England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		14th October 2009

Mr Justice Langstaff:

1. The question in issue in this application for judicial review of the Burnley, Pendle & Rossendale Magistrates' Court is whether that court properly exercised its powers to proceed to a determination in the absence of the defendants.
2. The claimants, now aged 13 and 14, are brothers. In view of their age I shall refer to them as N and R, N being the younger. They have been represented on this application, permission for which was granted by HHJ Pelling QC in 3 July this year, by Mr Gurney, for whose arguments and research I am indebted. The defendant has not sought to appear to argue the contrary nor has the interested party, the Lancashire Constabulary.
3. The Lancashire Constabulary has signed an acknowledgment of service indicating that it does not intend to contest the claim. The Magistrates' Court for its part, being a court, does not intend to make a submission. I thus determine this case having heard in effect only the arguments on behalf of the claimant.

The facts

4. The underlying facts can be stated shortly. R and N when aged 10 and 11 were made subject to an Anti-Social Behaviour Order. They then both lived in Barrowford and the order which was granted restrained them from activities in the borough of Pendle. It is not necessary to recite the terms of the order but they were directed not to throw items at people or property, enter into other people's property, or act in a manner likely to cause harassment, alarm or distress to people not of their household. In addition the brothers were each restrained from associating with two other named youths.
5. The family moved from Barrowford. They went to live in Burnley. The orders therefore no longer referred to the same geographical area. In light of that and further reports of misbehaviour which had come to light, the Lancashire Constabulary sought an amendment or variation of the ASBO. The ASBO had originally been made on 11 May 2006 but for a period of three years. The application to vary was made with approximately seven months of the currency of that ASBO remaining.
6. On 10 November 2008 the claimants answered the summons to attend the Burnley, Pendle & Rossendale Magistrates' Court ("the Magistrates") by their solicitor. The solicitor indicated that the substance of the fresh material adverse to the claimants was in dispute; accordingly a trial of the issue would be necessary.
7. A date of 16 December 2008 was set. It was set well in advance. What happened on that date was that the prosecution attended together with two lay witnesses to make the application to vary the ASBO. The claimants' solicitor attended to represent their interests but neither claimant attended. The Magistrates therefore had to decide whether to continue or to adjourn the proceedings. They said that they noted the reasons for the absence of the claimants. R was attending school, apparently for the first time that calendar year. He had, I am told, been taken to school that morning by a taxi arranged for the purpose by the local education authority which I am told from the papers was aware of the date of the court hearing. Therefore he had effectively been prevented from attending the court hearing by the actions of the local education authority and not out of his own choice.
8. N, the Magistrates found, was "unable to attend as his mother indisposed". They added that his mother had chosen not to attend due to personal upheaval. The Magistrates thus made a finding as to N's attendance which was unqualified: that he was "unable to attend".
9. The rest of the reasoning reads as follows:

"We have noted their ages. Against this we balance that this has been listed since 10 November. All witnesses for the police including Mr Williams are present. We note that whilst defence solicitor present, it would appear the defendants have not provided him with full instructions for today's hearing. In fact it is some time since their services were last sought. We have also taken account of the impact of this hearing proceeding or not on both the defendants, the police and public at large. Having taken all this into account we are firmly of the view, given the nature of the proceedings, the impact on both the defendants and the community, the time elapsed since the hearing was listed and the conduct of all parties, that the interests of justice are best served by the case proceeding today."

10. It is the order made following the decision to proceed which the claimants seek to quash. When the hearing proceeded evidence was called from two lay witnesses. There was no challenge to it because the solicitor acting for the claimants felt that his role should be to take a note of the proceedings. He was not there to present a case, or to take an active part in the proceedings.
11. The order as varied provided that the lads were each being restrained in similar ways in which they had been by the original ASBO save in a wider geographical area, this time within the police division of Pennine which included the boroughs of Burnley and Padiham, Pendle and Rossendale. It no longer required the claimants to restrain themselves from associating with the two main youths mentioned in the earlier version of the ASBO but provided a substituted name of a youth with whom they must not associate. In addition they were prohibited from entering a named off licence.

