England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		25th August 2009

His Honour Judge Kaye QC:

1. This is an appeal out of time by way of a Case Stated from the Calderdale Magistrates' Court. The appellant is a Miss Karen Delaney. The decision in question was a decision of the respondent, Calderdale Magistrates' Court, dated 15 May 2009, when it allowed an application by the Interested Party, Calderdale Metropolitan Borough Council ("the council"), to amend an anti-social behaviour order ("ASBO") made with respect to Miss Delaney by extending and amending the terms of the order.
2. The background as revealed by the Case Stated showed that Miss Delaney has a long history of problems with the emergency services and NHS Direct. She is the maker of regular and numerous calls to the emergency services and to NHS Direct. Her conduct includes being abusive to telephone operatives and emergency services workers who attended as a result of the calls.
3. On 27 July 2005 the council initiated proceedings under section 1 of the Crime and Disorder Act 1998 seeking an ASBO against the appellant. The proceedings were somewhat protracted due to adjournments. Eventually, after a contested hearing on 6 January 2006, the magistrates granted an ASBO for three years until 6 January 2009 with five prohibitions. The fourth prohibited her:

"Requesting the attendance of the Emergency Services, except when genuinely in need of assistance of those services."

On 27 April 2006 this order was confirmed but also varied on appeal to the Crown Court. The fourth prohibition was removed on the ground that there was then some doubt as to whether the appellant genuinely understood or had the capacity to understand what was required by that prohibition.

4. Despite the order the calls and abusive behaviour continued. In May 2008 the council applied to extend the duration of the ASBO. The order was then extended on an interim basis in order to allow a fully-contested hearing to take place. But it was not until May 2009 that that hearing took place, owing to a number of adjournments due to requirements for preparation by and attendance of expert witnesses, including psychiatric witnesses.
5. The issues before the magistrates in May 2009 were the application by the council for (1) an extension of the ASBO for a further 18 months, (2) the deletion of two of the four remaining prohibitions as no longer necessary, and (3) an amendment of the wording of the two remaining prohibitions. After an extended hearing over two days during which the Magistrates heard evidence from three psychiatrists, two police officers, a manager of NHS Direct and other material before them including recordings of calls made by the appellant to NHS Direct, the application was granted. It is important to state that the appellant herself was legally represented by solicitors and counsel, in the latter case by Miss Charlotte Eastwood who appeared on her behalf before me today, but Miss Delaney did not herself give evidence.
6. The magistrates noted the numerous calls made by the appellant, over 1,700 calls in the two-year period ending April 2009. They noted that in the same period an ambulance was called out 100 times, with police escort due to previous aggression by the appellant or her refusal to admit those attending from the emergency services. Disregarding calls which it had thought been made on her behalf anonymously or by other persons or by using different names, they calculated that the time taken up in dealing with the appellant's calls to NHS Direct and then attending her as a conservative two hours each week, described by the magistrates as "a major diversion of NHS and emergency services resources".
7. The calls were often aggressive and threatening, with claims of self-harm or having taken overdoses which turned out not to be true. The bench found that the appellant had behaved in a manner which had caused harassment, alarm or distress within the meaning of the 1998 Act. The bench found that an order would be appropriate and proportionate provided the prohibitions were limited to those that would achieve the objectives of the order, ie were specific to the issues raised, and provided that breach or otherwise could be properly and objectively tested. They further found that the appellant could understand the force and implications of the prohibitions. Bearing in mind the important case of Cooke v DPP [2008] EWHC 2703 (Admin) that "an ASBO should not be granted if the defendant is truly incapable of complying with it", the bench found, having heard and seen the medical evidence and after a full and thorough analysis of it, that they did not consider it inevitable that the appellant would breach the order and that the weight of the evidence was that the appellant was suffering from a borderline personality disorder rather than a mental bipolar disorder, that she had the capacity to comply with an order and that, if she did not, she did so because of a decision made by her which she was capable of making.
8. Accordingly, the magistrates varied the ASBO on 6 January 2006 to allow three prohibitions as follows: that the appellant from 15 September 2009 is prohibited from:

