James v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ELIAS,MR JUSTICE CALVERT-SMITH |
| Judgment Date | 19 February 2010 |
| Neutral Citation | [2010] EWHC 282 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2010 |
| Docket Number | Case No: CO/11988/2009 |
[2010] EWHC 282 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
On appeal from District Judge Zara
Birmingham Magistrates’ Court
Before: Lord Justice Elias
and
Mr Justice Calvert-Smith
Case No: CO/11988/2009
Ms VICTORIA OSLER (instructed by Messrs Tuckers) for the Appellant
Mr JONATHAN MANNING (instructed by Director of Legal Services Birmingham City Council) for the Respondent
Hearing dates: 2 February 2010
This is an appeal by way of case stated against the decision of District Judge Zara sitting in the Birmingham Magistrates’ Court to vary an anti-social behaviour Order (hereinafter “ASBO”). The background is as follows.
On 6 July 2006 the appellant was made subject to an ASBO. The basis for the order was that the Defendant had been a member of a gang operating in certain parts of Birmingham and had committed various anti -social acts such as swearing, shouting, dropping litter, and congregating with other males in a manner which was likely to cause harm or distress to residents of the area. The terms of the order prohibited the defendant from entering into a specified area of Birmingham or associating with a list of proscribed persons. It was to remain in force for 3 years.
In December 2008 the Authority applied by way of complaint to vary the ASBO in three respects. First, it sought to widen the exclusion zone; second, to extend the list of persons with whom the defendant was not to associate; and finally, it sought to lengthen the duration of the original ASBO by a further period of 2 years.
In support of the Application the Authority sought to rely upon a number of matters. These are not identified in the case stated itself. However, a separate judgment from the judge sets out the nature of the Authority's case. There were two drug-related convictions relating to drugs offences committed in March and May of 2008 in Erdington, an area some distance outside the exclusion zone. This was supported by evidence from neighbours of drug related activities.
The judge was satisfied that there was clearly anti-social behaviour connected with these activities. In addition there were breaches of the ASBO leading to successful convictions. The judge was satisfied that these matters, taken with other anonymous evidence, demonstrated continuing gang activity. There were also incidents in April 2008 and again in February 2009 caught on CCTV cameras which showed that the appellant had been standing with a group of people outside some shops in an area known as Great Hampton Row which was beyond the exclusion zone, for approximately an hour. Many of these individuals were hooded or otherwise sought to conceal their faces from passers-by.
Although the February incident was evidence obtained after the complaint was issued, the judge allowed an amendment of the complaint so as to permit the authority to include evidence of that incident. The judge accepted, however, that it demonstrated little by way of actual anti-social behaviour. However, he did think that it corroborated other evidence to the effect that many people would be intimidated by such a large group of hooded youths, even if some members of the public were not so intimidated.
In the light of this material, the judge agreed the variation sought by the Council. Before considering the appeal against that decision I will set out the relevant law.
The legal framework.
Section 1(1) of the Crime and Disorder Act 1998 governs the circumstances in which an ASBO may be made. It is as follows:
“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 persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;
and in this section “relevant authority” means the council for the local government area or any chief officer of police any part of whose police area lies within that area.”
In R (McCann) v Crown Court at Manchester [2003] 1 AC 787 the House of Lords held that although an ASBO made under section 1 is civil and not criminal in nature, nevertheless the consequences for the defendant are such that the Authority must prove to the criminal standard that the defendant has acted in an anti-social manner. Where that is established, the question whether the order is necessary to protect persons from further anti-social acts within the meaning of section 1(1)(b) is not a question of proof; it involves an exercise of judgment or evaluation.
By section 1(3) it is provided that an application must be made by way of complaint to the magistrates’ court. If the conditions set out in section 1(1) are fulfilled the magistrates’ court may make an ASBO prohibiting the defendant doing any of the things described in the order.
Sub-section (7) provides that the order must have a minimum duration of 2 years.
Section 4 of the Act provides as follows:
“4 Appeals against orders
(1) An appeal shall lie to the Crown Court against the making by a magistrates’ court of an anti-social behaviour order …
(2) On such an appeal the Crown Court—
(a) may make such orders as may be necessary to give effect to its determination of the appeal; and
(b) may also make such incidental or consequential orders as appear to it to be just.”
It is to be noted that the right of appeal does not in terms apply to the variation of the order, but only the making of the order (although this will include the right to appeal its terms: see R v Manchester Crown Court ex parte Manchester City Council [2001] ACD 53). In R (Langley) v Preston Crown Court [2008] EWHC 2623 (Admin) the Divisional Court held that there was indeed no right of appeal against a variation or the new terms stipulated in the order as varied. That principle has not been challenged before us.
The power to vary the order itself is regulated by sub-section 1(8), which succinctly provides that:
“an application may be made by either party by way of complaint to vary or discharge an ASBO.”
Section 127 of the Magistrates’ Courts Act provides as follows:
“127 Limitation of time
(1)Except as otherwise expressly provided by any enactment and subject to subsection (2) below, 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.”
Section 1(5A) of the 1998 Act as amended makes it plain that nothing in section 1 affects the operation of section 127. Thus, where an application is made by way of complaint, the effect of section 1(8) read with section 127 of the Magistrates Courts’ Act is that the matter of complaint must have arisen within 6 months of the complaint being made. An issue in this appeal is whether the “matter” to which reference is made must, at least in the circumstances of this case, include a finding of further anti-social behaviour falling within the terms of subsection 1.
The hearing before the judge.
In the hearing before District Judge Zara, the appellant raised two issues concerning the jurisdiction of the court to make the order. First, it was submitted that in the circumstances of this case there ought to be no order to vary an ASBO because essentially the same objective could be achieved by applying for a new order. The basis of the argument was that there is no right of appeal to the Crown Court where an order is varied, as there would be on an application for a fresh order, and it would frustrate Parliament's intention to permit that right to be removed by the mere convenience of framing the application as a variation of an existing order rather than an application for a new one.
The second ground was that the effect of section 127 of the Magistrates’ Court Act, which s1(5A) of the 1998 Act specifically states is unaffected by that Act, is that the Authority had to establish that an act of anti-social behaviour had occurred within the 6 months prior to the complaint being lodged with the court. Here it was contended that there was no such act established.
The judge rejected both submissions. He concluded that there was no legal impediment to the court varying the order by adding to the period for which the restrictions should operate, even if this was for a two year period. Further, nothing in the Crime and Disorder Act itself required the Authority to prove an act of anti-social behaviour within the previous 6 months.
The judge agreed that he should state a case for consideration by this court. As I have said, he did not in the case stated identify the facts on which he relied in reaching his conclusion that the ASBO should be varied. Rather he set out the arguments on these two legal issues and stated his conclusion on them. He then posed two questions. They are as follows:
(1) Was I correct in law to allow the Local Authority to apply for a variation of the existing anti-social behaviour order, as opposed to requiring the Local Authority to...
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