The relief sought

12. The relief sought is a quashing order or alternatively a declaration. Both are discretionary remedies. Neither should be granted where the substance of the case is rendered purely academic. In this case I have been concerned whether that might be the case. The ASBO as varied expired on the same date as the original ASBO, that is 11 May 2009. It is now some five months later. There has been no wind of any proceedings against either claimant alleging that he has been in breach of the varied ASBO. Moreover if I were to quash the ASBO as varied, it would leave the original ASBO in force throughout the period. That does not seem to me to be problematic in this sense: that the variation extended the original ASBO, though it might cause problems if there were to be an allegation that within the period from December until May either lad had associated with the youth named in the variation or for that matter associated with either of the two youths named in the original ASBO, though in that latter case they might have considered that they were free to do so.
13. I have in the event been persuaded that there is some, though limited, practical purpose in granting relief if relief is appropriate. The way Mr Gurney puts it is this. He notes that in this area it often takes a considerable time for allegations of the breach of an Anti-Social Behaviour Order to come to the attention of the authorities. One reason for this is that local residents are often invited to maintain diaries of anti social behaviour. It may only be when those diaries cumulatively show a sufficient course of conduct that proceedings are thought further justified and indeed that the allegation is first reported. It may yet therefore be the case that an allegation might be made that either N or R or both had in some way broken the varied ASBO but not been in breach of the original ASBO between December of last year and May of this. This is a receding possibility but I am just persuaded that there is sufficient realism about it to justify my making an order if an order is appropriate in principle.
14. I was concerned whether, however, this argument of Mr Gurney's did not depend too much upon the assumption that if I were to declare the order to have been invalidly made or to quash it, that this would deprive the order of having any effect throughout its lifetime. It is well known, and in supplementary submissions which I invited Mr Gurney did not dispute, that where a court makes an order that order must be obeyed even if the order should later turn out to be one which is to be quashed. However, there are some grounds for supposing that this principle, well established though it may be, applies only to the order of a superior court and it may be that a magistrates' court is in a different position since the origin of its jurisdiction is entirely statutory and it would not normally be recognised as a superior court. It may be that there is therefore a parallel between the position of the Magistrates and that of ultra vires subordinate legislation in respect of which I was referred to the case of Boddington v British Transport Police [1998] UKHL 13, in which the House was united in its conclusion that by-laws if ultra vires were void of any effect from the moment of their making.
15. I do not need to determine this issue for present purposes. I need only observe that there are observations in a report of R (Longato) v Camberwell Green Magistrates Court [2009] WLR 104, a decision of Mitting J on 18 March 2009, that might suggest that in his view at any rate the order would not be a nullity, to indicate that the matter is one which is not without controversy. As I say, I do not need to determine it. It seems to me that even if I were to assume that the order of the Magistrates had the same force and effect as if it had been an order made by a superior court, that is, that whilst it appeared to be a proper order of the court and until it had been quashed it had to be observed, a declaration of this court or a decision quash the order would nonetheless remain of some practical effect. Any consideration of whether to prosecute either R or N for any alleged breach of an order which I would on this hypothesis declare invalid would no doubt wish to take that invalidity into account. As a matter of practicality it is difficult to see that the prosecuting authority would in normal circumstances regard it as appropriate to summons an individual for actions in breach of an order which should never have been made. That is a matter for them but I see a declaration by the court as retaining practical utility, albeit slight.
16. Accordingly since there may be a practical purpose in considering the case in principle, I do so.

Submissions

17. In the statement of facts and grounds as amended, Mr Gurney raised a number of complaints about the ruling by the Magistrates. Put shortly, he argued that, first, the defendants failed to have regard to principles laid down by the House of Lords and the Court of Appeal as to the way in which decisions should be taken whether or not to proceed in the absence of a defendant; second, that the court had insufficient regard to the ages of the claimants and their explanations for non attendance; third, that it failed to have regard to the claimants' rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms; fourth, that the court failed to take into account the consequences to the claimants of proceeding to vary the orders in their absence; fifth, failed to give weight to the fact that the period from 2-16 December was the first date upon which the application should be listed for a full hearing; sixth, failed to have regard to the fact that there was no right of appeal against a decision to vary an Anti-Social Behaviour Order; seventh, that it gave undue or misplaced weight to the attendance or non attendance of witnesses for the prosecution; and finally, gave undue weight to the fact that the case had been listed since 10 November.

Discussion

18. It is a necessary principle of a fair hearing that both parties should have a proper opportunity of being heard. This principle, often referred to as the audi alteram partem principle, is recognised for instance in the House of Lords in the case of R v Anthony Jones [2002] UKHL 5. At paragraph 13 Lord Bingham, with whose judgment their other Lordships on this point agreed, said:

"…the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin."

