Carney v North Lincolnshire Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Supperstone,LORD JUSTICE LLOYD JONES
Judgment Date27 January 2016
Neutral Citation[2016] EWHC 676 (Admin)
Date27 January 2016
Docket NumberCO/4020/2015

[2016] EWHC 676 (Admin)




Royal Courts of Justice


London WC2A 2LL


Lord Justice Lloyd Jones

Mr Justice Supperstone


North Lincolnshire Council

Mr S Skinner (instructed by Sills and Betteridge Solicitors) appeared on behalf of the Appellant

Mr N Mason (instructed by North Lincolnshire Council) appeared on behalf of the Respondent

Mr Justice Supperstone

The appellant appeals by way of case stated against the imposition of an anti-social behaviour order on 27 February 2014 by District Judge Curtis sitting at North Lincolnshire Magistrates' Court upon the application of the respondent made under section 1(1) of the Crime and Disorder Act 1998 which provides:

"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 relevant persons from further anti-social acts by him."


At the conclusion of a 4 day hearing, the District Judge made anti anti-social behaviour order ("ASBO") prohibiting the appellant for a period of 5 years from engaging in any act or behaviour directed at or relating to any member or employee of North Lincolnshire Council that causes or is likely to causes harassment, alarm or distress. In addition, the judge ordered the appellant to pay the respondent's costs in the sum of £16,894.


On 18 March 2014 the appellant requested the judge to state a case for the opinion of the High Court in relation to his decision to make an anti-social behaviour order. The request contained three proposed questions, all relating to the legality of and imposition of the order. There was no proposed question relating to the legality of the making of the costs order.


On 28 March, the judge issued a certificate refusing to state a case on the ground that the application was frivolous. This led to an application on 23 June 2014 by the appellant for judicial review of the refusal to state a case. In his detailed statement of facts and grounds, the appellant, as claimant in the judicial review, also complained at paragraph 39 about the district judge's failure to provide any written judgment or ruling on the issue of costs. On 29 August 2014 Collins J granted permission. Following the district judge agreeing to state a case on 26 May 2015, the judicial review claim was withdrawn by consent. Thereafter, the judge reviewed his decision, and on 17 July 2015 he stated a case containing the following three questions for the opinion of the High Court.


Question 1: on the facts of this case, was I correct to find that the defendant acted in an anti-social manner which caused harassment, alarm or distress to one or more persons not of the same household as himself? Question 2: on the facts of this case, was I correct in concluding that an anti-social behaviour order was necessary? Question 3: if I was correct in considering the order to be necessary, was the order I made containing the single prohibition in the terms drafted proportionate and lawful on the facts of this case?


The appellant responded to the case stated by making an application to set aside the consent order and restore the judicial review. On 14 September 2015, Collins J refused this application, observing that the judge did not deal with the costs issue but he could be forgiven that since the application to state a case was itself unsatisfactory. He said that, in all the circumstances, it was open to the claimant's advisers to apply to amend the case stated to deal with costs. In order to progress the appeal, the judge directed that the case be amended by (1) annexing the statements upon which the application for the ASBO was based, and (2) requiring the judge to deal with his costs decision. It is said he decided that he had no discretion to refuse the application for costs or to reduce the amount claimed. If that was so, he should explain why. Following the direction of Collins J, the district judge amended the case stated. However, the amended case stated was only received by the parties recently, on or shortly after 18 January. It is to the amended stated case that I now turn.


At paragraph 2, the judge states that he found the following facts:

"(a) On diverse dates between April and September 2013 the appellant was disruptive and verbally rude to council officials and councillors at council meetings, site meetings, and at an open day.

(b) On diverse dates the appellant swore and used expletives on numerous occasions towards councillors and council officials and was recorded so doing in the tape recording of the telephone conversation with Timothy Allen.

(c) On 9 April 2013 the appellant called Timothy Allen 'a fucking murderer' and suggested he was selling deer carcases at a profit.

(d) On 10 April 2013 the appellant accused Mr Allen of running a 'wood round' and accused Mr Allen of stealing the wood from Crowle Moors and selling it for personal profit and later followed him to his vehicle and told Mr Allen 'the police net was closing round him.'

(e) In August 2013 the appellant told Timothy Allen in a way Mr Allen found intimidating, that he knew where Mr Allen had previously lived in North Wales and that Mr Allen was 'taking on the wrong people,' meaning the Crow brothers, and that "they'll sort you out".

(f) After a public meeting the appellant followed Mr Allen to his car and called him 'a liar, perjurer, forger and murderer'.

(g) On 10 April 2013 the appellant threatened violence towards Andrew Mirault by stating he would 'rip his fucking arms off if he removed any more signs'.

(h) At a public meeting of Crowle Town Council the appellant referred to Mr Allen by stating 'don't you think he looks like Frank Gallagher (dad)'.

(i) On another occasion the appellant accused Mr Allen of being part of a paedophile ring.

(j) On the occasion of another council meeting he called a council employee from the partnership agency with Balfour Beatty 'one of those crooks' and at the same meeting referred to Councillor Briggs stating 'you're a bent politician John,' stating he was bent on six or more occasions.

(k) In another public open meeting the appellant made an open comment to Councillor Barker stating 'I thought you had Alzheimers' which resulted in a warning being given to the appellant.

(l) On another occasion the appellant referred to Councillor Vickers as a 'crook' and also referred to Councillor Witter as a 'crook'.

(m) The appellant called Mr Horan 'a slanty-eyed little fucker'.

(n) In the recorded telephone conversation between the appellant and Mr Allen the appellant referred to Mr Doherty's appearance 'as if he's been hit with a fucking big breeze block, really wants hitting with one, with a split top lip'"."


At paragraph 3, the judge summarised the evidence. Mr Timothy Allen is an environmental team leader with the respondent. Mr Andrew Mirault was a volunteer who, on 10 April 2013, was assisting Mr David Sanderson, the council's public rights of way officer in taking some of the appellant's flyers or signs down.


At paragraph 7, the judge said that at the conclusion of closing speeches he was asked by the advocates if he was in a position to make a decision, and if so it would be welcomed that he should give judgment ex tempore, which he did. He said, as that judgment has been called into question, he took the view that he should expand upon his grounds and reasons for granting the order, in greater detail, which he then did in subparagraph (b) to subparagraph (m) of the case stated:

"(b)On the facts I found the appellant's behaviour encompassed personal abuse of council employees and officials as a consequence of their physical disability or appearance.

Mr Allen was referred to in a public meeting as 'Frank's dad,' a clear reference to the Channel 4 Shameless programme, Frank Gallagher portraying an unemployed, alcoholic, drug taking, dishevelled individual whose approach to life would hardly fit comfortably with that of a council officer.

Mr Anthony Horan whilst on site on 10 April 2013 with Mr Allen and Mr Sanderson was referred to by the appellant as being a 'slanty eyed little fucker'. Mr Horan described this as being a reference to his birth deformity. Initially he said it was the appellant who made the observation and thereafter the Crow brothers who were present joined in switching into, as he described it, 'bully mode'. When Mr Horan was cross examined he was certain the appellant's reference to his features as offensive that he hadn't said anything to him and even when he had asked him to retract the comment he had not done so and the comments got worse, although he turned away the offensive remarks continued. Mr Horan's statement had not included the words that he eventually used in evidence to describe the appellant's insults and he was sufficiently reluctant to provide those words until I intervened to ask him to give the exact wording.

Within the transcript of a telephone call between the appellant and Mr Allen there are numerous examples of the approach with which he adopts when dealing with council officers. Quite apart from discrediting the appellant's evidence that he does not use...

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