Needs must

Varying ASBO terms only needs necessity for public protection to be shown, according to a recent High Court ruling. Stuart Penwick looks at the judgement.

The granting of an Anti Social Behaviour Order (ASBO) is potentially one of the most intrusive orders that can be made against a person, as it can significantly impact upon their freedom. Therefore, a court will want to be satisfied that such an order is necessary and proportionate when it is granted and that these factors continue to be in existence whilst the ASBO is in force. If an ASBO is no longer necessary or proportionate, it should be revoked or amended.

Similarly, if any terms of the ASBO need to be altered (either to relax or strengthen its terms), then applications should again be made to the court for this to happen. If applications are made to extend the length of the order for example, it is likely that the request will be contested as in the recent case of James v Birmingham City Council [2010] EWHC 282. The decision in this case will be of interest to all parties involved in applying for ASBOs.

The Facts

In July 2006 the Council (B) applied for and obtained an ASBO against an individual (J) on the basis that he had been a member of a street gang operating in Birmingham and had committed various acts of anti-social behaviour. It was said that this included congregating with other youths in a manner likely to cause harm or distress to residents in the local area. The terms of the ASBO meant that J was prohibited from entering an exclusion zone and from associating with a number of other people. The ASBO was to remain in force for three years.

In December 2008, B applied to vary the terms of the ASBO so as to widen the area of the exclusion zone, to increase the list of people with whom J could not associate and also to extend the length of the ASBO for another 2 years. The evidence put forward during the application to vary included two drug-related offences in March and May 2008 and breaches of the original ASBO's terms.

At the initial hearing, the judge was satisfied that there had been further anti-social behaviour and breaches of the terms of the ASBO. A variation was therefore granted. J appealed against this decision to the High Court.

The questions for the High Court to determine were:

1. whether the judge had been correct to allow B to apply for a variation of the ASBO rather than applying for a 'new' order; and
2. whether the judge had been correct in concluding that B did not need to prove an act of anti-social behaviour in the 6 month period prior to applying for the variation.

J argued that the judge should have required B to seek a new order as the two-year period was the minimum length of an ASBO and that there was no right to appeal against a variation. J also submitted that the Crime and Disorder Act 1998 required it to be demonstrated that an anti-social act had to have been committed in the six months before the application and that there had been no such behaviour.

The High Court's Decision

The High Court rejected J's appeal and held that the judge had been correct on both points. It said that the central issue was whether a 'fresh' act of anti social behaviour had to be proven before a variation of an ASBO could take place. The court said that there was no basis for saying that it must and nothing in the Crime and Disorder Act 1996 limited the evidence which a court could consider before varying an ASBO. Ultimately, it was a question for the judge hearing the case to determine.

The question therefore was not whether further anti-social behaviour could be proved, but instead whether the variation was necessary to protect the public. The court considered that if the original terms of the ASBO were not sufficient to protect the public, then a further or amended order would, in principle, be necessary. In any event, a proper exercise of judicial discretion in this case would be to proceed by way of a variation of the original ASBO.

Summary

The decision in this case shows that it is possible for local authorities to seek amendments to ASBOs, if it is felt that they are not protecting the public adequately enough. Given the draconian nature of ASBOs, it will be necessary for evidence to be shown to the court as to why it is reasonable to vary its terms.

Stuart Penswick is a partner in the housing department at Forbes Solicitors. He can be contacted on 01772 220200 or email This email address is being protected from spambots. You need JavaScript enabled to view it..