19. He endorsed a checklist by which the judgments of the Court of Appeal are held by their Lordship's House as set out in paragraph 22 to which subsequently in the case of R v O'Hare [2006] EWCA Crim 471 made reference, see paragraph 20. The same words, emphasising that it is only in rare and exceptional cases that a discretion to continue should be exercised in favour of a trial taking place or continuing, appear as one of the guidelines there set out.
20. It is therefore obvious that in some cases there can normally be only one conclusion; that is, that the court concerned should exercise its power to adjourn. It may be said that the case of R v Anthony Jones related to trial of indictment. So it did, but it seems to me as inconceivable as it appeared to Gibbs J in the case of R (Webb-Johnson) v DPP [2005] EWHC 3123 (Admin) (see paragraph 122) that a different standard should apply to trials in the magistrates' courts from those applicable in the Crown Court; and indeed in the case of M v Tower Bridge Magistrates Court, Gibbs J, in a judgment with which Keene LJ concurred in two short paragraphs, re-emphasised that there was no reason to suppose that the principle set out in the Court of Appeal in the case which went on to become R v Jones should not apply with equal vigour to proceedings in the Magistrates' Court and Youth Court.
21. Those cases, it may be said, relate to criminal proceedings. Proceedings seeking an Anti-Social Behaviour Order are not classed as criminal proceedings although they plainly have a close relation. However, the principle which underlies this area of the exercise of discretion is as I have said the audi alteram partem principle. That applies with no less a force, as it seems to me, to civil proceedings generally as it does to criminal proceedings, in particular proceedings of this nature where an individual may be brought to court in order to answer a summons in respect of allegations against him of misbehaviour. It is unnecessary for the purposes of this judgment to state the principle any more widely than that in my view it applies to the Magistrates' Court considering an application for an Anti-Social Behaviour Order and whether it should exercise its powers to adjourn contained in the Magistrates Courts Act 1980, see Section 54 and 55: to adjourn or proceed.
22. I should however add this. The factual context in which many Anti-Social Behaviour Orders if not all are sought is that the authorities are attempting to deal with individuals who are not generally compliant with authority and who disrespect it. They may not be compliant with court processes. Plainly a court considering whether to adjourn an application or not will need to be careful to distinguish genuine reasons for a defendant's not being present from those reasons which are spuriously advanced or designed to frustrate the process. However, if it should come to the conclusion that either of these two latter circumstances is the case, the court should say so. It cannot simply be inferred that a court has come to the conclusion that the excuse before them is spurious or designed to frustrate the process unless that is clearly stated by the magistrates.
23. In the present case, although there were aspects of the facts which the Magistrates' reasoning reveals might have led the magistrates to consider whether or not the excuse put forward was spurious, they did not base their decision on this. They said the opposite. They said that N was unable to attend. They said nothing to suggest that the practical effect of R's being taken to school by the local education authority was not exactly the same.
24. It cannot be said that a court must always adjourn where a defendant is not present. If a conclusion is open to the court, reasonably on the material before it, either, as I have noted, to the effect that an excuse given is spurious, or if there is a truly compelling and exceptional reason for proceeding notwithstanding a good excuse for non-attendance, the court has the power to do so. This however would be an exceptional case. Because it has been recognised by the highest authority that it requires a very rare or exceptional case for the power to be exercised in this way, it is in my view incumbent upon the court to draw attention to the factors which persuade it that the case before the court is within the very rare category to which Lord Bingham makes reference in paragraph 13.
25. Accordingly I look to see what factors were identified in this present case to justify this case as being so very rare that the Magistrates should exercise their power or could properly exercise their power to proceed rather than to adjourn. As Mr Gurney has submitted, nothing is obvious; this is not a case in which an adjournment would have to be lengthy; this is not a case in which the position of the defendants was such that they could never reasonably be expected to attend within a reasonable timescale; nor is it a case in which witnesses would find their recollection fading to any obvious extent; nor is it a case in which the community was unprotected, bearing in mind that the throwing of missiles can be restrained, for instance, by other legislation and within the Barrowford and Pendle area was in any event restrained by the original ASBO. Harassment within the Protection Against Harassment Act of 1997 remained open to the prosecution to prove. The public interest thus could not be said to be so great as to place this case into a wholly unusual category. Reference to age does not help. The fact that the witnesses were present in my view is an irrelevant consideration, as also was the fact that as some time had gone past since the case had been listed. But neither of those are particularly unusual circumstances where application is made. In the obvious case of someone who for instance has suffered a vomiting infection that morning or had been involved in a car crash on the way to court or had been subject to various other problems which are not difficult to think of which might have prevented her or his attendance in court, it would be entirely unreasonable for a court to proceed, notwithstanding. In short, nothing seems to me to have been identified which could bring this case within the category into which it would have been required to be.
