R Christopher Rabess v The Commissioner of Police for The Metropolis
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE DOBBS |
| Judgment Date | 29 January 2007 |
| Neutral Citation | [2007] EWHC 208 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 2007 |
| Docket Number | CO/4525/2006 |
[2007] EWHC 208 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mrs Justice Dobbs
CO/4525/2006
MS MAYA SIKAND (instructed by Hodge, Jones & Allen) appeared on behalf of the CLAIMANT
MS CLAIRE WATSON (instructed by Directorate of Legal Services, Met Police) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated in relation to the making of an anti-social behaviour order against this appellant on 20 February 2006.
The history of this matter, is that on 6 September 2005, an application was made for an ASBO to be made against this appellant. On 27 September an interim ASBO was made, both on this appellant and his partner, Kirsty Smith. The full application was heard in respect of both of them on 9 February 2006, with the order being made on 20 February 2006. The application contained a catalogue of prohibitions preventing, inter alia:- the appellants being in each other's company; any contact between the two, save through a representative of social services of Hammersmith and Fulham; having contact with members of each other's families; using abusive, offensive, threatening or intimidating language or behaviour; threatening violence towards each other or other residents of the streets in which they resided; unlawfully damaging property; throwing stones, eggs or other objects at each other, other persons or property; and in the case of Kirsty Smith, prohibitions on entering the London Borough of Hammersmith and Fulham, save to attend court or to see solicitors by private appointment; and banging on the windows of private properties.
The deputy district judge having heard from three witnesses called by the respondent, and having also considered a bundle of documents which included witness statements from the appellant and his partner, made a number of detailed findings of fact which in essence boil down to the following:- the appellants had been involved in a volatile and abusive relationship with each other, which had been going on for some time. The appellant is the father of the then unborn child and one of the two other children of Kirsty Smith. The children did not live with them. In the 12 months prior to the application, this relationship had given rise to a large number of incidents of violence and abuse towards each other. Frequent arguments took place between the two of them, involving shouting and abusive language. There had been 39 calls to the police in that period, mainly from Kirsty Smith about violence used on her by this appellant, but also complaints by the appellant about Kirsty Smith. Most of the calls were from the couple themselves, although there had been some reports by members of staff at a Family Centre where supervised contact with the children took place.
Whilst initially the complaints made by Kirsty Smith were treated as if they were the truth, there were doubts expressed by the police about her, as well as doubts about the veracity of the appellant. Most of the arguments were in private, but also spilt out into the public domain and would carry on in the street. The behaviour caused distress to neighbours and members of the public, especially when the arguments were at night, when neighbours were prevented from sleeping for fear of something serious possibly happening to Kirsty Smith. At times children of the neighbours had been too tired to attend school because of the disturbance caused by the night-time arguments between them.
The deputy district judge found that their behaviour was such as to cause harassment, alarm and distress to neighbours, who had to endure their loud and persistent arguing and the debris from their many disputes. She found also that at least one such incident took place at a Family Centre where the appellant and his partner were having supervised access with their daughter. She found it inevitable that members of the public who would have been present during some of the many disputes which took place in public areas would have been caused harassment, alarm or distress. She found there was no evidence of propensity to damage property, nor evidence that the appellant had caused any difficulties with members of Kirsty Smith's family. Whilst she found that there was evidence that Kirsty Smith had thrown eggs and stones at the appellant's property, there was nothing to suggest that she had thrown anything at anyone else's property. She also found that there was no evidence that Kirsty Smith had banged on the windows of the appellant.
The submissions of law made at the hearing were, on behalf of the appellant, that the respondent (that was the applicant in the case) was unable to discharge the burden of proof required under section 1 of the Crime and Disorder Act, and reference to the word "household" in section 1 precluded the making of ASBOs in domestic circumstances. Allegations concerning the appellant and his partner alone should be discounted by the courts as they did not impact upon the wider community. The making of the order was not necessary to protect others from anti-social acts by the appellant. The making of the orders would interfere with the appellant's Article 8 rights and would not be proportionate. The proposed prohibitions were too widely drawn and the behaviour to be prohibited must be unlawful.
The order required that the one reported the other, which would be wrong in principle and would be unenforceable as it would require the parties to report each other. The order stood or fell as a whole, and unless the respondent showed that all the prohibitions should be made out, then none of them should be. The purpose of an ASBO is preventative and not punitive, and its purpose must be to prevent anti-social behaviour developing into criminal behaviour. The impositions of prohibitions which prevented the appellant and his partner from doing anything which would amount to a criminal offence, where it would lead to an increase in the penalty for committing that offence, was wrong in principle. The purpose of making the order should address prevention of criminal acts and/or anti-social behaviour, as once the criminal offences/anti-social behaviour has taken place it was too late, therefore the making of an order which prohibited behaviour which was already a criminal offence was wrong in principle.
On behalf of the respondents, it was submitted that, on the undisputed evidence relied on by them, the appellant had on numerous occasions acted in an anti-social manner and thus the test in section 1 was satisfied to the criminal standard. The orders were necessary to prevent relevant persons from further anti-social acts committed by the appellant and Kirsty Smith. Their rights under Article 8 had to be balanced against those of the public, in particular neighbours. Parliament had not expressly excluded the application of ASBOs to domestic situations. It would have done so had it so intended. The interim orders have proved successful in preventing further anti-social behaviour. Each of the prohibitions had to be considered individually. The order did not stand or fall alone. The purpose of the order was preventative and not punitive, but the effect of the behaviour (which falls just short of a criminal offence) on the public must be considered. There is also no ban on a prohibition, which also constitutes a criminal offence.
Having heard submissions and the relevant authorities, the deputy district judge was satisfied that the criteria in section 1 of the Act had been met, and that it was necessary to make ASBOs for the prevention of further harassment, alarm or distress to the neighbours and other members of the public in light of the fact that the couple wanted to be together. In her view, there was an overwhelming likelihood that, if the relationship continued, they would continue to behave in a similar manner in which they did before the interim ASBO was made, and thus a demonstrable need to protect others from this behaviour and its consequences.
The deputy district judge then went through all the proposed prohibitions, explaining why she had either rejected or accepted them. The orders were made in the following terms. In relation to the appellant, prohibiting him from using abusive, insulting, threatening or intimidating language or behaviour towards Kirsty Smith, and secondly using or threatening violence against her.
In similar terms, prohibitions were made in relation to Kirsty Smith concerning her behaviour towards the appellant, and there was a third prohibition, namely throwing stones, eggs or any other objects at the appellant or his property or any property where he resides. The orders were to run until February 2008, being the minimum period that can be made under this regime.
The questions for the High Court are:
(1) Was the district judge entitled to make orders in respect of the appellant on the particular facts of this case?
(2) Are the terms sufficiently clear and capable of being understood?
(3) Is an order preventing someone from using abusive, insulting, threatening or intimidating language or behaviour simply a way of preventing what is already criminal behaviour or can it be said that such an order is desired to prevent anti-social behaviour?
I turn to deal with the submissions of the parties in this appeal. The essence of the appellant's appeal is that the terms of the ASBO are punitive and not preventative, and thus not within...
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