R Birmingham City Council (Claimant) Birmingham Crown Court (Defandant) RR (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson,Mr Justice Mackay |
| Judgment Date | 17 December 2009 |
| Neutral Citation | [2009] EWHC 3329 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2009 |
| Docket Number | Case Nos: CO/8879/2009 and CO/11875/2009 |
[2009] EWHC 3329 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
The Honourable Mr Justice Mackay
The Honourable Mr Justice Beatson
Case Nos: CO/8879/2009 and CO/11875/2009
MR J. MANNING (instructed by Birmingham City Council) for the Claimant
MR D. SMALL (instructed by Lyndallwoods Solicitors) for the Interested Party
MR T. HUGGINS (instructed by South Gloucestershire District Council) for the Claimant
MR J. TUCKER (instructed by Daniel Woodman & Co Solicitors)
for the Interested Parties
Hearing date: 3 December 2009
Mr Justice Beatson:
These two applications for judicial review are brought by Birmingham City Council and South Gloucestershire District Council. They raise important issues of practice about the procedure to be used in appeals to the Crown Court against the decision of a Magistrates' Court to make an Anti–Social Behaviour Order (hereafter “ASBO”). They both concern a “stand-alone” ASBO as opposed to a post-conviction ASBO. Both concern applications to appeal out of time, in the Birmingham case by some 10 months, in the South Gloucestershire case by some 6 weeks.
Section 4 (1) of the Crime and Disorder Act 1998 provides for an appeal to the Crown Court from the decision of a Magistrates' Court to make an Anti–Social Behaviour Order. Stand-alone ASBOs are made by a Magistrates' Court sitting in its civil capacity. The Criminal Procedure Rules (see Courts Act 2003, sections 68 (b)(ii) and 69) only apply to the Crown Court or a Magistrates' Court in dealing with 'criminal cause or matter'. Accordingly, they do not apply to either the hearing of an application to make an ASBO in the Magistrates Court or to an appeal in the Crown Court from the Magistrates Court in such cases. Such appeals are also not governed by the Civil Procedure Rules which (see CPR 2.1) only apply to the County Court, the High Court, and the Civil Division of the Court of Appeal. Appeals against stand-alone ASBOs are governed by the Crown Court Rules 1982 SI (1982) No. 1109 (“the 1982 Rules”). The 1982 Rules apply “to every appeal which by or under any enactment lies to the Crown Court from any court” save for specified exceptions: see Rule 6.
Rule 7(3) of the 1982 Rules provides that notice of appeal shall be given not later than 21 days after the date on which the decision appealed against is given. Rule 7(5) provides that “the time for giving notice of appeal… may be extended, either before or after it expires, by the Crown Court, on an application made in accordance with paragraph (6)”. By paragraph (6), “an application for an extension of time shall be made in writing, specifying the grounds of the application and sent to the appropriate officer of the Crown Court”. Rule 7(7) requires the Crown Court to give notice of the extension to the appellant and to the designated officer for the Magistrates' Court or Licensing Justices, and for the appellant to give notice of the extension to any other party to the appeal.
The 1982 Rules thus do not require that the proposed respondent be served with an application to extend time for an appeal. In this they differ from both the Criminal Procedure Rules and the Civil Procedure Rules: see Criminal Procedure Rules 2005 r. 63.2(3); Civil Procedure Rules 52.4(3).
The Birmingham case:
In the Birmingham case the City Council applied for an ASBO against Rikardo Reid (“RR”), aged 19. On August 2008 the magistrates made an interim order. RR was personally served with the interim order on 11 August by PC Ellis who informed him of the date of the final hearing and explained the prohibitions in the interim order. On 22 August the magistrates made a 3 year order. The witnesses who gave evidence on behalf of the order were all police officers. RR did not attend the hearing at which the final order was granted. He was served with it on 23 August, again personally.
