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
		29 January 2008

1. MR JUSTICE SULLIVAN: This is an appeal by case stated against a decision by District Judge McColl sitting at Birmingham Magistrates' Court on 23 April 2007, refusing the applicant's application to vary or discharge an Anti-Social Behaviour Order ("ASBO") made on 15 December 2003. On that day, the applicant had been convicted of begging. It was his first conviction for that offence and his first conviction since 1986, when he had been conditionally discharged for possessing drugs. In 1983, he had been convicted of wounding and criminal damage, and received concurrent hospital orders.
2. In addition to conditionally discharging the applicant for 12 months, the magistrates made an ASBO under section 1C of the Crime and Disorder Act 1998, as amended ("the order"). The order, dated 15 December 2003, recites that:

"(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 as himself.

[details of behaviour] Approaching members of the public begging for alms.

and that

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

3. It is ordered that the defendant

Derek SAMUDA

is prohibited from: Entering Gooch St, Horton Sq, Highgate St and Clissold Close, as per the attached map except to go to the Post Office to collect benefits.

2. Not to approach persons unknown to ask for money or alms in England and Wales."

3. In sub-paragraphs 3(d) and (e) of the case stated, the district judge found the following facts which were not in dispute.

"Since 15 December 2003, the Appellant has appeared before and been dealt with by:

(i) Birmingham Magistrates' Court on 3 occasions for begging, on 2 occasions for breach of the anti-social behaviour order, and on 4 occasions for both begging and breach of the anti-social behaviour order;

(ii) Birmingham Magistrates' Court on 3 occasions for theft;

(iii) Birmingham Magistrates' Court on one occasion for breach of a community order;

(iv) Birmingham Crown Court on 4 occasions for breach of the anti-social behaviour order.

(e) In relation to these appearance, the Appellant has received a variety of sentences including fines, community orders and custodial sentences."

4. It is common ground between the applicant and the CPS that those offences took place in Moor Street on one occasion, Stephenson Street on two occasions, and Hurst Street on seven occasions, all within Birmingham City Centre. At the hearing before the district judge on 11 April 2007 it was also common ground between the applicant and the CPS that the order was defective and disproportionate in that, firstly, the first prohibition was imprecise and should simply have prohibited the applicant from begging in certain named streets; secondly, the second prohibition was plainly excessive in terms of the geographical area to which it applied, namely the whole of England and Wales; and thirdly, the order was unlimited in time. The CPS contended that these defects could be remedied by varying the order so as to delete the first prohibition altogether, leaving the second prohibition confined for a period of ten years to a defined area of Birmingham City Centre within which the applicant had been begging in breach of the order.
5. On behalf of the applicant it was contended that the order should be discharged because it was no longer necessary and its continued existence was disproportionate. If the order was to remain in existence, it should be varied so as to prohibit begging in Hurst Street only and be limited to a much shorter period than ten years. A period of two years was suggested. No evidence about the applicant's conduct was given before the district judge beyond the fact of the convictions referred to in paragraph 3(d) of the case stated.
6. It was submitted on behalf of the applicant that there was no evidence that his begging had caused any alarm, harassment or distress, and it was not open to the district judge to find that begging per se had caused or was likely to cause alarm, harassment or distress.
7. On behalf of the CPS, it was submitted that it was unnecessary to adduce such evidence on an application for variation or discharge, and that the applicant's convictions since the order was made demonstrated the need for the order (varied so as to make it proportionate) to be continued in force.
8. Against this background, the district judge concluded in paragraph 7 of the case stated:

"I was of the opinion that:

(a) I was not sitting in an appellate capacity in respect of the original order - rather I was deciding whether it was appropriate to vary or discharge the order.

(b) The burden of proof (in showing that the order should be varied or discharged) rested with the Appellant (as the applicant in the proceedings).

(c) It was not therefore necessary in these proceedings for the Respondent to prove that the Appellant's behaviour (either at the time of the making of the original order or subsequently) did or was likely to cause harassment, alarm or distress.

(d) In deciding whether to vary on discharge the order, I was entitled to consider the Appellant's behaviour since the order was made.

(e) There was considerable evidence to justify the continuation of an order as being necessary and proportionate. The Appellant's unacceptable behaviour since the order was made (as outlined in paragraphs 3(b) and 3(e) above) confirmed the continued necessity for an order to prevent that unacceptable behaviour.

(f) The first prohibition however was imprecise and impractical and, as none of the Appellant's offending behaviour took place in that area, and the Respondent did not object to that prohibition being deleted, it would have been appropriate to delete it accordingly.

