England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
On appeal from District Judge Zara
Birmingham Magistrates' Court

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2010

LORD JUSTICE ELIAS :

1. This is an appeal by way of case stated against the decision of District Judge Zara sitting in the Birmingham Magistrates' Court to vary an anti-social behaviour Order (hereinafter "ASBO"). The background is as follows.
2. On 6 July 2006 the appellant was made subject to an ASBO. The basis for the order was that the Defendant had been a member of a gang operating in certain parts of Birmingham and had committed various anti -social acts such as swearing, shouting, dropping litter, and congregating with other males in a manner which was likely to cause harm or distress to residents of the area. The terms of the order prohibited the defendant from entering into a specified area of Birmingham or associating with a list of proscribed persons. It was to remain in force for 3 years.
3. In December 2008 the Authority applied by way of complaint to vary the ASBO in three respects. First, it sought to widen the exclusion zone; second, to extend the list of persons with whom the defendant was not to associate; and finally, it sought to lengthen the duration of the original ASBO by a further period of 2 years.
4. In support of the Application the Authority sought to rely upon a number of matters. These are not identified in the case stated itself. However, a separate judgment from the judge sets out the nature of the Authority's case. There were two drug-related convictions relating to drugs offences committed in March and May of 2008 in Erdington, an area some distance outside the exclusion zone. This was supported by evidence from neighbours of drug related activities.
5. The judge was satisfied that there was clearly anti-social behaviour connected with these activities. In addition there were breaches of the ASBO leading to successful convictions. The judge was satisfied that these matters, taken with other anonymous evidence, demonstrated continuing gang activity. There were also incidents in April 2008 and again in February 2009 caught on CCTV cameras which showed that the appellant had been standing with a group of people outside some shops in an area known as Great Hampton Row which was beyond the exclusion zone, for approximately an hour. Many of these individuals were hooded or otherwise sought to conceal their faces from passers-by.
6. Although the February incident was evidence obtained after the complaint was issued, the judge allowed an amendment of the complaint so as to permit the authority to include evidence of that incident. The judge accepted, however, that it demonstrated little by way of actual anti-social behaviour. However, he did think that it corroborated other evidence to the effect that many people would be intimidated by such a large group of hooded youths, even if some members of the public were not so intimidated.
7. In the light of this material, the judge agreed the variation sought by the Council. Before considering the appeal against that decision I will set out the relevant law.

The legal framework.

8. Section 1(1) of the Crime and Disorder Act 1998 governs the circumstances in which an ASBO may be made. It is as follows:

"1 Anti-social behaviour orders

(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 persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;

and in this section "relevant authority" means the council for the local government area or any chief officer of police any part of whose police area lies within that area."

9. In R (McCann) v Crown Court at Manchester [2003] 1 AC 787 the House of Lords held that although an ASBO made under section 1 is civil and not criminal in nature, nevertheless the consequences for the defendant are such that the Authority must prove to the criminal standard that the defendant has acted in an anti-social manner. Where that is established, the question whether the order is necessary to protect persons from further anti-social acts within the meaning of section 1(1)(b) is not a question of proof; it involves an exercise of judgment or evaluation.
10. By section 1(3) it is provided that an application must be made by way of complaint to the magistrates' court. If the conditions set out in section 1(1) are fulfilled the magistrates' court may make an ASBO prohibiting the defendant doing any of the things described in the order.
11. Sub-section (7) provides that the order must have a minimum duration of 2 years.
12. Section 4 of the Act provides as follows:

"4 Appeals against orders

(1) An appeal shall lie to the Crown Court against the making by a magistrates' court of an anti-social behaviour order …

(2) On such an appeal the Crown Court—

(a) may make such orders as may be necessary to give effect to its determination of the appeal; and

(b) may also make such incidental or consequential orders as appear to it to be just."

