Men (and women) behaving badly

While the fundamental principles that apply in relation to anti-social behaviour and dispersal orders appear to be relatively settled, there have been a number of cases in the past year that are worthy of note. In the first of a two-part series, Jack Anderson, looks at what these cases mean for local authorities.

Evidence

In Birmingham City Council v Dixon [2009] EWHC 761, the High Court held that evidence of anti-social behaviour by a defendant after the date of the application is, in principle, admissible as evidence in proceedings for an anti-social behaviour order. Such evidence can be relevant in establishing a propensity to behave in an anti-social manner in the manner and at the times and places alleged in the complaint and may have probative value in relation to certain factual issues e.g. whether an individual belongs to a gang. Of course, there may be circumstances in which such evidence should be excluded by the court in exercising its discretion to ensure that proceedings are fair.  However, it should be noted that evidence of post-complaint anti-social behaviour does not of itself enlarge the scope of the complaint. Thus the anti-social behaviour that must be proved is the anti-social behaviour alleged in the application; if the relevant authority seeks to enlarge the prosecution must still make good the allegations set out in the complaint and if the prosecution seeks to enlarge the scope of the matters relied on it must seek an amendment.

Findings of fact in support of the order

In R (on the application of McGarrett) v Kingston Crown Court [2009] EWHC 1776 (Admin), which concerned the imposition of an ASBO following conviction, the Court reaffirmed that a failure to make findings of fact is a breach of procedural fairness (see paragraph 27 of the judgment)

Necessity of making the order

An ASBO can only be imposed where it is necessary to make the order. In F v Bolton Crown Court [2009] EWHC 240, the Crown Court imposed an ASBO in addition to a supervision order and curfew. The supervision order included structured sessions to address his behaviour. The Pre Sentencing Report indicated that the Claimant, a child, had difficult home circumstances which contributed to his behaviour. The Claimant had responded well to a previous referral order. On an application for judicial review, the High Court quashed the imposition of the ASBO as these factors undermined the conclusion that an ASBO was necessary.

In R (on the application of Mcgarrett) v Kingston Crown Court [2009] All ER (D) 72, the claimant was the tenant of a local authority. The local authority issued possession proceedings based on allegations of noise and nuisance. The authority suspended the possession order conditional on the claimant’s good behaviour. The claimant was served with a noise abatement notice under s 80 of the Environmental Protection Act 1990 and convicted of one offence of breach of that notice, for holding a wedding which finished at 11 pm. The claimant appealed to the Crown Court. New facts were admitted relating to the claimant’s bad character as background to the proceedings for breach of the noise abatement notice. The judge upheld the conviction and imposed an anti-social behaviour order.

The claimant applied for judicial review.

The Divisional Court allowed the claim. There were no findings of fact by the court on which to base the decision to make an ASBO; the ASBO was based on unproved allegations that had been given merely as background evidence. Furthermore, it could not be said that an ASBO was necessary. The suspended possession order that existed would have the required deterrent effect on the claimant.

Prohibitions

In Heron v Plymouth City Council [2009] All ER (D) 149, the Divisional Court considered a number of prohibitions that had been imposed as part of an ASBO against the general principles governing conditions (see R v Boness [2005] EWCA Crim 2395). The appellant had been convicted of theft from shops, amongst other things. The Court upheld a prohibition “not to enter the city centre or any part of a particular area, marked on an attached map, excluding, inter alia, the bus and railway stations, the police station, the benefits office and the library”. That condition was necessary, proportionate and plainly sensible in removing the appellant from the temptation afforded by a conglomeration of shops.

However, a prohibition “not to behave in any way causing or likely to cause harassment, alarm or distress to any person” was struck down as offending the principles that a prohibition must be precise, targeted at the individual and targeted at the type of anti-social behaviour which it sought to prevent.

A condition that the Appellant was “not to have with him or carry any packaged, wrapped, bagged, new or unused goods or objects not belonging to him, except food in any public place without a valid receipt or the consent of the owner of the packaged, wrapped, bagged, new or unused goods or objects in Plymouth as marked in red on Map 2” was struck down as offending the principle that the terms of an ASBO are to be as simple and clear as possible.

In R v Malong [2009] EWCA Crim 1908, the Court of Criminal Appeal varied an ASBO to allow the appellant to visit solicitors handling an immigration matter for him by a pre-arranged appointment with a letter confirming that appointment. If he was stopped he could then show that letter to indicate that he was not in breach of the ASBO.

