England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		27 July 2009

Monday 27 July 2009

LORD JUSTICE THOMAS:

The Legislation

1. Under section 30 of the Anti-Social Behaviour Act 2003, where a police officer with the rank of at least Superintendent has reasonable grounds to believe that members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of two or more persons in public places in a locality within the police area where anti-social behaviour is a significant problem, he may give an authorisation that police officers in uniform may exercise certain additional powers for up to six months.
2. Section 31 of that Act provides that the authorisation must be in writing and signed by the police officer of at least Superintendent rank and must specify the locality. It must be publicised in accordance with the provisions of section 31(3). When such an authorisation is in place, the powers given under section 30 may be exercised by a police officer in uniform if he has reasonable grounds for believing that the presence of two or more persons in such a place may result in the public being intimidated, harassed, alarmed or distressed. If he is of that view, he may give a direction to disperse and not to return to the locality within 24 hours, unless the person's residence is within the locality. The contravention of such a direction is a criminal offence for which the offender can be sentenced to three months' imprisonment or fined.
3. It is clear from this brief description that these legislative provision impose a significant restriction on the liberty of persons where there is perceived to be in certain areas of cities a problem for which this sort of power may be a remedy. However, as it is an interference with the liberty of the subject, and as a novel route has been taken to impose such an interference through sub-delegated powers, it is important that proper procedures should be in place to ensure that the powers that are given to the constable are properly given; and secondly, that in each case there has been a direction and an infringement of the direction.
4. It is evident that Parliament gave very careful consideration to these matters by providing for the authorisation given by the senior police officer to be in writing, by providing that there be proper publicity and by making it clear that the directions could not be used for certain purposes, such as conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, and cannot be made in respect of persons who are taking part in a public procession of the kind mentioned in section 11(1) of the Public Order Act 1986 in respect of which relevant notices have been given.

The making of the authorisation with which we are concerned

5. On 13 July 2008 Superintendent Williams of the Metropolitan Police signed an authorisation in accordance with the terms of the Act in respect of a number of roads within Walthamstow. The order was countersigned, as the legislation requires, by an officer of the local authority. The order was on a form headed "Restricted". It is difficult to understand how that sensibly could have been placed on such an authorisation. The order also contained a paragraph dealing with publicity details, which provided that a notice be placed in a window of the community centre located on the estate. It is difficult to see why the order contains a provision in respect of publicity details, if it had only been intended that the notice be placed in a window of a community centre located on the estate. It is also difficult to see how any court could have concluded that proper publicity would have been given in accordance with the provisions of the Act if the very limited publicity provisions in the authorisation had been followed. This is one illustration of a number of errors that appear to have been made in the practical application of this novel form of legislation.
6. In accordance with the Act, a formal notice was drafted to give the requested publicity. It was drafted in terms that are not readily understandable to those who were likely to be affected by it. However, its terms complied with section 31(3) of the Act. No doubt because the police officers on the ground, the Safer Neighbourhoods and the Council of Waltham Forest all considered that something much more user friendly was required, they produced a document called a "Dispersal Order". It contained a map and it set out much more clearly what was intended in the vernacular. The "Dispersal Order" was posted over the relevant area of Waltham Forest and police officers were given it so that they could hand it out. The "Dispersal Order" is not in a form prescribed by the legislation. I shall return to what should have happened in due course.

The decision in the Magistrates' Court in the case of the appellant

7. The facts are set out in the Case Stated. It is not necessary for me to add to the criticism by Collins J at the directions hearing as to the drafting of the case stated. He concluded that it was just about adequate, and that the person who prepared it should be "admonished". It is for those with Disciplinary Powers over the draftsman that should consider the view of Collins J.
8. With the assistance of counsel before us, we are just about able to discern the following findings of fact. It is, however, important that those who draft cases for this court should be clear as to their purpose and their form.
9. The facts appear to be as follows: (i) On 8 August 2008 the appellant was with a group of other youths loitering around a car of a resident on the estate covered by the authorisation. (ii) The magistrates found that they were spitting, swearing and otherwise behaving in an unacceptable manner. (iii) At about 8.30pm a police patrol asked them to stop loitering and not to return within 24 hours, in accordance with the "Dispersal Order". (iv) The youths, including the appellant, were handed a copy of the "Dispersal Order". (v) It appears that they dispersed. (vi) The police returned ten minutes later. The group was again leaning against the car and behaving in the manner in which they had earlier been behaving. (vii) Police Constable Jenkins handed the appellant another copy of the Dispersal Order, but the appellant refused to take it. He refused to give his name and address and refused to move. (viii) The police officer made enquiries and discovered that he did not live within the area. (ix) He was therefore in contravention of the direction given by the police officer under the Act. He was arrested and charged at 23.01pm. An information was subsequently laid.
10. Shortly thereafter a preliminary hearing took place at the Walthamstow Magistrates' Court, at which the appellant pleaded not guilty. What happened prior to the hearing on 3 October is not clear, as the magistrates have unfortunately not set out any of the relevant details.
11. On 3 October 2008 the information was heard. The Crown Prosecution Service appeared to prosecute and Mr Kharran appeared for the appellant. After hearing the evidence as to the activities in which the appellant was engaged, Mr Kharran took the point that there was no proper evidence of the authorisation under section 30. It appeared that all the police officer had in court with him was the "Dispersal Order". He gave evidence that he had been concerned in its preparation. The Legal Adviser advised the justices that there should be a signed copy of the Dispersal Order; that the legislation imposed a restriction on liberty; and that if they were to find the appellant guilty without seeing the signed order, they had to give reasons.
12. The magistrates held that it was sufficient to rely upon the oral evidence of the officer that the "Dispersal Order" was signed and had been properly publicised. It is unfortunate that no one seems to have understood that the legislation did not make any reference to a "Dispersal Order". It referred to the "authorisation" that conferred the powers on the police officer and the "direction" that could be given under those powers. It is therefore unsurprising that, in view of their lack of advice in relation to the legislation, the magistrates reached the decision they did.