13. It is to be noted that the right of appeal does not in terms apply to the variation of the order, but only the making of the order (although this will include the right to appeal its terms: see R v Manchester Crown Court ex parte Manchester City Council [2001] ACD 53). In R (Langley) v Preston Crown Court [2008] EWHC 2623 (Admin) the Divisional Court held that there was indeed no right of appeal against a variation or the new terms stipulated in the order as varied. That principle has not been challenged before us.
14. The power to vary the order itself is regulated by sub-section 1(8), which succinctly provides that:

"an application may be made by either party by way of complaint to vary or discharge an ASBO."

15. Section 127 of the Magistrates' Courts Act provides as follows:

"127 Limitation of time

(1)Except as otherwise expressly provided by any enactment and subject to subsection (2) below, 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."

16. Section 1(5A) of the 1998 Act as amended makes it plain that nothing in section 1 affects the operation of section 127. Thus, where an application is made by way of complaint, the effect of section 1(8) read with section 127 of the Magistrates Courts' Act is that the matter of complaint must have arisen within 6 months of the complaint being made. An issue in this appeal is whether the "matter" to which reference is made must, at least in the circumstances of this case, include a finding of further anti-social behaviour falling within the terms of subsection 1.

The hearing before the judge.

17. In the hearing before District Judge Zara, the appellant raised two issues concerning the jurisdiction of the court to make the order. First, it was submitted that in the circumstances of this case there ought to be no order to vary an ASBO because essentially the same objective could be achieved by applying for a new order. The basis of the argument was that there is no right of appeal to the Crown Court where an order is varied, as there would be on an application for a fresh order, and it would frustrate Parliament's intention to permit that right to be removed by the mere convenience of framing the application as a variation of an existing order rather than an application for a new one.
18. The second ground was that the effect of section 127 of the Magistrates' Court Act, which s1(5A) of the 1998 Act specifically states is unaffected by that Act, is that the Authority had to establish that an act of anti-social behaviour had occurred within the 6 months prior to the complaint being lodged with the court. Here it was contended that there was no such act established.
19. The judge rejected both submissions. He concluded that there was no legal impediment to the court varying the order by adding to the period for which the restrictions should operate, even if this was for a two year period. Further, nothing in the Crime and Disorder Act itself required the Authority to prove an act of anti-social behaviour within the previous 6 months.
20. The judge agreed that he should state a case for consideration by this court. As I have said, he did not in the case stated identify the facts on which he relied in reaching his conclusion that the ASBO should be varied. Rather he set out the arguments on these two legal issues and stated his conclusion on them. He then posed two questions. They are as follows:

(1) Was I correct in law to allow the Local Authority to apply for a variation of the existing anti-social behaviour order, as opposed to requiring the Local Authority to proceed by way of application for a new order?

(2) Was I correct in law in deciding that the Local Authority did not need to prove an act of anti-social behaviour in the period of 6 months before the issuing of a complaint to vary an anti-social behaviour order?

21. I confess that it is not clear to me from the judgment whether the judge was or was not satisfied to the criminal standard that any anti-social act had been committed in the six month period prior to the complaint being made. Indeed, he does not in his judgment identify any act occurring within the six month period. However, it appears to have been assumed that there was some relevant conduct within the six months. The fact that he posed the second question in the case stated in the way he did would suggest that he was not satisfied that there was necessarily any anti-social behaviour falling within the terms of section 1 of the Crime and Disorder Act. He plainly took the view that even if there were no anti-social behaviour in that period, this did not preclude him from making the variation. He appears to have accepted the Authority's contention that the critical question was whether, in the light of the further evidence adduced, the extension was necessary and proportionate to provide adequate protection to the public.

The grounds of appeal.

