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
		18 March 2009

1. LORD JUSTICE RICHARDS: This is an appeal by way of case stated against a preliminary ruling made in the course of proceedings on an application for an Anti-Social Behaviour Order ("ASBO"). The appeal concerns the admissibility of evidence of anti-social behaviour by a defendant after the date of the application.
2. On 21 July 2007, Birmingham City Council applied for an ASBO against the respondent and seven other defendants, all of them under 18 years of age at the time. The application against the respondent alleged that he had acted in an anti-social manner on the dates and at places listed in a schedule to the application, and that an ASBO was necessary to protect relevant persons from further anti-social acts by him. The schedule alleged that: (1) he was a member of or associated with or linked to a named gang; (2) as a consequence, his mere presence, either on his own or with others, had caused or was likely to cause alarm, harassment or distress; (3) he had during the relevant period, either by himself or in concert with others, engaged in anti-social behaviour as detailed in a schedule of allegations and witness statements; (4) he had been responsible for a number of incidents of anti-social behaviour, details of which were contained in witness statements. It was further stated that the Council would rely in support of the application on the respondent's criminal convictions and incidents of anti-social behaviour prior to the incidents detailed.
3. As appears from one of the witness statements from a police officer, the nature of the case was that the eight defendants were leading members of the gang and had taken part in the commission of criminal offences such as robberies, assaults, possession of offensive weapons and criminal damage, together with other acts of nuisance such as congregating together on the streets within the area of their operation, wearing gang colours and frightening members of the public.
4. Interim orders were made against all eight defendants. A trial of the substantive applications against them commenced on 5 November 2007, but had to be adjourned after two days because, according to the case stated, the respondent's then solicitor was unwell. The trial was originally expected to continue in December, but in the event, following the withdrawal of the respondent's solicitor, it was ordered to commence afresh in January 2008. The fresh trial started on 10 January before a District Judge (Magistrates' Court), and continued on various dates between then and 14 April 2008, when the District Judge made orders against four of the defendants but refused to make orders against four others, including the respondent.
5. On the second day of the trial (11 January) the District Judge ruled on a preliminary issue concerning the admissibility of evidence. The Council wished to adduce evidence that certain of the defendants, including the respondent, had committed further acts of anti-social behaviour since the date of the applications in July 2007 -- indeed, during the period when they were subject to the interim ASBOs. So far as concerns the respondent, the evidence in question was of incidents of a similar nature to those alleged in the complaint itself.
6. The District Judge ruled against the Council on that preliminary issue. His ruling is the subject of the present appeal. Before dealing further with it, however, I should refer to the relevant statutory provisions.
7. Section 1 of the Crime and Disorder Act 1988 provides in material part as follows:

"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely—

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him ...

(3) Such an application shall be made by complaint to a magistrates' court.

(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order ...

(5A) Nothing in this section affects the operation of section 127 of the Magistrates' Courts Act 1980 (limitation of time in respect of informations laid or complaints made in magistrates' court)."

8. Section 127 of the Magistrate Courts' Act 1980, to which reference is there made, provides in sub-section (1):

"(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below [indictable offences], a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."

9. The Council argued before the District Judge that evidence of the respondent's behaviour after the date of the complaint was admissible in relation to both questions under section 1(1) of the 1998 Act; that is, whether he had acted in an anti-social manner, and whether an order was necessary to protect people from further anti-social behaviour by him. This was a rolling application, and any evidence up to and including the date of the hearing was relevant and admissible. The argument for the respondent was that such evidence should be excluded on the grounds that he was entitled to know precisely the grounds on which an order was sought; no application to amend the complaint had ever been made; and if post-complaint evidence were admitted, he could not know when the six-month period under section 127 of the 1980 Act commenced.
10. The District Judge's reasons for ruling in the respondent's favour are set out in the case stated as follows:

"(10) By section 1(3) Crime and Disorder Act 1998 the proceedings must start by way of complaint. By section 51 Magistrates' Courts Act 1980 the issue of proceedings is a judicial function based on the nature of the complaint. Section 53(2) MCA 1980 provides that the court, after hearing the evidence and the parties, shall make the order for which the complaint is made or dismiss the complaint. I took the view that the term 'since the commencement date' in section 1 of the 1998 Act is qualified by section 127 of the MCA 1980, which provides that a magistrates' court shall not hear a complaint unless the complaint is made within 6 months from the date on which the matter of complaint arose. It was common ground that if I made a finding of fact that the Respondent had behaved in an anti-social manner during the 6 month period ending on the date of the Complaint I was entitled to take into account anti-social acts by him before that date. It was also common ground that a respondent's 'good behaviour' whilst subject to an interim anti-social behaviour order, and therefore after the date of complaint, is not relevant for the purpose of deciding whether an order on complaint is necessary. Evidence of the Respondent's behaviour after the Complaint was not agreed and could not be admitted by consent. I foresaw procedural difficulties if the evidence was admitted. Post complaint behaviour may have been the subject of outstanding criminal proceedings. Indeed a respondent may be awaiting trial. If the evidence was admitted there would be a risk that the Court will call upon a respondent to give evidence in civil proceedings to answer allegations that will be the subject of criminal trial in the same Court at a future date. The post Complaint behaviour was not (for obvious reasons) in the contemplation of the Appellant when the complaint was made, or the Court when process was issued. Any post Complaint anti-social behaviour could result in criminal proceedings and may be considered in connection with a possible application under section 1C of the 1998 Act for an order on conviction. I concluded that the evidence after the date of Complaint was not relevant on the issue of whether the Respondent had behaved in an anti-social manner before the date of the Complaint [section 1(1)(a)], and was not relevant to the issue of whether an order was necessary in the light of his behaviour before the Complaint [section 1(1)(b) of the 1998 Act]. On the basis that it was not relevant I decided that I would not admit it. If I were to decide after hearing the evidence that the Respondent had acted in an anti-social manner, and that an order was necessary, I observe that post complaint anti-social behaviour may have been relevant to assist the Court with the nature and extent of the prohibitions to be included in the order under section 1(6) of the 1998 Act."

11. The case stated goes on to explain the nature of the substantive case advanced by the Council against the respondent, and the District Judge's relevant findings of fact in relation to that case. In short, he did not find the case proved against the respondent in respect of any of the matters alleged. In relation to criminal offences which had occurred, there was insufficient evidence that the respondent had been involved in them. In relation to incidents where the respondent had been present, the evidence did not establish anti-social behaviour. Certain written admissions that the respondent had made in the course of the first, aborted trial were unparticularised, and the District Judge was not willing to attach any weight to them. The respondent's criminal record did not justify findings of anti-social behaviour during the period covered by the complaint. The District Judge was even unable and unwilling to find as a fact that the respondent was a gang member as alleged. Thus, on the basis of the evidence adduced before him, he did not find it proved beyond reasonable doubt that during the period covered by the complaint the respondent had acted in an anti-social manner.
12. The appeal is brought not against that ultimate finding, but against the preliminary ruling as to the admissibility of evidence of anti-social behaviour post-dating the complaint. The question for the opinion of the High Court is:

"Was I correct in law to hold to be inadmissible evidence of anti-social behaviour by a defendant occurring after the making of the application for an anti-social behaviour order against him:

(a) As to whether the defendant had acted in an anti-social manner for the purpose of section 1(1)(a) of the Crime and Disorder Act?

(b) As to whether it was necessary for the court to make an anti-social behaviour order against him?"