The Decision on this Appeal

13. We have had produced to us a copy of the Crown Prosecution Service Anti-Social Behaviour Guidance, dated May 2008. It makes clear that the validity of the authorisation must be proved at court, both as regards the reasons for making the authorisation and that proper publicity has been given. It is, therefore, not the least surprising that the Director of Public Prosecutions has taken the highly responsible course of instructing counsel who appears before us today not to contest the appeal.
14. It is clear that neither the magistrates nor the legal adviser (upon whom the Magistrates properly relied) understood the legislation. Nor had the prosecutor for the Crown Prosecution Service; the prosecutor had, it appears, not read the Guidance to which we have referred. Had he done so, he would not have been concerned with the proof of the document entitled "Dispersal Order", but would have been concerned to see that there was proper proof of the making of the authorisation. I need not comment on whether that could have been done by further questioning of the police officer. He was plainly not asked the appropriate questions because no one understood the legislation. In the light of the position of the Director, we must therefore allow the appeal and remit the matter with a direction to acquit the appellant.
15. We have been invited by the Director (who has appeared before us represented by Mrs Julia Needham to whom I would wish to pay tribute for the assistance that she has given this court) to give some guidance as to the future conduct of proceedings involving the breach of directions given under authorisations made under the Anti-Social Behaviour Act.

Observations on the conduct of prosecutions under the Act

16. It is clear that the legislation in sections 30 to 32 introduced a novel form of criminalisation. Thought needed to be given as to how it was to be implemented; it is clear that indeed a considerable amount of thought has been given to it. The Metropolitan Police devised the form to which I have referred. The standard form of publicity notice is a testimony to that. It is also clear that the CPS carefully considered the guidance to be given.
17. However, when all of this is looked at now with the benefit of hindsight, it is clear that things went badly wrong: (i) The form that was devised for the making of the authorisation had the defects to which I have referred. It was plainly a public document and it was not necessary to refer to publicity. (ii) Much more attention should have been given to drafting a form of publicity notice that could be used as a single document, to include a map, to show the prohibitions, the area to which it applied, and the other statutory criteria. It is essential that such a document is drafted in language in the vernacular so that those to whom it relates can understand it. It is not difficult to do this in a manner complaint with the legislation. (iii) It is confusing to have two documents. (iv) It is apparent that the police officer in this case was confused. I would emphasise that no possible criticism should attach to him. All he was doing was trying to implement what was complex legislation, poorly implemented. (v) The CPS had diligently produced an Anti-Social Behaviour Guidance. It is clear that considerable thought was given to what had to be proved. The guidance states:

"The Crown must prove all elements of the offence:

*A Dispersal Authorisation was in effect and was valid.

*The publicity provisions had been complied with.

*The Constable was in uniform.

*The Direction was given inside the Relevant Locality.

*The Defendant knew that he was being given a direction under the Dispersal Authorisation.

*The Direction given was lawful.

*The Defendant failed to comply with the direction.

In order to prove that the Officer acted lawfully, the validity of the Authorisation must be proved. It is suggested that the Police Superintendent makes a section 9 Criminal Justice Act 1967 (CJA) statement at the time he signs the Authorisation confirming that he made it, setting out the brief grounds for his decision and exhibiting the Authorisation. A copy of this statement can be used in all subsequent prosecutions.

As an Authorisation requires the consent of the Local Authority, it is suggested that a section 9 CJA statement is obtained from the official at the time of the making of the Authorisation both confirming they have delegated powers and that consent has been given.

A section 9 CJA statement should be obtained from the Police official who deals with publicity as required by section 31(4). Where the Authorisation Notice appears in a newspaper, a copy of the paper should be exhibited to the statement. Where copies of the Authorisation Notice are displayed in a conspicuous place, the official should state when and where they were displayed and exhibit a copy of the plan with the locations marked on it.

Copies of the section 9 CJA statements from the Superintendent, Local Authority Official and Police Official relating to publicity should be served on the defence pursuant to section 9 of the CJA."