"(1) Acting in a manner which causes or is likely to cause harassment, alarm or distress to others within Calderdale and Kirklees…

"(2) Using abusive, threatening or intimidating language when on the telephone to Healthcare employees…

"(3) Calling NHS Direct or the emergency services for medical advice or encouraging by her actions or reports anyone else to do so on her behalf, including staff NHS Direct [sic -- there must be the word 'of' omitted between 'staff' and 'NHS Direct'], when there is no potentially life threatening situation requiring immediate assessment action or treatment."

The order was further extended for a further 19 months, to expire just before midnight on 14 November 2010.

9. The appellant, Miss Delaney, now appeals against the conditions, and in particular the third of the conditions or prohibitions imposed. In doing so she has continued to be professionally represented, and as I have indicated has been represented by Miss Eastwood of counsel on her behalf today. The respondent magistrates have taken no active part in the proceedings. The council is represented by Mr Anesh Pema, also of counsel. The appellant also seeks an extension of time to appeal due to delays encountered in establishing confirmation of her benefits position.
10. Procedurally there has also been some confusion. The decision was as stated 15 May 2009. The magistrates were asked to state a case. The draft case stated was issued on 10 June 2009. It was amended and a further case stated issued, being finally signed off on 26 June 2009. As the final case stated, this should have been lodged on 6 July 2009 (see Practice Direction 52.18(4)), but it was not lodged until 15 July 2009; hence, the extension of time is required. No issue has been taken as to time, and it seems to me that there was a perfectly understandable and genuine mistake over the drafting of the case stated and accordingly I extend the appellant's time for lodging the notice of appeal to 15 July 2009.
11. We also have had three bundles. The first bundle lodged was prepared by or on behalf of the appellant. This was objected to by the council on grounds that it did not include all the required documents. Hence, a second bundle was lodged by the council. And a third bundle, which appears to have been a copy of the original bundle before the magistrates, was also lodged. I mention all this as further support of the fact that it seems to me right and proper to extend the time of the appellant. No doubt she or her solicitors had to prepare bundles in genuine haste. It must not be taken to be intending any criticism by referring to these matters, but in the end I have found the two bundles lodged by or on behalf of the council, which everybody appears to have used, helpful.
12. Turning to the substance of the case, the grounds of appeal are to be found in the questions raised in the opinion of the High Court in the case stated, and these are and were essentially the issues accordingly before the court, in substance as follows.
(checked to audio as bundle document not supplied)

"First, was the third prohibition, that is to say 'Calling NHS Direct or the emergency services for medical advice or aid or encouraging by her actions or reports anyone else to do so on her behalf, including staff at NHS Direct, where there is no potentially life-threatening situation requiring immediate assessment action or treatment' (a) unambiguous, (b) clear and (c) reasonable?

Second, did the court misdirect itself in interpreting the prohibition in ways that did not reflect the intention of the order?

Third, by attempting to delineate how the prohibitions were intended to operate in practice, was the court acknowledging that the prohibition they sought to impose was not easily capable of being comprehended by those who might be expected to police it, ie the local constabulary?"

13. The application was supported in the usual way by a document filed in support and settled by Miss Eastwood. It is not so called, but the document was and is in the nature of a skeleton argument. This document noted that in support of the third prohibition the magistrates, having set out in paragraph 18 of the Case Stated the prohibitions they proposed to impose, together with a brief paragraph what their intention and thinking behind that prohibition was, as to which Miss Eastwood makes no objection, set out in paragraph 19 that what they said they could envisage as four possible scenarios. These were as follows:

"19.1 If the Respondent calls NHS Direct, or any other health care service or professional, and reports taking an overdose or committing self harm, and then states she will not admit the ambulance crew or accept medical advice, then she is by her own acts agreeing that the call is vexatious and a breach of the order, as she is refusing opportunity for an appropriate response by the health care professional or service called upon. The prosecuting authorities do not have to read her state of mind, as her actions have spoken for her.

