputy district judge, there is no doubt that the behaviour of the appellant and his partner was such as to cause at the very least distress, if not alarm in some cases, to neighbours and members of the public. The impact of the behaviour therefore was felt by third parties not of the same household when the couple argued both in private and in public. The question raised about the appropriateness of the application for an ASBO in this context does not fall for decision, as the deputy district judge was concerned only about the effect of the behaviour on the neighbours and other members of the public, and not as between the appellant and his partner.
31. Was the order necessary? This is an exercise in judgment and evaluation. The judgment of the deputy district judge cannot, in my view, be said to be flawed. Given the longstanding nature and regularity of the behaviour, its effect on a considerable number of people, the fact that the behaviour had continued despite the frequent interventions of the police, and given the proven effectiveness of the interim ASBO imposed, there can be no doubt that it was necessary as a matter of principle.
32. Were the terms of the order necessary in the sense of proportionate and not punitive? It is clear from the authorities that the mere fact that terms may include behaviour which amounts to a criminal offence is no bar to the prohibition being made, although caution must be exercised. One has to look at the facts of each individual case to see what is appropriate.
33. Sections 4 and 5 of the Public Order Act read as follows:

"4. Fear or provocation of violence

(1) A person is guilty of an offence if he-

(a) uses towards another person threatening, abusive or insulting words or behaviour, or

(b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling."

The maximum sentence is six months.

"5 Harassment, alarm or distress

(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

34. Sub-section (2) is a similar sub-section as that under section 4 about no offence is committed if both persons are inside a dwelling, and then sub-section (3) sets out the defences. The maximum sentence is a fine not exceeding level 3 on the standard scale.
35. I find in this case that, although the terms mirror the criminal law to a certain extent, as set out in the submissions of the respondent, they do not fully mirror the law and indeed have added value. Given what they seek to achieve, the overlap is not such that the criminal law would be an adequate substitute. It is clear additionally from the making of the interim ASBO that the order has an efficacy which the criminal law has not yet been able to achieve. I find, therefore, subject to what I say later, that the terms of the ASBO are preventative and not punitive. Nor is there any hint or suggestion in the reasons for the making of the order that this was a device to get around maximum penalties.
36. Were the terms of the order commensurate and proportionate with the risk to be guarded against? It is argued that they are disproportionate due to lack of geographical limit and that the terms ought to apply only to the public arena and not in situations which would cause harassment, alarm or distress only to themselves.
37. Dealing with the first proposition, given that the behaviour takes place where the couple happen to be, whether it be at home, on the streets or in the Family Centre, and it would appear also on buses, and given that it seems that the appellant's partner now lives out of the area, there is good reason for there not to be geographical limits imposed. With respect to the question of the prohibition being limited to behaviour in public, it is quite clear from the evidence before the deputy district judge and the findings that she made that the behaviour of the couple in private, that is, arguments and fights which the couple clearly were not able to keep to acceptable levels in terms of not disturbing the neighbours, had a marked impact on the neighbours, causing at the very least distress and some alarm. The aim of the terms is the protection of those third persons from further distress and alarm, and thus, subject to what I say in a moment, the terms are not disproportionate. Whilst the couple are entitled to a private life, the exercise of those rights has to be balanced against the rights of others.
38. I have however looked at the terms more closely, and do pause to consider whether the terms are clear enough or too wide in this sense: at face value, the ASBO could be breached by the appellant merely, in hushed tones, addressing his partner with some insulting or abusive comments. As I said, this technically could breach the ASBO. But if this did take place, it would be something that would not impact, especially if done in private, on the wider public and the neighbours and this would defeat the purpose of the ASBO.
39. As I have already indicated, Ms Watson has conceded before me today, that the terms as set out, and taken at face value as opposed to how it might be enforced practically, could lead to an unfair situation -- a situation which was not really the essence and purpose of the ASBO. I therefore find that the terms as set out, although clear, are not specific enough and are too wide. This, in my view, could be dealt with by amendment of the ASBO by adding the phrase in relation to each term "within sight or hearing of a person not of the same household as the appellant". It follows, therefore, from my findings and turning to the questions posed, that the first question, "Was I entitled to make orders in respect of the appellant on the particular facts of the case?", the answer is "yes".
40. The second question, "Are the terms of the order sufficiently clear and capable of being understood?", the answer, given the amendment that I have made, is "no", and I amend accordingly as the court has power to do. Thirdly, "Is an order preventing someone from using abusive, insulting, threatening or intimidating language or behaviour simply a way of prohibiting what is already criminal behaviour or can it be said that such an order is designed to prevent anti-social behaviour?", having discussed the matter with counsel, we agree that this third question adds nothing to the first question because in considering the first question all elements had to be and have been considered, including the relationship between the terms of the ASBO and a criminal offence, and therefore there is no need to answer the third question.
41. It follows that the appeal is allowed to the limited extent that I vary the terms of the ASBO imposed.
42. I am going to make no order as to costs. Although the appeal is allowed only in part, it is allowed on quite an important issue in relation to the appeal as a whole, which formed one of the main questions for the decision of the court. The learned associate will draft the varied order this afternoon and then it can be signed, sealed and delivered this afternoon.