26. The argument that Mr Gurney puts forward, insofar as it seeks to argue the claimants' age as something which the Magistrates did not have regard to, I reject. They did have regard to the age. His argument in respect of Article 6 takes the matter no further than does his reliance upon the case of R v Jones. It seems to me he cannot rely upon the particular consequences of the making of an Anti-Social Behaviour Order. As was pointed out by the court in argument, proceedings leading to the grant of such an order do not involve an immediate risk to finance or to liberty in the same way that criminal proceedings in magistrates' courts usually do. Moreover in paragraph 14 of the Jones case, Lord Bingham notes that the severity of the charge which necessarily leads on to the consequences of a hearing and an adverse decision should have no relevance as to whether or not there has been a fair proceeding within the court. Nor does it seem to me to be relevant that this was the first hearing. It might be relevant if there had been a number of hearings, each of which had been frustrated, so it appeared, by the conduct of the defendants. This would be relevant only if the magistrates had come to such a conclusion, which they did not in this case.
27. The fact that there was no right of appeal does not seem to me to distinguish the case as being one in which there should be a greater insistence upon the presence of the defendants rather than the opposite, not least because, although there is no appeal against a variation of an Anti-Social Behaviour Order (see the case of Ashley Langley v Preston Crown Court [2008] EWHC 2623 (Admin), a divisional court decision, over which Scott Baker LJ presided) it is at least theoretically open, even if likely to be of little practical value, to a defendant to himself apply for discharge or variation of an order.
28. In short, the argument in my view which is submitted to me by the claimant is simply this: that the Magistrates' Court when it exercised its discretion whether to proceed or to adjourn was making a decision which had to be reached judicially; that is, it had to be reached in accordance with the interests of justice and fairness, not capriciously, and in the light of authoritative guidance. In this case there was very clear guidance as to the way in which that discretion might be exercised. I do not suggest that the Magistrates ought to have referred by name to the case of R v Jones. However, they ought to have recognised that it would only be in a rare case that it would be right to proceed in the absence of a defendant who, through no fault of his own, was unable to attend. That was the position in which they had expressly found one defendant to be. It was, on the facts as I am told were made available to them, the position of the other defendant that the case could not be conducted in the absence of one alone in any event. There is no recognition in the decision of this overriding fact. It was necessary for that to be stressed if the considerations which the Magistrates went on to discuss were to be fairly and properly balanced. If the Magistrates had had regard to that principle I could not think that they would have made any decision other than that they should adjourn. Accordingly it seems to me in principle that this challenge is well-founded.

Relief

29. There is no appeal against a decision of the Magistrates to vary an Anti-Social Behaviour Order. Accordingly that route was not open to the claimants. I regard the alternative, of returning to court to seek a variation of an order which had been made having heard evidence, to be impractical. Appeal by way of judicial review seems to me to be the only reasonable route to relief. Although the continued significance to the claimants of this case is, as I have mentioned, limited, it still exists for the reasons I have given.
30. Having regard to those matters, in my view it is right that I should issue an order to quash the decision of the Magistrates of 16 December 2008. It would follow that in principle the original ASBO will have remained in force until May 2009, but I have not been asked to determine that finally as a matter of law in these proceedings.
31. Finally, for the sake of completeness, this case involving as it does youths as young as they are who have been successful in quashing an order made against them, nothing should be published which might lead to the identification of N or R or either of them.

MR GURNEY: Thank you my Lord. So far as costs are concerned I and my instructing solicitor are publicly funded, given …

MR JUSTICE LANGSTAFF: You want an order for legal aid taxation.

MR GURNEY: Yes.

MR JUSTICE LANGSTAFF: Detailed assessment.

MR GURNEY: Yes.

MR JUSTICE LANGSTAFF: You may have it.

MR GURNEY: Thank you.