"19.2 Additionally, if she calls for help, and then does admit, say, an ambulance crew or other health care professional or police officers to her premises, but at that point they observe that they can see no evidence of overdose, or self harm other than superficial (non life-threatening) self harm, then again the Respondent's state of mind does not have to be read by the prosecuting authorities, as her apparent health, good temperament or well-being speaks for itself, and she is in breach of the order."

There then follows another 19.2, but I think it must have been intended to be 19.3:

"Again, if the Respondent calls for help, and then does admit, say, an ambulance crew or other health care professionals or police officers to her premises, and she does appear to be in need of medical help because of, say, an overdose or substantial self harm, but she at that point refuses appropriate medical care or advice, then again the call was vexatious, and she is in breach of the order in not accepting advice or aid. It is not the actual refusal to take advice or accept aid that is the breach, but making the call with the intention to refuse advice. It might be said that she had intended to accept aid when making the call but changed her mind when the aid arrived, but that is an unacceptable attempt to provide a defence to the breach.

"19.4 Finally, of course, if the Respondent calls for help, admits ambulance crew or health care professionals or police officers, is found to be in need of medical support, advice or intervention, and accepts it, then she is not in breach of the order. No one would make any complaint about a justifiable request for urgent aid which is fully accepted when offered."

14. The skeleton argument, and Miss Eastwood in the substance of her submissions this morning, has made three points in respect to these scenarios. First, that by attempting to delineate how these prohibitions were intended to operate in practice the court itself appeared to be acknowledging that the prohibition they sought to impose was not easily capable of being comprehended by those who might be expected to police it, ie the local constabulary. This of course is an echo of the third question asked in the case stated. This seeming self-evident failure identifies a difficulty of dealing with this prohibition and makes nonsense of the suggestion that it is a properly workable provision.
15. Second, that the explanations given by the justices did not lawfully fall within the restrictions of the ASBO. For example, in relation to the third scenario, where the appellant calls for help, the emergency services attend and it appears to them that the appellant is in need of medical assistance but at that stage she refuses any medical care, it is submitted that as it stands the appellant would not be in breach of the ASBO. It is suggested by the justices that she would be in breach of the order as she made the call with the intention of refusing advice. The particular prohibition first does not preclude the appellant from calling the emergency services' advice or aid when there is a potentially life-threatening situation even if she has no intention of accepting treatment; and two, it does not state that she must accept treatment. A similar argument, says Miss Eastwood, would be advanced in relation to scenario A or the first, in that this particular prohibition (1) does not preclude the appellant from calling the emergency services for medical advice or aid when there is a potentially life-threatening situation even if she has no intention of allowing them entry to her property; and two, does not state that she must allow members of the emergency services into her home.
16. Third, she submitted that by interpreting the prohibition in the ways that they did, the justices did not reflect the intention of the order. Surely it cannot be the case, she submits, that the order was intended to prevent the appellant from seeking medical advice at a time when she subjectively was suffering from an injury that was not life-threatening but did require medical assistance in the form of advice or treatment. On the face of it, this would not even allow her to contact NHS Direct, a non-emergency service, in order to receive advice at a time when her GP's surgery was closed and unavailable to assist.
17. In essence, of course, these issues raised by Miss Eastwood, and indeed her submissions to me this morning, all come down to the same question: is the prohibition sufficiently clear and unambiguous so that the appellant knows what she may and may not do? There is between her and the council no issue about the law, which, again, Miss Eastwood has very helpfully and succinctly set out in her skeleton argument, which I summarise as follows. First, the justices acknowledged that following the case of R v Boness [2005] EWCA Crim 2395, the terms of an ASBO must be precise and capable of being understood by the appellant and that they must be enforceable, in the sense that any breach should be readily identifiable and capable of being proved. In the case of R (W) v DPP [2005] EWCA Civ 1333, Brooke LJ said this at paragraph 10:

"It is well established that a restraining order must be drawn in terms which enable the person restrained to understand what he may or may not do."