(g) The second prohibition was too wide, and it would have been appropriate to vary it, as suggested by the Respondent, to a specified area in which the Appellant's offending behaviour occurred.

(h) The order should be for a finite period, and I agreed that the period suggested by the Respondent (10 years starting from the date of the order) was appropriate, taking into account the Appellant's record of offending since the order was made.

(i) I announced that I refused the application. In doing so, I was intending to refer to my decision to refuse to discharge the order. I however also inadvertently omitted to announce that I agreed to vary the order in accordance with the Respondent's representations.

8. The questions of law on which the opinion of the High Court is sought is:

(a) Was I correct in deciding that the Respondent did not have to prove that the Appellant's behaviour (either at the time of the making of the original order or subsequently) did or was likely to cause harassment, alarm or distress?

(b) Was I correct in not varying the terms of the anti-social behaviour order?"

9. In the light of the district judge's own conclusions in sub-paragraphs (f), (g) and (h) above, it is clear that the answer to question (b) must be "no". If the order is not to be discharged, it must, at the very least, be varied as suggested by the CPS.
10. After the district judge announced his decision, there was correspondence between the parties and the respondent court as to whether the district judge could correct his decision under section 142 of the Magistrates' Courts Act 1980. The district judge concluded, in my view correctly, that section 142 was of no assistance in the circumstances of this case because applications to vary or discharge ASBOS were civil proceedings, and section 142 applied only to criminal proceedings before magistrates. In R(Periasamy Mathialagan v London Borough of Southwark [2004] EWCA Civ 1689, Waller LJ said:

"33. But the position so far as magistrates are concerned is that their powers are statutory, although some limited common law powers have also been recognised. Under the Magistrates Courts Act 1980 the magistrates are given jurisdiction over both criminal and civil cases. The Act is divided into parts covering those different jurisdictions and then there are parts or sections which seem to cover both jurisdictions eg section 97 (Summons to Witness) and Section 111 (Statement of Case by Magistrates Court). The Act only gives an express power to rehear cases when dealing with 'an offender', or 'where a person is convicted'. Section 142(1) and (2) are in the following terms:-

'142. Power of magistrates' court to re-open cases to rectify mistakes etc. (1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make ... (2) Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct.'

34.There seems no doubt that those provisions are concerned with the magistrates' criminal jurisdiction and not their civil jurisdiction. That does, at first sight, seem surprising, but the starting point seems to me to be that Parliament has intentionally not given a general power to magistrates to reopen civil proceedings."