22. The arguments advanced before us in large part mirrored those which were run before the judge. As to the first question, the appellant relies in particular on the judgment of Lord Justice Latham, giving the judgment of the Divisional Court (Latham LJ and Rafferty J) in Leeds City Council v RG [2007] EWHC 1612 (Admin). This concerned an application to extend an ASBO which had originally been imposed for 2 years by one further year. The magistrates refused the application, holding that they had no power to extend the duration of the ASBO, and the council appealed by way of case stated. The Divisional Court held that the magistrates had erred and that there was power to extend the order. The word 'variation' was a wide one and there was no justification for excluding from its scope any variation, even one involving an extension to the duration of the order.
23. In reaching this conclusion the court relied in particular on the decision of Lord Justice Scott Baker giving the judgment of this court in DPP v Hall [2005] EWHC 262 (Admin). Hall concerned a similar power of variation given by section 5(4) of the Protection from Harassment Act 1997. In that case Scott Baker LJ, with whose judgment Rafferty J agreed, held that there was no basis for distinguishing between the duration of an order and its other terms. Accordingly, since there was no doubt that other terms could be varied, the power of variation must include a power to extend the duration. Scott Baker LJ observed, with respect to the power to vary (para 8):

"the purpose of the provision was to protect the victim or potential victim from harassment. In my judgment, the subsection should be construed so as to enable the court to do that in the most simple and expeditious way possible."

In Hall, as in part at least in this case, the prosecution relied upon breaches of the original order to support the application for variation. Such breaches do not necessarily constitute independent acts of harassment. The court held that the judge below had been entitled to find that that extending the duration of the order was justified in order to protect the victim.

24. Latham LJ in the Leeds case, whilst following Hall, did nonetheless consider that it was potentially significant that the right of appeal might be denied to a party where there was a variation as opposed to the making of a new order. This only arises where the variation is for a period of two years or more. If the extension is for a shorter period (as it was in the Leeds case itself) the problem does not arise since there is no power to make a fresh order for a shorter period. Whilst this factor did not, in the court's view, justify a distorted construction of the power to vary so as to bar a variation for two years or more, it did mean that it might be inappropriate for the court to make the variation sought. Lord Justice Latham summarised the position as follows (para 12):

"The protection for a defendant is in our view provided by the fact that an application to vary, if it imposes more stringent obligations (such as greater length) on a defendant can only succeed if the applying authority can put before the magistrates material which justifies the extension as necessary in order to achieve the statutory objective. The usual standard and burden of proof will apply to the determination of that question. Further, in the case of an application to vary length the applying Authority will have to persuade the magistrates that it is appropriate to vary the length of an existing ASBO rather than make application for a new one. There would be a clear rationale, for example, for asking for an extension of an ASBO of less than 2 years on the basis that the Authority did not consider that it was necessary to have a further period as long as a period of 2 years, which would be necessary were a fresh ASBO to be ordered."