Although a great deal of thought was given to the preparation of that guidance, I would respectfully suggest that it does not take into account the reality of what actually happens on the ground. (vi) It seems clear to me that the authorisation and the publicity notices should have been dealt with in the manner suggested. (vii) More importantly, the CPS should have worked out with the police, the courts, and the local defence solicitors, through the local Criminal Justice Board or otherwise, a procedure that took into account the realities of being a policeman, a prosecutor, a defence lawyer and a court officer in any part of the Metropolis. There are severe constraints on resources. Thought should have been given to the devising of a procedure which gave proper protection to the liberty of the subject, but enabled cases for infringement of the directions made under authorisations properly to be prosecuted.

Proof of authorisation and publicity

18. An issue that could arise in each prosecution, unless it is properly dealt with, is proof of the authorisation and publicity. The decision to prosecute in each case, as I understand it, is not subject to CPS charging. That is a sensible decision. Such case can be dealt with quickly, as this appeal demonstrates.
19. However, a process is needed by which at the first hearing the court can ascertain, so that both the prosecution and the defence know where they are, whether the making of the authorisation is admitted; and secondly, what the issue is on the facts in relation to the direction.
20. In most cases where there is a contest, the dispute will relate to whether a direction under the authorisation was given and, if so, whether it was justified in accordance with the facts and whether there was any breach of the direction. However, as regards the making of the authorisation, it will be rare that any challenge would in fact be made, provided that the defence advocate has been able to satisfy himself that there is properly in force an authorisation. There is little use in leaving the determination of that issue beyond the first hearing. It is not sensible that the relevant documents are sent after the hearing because, if a point is to be taken, the reality will mean that it is not actually taken until the hearing. In the meantime, the prosecutor will not have put his tackle in order, for otherwise, if he is to act with great prudence, he will have generated an immense amount of paperwork.
21. , It seems to me that the obvious solution -- which should be looked at carefully by the court, the police, the defence solicitors and the CPS in areas where authorisations are made -- is to have available at the court a set of all the relevant documents relating to the authorisation. In any event when the first hearing takes place, the court must, in compliance with its case management duty, ask whether the authorisation is admitted. That is a question which the court must ask. It would be failing in its case management duty if it did not do so. If the response is given that it is admitted, all well and good.
22. However, if the response is that the solicitor needs to consider the relevant documentation, the case must be put back for a short while during the same day and the solicitor asked to look at the documents. This is only possible if the documents are at court. The solicitor must then return to state whether or not the authorisation and its making are admitted. Save in the most exceptional case, the solicitor will by that time have checked the making of the authorisation and all the relevant publicity. The issue at the trial would then relate to the circumstances in which the direction was made and any breach of it.
23. If, however, an authorisation is not admitted, the CPS will know that there is a challenge. Furthermore, it will be for the court, in the exercise of its case management powers, to ask the defence whether or not it requires the CPS to prove the making of the authorisation. No responsible solicitor will challenge the authorisation if the documentation held with the court is in order. If a challenge is to be made a question will arise as to whether that is an issue that can be decided by the magistrates' court, or whether the appropriate course is to adjourn the case so that a challenge can be made in this court. We do not need to decide which is the proper course, as we have heard no argument on it: see West Midlands Probation Board v French [2008] EWHC 2631 (Admin), paragraph 15.
24. It seems to me essential that proper consideration is given to a simple means of dealing with the issues in relation to the authorisation and publicity that has arisen in this case. It may be that a better solution can be found to the one I have sugested; but a solution must be found that is acceptable and practicable for all those concerned -- the hard-working police officer, the over-stretched CPS lawyer, the defence lawyer who has to made a decision quickly, and the court that is under enormous pressure. A simple solution of the kind suggested would, I think, satisfy the necessary protection of liberty and the smooth administration of justice, because this legislation obviously serves an important purpose in protecting the public and must be made to work.
25. I wish to repeat that no criticism whatsoever should attach to the police constable or to the prosecutor involved in this case. They were valiantly trying to do their job under difficult circumstances. It was for others more senior than they to have devised a workable procedure.

MR JUSTICE COULSON: I agree.

MR FIELD: My Lord, I would seek an assurance -- not from this court but from the Crown; I discussed it with my learned friend earlier -- that as far as the appellant is concerned in this case, that is the end of the matter for him and that there is no intention on the part of the Crown to seek to retry the matter?

MRS NEEDHAM: My Lord, my understanding is that if you give a direction to return the matter to the magistrates and to direct an acquittal, it would be an abuse of process for us to attempt to re-charge the same offence.

LORD JUSTICE THOMAS: It cannot possibly be right to allow you, in a summary case, to start all over again one year later.

MRS NEEDHAM: Yes.

LORD JUSTICE THOMAS: This court sometimes takes the view that if the prosecution does not get its tackle in order which results in delay beyond the trip time within which cases should be dealt with, the consequence must be that it is not in the interests of justice to allow further prosecution.

MRS NEEDHAM: My Lord, yes.

LORD JUSTICE THOMAS: Thank you very much indeed. Do we need to send a copy of the judgment to anyone, or will you do that?

MRS NEEDHAM: I will arrange for a copy of the judgment to be sent to those instructing me. It would be very helpful.

LORD JUSTICE THOMAS: Thank you very much.