13. For the Council, Mr Manning submits that the District Judge was wrong to hold that evidence of anti-social behaviour after the date of the complaint was irrelevant to the question of whether he had committed anti-social behaviour and whether an order was necessary. The District Judge accepted that if an order was made, post-complaint behaviour might be relevant to the prohibitions to be included in it, but if such behaviour is relevant to that issue, it is also relevant to the prior issues.
14. As to the reasons given by the District Judge for holding the evidence to be irrelevant, it is submitted that he was wrong to consider that the rules relating to the commencement of the proceedings by complaint rendered it in some way inappropriate to consider post-complaint evidence. The procedural difficulties referred to by him went not to the relevance of the evidence, but to the judge's discretion to exclude evidence in the interests of fairness. There is, moreover, submits Mr Manning, no principle of law that a defendant in criminal proceedings should not be required to respond to civil proceedings simply because to do so would require him to put his defence in the criminal proceedings earlier than he would otherwise have chosen to do. For this, and the general relationship between civil and criminal proceedings, see the line of authorities now summarised in Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324 at paragraphs 20 to 32.
15. Mr Manning further submitted that the District Judge's approach would produce the undesirable consequence that a series of proceedings might have to be brought in order to encompass conduct after the date of the complaint (or of each complaint). The District Judge's ruling was not based on an acceptance of the respondent's argument that he would be prejudiced by having post-complaint behaviour admitted into evidence, and in any event there was no such prejudice. The respondent, in common with the other defendants, knew what case he had to meet, and the six-month limitation period would be unaffected.
16. For the respondent, Mr Harris accepts that what the District Judge said about the relationship between civil and criminal proceedings is not something that can properly be relied on as going to the relevance of the post-complaint behaviour, but relates to the question of discretion whether or not to allow in evidence of such behaviour. He submits, however, that the District Judge was nonetheless correct to rule that the evidence of post-complaint behaviour was not relevant.
17. He submits too that the District Judge must be taken to have adopted as part of his reasoning an acceptance of the submissions that he recorded as having been made for the defendants, to the effect that to admit such evidence would create a position of uncertainty and that they were entitled to precision as to the case they were facing. He submits that it would have been a simple expedient to amend the complaint so as to include later behaviour. Had that been done, he accepts that such behaviour would of course have been relevant, but he submits that, in the absence of such an amendment, later behaviour was not relevant, at least under section 1(1)(a). He did accept at the end of his submissions that such behaviour might be relevant to the question under section 1(1)(b) whether an order was necessary.
18. For my part, I am satisfied, first, that the basis of the District Judge's ruling with regard to the evidence of post-complaint behaviour was that it was, as a matter of law, irrelevant to the issues under section 1(1) of the 1998 Act. His decision was not based on the proposition that such evidence was relevant but would be excluded by him in the exercise of his discretion. He states in terms at paragraph 10 of the case stated, which I have quoted, that he decided not to admit the evidence on the basis that it was not relevant. The question posed for the opinion of this court is whether he was correct in law to hold the evidence to be inadmissible. We are therefore concerned in this appeal with a legal ruling as to relevance, not with the exercise of a discretion.
19. In my judgment, the District Judge was wrong in law to hold that the evidence was irrelevant. First, evidence of later behaviour can, in principle, be relevant to the question whether a defendant has acted in an anti-social manner during the period covered by the complaint. There is an analogy that may be drawn with the adducing of evidence of bad character to establish propensity under sections 101 and following of the Criminal Justice Act 2003. It was held in Adenusi [2006] EWCA Crim 1059 that evidence of offences occurring after the offences with which the trial was concerned could be relevant for this purpose. Hooper LJ said at paragraph 13:

"We can see no justification for saying that as a matter of law one is not entitled to determine propensity at the time of committing the offences by reference to offences committed thereafter. Whether or not offences committed thereafter assist the jury to decide on the issue of propensity is a matter for the jury subject always to the duty of the judge to ensure a fair trial ..."

