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
		22nd January 2009

1. MR JUSTICE SIMON: This is an application for judicial review of a decision made at Bolton Crown Court on 21st February 2008 to impose an Anti-Social Behaviour Order ("ASBO") on the claimant, who was then aged 13 and is now aged 14.
2. The brief facts are these. The claimant was convicted at Bolton Youth Court of possessing an imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968. On 6th February he was sentenced to a two year supervision order with a curfew. The prosecution also applied for an ASBO pursuant to section 1C of the Crime and Disorder Act 1998. The court heard from three police officers, Police Constables Entwistle, Jackson and Kirkham; and an ASBO was imposed.
3. The appeal to the Crown Court was heard on 20th and 21st February in the form of a rehearing. On this occasion Police Constables Entwistle and Jackson gave evidence but Police Constable Kirkham did not. Objection was taken before the hearing began about the quality of the evidence which was relied on in support of the application for the ASBO. The point was made on the claimant's behalf that the information from the police came from a log compiled by PC Kirkham, which consisted of extracts of computer entries. In so far as the log was relied on by PC Entwistle and PC Jackson, they were giving evidence which was at two stages distant from evidence which could be given by the complainants. The court indicated that the sheer number of incidents in the log could support the finding of anti-social behaviour.
4. Having heard the evidence of the police officers and character evidence called on behalf of the claimant, the court found that anti-social behaviour had been proved to the requisite criminal standard on five occasions: first, on 3rd October 2007, the occasion of the possession of the imitation firearm; secondly, on an unknown date before 21st October; thirdly, on 21st October itself; fourthly, on 9th December 2007; and finally, on 25th December 2007.
5. The evidence about the imitation firearm was not in issue in view of his conviction. The other evidence was to the effect that a group of youths, of which the claimant was one, abused a woman. That was before 21st October and the evidence was taken from the statement of PC Jackson, as reported by another police officer. Thirdly, they threw cans at this woman's window and shouted abuse on 21st October. That evidence was taken from the statement of PC Jackson, as reported by another police officer. Fourthly, they threw missiles, walked on cars and made threats. That was on 9th December. That was taken from the log. Finally, they shouted abuse and made threats to burn a car on 25th December. That, too, was taken from the log.
6. An Anti-Social Behaviour Order was made prohibiting the following conduct for a period of two years: first, using abusive or foul language in a public place; second, being together in a public place with two or more persons and behaving in a manner likely to cause harassment, alarm or distress; third, entering the Castle Hill Centre, Castleton, except to go to the youth club.
7. A number of complaints are made in relation to the procedural aspects of the hearing in the Crown Court; but it is convenient to focus on what is, in my judgment, at the heart of this application: whether the court should have imposed the ASBO as a matter of necessity and, if so, in the terms in which it did.
8. In focussing on what I regard as the substantive complaint, I would not wish to be understood in any way as downplaying either the importance of adopting the right procedure or the complaints about the procedure adopted which have been advanced before us by Miss Arshad. ASBO proceedings are civil in nature and hearsay evidence is admissible (see R v Wadmore [2006] Crim LR 857) and may even be necessary if the court is to be properly informed about the scale and nature of anti-social behaviour (see the speech of Lord Hope in R (McCann and Others) v Manchester Crown Court [2003] 1 AC 787). But that does not mean that the procedural requirements for the admission of hearsay evidence should be ignored.
9. At the time of the order with which the court is concerned, the relevant rules, at least in the Magistrates' Court, were those set out in the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) rules. Those rules set out clearly the formal steps which should be taken when a party wishes to rely on hearsay evidence; and they should not have been ignored.
10. There are now specific rules for both Magistrates' Courts and Crown Courts in relation to the admission of hearsay evidence. Those are set out in the Civil Procedure Rules; and, again, should not be casually ignored. Prosecutors should bear in mind the observations of Pitchers J in W v Acton Youth Court [2005] EWHC 954 at paragraph 30, about the importance of procedural fairness in the light of the importance to the subject.
11. The judge in this specific case pointed out, during the course of the hearing, that reliance on the evidence of police officers who had no knowledge of the facts advanced might in future lead to difficulties. The difficulties might be said to have occurred in this case. At least in relation to many of the incidents relied on by the prosecution (although not in relation to the five occasions identified by the Crown Court), the claimant's participation in contradistinction to his presence, was not clear; and, because of the nature of the evidence, could not be investigated. Nor are the objections in this case only procedural. In my view, in cases such as the present, the court should have in mind the factors set out in section 4(2) of the Civil Evidence Act 1995 in deciding what weight to give to hearsay evidence (see Moat Housing Group - South Ltd v Harris and Hartless [2005] EWCA Civ 287)
12. I turn to the question of necessity. The test for the imposition of an ASBO is one of necessity (see the terms of section 1C(2)(b) of the Crime and Disorder Act 2002 and R v Boness [2005] EWCA Crim 2395 at paragraph 29). Miss Arshad submits that there was no necessity for this order.
13. On 6th February 2008 the Youth Court had imposed a two year supervision order with a curfew of three months from Monday to Friday between 9.30 pm and 7 am, and at the weekend from 7 pm to 7 am. In the view of the writer of the Pre-Sentence Report, the claimant's difficult home circumstances, which were assessed as contributing to his behaviour, needed to be addressed. The supervision order would include structured sessions to address his behaviour. Nothing had been said, when giving reasons for the imposition of the ASBO, about the necessity of an ASBO in addition to the supervision order and the curfew. The claimant was a child but responded well to his only previous order, a referral order, and of whom the youth worker at the Castle Hill Youth Club, Mrs Laverty, had spoken favourably, describing him as polite and cooperative. In my view, these are points of considerable substance and undermine the conclusion that the making of this order was a necessity.
14. There are also points to be made in relation to the terms of the order. Paragraphs 1 and 2 might constitute criminal offences in themselves, and it is not clear why the sentence passed for the commission of such offences would not be a sufficient term. Paragraph 2 of the order is expressed in terms which might not readily be understood by a 13-year old. Finally, Miss Arshad submits that it is unclear why paragraph 3 of the order was made, since it did not appear that the claimant was found to engage in anti-social behaviour in the Castle Hill area.
15. All these points are well made. However, I would confine myself to a decision on the issue of the necessity of the order in this case. In my judgment, and for the reasons articulated by Miss Arshad, the order was not necessary and accordingly I would quash it.
16. LORD JUSTICE MAURICE KAY: I agree. Miss Arshad, what is your position? Do you have public funding?
17. MISS ARSHAD: We have a full certificate for public funding.
18. LORD JUSTICE MAURICE KAY: So you want an order for an assessment?
19. MISS ARSHAD: Yes, my Lord.
20. MR JUSTICE SIMON: Certainly. Thank you both very much.