In B v Chief Constable of Avon and Somerset [2001] 1 WLR 340, Lord Bingham CJ, speaking of a similar statutory provision, said this at paragraph 33:

"If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed."

18. For these reasons, Miss Eastwood submitted that the third ambit of the prohibition was ambiguous, was unclear, was disproportionate and was unreasonable. She points out that it is not clear, for example, whether the determination of a life-threatening situation was required to be determined subjectively by the appellant or objectively. She postulated a number of scenarios which would make it difficult for the appellant to know what she could or could not do. Suppose, for example, she postulated, she broke a leg. That might or might not be a life-threatening situation. It might not be at first sight if she had, for example, fallen down stairs, with a resulting sprain. Did that mean that she was to stay there lying there in her house or apartment for some period of time without being able to call NHS Direct, with the possible risk that what might not start off as a life-threatening situation could develop into one, for example if she developed a thrombosis or blood clot in her leg which presented the risk of a pulmonary embolism? Suppose, too, that the appellant developed chest pains. Would that be a potentially life-threatening situation? Or might it not be, being merely indigestion? All these, and no doubt many other scenarios and examples could be thought of, show not only the difficulties for the appellant in knowing what she might or might not do when she might or might not call NHS Direct, but also of course serve to illustrate the difficulties the magistrates themselves felt over framing a prohibition that met the situation. Hence, as it seems to me, the magistrates gave their examples in the scenarios that I have quoted.
19. But whatever may be the explanation for the order or prohibitions made by the magistrates, and whilst recognising the importance of context and that context is everything, in my judgment what has to be focused on for present purposes are the actual terms of the third prohibition. These were aimed at prohibiting the appellant from calling NHS Direct or the emergency services when there was no potentially life-threatening situation requiring immediate assessment of actions or treatment, a problem which the magistrates in their case stated repeatedly referred to. Indeed, the intention of the order as they recorded in paragraph 21 of the case stated was:

"… to persuade the Respondent not to behave in the anti-social ways described, rather than make it easy to prosecute her for behaving in an anti-social way if she does."

And as they also stated in paragraph 22:

"Finally we should make it clear to the Respondent that it is not only the making of vexatious calls or subsequently refusing aid when calls are made that is prohibited by these prohibitions. The prohibitions also mean that the Respondent must not use language or behave in such a manner that those receiving telephone calls, or those providing consequent advice on medical aid, such as the emergency services, police or others, for example health care professionals in hospital would be caused or likely to be caused to be harassed, alarmed or distressed."

