Kieron Stannard v The Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 23 January 2019 |
| Neutral Citation | [2019] EWHC 84 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3250/2018 |
| Date | 23 January 2019 |
[2019] EWHC 84 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mrs Justice Whipple
Case No: CO/3250/2018
Rupert Wheeler (instructed by Hennessy and Hammudi Solicitors) for the Appellant
Paul Jarvis (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 12 December 2018
Approved Judgment
Introduction
This is the judgment of the Court to which we have both contributed.
This is an appeal by way of case stated from the Magistrates' Court (District Judge (Magistrates' Court) Sophie Toms) in which the Appellant seeks to challenge his conviction for breach of a Community Protection Notice (“CPN”) issued to him pursuant to section 43 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).
The Appellant submitted at trial that there was no case for him to answer on the alleged breach because the CPN included requirements that were unreasonably wide – in the sense that they were neither necessary nor proportionate to address the risk posed by the Appellant – and it was consequently unlawfully imposed. As a result, the CPN was invalid and could not be enforced against him.
The District Judge rejected that submission on the basis that it was not for her to consider the validity or otherwise of the CPN, and any argument relating to its invalidity could and should have been raised by way of an appeal against the CPN. The trial continued. The judge found the breaches established on the evidence, and the Appellant was convicted.
The central issue raised on this appeal is whether, in the case of a prosecution for breach of a CPN, it is open to a defendant to argue by way of defence that the CPN was and is invalid.
The Legislation
Part 4 of the 2014 Act is headed “Community protection”. Section 43 contains the power to issue a CPN:
“(1) An authorised person may issue a [CPN] to an individual aged 16 or over, or a body, if satisfied on reasonable grounds that—
(a) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and
(b) the conduct is unreasonable.
…
(3) A [CPN] is a notice that imposes any of the following requirements on the individual or body issued with it—
(a) a requirement to stop doing specified things;
(b) a requirement to do specified things;
(c) a requirement to take reasonable steps to achieve specified results.
(4) The only requirements that may be imposed are ones that are reasonable to impose in order—
(a) to prevent the detrimental effect referred to in subsection (1) from continuing or recurring, or
(b) to reduce that detrimental effect or to reduce the risk of its continuance or recurrence.
(5) A person (A) may issue a [CPN] to an individual or body (B) only if—
(a) B has been given a written warning that the notice will be issued unless B's conduct ceases to have the detrimental effect referred to in subsection (1), and
(b) A is satisfied that, despite B having had enough time to deal with the matter, B's conduct is still having that effect.
(6) A person issuing a [CPN] must before doing so inform any body or individual the person thinks appropriate.
(7) A [CPN] must—
(a) identify the conduct referred to in subsection (1);
(b) explain the effect of sections 46 to 51.
(8) A [CPN] may specify periods within which, or times by which, requirements within subsection (3)(b) or (c) are to be complied with.”
Section 46 provides a right of appeal:
“(1) A person issued with a [CPN] may appeal to a magistrates' court against the notice on any of the following grounds.
1. That the conduct specified in the [CPN]—
(a) did not take place,
(b) has not had a detrimental effect on the quality of life of those in the locality,
(c) has not been of a persistent or continuing nature,
(d) is not unreasonable, or
(e) is conduct that the person cannot reasonably be expected to control or affect.
2. That any of the requirements in the notice, or any of the periods within which or times by which they are to be complied with, are unreasonable.
3. That there is a material defect or error in, or in connection with, the notice.
4. That the notice was issued to the wrong person.
(2) An appeal must be made within the period of 21 days beginning with the day on which the person is issued with the notice.
(3) While an appeal against a [CPN] is in progress—
(a) a requirement imposed by the notice to stop doing specified things remains in effect, unless the court orders otherwise, but
(b) any other requirement imposed by the notice is of no effect.
For this purpose an appeal is “in progress” until it is finally determined or is withdrawn.
