Carter v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS,MR JUSTICE COULSON |
| Judgment Date | 27 July 2009 |
| Neutral Citation | [2009] EWHC 2197 (Admin) |
| Date | 27 July 2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2009] EWHC 2197 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Thomas and
Mr Justice Coulson
Mr Stephen Field (instructed by SJ Law, Walthamstow E17 7BX) appeared on behalf of the Appellant/Applicant
Mrs Julia Needham (instructed by the CPS) appeared on behalf of the Respondent
Monday 27 July 2009
The Legislation
1. Under section 30 of the Anti-Social Behaviour Act 2003, where a police officer with the rank of at least Superintendent has reasonable grounds to believe that members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of two or more persons in public places in a locality within the police area where anti-social behaviour is a significant problem, he may give an authorisation that police officers in uniform may exercise certain additional powers for up to six months.
2. Section 31 of that Act provides that the authorisation must be in writing and signed by the police officer of at least Superintendent rank and must specify the locality. It must be publicised in accordance with the provisions of section 31(3). When such an authorisation is in place, the powers given under section 30 may be exercised by a police officer in uniform if he has reasonable grounds for believing that the presence of two or more persons in such a place may result in the public being intimidated, harassed, alarmed or distressed. If he is of that view, he may give a direction to disperse and not to return to the locality within 24 hours, unless the person's residence is within the locality. The contravention of such a direction is a criminal offence for which the offender can be sentenced to three months’ imprisonment or fined.
3. It is clear from this brief description that these legislative provision impose a significant restriction on the liberty of persons where there is perceived to be in certain areas of cities a problem for which this sort of power may be a remedy. However, as it is an interference with the liberty of the subject, and as a novel route has been taken to impose such an interference through sub-delegated powers, it is important that proper procedures should be in place to ensure that the powers that are given to the constable are properly given; and secondly, that in each case there has been a direction and an infringement of the direction.
4. It is evident that Parliament gave very careful consideration to these matters by providing for the authorisation given by the senior police officer to be in writing, by providing that there be proper publicity and by making it clear that the directions could not be used for certain purposes, such as conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, and cannot be made in respect of persons who are taking part in a public procession of the kind mentioned in section 11(1) of the Public Order Act 1986 in respect of which relevant notices have been given.
The making of the authorisation with which we are concerned
5. On 13 July 2008 Superintendent Williams of the Metropolitan Police signed an authorisation in accordance with the terms of the Act in respect of a number of roads within Walthamstow. The order was countersigned, as the legislation requires, by an officer of the local authority. The order was on a form headed “Restricted”. It is difficult to understand how that sensibly could have been placed on such an authorisation. The order also contained a paragraph dealing with publicity details, which provided that a notice be placed in a window of the community centre located on the estate. It is difficult to see why the order contains a provision in respect of publicity details, if it had only been intended that the notice be placed in a window of a community centre located on the estate. It is also difficult to see how any court could have concluded that proper publicity would have been given in accordance with the provisions of the Act if the very limited publicity provisions in the authorisation had been followed. This is one illustration of a number of errors that appear to have been made in the practical application of this novel form of legislation.
6. In accordance with the Act, a formal notice was drafted to give the requested publicity. It was drafted in terms that are not readily understandable to those who were likely to be affected by it. However, its terms complied with section 31(3) of the Act. No doubt because the police officers on the ground, the Safer Neighbourhoods and the Council of Waltham Forest all considered that something much more user friendly was required, they produced a document called a “Dispersal Order”. It contained a map and it set out much more clearly what was intended in the vernacular. The “Dispersal Order” was posted over the relevant area of Waltham Forest and police officers were given it so that they could hand it out. The “Dispersal Order” is not in a form prescribed by the legislation. I shall return to what should have happened in due course.
The decision in the Magistrates’ Court in the case of the appellant
7. The facts are set out in the Case Stated. It is not necessary for me to add to the criticism by Collins J at the directions hearing as to the drafting of the case stated. He concluded that it was just about adequate, and that the person who prepared it should be “admonished”. It is for those with Disciplinary Powers over the draftsman that should consider the view of Collins J.
8. With the assistance of counsel before us, we are just about able to discern the following findings of fact. It is, however, important that those who draft cases for this court should be clear as to their purpose and their form.
9. The facts appear to be as follows: (i) On 8 August 2008 the appellant was with a group of other youths loitering around a car of a resident on the estate covered by the authorisation. (ii) The magistrates found that they were spitting, swearing and otherwise behaving in an unacceptable manner. (iii) At about 8.30pm a police patrol asked them to stop loitering and not to return within 24 hours, in accordance with the “Dispersal Order”. (iv) The youths, including the appellant, were handed a copy of the “Dispersal Order”. (v) It appears that they dispersed. (vi) The police returned ten minutes later. The group was again leaning against the car and behaving in the manner in which they had earlier been behaving. (vii) Police Constable Jenkins handed the appellant another copy of the Dispersal Order, but the appellant refused to take it. He refused to give his name and address and refused to move. (viii) The police officer made enquiries and discovered that he did not live within the area. (ix) He was therefore in contravention of the direction given by the police officer under the Act. He was arrested and charged at 23.01pm. An information was subsequently laid.
10. Shortly thereafter a preliminary hearing took place at the Walthamstow Magistrates’ Court, at which the appellant pleaded not guilty. What happened prior to the hearing on 3 October is not clear, as the magistrates have unfortunately not set out any of the relevant details.
11. On 3 October 2008 the information was heard. The Crown Prosecution Service appeared to prosecute and Mr Kharran appeared for the appellant. After hearing the evidence as to the activities in which the appellant was engaged, Mr Kharran took the point that there was no proper evidence of the authorisation under section 30. It appeared that all the police officer had in court with him was the “Dispersal Order”. He gave evidence that he had been concerned in its preparation. The Legal Adviser advised the justices that there should be a signed copy of the Dispersal Order; that the legislation imposed a restriction on liberty; and that if they were to find the appellant guilty without seeing the signed order, they had to give reasons.
12. The magistrates held that it was sufficient to rely upon the oral evidence of the officer that the “Dispersal Order” was signed and had been properly publicised. It is unfortunate that no one seems to have understood that the legislation did not make any reference to a “Dispersal Order”. It referred to the “authorisation” that conferred the powers on the police officer and the “direction” that could be given under those powers. It is therefore unsurprising that, in view of their lack of advice in relation to the legislation, the magistrates reached the decision they did.
The Decision on this Appeal
13. We have had produced...
To continue reading
Request your trial