11. It is perhaps unfortunate that the district judge's admitted error could not have been simply corrected by him under section 142, but the limitation contained in the section is clear. Hence the need to appeal by way of case stated. On the district judge's own findings the order as originally drafted cannot stand. Should it be discharged or varied? And if the latter, to what extent?
12. In support of his submission on behalf of the applicant that the order should be discharged, Mr Jonas referred to a number of authorities which establish the proposition that, to justify making an ASBO under section 1C of the 1998 Act, it is not enough to establish some form of criminal activity. The court must go further and be satisfied that the defendant's behaviour caused or was likely to cause harassment, alarm or distress. It is unnecessary to cite those authorities because (a) the principle is by now well-established; and (b) they are all concerned with the making of ASBOs, not with applications to vary or discharge ASBOs once made. If the original ASBO has not been challenged, or not been successfully challenged, either on appeal or by way of judicial review, it must be treated as having been lawfully made unless and until it is quashed by a court of competent jurisdiction. Save perhaps in a very exceptional case where the behaviour described on the face of the order could not possibly on any reasonable basis have caused or been likely to cause harassment, alarm or distress, the court's finding that the behaviour described in the order had caused or been likely to cause harassment, alarm or distress must be the starting point for any application to vary or discharge the order.
13. While I readily accept the submission that begging does not necessarily cause or is not necessarily likely to cause harassment, alarm or distress, certain methods of begging may well do so. Thus this is not one of those exceptional cases where the prohibited conduct described in the order was not reasonably capable of having had such an effect. The court having concluded in 2003 that it had had such an effect, that conclusion not having been challenged and there being no evidence of any change whatsoever in the applicant's modus operandi, the convictions recorded in paragraph 3(d) of the case stated were, on the very limited information available to the district judge, sufficient to justify his conclusion that the applicant had not made out a case for the discharge of the order. Putting the matter at its simplest: there appeared to have been no material change in circumstances since the order was made in December 2003. The conduct then complained of, and which was considered to justify the order at that time, was simply being repeated by the applicant.
14. In these circumstances, I would answer question (a) in paragraph 8 of the case stated in the affirmative on the particular facts of this case.
15. What then of the application for variation, which the district judge intended to grant in the terms suggested by the CPS? There is no dispute that the first prohibition in the order should be deleted. When considering the extent to which the second prohibition should be limited, both geographically and temporally, it must be remembered that this is an appeal by way of case stated; it is not an appeal on the merits from the district judge's conclusions. For my part, however, I am satisfied that the period of ten years suggested by the CPS was plainly disproportionate, bearing in mind the nature of the behaviour described in the order. On any basis, and assuming as I must that the behaviour described in the order of 2003 did cause or was likely to cause harassment, alarm or distress, it could not be described as a particularly serious case of anti-social behaviour warranting the continuation of protection for the public for a period of many years. A proportionate order in 2003 would have lasted for perhaps four and up to a maximum of five years, and certainly not for as long as ten years.
16. Given the relatively limited number of streets affected by the applicant's activities and their proximity to one another within the city centre, the geographical area suggested by the CPS is, on the face of it, disproportionately extensive and appears to have been dictated rather more by cartographical convenience than by any detailed assessment of whether there really was a need to protect the public from the applicant's activities over the whole of the city centre bounded by the Inner Ring Road.
17. In the light of these considerations, rather than remit the matter to the district judge for reconsideration, I for my part would use the court's powers under section 28A of the Supreme Court Act 1981 to make an order varying the order firstly so as to delete the first prohibition, and secondly so as to limit it in time. My initial view would have been to limit it in time for a period of four years from the date of making the order in December 2003, but having discussed the matter with Mr Jonas and with Mr Riley on behalf of the CPS during the course of their submissions, it seems to me that the pragmatic course would be to vary the order so that it is limited in time such that it expires today. Both Mr Jonas and Mr Riley concurred with the court's suggestion that this would be an appropriate way of disposing of the appeal. In these circumstances, it is unnecessary to consider the extent to which the order should be further limited in geographical area beyond the suggestion made by the CPS. This course will give all those concerned an opportunity to make a fresh start, and the CPS and others will have an opportunity to consider afresh whether an ASBO is an appropriate way of responding to the problems that are posed by the applicant's conduct.
18. For my part, I would vary the order in that manner.
19. LORD JUSTICE MOSES: I agree. Very well, will somebody draw up the order?
20. MR JONAS: I am afraid I think that falls to me as the successful party.
21. LORD JUSTICE MOSES: Yes. So draw up the draft of the order for this court, show it to Mr Riley, and if it is agreed, give it to our associate.
22. MR JONAS: We will do that outside court. The applicant is legally aided. Could I ask for the usual order for costs as a far as that is concerned?
23. LORD JUSTICE MOSES: What is the usual order as to costs?
24. MR JONAS: Applicant's costs to be assessed under the Civil Legal Aid Regulations.
25. LORD JUSTICE MOSES: Yes.
26. MR JONAS: These are civil proceedings and not criminal proceedings, and therefore the question must arise as to whether there should be an inter partes order as the Crown opposed these proceedings and the applicant has been successful. I would ask for an order against the Crown Prosecution Service on the standard basis.
27. MR RILEY: My Lord, I thought we tried to deal with the matter in the first instance, and --
28. LORD JUSTICE MOSES: It is not your fault. On the other hand, should the funds suffer or should the state?
29. MR RILEY: Well, certainly on behalf of the CPS, we would ask that the funds not come from the CPS.
30. LORD JUSTICE MOSES: No, they come out of central funds.
31. MR RILEY: Yes.
32. MR JUSTICE SULLIVAN: Although the CPS did do its best to deal with the matter as economically as possible, you were holding out, as it were, for ten years and the city centre within the Inner Ring Road, and it seems to me that, however the matter was dealt with, even if it had not been dealt with in accordance with the suggestion put by my Lord at the outset, you were not going to succeed in getting an order for as long as ten years. So it might be said that, on any basis, the applicant is entitled, having cut down the order, to their costs, even though you did your best to reduce those costs.
33. LORD JUSTICE MOSES: Can orders be made out of central funds in civil proceedings?
34. MR JONAS: I do not believe they can, I am sorry.
35. LORD JUSTICE MOSES: I do not think they can. Anyway, you say not you.
36. MR RILEY: Yes.
37. MR JUSTICE SULLIVAN: The principal fault is the respondent court, but we would not make an order against them.
38. LORD JUSTICE MOSES: Thank you very much. We will make an order for costs in favour of the applicant against the respondent.
39. MR JONAS: Thank you very much.
40. LORD JUSTICE MOSES: Sorry, the CPS, not the respondent.