(4) A magistrates' court hearing an appeal against a [CPN] must—
(a) quash the notice,
(b) modify the notice (for example by extending a period specified in it), or
(c) dismiss the appeal.”
The requirement of section 46(2) that any appeal is made within 21 days is not capable of being extended.
Section 48 provides that a person issued with a CPN who fails to comply with it commits an offence and is liable on summary conviction to a fine. By section 48(3), a person does not commit an offence if he took all reasonable steps to comply with the notice or there is some other reasonable excuse for the failure to comply with it.
Section 52 provides that an authorised person may issue a fixed penalty notice to anyone who that person has reason to believe has committed an offence under section 48. A fixed penalty notice is a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to the local authority.
The Home Office has issued statutory guidance on anti-social behaviour powers contained in the 2014 Act. The current version was updated in December 2017. Paragraph 2.4 deals with CPNs. For the purposes of this appeal, it is unnecessary to refer to the particular terms of the guidance, although it should be noted that it is said that CPNs are “intended to deal with short or medium-term issues”.
The Facts
On 28 February 2018, Reading Borough Council acting together with Thames Valley Police issued the Appellant with a standard form warning letter which stated that they had reason to believe that his behaviour – specifically anti-social behaviour in the vicinity of McDonald's restaurant on Friar Street in the centre of Reading – was having a detrimental effect on those living in the area, and was causing harassment, alarm and distress. The letter required the Appellant to cease this conduct immediately, failing which it made clear that he would be served with a CPN.
On 1 March 2018, the day after the Appellant received the warning letter, the police were called to McDonald's, Friar Street. The police identified the Appellant as one of a group of youths alleged to be causing trouble at that venue. PC Rawlings issued the Appellant with a CPN, there and then. The Appellant countersigned it in acknowledgement.
The prohibitions imposed by the CPN were as follows:
“The notice now requires that you:
1 – are not to enter the area of Reading Town Centre as defined by the map overleaf unless there is a prearranged appointment with a court or probation worker.
2 – are to give notice of a prearranged appointment to Thames Valley Police by calling ‘101’ at least 24 hours prior to the relevant time.
3 – are not to attend within 100m of any McDonald's restaurant in Reading.
4 – are not to be in a group of more than 3 individuals including yourself.”
The CPN was of indefinite duration. A plan of Reading with the proscribed centre area clearly marked was attached. The CPN warned the Appellant that, if he failed to comply with the requirements of the notice without reasonable excuse, he would be committing a criminal offence and could be prosecuted, in which case he could be liable to a fine and made subject to court-imposed requirements; or, if not prosecuted, he could alternatively be issued with a fixed penalty notice. It notified the Appellant of his right of appeal against the CPN within 21 days of the date of service, and set out the grounds on which an appeal could be brought including that “any of the requirements in the notice, or any of the periods within which or times by which they are to be complied with, are unreasonable”. The CPN made clear that, whilst any appeal was pending, prohibitory requirements of the notice would remain effective.
The Appellant did not appeal the CPN. Before us, Mr Wheeler accepted that an appeal had been open to the Appellant; but, he said, the Appellant had not exercised that right as a result of his somewhat chaotic lifestyle, lack of funds and mental health problems. Of course, the Appellant is now long out of time to appeal.
On 6 March 2018, the Appellant was seen in the proscribed area in Reading town centre. He was arrested by PC Henderson and charged with failing to comply with the CPN.
On 22 March 2018, at Reading Magistrates' Court, he pleaded not guilty to breaching the CPN. The preparation for effective trial form which was completed by the Appellant's legal representatives indicated that the issues to be disputed at trial were (i) whether in the circumstances of this case the police had power to issue the CPN under section 43 of the 2014 Act, and (ii) whether the Appellant had made out the statutory defence under section 48(3) of the 2014 Act by taking reasonable steps to comply or having a reasonable excuse for breaching the CPN. In respect of (i), no further particulars as to why the CPN was allegedly defective were given. In respect of...
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