25. The appellant submits that this is precisely one of those cases where the court should require the prosecution to seek a new order. There is no reason why they should not have done so, and it frustrated the right of appeal not to do so. Further, there was no proper consideration by the judge as to why a variation would in the circumstances be appropriate, rather than making a fresh order. The "clear rationale" for making the variation called for by Lord Justice Latham was neither obvious nor stated. The judge simply relied upon the Leeds case in support of the proposition that an extension was legally permissible without engaging the further question whether it was also appropriate.
26. As to the second question, the appellant submits that the plain wording of section 127 of the Magistrates Courts' Act read with section 1(5A) of the Crime and Disorder Act requires that the complaint raised by the Authority should demonstrate that an anti-social act has been committed within the six months preceding the making of the complaint in just the same way as this has to be established before an ASBO is obtained in the first place. There was no finding, and certainly no clear finding, of any such breach here.
27. The Authority submits that there is a power to vary. The only question is whether it is a proper way of seeking to protect the public interest from the activities of anti-social individuals like the appellant. There are no statutory limitations found in section 1(8) as to the kind of evidence required to justify a variation. The circumstances may vary very widely. They may include uncontroversial matters, such as the fact that the defendant is proposing to move house into the forbidden zone, or has moved well away from the area. Here there was clear evidence that further anti-social acts had occurred, as well as other unacceptable behaviour involving gang land associates, which suggested the likelihood of further anti-social behaviour and justified extending the order.
28. Furthermore, as far as section 127 of the Magistrates' Court Act is concerned, there is no basis for saying that this requires proof of an anti-social act within the six months. It simply requires that some relevant conduct giving rise to the complaint - constituting the matter of the complaint - must have occurred within that period. But that was the position here. Provided that there was conduct within the period which, when considered together with any earlier conduct, rendered it necessary to vary the order, then that is sufficient justification. Furthermore, it was legitimate also to have regard to conduct post dating the complaint, in this case the video of anti-social conduct in February 2009 to corroborate other alleged anti-social behaviour: see the judgment of this court (Richards LJ and Tugendhat J) in Birmingham City Council v Dixon [2009] EWHC 761 (Admin).
29. The Authority relies by analogy upon the decision of the Divisional Court (Latham LJ and Underhill J) in R (on the application of Derek Smith) v Snaresbrook Crown Court [2008] EWHC 1282. In that case the magistrates imposed a closure order pursuant to section 2 of the Anti-Social Behaviour Act 2003. This is an order forbidding anyone from having access to premises where the court is satisfied that they have been used in connection with the use, production or supply of a class A drug; where that use of the premises is associated with the occurrence of disorder or serious nuisance; and where the making of the order is necessary to prevent the recurrence of such disorder or nuisance for the period specified in the order.
30. Section 5(1) of the Act provides that a constable may make a complaint to the justices for an extension of the period, provided the total period does not exceed six months. The appellant challenged an extension on the grounds that there had been no change of circumstance since the first order was made. Underhill J, giving the judgment of the court, rejected this submission and held that the only material question was whether it was necessary to prevent the disorder for a further period.
31. The Authority submits that a similar principle applies here. It is not necessary to establish fresh evidence of anti-social behaviour before an ASBO can be varied. Such anti-social behaviour is established by the original order. It is only necessary for the Authority to adduce evidence to satisfy the court that such variation is necessary to achieve the objective of the order, namely to provide the requisite protection to the public.

Discussion.

