C v Sunderland Youth Court and Northumbria Police and Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN,LORD JUSTICE BROOKE |
| Judgment Date | 09 October 2003 |
| Neutral Citation | [2003] EWHC 2385 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3466/2003 |
| Date | 09 October 2003 |
[2003] EWHC 2385 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Brooke
Mr Justice Sullivan
CO/3466/2003
MR S SIMBLET (instructed by Jacqueline Emmerson Solicitors) appeared on behalf of the CLAIMANT
MR G DUFF (instructed by CPS) appeared on behalf of the INTERESTED PARTY
MR J CROW (instructed by Treasury Solicitor) appeared on behalf of the INTERESTED PARTY
Introduction
This is an application for permission to apply for judicial review of a decision by the Sunderland Youth Court on 12 June of this year to impose what was described by the court in its acknowledgment of service as an "anti-social behaviour order for two years prohibiting the claimant from exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress."
The statutory framework
The power to make anti-social behaviour orders ("ASBOs") was introduced by Section 1 of the Crime and Disorder Act 1998 ("the 1998 Act") which came into force on 1 April 1999. As amended by the Police Reform Act 2002, section 1 provides 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.
(1A) In this section and sections 1B and 1E 'relevant authority' means —
(a) the council for a local government area;
(b) the chief officer of police of any police force maintained for a police area;
(c) the chief constable of the British Transport Police Force; or
(d) any person registered under section 1 of the Housing Act 1996 as a social landlord who provides or manages any houses or hostel in a local government area.
(1B) In this section 'relevant persons' means —
(a) in relation to a relevant authority falling within paragraph (a) of subsection (1A), persons within the local government area of that council;
(b) in relation to a relevant authority falling within paragraph (b) of that subsection, persons within the police area;
(c) in relation to a relevant authority falling within paragraph (c) of that subsection.
(i) persons who are on or likely to be on policed premises in a local government area;
(ii) persons who are in the vicinity of or are likely to be in the vicinity of such premises;
(d) in relation to a relevant authority falling within paragraph (d) of that subsection.
(i) persons who are residing in or who are otherwise on or likely to be on premises provided or managed by that authority; or
(ii) persons who are in the vicinity of or likely to be in the vicinity of such premises.
(3) such an application shall be made by complaint to the Magistrates' Court whose commission area includes the local government area or police area concerned.
(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.
(5) For the purposes of determining whether the condition mentioned in subsection (1A) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.
(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons (whether relevant persons or persons elsewhere in England and Wales) and further anti-social acts by the defendant.
(7) An anti-social behaviour order shall have effect for a period (not less than 2 years) specified in the order or until further order.
(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.
(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with date of service of the order.
(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is [guilty of an offence] and liable.
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or both."
Subsections (11) and (12) are not relevant for present purposes.
Section 1 was considered by the House of Lords in R(McCann and others) v Crown Court at Manchester [2002] 3 WLR 1313; [2002] UKHL 39. The House of Lords concluded that the procedures for making an ASBO under section 1 were civil rather than criminal in nature, and that therefore, they were not subject to the rules of evidence which are applicable in criminal proceedings.
In practice it was found that making orders under section 1 was procedurally cumbersome and time consuming. So, in addition to making amendments to section 1, the 2000 Act in sections 62 to 65 conferred additional powers by inserting sections 1A to 1D after section 1 in the 1998 Act. Section 1A gives the Secretary of State power to add relevant authorities. Section 1B gives power to the County Court to make orders, and section 1D gives power to make interim orders. Section 1C, which is in issue in the present case, is inserted by section 64 of the 2002 Act, is entitled, "Orders on conviction in criminal proceedings" and is in the following terms:
"(1) This section applies where a person (the; 'offender') is convicted of a relevant offence.
(2) If the court considers-
(a) that the offender has acted, at any time 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 an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him
it may make an order which prohibits the offender from doing anything described in the order.
(3) The court may make an order under this section whether or not an application has been made for such an order.
(4) An order under this section shall not be made except-
(a) in addition to a sentence imposed in respect of the relevant offence; or
(b) in addition to an order discharging him conditionally.
(5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.
(6) An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged.
(7) In the case of an order under this section made by a magistrates' court, the reference in subsection (6) to the court by which the order was made includes a reference to any magistrates' court acting for the same petty sessions area as that court.
(8) No application may be made under subsection (6) for the discharge of an order before the end of the period of two years beginning with the day on which the order takes effect.
(9) Subsections (7), (10) and (11) of section 1 apply for the purposes of the making and effect of orders made by virtue of this section as they apply for the purposes of the making and effect of anti-social behaviour orders.
(10) In this section-
'the commencement date' has the same meaning as in section 1 above;
'the court' in relation to an offender means-
(a) the court by or before which he is convicted of the relevant offence; or
(b) if he is committed to the Crown Court to be dealt with for that offence, the Crown Court; and
'relevant offence' means an offence committed after the coming into force of section 64 of the Police Reform Act 2002."
Section 64 came into force on 2 December 2002.
In the remainder of this judgment I will refer to an order made under section 1C as "an order" to distinguish it from an ASBO made under section 1.
Facts
The claimant was born on 5 December 1987. He has a very poor criminal record going back to 2001. The documentation before the court is in an unsatisfactory state in that there is no single document which sets out in a readily comprehensible and chronological fashion all of his previous offences and the manner in which they were dealt with by the court system.
On 17 January 2003, he escaped from lawful custody. It would appear that he had been arrested with two other youths on suspicion of violent disorder, and after a scuffle with the arresting officers, he struggled free and ran off. He pleaded not guilty to this offence on 20 March 2003. Between February and April 2003, he committed a large number of motoring offences: dangerous driving, driving whilst disqualified and driving whilst uninsured. On 9 April 2003, he committed offences of causing harassment and alarm and resisting a police constable in the execution of his duty....
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