20. The appellant, however, even viewing the prohibitions as a whole, has the right to seek assistance for real and genuine emergencies. She can still attend her GP. She can still attend hospital for treatment if and when required. What the prohibition seeks to prevent, as I say, is vexatious calls. Bearing in mind the findings of the magistrates as to her mental capacity, that the appellant is capable of understanding the force and effective nature of the prohibitions, they do seem to me to be capable of very clearly understanding what the prohibitions are aimed at and their effect.
21. Mr Pema, however, recognises the force of Miss Eastwood's submissions. He and Miss Eastwood both drew to my attention the terms of paragraph 4 of the prohibitions, which I quoted above, when the first anti-social behaviour order was made, in this case on 6 January 2006: that the court prohibited Miss Delaney from requesting the attendance of the emergency services except when genuinely in need of assistance of those services. Mr Pema's primary submission, as I understood it, was that there was nothing wrong with the third prohibition, that it was perfectly clear an unambiguous, but that one of the reasons why the words "except when genuinely in need of assistance of those services" had been chosen in the original ASBO was because experience had shown in other magistrates' courts as well as in the Calderdale Magistrates' Court that that was a simple and clear phrase which appeared to be workable in practice.
22. Miss Eastwood's riposte to that was in itself interesting. She accepted that it was simpler language than the third prohibition and easier to understand. But her objections to the words "except when genuinely in need of assistance" were in substance the same as her objections to the phrase "no potentially life-threatening situation"; in other words, the appellant would still be faced with the difficulty of understanding whether she was or was not genuinely in need.
23. It seems to me, with great respect to Miss Eastwood's ingenious, succinct and, if I may say so, very helpful and clear argument, that it really does beg the question. This appellant, I have very little doubt, knows perfectly well what these prohibitions are aimed at: they are to stop her vexatious calls, the lack of genuine calls, the calls that she makes or did make when she knew perfectly well that she had not taken an overdose, she had not self-harmed, and yet still alerting the emergency services asserting that she had when in fact and in truth she had not, and had thus wasted their time and had put them at some risk of harassment and abuse when they turned up to be met by her anti-social behaviour. I shall return to this in a moment, other than to say that at this stage it does seem to me that the third prohibition, that is in its original form, bearing in mind the context and bearing in mind the requirement for clarity by Lord Bingham in the case of B v Chief Constable of Avon and Somerset which I quoted earlier, that the prohibition is sufficiently clear to enable the appellant to know what she may or may not do.
24. As to the second and third issues, the fact that the bench attached an explanation of their thinking and reasons for the prohibition seems to me just that. They might well have taken paragraph 19 to which Miss Eastwood objected out and placed it earlier in their judgment or decisions as an illustration of the difficulties that the wording or any wording indeed might face, and therefore, bearing that in mind, have nevertheless come to the conclusion that they did. In other words, it seemed to me to be part of their expression of the reasons for reaching their decisions. They were trying to be helpful in envisaging the four possible scenarios. It does of course not follow that, whether or not those scenarios are met in practice, the appellant would of necessity be convicted for breach of the prohibition. It does not necessarily follow as night follows day that that would be a consequence of that expression. The matter would still have to be ventilated before the bench, the prosecution would still have to prove its case to the required standard of proof and the magistrates, as I am reminded, might even still find that the appellant had not behaved unreasonably and decline to find the breach is proved. They are merely illustrative of the sort of situations that could arise that may or may not be helpful. But at the end of the day, as I have previously indicated, what matters is the wording of the prohibition itself. So I see nothing in this point.
25. As to the third issue, as Miss Eastwood acknowledges, that in substance really comes back to the first point: is the prohibition clear enough so that the appellant knows what she may or may not do, and so that those who have to police it know with sufficient clarity whether or not the order is broken?
26. Nevertheless, to return to the first point, Mr Pema on behalf of the counsel accepted that if one took the phraseology used in the original ASBO, paragraph 4 of 6 January 2005, and applied it to the third prohibition, that might make the language even more simple and more appropriate. What was suggested is that in the prohibition, from and after the words "when there is no potentially life-threatening situation" etc, there should be substituted the words "save when in genuine need of the emergency services", those words of course being recognised as I said before to be the sort of words that have been found and approved in previous cases.
27. Accordingly, it seems to me that since Mr Pema is prepared to accept that, and both counsel have helpfully reminded me that this court may either affirm, revoke or amend the prohibitions, that, subject to anything counsel may wish to say in a moment as to the precise form of the prohibition, I for my part would have no objection to the amendment of the third prohibition in that or some similar manner. That seems to me to be perfectly clear. I repeat: what this is aimed at is precisely the sort of situation where the appellant phones NHS Direct or the emergency services for medical advice or aid when she knows perfectly well that she has no genuine need of such services at such time.
28. So, subject, as I said, in a moment to discussing the precise terminology with counsel, I propose in the circumstances to allow the appeal to that extent. If answers to the questions are needed, it follows that it might be said that I answered question one in my judgment with a "no", both as to (a) unambiguous, (b) clear -- in the positive sense that it does seem to me to be clear -- and (c) reasonable as "yes" to that. But I am prepared, since there is always room for greater clarity and greater simplicity, to allow the existing prohibition to be amended in the manner indicated.
29. As to the second (did the court misdirect itself by interpreting the prohibition in ways that did not reflect the intention of the order?), I propose to answer that with the answer "no".
30. And thirdly, by attempting to delineate how the prohibitions are intended to operate in practice, was the court acknowledging that the prohibition they sought to impose was not easily capable of being comprehended by those who might be expected to police it, ie the local constabulary, I propose to answer that, too, "no".
31. Save as I have therefore indicated, the appeal will be allowed but only in that very limited manner.