32. In my judgment, the central issue relevant to both questions posed by the judge is whether the Authority is required to establish a fresh act of anti-social behaviour before any variation of the order, or at least any variation by extension, can take effect. If this is not necessary at all, then it follows that there is no obligation to establish such an act in the six months preceding the making of the complaint (although some relevant event capable of constituting a "matter of complaint" must occur within that period.)
33. Equally, since a fresh ASBO can only be made where an anti-social act has been committed within six months of a complaint being made, then if no such act is relied upon, any change in circumstance can only be reflected in the variation of an existing order. The option of obtaining a fresh ASBO will not in those circumstances be available.
34. In my judgment, there is no basis for saying that a variation requires the establishment of a fresh anti-social act. Nothing in section 1(8), which is cast in very general terms, requires this. It does not seek to limit the kind of evidence which a court can consider before varying the order.
35. Frequently, ASBOs will be varied to reflect a change in circumstance which is wholly unrelated to the commission of any fresh anti-social act, such as the examples given by the Authority where, say, a defendant may obtains a job in the forbidden area or in circumstances where he will inevitably have contact with someone with whom he should not associate.. No anti-social act need be established to justify the variation. There is in principle no basis for treating an extension of duration of the order any differently from any other terms.
36. Of course, as Latham LJ said in the Leeds case, there will have to be cogent evidence adduced before the court before it is willing to conclude that it is necessary to extend the terms of the order. No doubt that is likely in most cases to involve some additional anti-social acts. However, this is not necessarily so and it is ultimately a question for the judge hearing the case to determine whether the variation is necessary.
37. Section 127 does not in my view assist with respect to this question. It simply requires that a complaint must be made within six months from the date when the matter of complaint arose but it says nothing as to what should constitute such a matter of complaint. In my judgment it is simply an event or circumstance which it is alleged renders the original order inappropriate for one reason or another. There is no basis for saying that it has to be conduct which would justify the making of a fresh order.
38. The underlying premise behind this submission of the appellant appears to be the notion that an ASBO should be treated in some sense akin to a criminal sentence, so that no adverse variation should be imposed without evidence of a fresh offence. In our judgment, that is a false premise. As the McCann case makes clear, an ASBO is not a criminal sanction. I agree with the purposive approach adopted in the Hill and Snaresbrook cases, albeit that they were concerned with different statutory provisions. The question is whether it is necessary to vary the order to protect the public.
39. Ms Osler shifted her argument before the court - or at least made a different submission to that which I had understood her original argument to be - and submitted that whilst it is not in all cases necessary for there to be fresh anti-social behaviour within the six month period before the order can be varied, that must be established if the Authority is contending that it is such behaviour which justifies the variation.
40. I do not accept that. It seems to me that the prosecution is entitled to rely upon acts which they may well contend are, in fact, acts of anti-social behaviour within the statutory definition but which they consider would in any event, when considered in the round with other material information (which in this case included earlier anti-social behaviour) justify a variation of the order to protect the interests of the public. The heart of the Authority's case is that there has been further conduct, some occurring both before and after the complaint was lodged, justifying a variation of the order. Whether some or all of that conduct should independently constitute anti-social behaviour sufficient to justify an order in its own right should not matter, even if the prosecution's principal contention is that it does.
41. Strictly this means that the second question does not arise since if a fresh order is to be made, there must be an anti-social act in the six months preceding the lodging of the claim. However, I would conclude that it was in any event a proper exercise of discretion in this case to proceed by way of a variation rather than a fresh order. I would accept that if the purpose was simply to defeat the right of appeal, it would be quite inappropriate to vary the original order. But there is no evidence of that here.
42. In my judgment, where any fresh anti-social behaviour or other unacceptable conduct (such as breaches of that order) is closely interlinked with the original order, it may be desirable that the limitations imposed by the original order should stand, and it may be more sensible to vary rather than impose a fresh order. This is so even where the period of the order is varied by an extension of two years or more.
43. In my view, the original anti-social act justifies the making of an order and changes in circumstance may then justify a variation of that order. The only question is whether the change in those circumstances is such as to justify the court in concluding that it is necessary to vary the order in the way proposed so as to secure adequate protection for the public. If the original ASBO ceases to be sufficient to achieve the objective of protecting the public or that section of the public which the order is designed to protect, then a further or modified protection will in principle be necessary.
44. Accordingly, in my judgment, the court was entitled to conclude that a variation was appropriate even if the Authority had the option of applying for a fresh order. Nor do I accept the submission that the judge ignored the question whether it might have been appropriate to apply for a fresh order. That was plainly an issue put very much before him and it is unrealistic to believe that he would not have had regard to it. He was satisfied that there was sufficient safeguard in the need to establish that any variation was necessary.
45. I should add this. During the course of the hearing it appeared that the position may be that the appellant had been in prison for all or virtually all of the six month period leading up to the complaint being lodged. The court was concerned that if that were the case then it might properly be argued that there was no material matter of any kind which had occurred within the six months prior to the complaint being lodged capable of amounting to a matter of complaint, in which case the terms of section 127 would not have been satisfied at all. Although the case stated appears to have assumed that the appellant was at liberty for at least much of that period, there was some basis for believing that this might not have been the case. We were reluctant to conclude that the ASBO had been properly varied if the question of his period of imprisonment, which should be a matter of public record, demonstrated that the matters relied upon by the Authority as conduct in the relevant six month period could not have occurred at the times alleged. We might in those highly unusual circumstances have been prepared to question the factual basis of the case stated, or at least to have referred the matter back for the issue to be explored more fully by the judge. We adjourned the matter so that the parties could seek to determine what the true position was and to make any further submissions in the light of it.
46. The court is surprised to hear there still seems to be uncertainty as to precisely when this appellant was in prison. At least there is no agreement about it. In the circumstances we do not think we can take the matter further. The case stated is based on the premise - apparently not challenged at the time - that there was conduct which constituted relevant matters of complaint within the six month period. Given my finding that this conduct does not need independently to constitute anti-social behaviour within the meaning of section 1 of the Crime and Disorder Act, there is no basis for concluding that section 127 was infringed.

Disposal.

47. In my judgment the appeal fails. I would answer the questions posed by the judge, "yes" and "yes" respectively.

MR JUSTICE CALVERT-SMITH:

48. I agree.