Variation of an ASBO without notice

In R (on the application of M) v Burnley, Pendle and Rossendale Magistrates’ Court [2009] EWHC 2874, the claimants had been made subject to an ASBO when aged 10 and 11. The ASBO imposed various prohibitions defined in relation to a particular area. When aged 13 and 14, the claimants moved to a different town. The ASBO no longer referred to the area in which they lived. The Lancashire Constabulary applied to vary the ASBO so that it was relevant to the new address. The claimants were unable to attend the hearing. The justices decided to exercise their discretion to hear the case in the absence of the claimants.

Langstaff J allowed the claimants’ claim for judicial review. If the absence of a defendant were involuntary, it would rarely be right to exercise discretion in favour of commencing a trial unless the defendant was represented and asked that the trial begin. The court should only adjourn where any excuse given for non-attendance is spurious or designed to frustrate the process; or where there is a truly compelling and exceptional reason for proceeding notwithstanding a good excuse for non-attendance. Where the court is satisfied that an excuse is spurious or designed to frustrate the process, it must be sure to state that conclusion and the reasons for it.

Appeals to the Crown Court

In R (on the application of Birmingham City Council v Birmingham Crown Court) & others [2009] EWHC 3329, Beatson J gave guidance as to the approach to be taken where an appeal is made out of time to the Crown Court against the imposition of a free-standing ASBO in the Magistrates’ Court. Beatson J agreed that the 21 day time limit was not a mere formality and had to be complied with unless there was an explanation why it had not been complied with. Time limits were important for a number of reasons: they enable the court to manage its business and have available the full range of options for a just disposal of the case; they enable those for whose benefit proceedings have been instituted to be able to rely on a decision. In the case of a rehearing they include the risk that the quality of evidence will diminish over time; witnesses who were reluctant to attend the first hearing may be unwilling to attend the rehearing; and there will be a cost in time and money should a public authority have to reinvestigate the matter.

However, on the facts of the cases before him, the Crown Court had not erred in granting permission to appeal out of time, basing its decision in part on the age of the appellants. Beatson J gave general guidance on the information an appellant out of time should provide. First, they should indicate their proposed grounds of appeal briefly and, if they are able to, indicate the merits of the appeal. Second, they should say why time should be extended, giving the reasons for delay and, if they are able to, why the proposed respondent would not be prejudiced by an extension of time.

Breach of ASBO: Burden of Proof

In R v Charles [2009] EWCA Crim 1570, the Court of Appeal affirmed Judicial Studies Board guidance to the effect that where the defendant raised the evidential issue of reasonable excuse as a defence to a prosecution for breach of an ASBO, the legal burden fell on the prosecution to prove lack of a reasonable excuse.

Costs

In Manchester City Council v Manchester Crown Court [2009] EWHC 1866, a local authority decided at the hearing of its application for an ASBO that, in light of the progress made by the defendants, it would not proceed with the application. The defendants applied for costs; the Crown Court granted the application for costs. The local authority appealed by way of case stated against the decision to award costs. It was conceded that the local authority’s original decision to apply for an ASBO was properly made. The High Court held that the decision to award costs was Wednesbury unreasonable. Where the authority had acted reasonably in applying for the ASBO and had then acted reasonably in withdrawing the application for an ASBO, there should have been no order for costs.

Dispersal Order

In Carter v Crown Prosecution Service [2009] EWHC 2197, the Divisional Court quashed a conviction for being in contravention of a dispersal order made under section 30 of the Anti-Social Behaviour Act 2003 on the ground that the authorisation notice was invalid. While there is not space to recite them here, the specific facts of the case may be of interest to those concerned with drafting and publicising an authorisation notice under sections 30 and 31 of the 2003 Act. The Divisional Court indicated that there should be available at court, at the first hearing of a prosecution for contravening a dispersal order, a set of all the relevant documents relating to the authorisation. At any event, at the first hearing, the court must ask whether or not the validity of the authorisation is admitted. If it is not admitted, the case should be put back for a short time until later on the same day to enable the defendant to consider the relevant documents. If a challenge is to be made to the authorisation, the question will arise whether the validity of the authorisation is a matter to be determined by the magistrates or by challenge to the High Court; the Divisional Court did not give guidance on that point.

Jack Anderson is a barrister at 4-5 Gray's Inn Square

The second article will look at cases concerned with housing and anti-social behaviour