Order: Appeal allowed.

MR PEMA: I think so far as the council are concerned, I think the only thing I would say is when your Lordship read out the amendment, it -- save when there is need, genuine need, it should say "for those services".

HIS HONOUR JUDGE KAYE: I am perfectly happy with whatever you both -- bearing in mind I recognise Miss Eastwood still objects to the third one, if you are happy with that, I am happy with that.

MR PEMA: It is simply that there needs to be both.

HIS HONOUR JUDGE KAYE: The point is it is referring to the services at the preliminary part of the prohibition.

MR PEMA: As far as I am concerned, on behalf of the council, I am content with that as an amendment, so that --

HIS HONOUR JUDGE KAYE: It will be reading: "Calling NHS Direct or the emergency services for medical advice or aid, or encouraging by her actions or reports anyone else to do so on her behalf, including staff" -- I think it must be "at" -- "NHS Direct, save when genuinely in need of assistance of those services". Miss Eastwood, was there anything you wanted to say about the wording?

MISS EASTWOOD: Your Lordship, no.

HIS HONOUR JUDGE KAYE: You are content with that?

MISS EASTWOOD: Yes.

HIS HONOUR JUDGE KAYE: Subject to your overall caveat?

MISS EASTWOOD: Yes, your Lordship.

HIS HONOUR JUDGE KAYE: Anything else?

MR PEMA: I think my learned friend would need the directions about costs. The appropriate form is, as I understand it, the appellant is legally aided. She will need a direction for a detailed assessment of the public funding of the defendant, and no other order as to costs.

HIS HONOUR JUDGE KAYE: Otherwise, no order as to costs, do you say?

MR PEMA: Yes, well the local authority -- of course as she is legally aided, unless the costs … I would make -- it is a matter obviously for the court but I --

HIS HONOUR JUDGE KAYE: I am not asking you to pay her costs, as I understand it.

MR PEMA: No, well, she would not, obviously with the answer being answered no.

HIS HONOUR JUDGE KAYE: Quite.

MR PEMA: Yes. So the only question is whether the court would, for the local authority's costs, would have the central funds as far as the interested party is concerned, but I dare not ask the question because I know the usual response.

HIS HONOUR JUDGE KAYE: It is going to be one budget or the other.

MR PEMA: Indeed, and that's why I did not make the observation.

HIS HONOUR JUDGE KAYE: Oh, I apologise.

MR PEMA: So as I say, the normal order would be no order for costs, save that there be a detailed assessment of the publicly-funded party.

HIS HONOUR JUDGE KAYE: I imagine you are content with that?

MISS EASTWOOD: I am, your Lordship, yes. I am grateful to my learned friend for raising that.

HIS HONOUR JUDGE KAYE: Could I please ask you to draft an appropriate order? If you want Mr Pema to do it, I am sure he will --

MISS EASTWOOD: I will certainly ask for his assistance.

HIS HONOUR JUDGE KAYE: And could you lodge it in due course for us? I am very grateful. Thank you both very much indeed.