20. Of course, the bad character provisions of the Criminal Justice Act do not apply to ASBO proceedings, which are civil in nature. However, I see no reason why evidence of later conduct showing a propensity to behave in an anti-social manner should not be capable of being relevant, in a similar way in an appropriate case, to the question of whether the defendant behaved in an anti-social manner at the times and at places alleged in the complaint. Nor do I see any reason why it should not otherwise be capable of having probative value in relation to a factual issue raised by the complaint.
21. The particular evidence in the present case might be considered to have been relevant at least to the question of the respondent's membership of the gang alleged in the complaint, even if the evidence was not of a character that could realistically be said to make it relevant to the issue of propensity to commit the anti-social acts alleged in the complaint.
22. I should stress that, in order to make good the complaint, it is, in my judgment, still necessary to prove the allegations that are specified in the complaint itself; or sufficient of them to establish that the defendant has acted in an anti-social manner within section 1(1)(a). Evidence of post-complaint behaviour may assist in proving the allegations contained in the complaint, but, as it seems to me, does not of itself enlarge the scope of the complaint. If the complaint is to be enlarged, that must be done by amendment. I would reject the submission made by Mr Manning that the complaint can itself be substantiated on the basis of later behaviour, even where the behaviour alleged in the complaint has not itself been proved. In the absence of an appropriate amendment to bring in the later behaviour as part of what is alleged in the complaint, it cannot assist in the way contended for by Mr Manning.
23. In the present case, there was no application to amend the complaint. Accordingly, the evidence of later behaviour could have only the limited function that I have indicated. Proof of that later behaviour could not of itself enable the complaint to be substantiated.
24. I have concentrated so far on section 1(1)(a), but post-complaint behaviour is also relevant, and plainly so, to the question in section 1(1)(b) whether an order is necessary to protect relevant persons from further anti-social acts. It is obvious that evidence that a defendant had turned over a new leaf or had, for example, become ill or suffered a disabling accident since the period covered by the complaint would be relevant to the question whether an order was necessary. It is equally obvious, in my view, that evidence of further anti-social behaviour since the period covered by the complaint is relevant to the need for an order. In a case where the anti-social behaviour during the period covered by the complaint was relatively limited, evidence of post-complaint behaviour might indeed tip the balance in favour of the need for an order. Mr Manning was right to submit that more recent evidence may be of particular value in deciding whether an order should be made.
25. Those are the reasons why I consider that the judge was wrong to hold that evidence of later behaviour was irrelevant to the questions he had to consider. It seems to me that the reasons actually given by him do not provide valid grounds for holding such evidence to be irrelevant. I would therefore give a negative answer to both aspects of the question posed in the case stated, and I would allow the Council's appeal.
26. As I see it, nothing further is required in this case. It is unnecessary to express any view on whether there were or might have been good reasons to exclude the evidence of post-complaint behaviour in the exercise of the court's discretion. That was not the basis on which the matter was decided below, and is not an issue raised by the case stated for the opinion of this court. Further, the preliminary ruling has been challenged because of the issue of principle to which it gives rise, not with a view to setting aside the District Judge's ultimate decision that the case against the respondent had not been proved. That decision, as I have indicated, has not been challenged. It follows that there can be no question of any remittal of this case to the District Judge.
27. MR JUSTICE TUGENDHAT: I agree.
28. MR MANNING: My Lords, I am very grateful for your Lordship's observations. In relation to the matter of costs, the respondent is, as I understand it, publicly funded with no contribution, but I do have an application for costs for what it may be worth.
29. LORD JUSTICE RICHARDS: I granted a representation order at a late stage to enable the respondent to be represented, really so that this court could have the benefit of submissions to the contrary effect to those put forward by the Council. The Council took this as a point of principle where they wanted established that the District Judge was wrong in his approach, and they have succeeded in that.
30. MR MANNING: I had not been aware that those were the circumstances in which the representation order was granted. May I take instructions for a moment?
31. LORD JUSTICE RICHARDS: By all means. (pause)
32. MR MANNING: My Lord, I am instructed not to proceed with the matter.
33. LORD JUSTICE RICHARDS: That is very sensible. There will be no order as to costs. Thank you both very much.
34. MR HARRIS: My Lord, I think I am right in saying my costs need to be taxed, unless I am very much mistaken.
35. LORD JUSTICE RICHARDS: I think because you have the representation order, that will follow automatically. I do not think you need an order for detailed assessment or anything of that sort if you have a representation order. If you do, you can come back and you will get it.
36. MR HARRIS: I am grateful.