Thereafter, on 29 or 30 August, RR was arrested for breach of the interim ASBO. He was also charged with supplying Class A drugs and remanded in custody. On 16 December, at a hearing at which he was represented, he pleaded guilty to breaching the interim ASBO and sentenced to 14 days imprisonment. On 26 March 2009 he was sentenced at Wolverhampton Crown Court to 12 months imprisonment suspended for 2 years for the drug offences. He was in custody between 29 or 30 August 2008 when he was arrested and 26 March 2009 when he was sentenced. On 8 June 2009 he broke the terms of his ASBO and was charged. On 10 June pleaded guilty to the breach and was fined £100.
On 16 June 2009, ten months after the Magistrates made the full ASBO and a week after his conviction for breaching it, RR applied for permission to appeal out of time against the making of the order. He stated the interim and final orders were made in his absence, and he did not have the opportunity to contest the proceedings. He stated he was not aware of the date for the full hearing, and that the solicitors he contacted on his release in March 2009 were too busy to see him until shortly before his application for permission to appeal out of time.
On 25 June 2009 HHJ Griffiths-Jones granted RR permission to appeal out of time. The claimant was informed of this on 6 July when it received a document entitled “Particulars of Appeal”. On 10 July it wrote to the Crown Court referring to the length of the delay between the making of the ASBO and the notice of appeal. At that stage it did not know that an application to extend time had been made and granted. After receiving a copy of that application, on 15 July the claimant wrote again to the Crown Court taking issue with the statement in it that RR had not known of the date of the full hearing. The letter suggested that the application was devoid of merit. The claimant subsequently received notice from the Crown Court stating that there was to be a “fixing” conference about the appeal on 29 July and later that the hearing of the appeal was to be on 27 July. On inquiring about this, the claimant was told by a court officer that an entry from the court file made by HHJ Davis QC stated: “list for directions for BCC to make oral representations on the leave issue”.
At the outset of the hearing on 27 July HHJ Griffith-Jones (Transcript page 2) set out the principles and his practice in such applications. He stated that he usually granted permission to appeal out of time on the papers:
“unless the failure to appeal within the 21 day period is unreasonable or culpable, and a factor that I take heavily into account is if there is a delay which prejudices the respondent”.
The Judge said he was prepared to review his grant of permission if it could be shown by the Council that the court had been misled by the paper application for the extension of time. In response to Mr Manning, who appeared on behalf of the claimant, the judge said he would not take into account the fact that the application for an extension of time was submitted without the assistance of a solicitor: Transcript, page 5. This may suggest that the judge was not willing to take into account submissions on matters other than the question of whether the court had been misled by RR's application but there was later discussion (Transcript, page 7) of whether there was any impediment to a rehearing and about the position of the Council should the matter be re–heard. Mr Manning also referred (Transcript, page 8) to the implications of a further trial on a public authority with limited resources and to a decision of the Court of Appeal on the importance of considering the effect of extensions of time on other cases. At the hearing in these proceedings Mr Manning said the case was brahim Omer-Hassan Transcript No 9/4694/442 July 1999. He did not hand the transcript up because the judge stated he was aware of this and always took it into account: Transcript, pages 8B and E).
The judge stated (Transcript, pages 8G-H) that, if he considered the court had been misled he was able to review the decision and, in reviewing the decision, he would “take into account everything all over again”. At the hearing in these proceedings Mr Manning said that his expectation was that, if the judge so concluded, he would to be able to develop his submissions on the matters to which I have referred in the last paragraph.
The judge concluded that the court had indeed been misled because the full order was served on RR on 23 August and the interim order must have been brought to his attention by 30 August when he was arrested for breaching it. The judge did not, however, hear further submissions but went on to consider whether, had he known the true position, he would still have given RR permission to appeal out of time. He said:
“It is important that the principle that someone should appeal within 21 days is not regarded as some sort of unimportant formality. It is something that needs to be complied with and there needs to be some explanation for why it has not been. But in this case, I am bound to say, that I would still have given him permission to appeal. I do so because of his youth, because of what else was going on in his life which would have been a pretty important distraction from this,...
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