Birmingham City Council v Dixon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE TUGENDHAT |
| Judgment Date | 18 March 2009 |
| Neutral Citation | [2009] EWHC 761 (Admin) |
| Docket Number | CO/11063/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2009 |
[2009] EWHC 761 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Richards
Mr Justice Tugendhat
CO/11063/2008
Mr J Manning (instructed by Birmingham City Council, Legal Services) appeared on behalf of the Claimant
Mr J Harris (instructed by Maurice Andrews) appeared on behalf of the Defendant
: 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 antiy–social behaviour by a defendant after the date of the application.
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.
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.
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.
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.
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.
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).”
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.”
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.
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...
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James v Birmingham City Council
...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......