R (Langley) v Preston Crown Court

Hearing date: 13 October 2008

This is the judgment of the court.

The claimant, Ashley Langley, is the subject of a 'stand alone' anti-social behaviour order (an “ASBO”) i.e. it was not made following a criminal conviction. He seeks judicial review of the Preston Crown Court's refusal to entertain an appeal from the Chorley justices' variation of that order on 17 August 2007. The case raises a fundamental and important point of law, which, we were told, will have widespread application, namely whether a right of appeal against a variation of a “stand alone” ASBO by a magistrates' court lies to the Crown Court.

The facts

The material facts are uncontroversial and are as follows. On 20 February 2004 the West Lancashire District Council (“the Council”) obtained a 3 ¹/₂ year 'stand alone' ASBO against the claimant in the Chorley magistrates' court under s.1(1) of the Crime and Disorder Act 1998 (“the Act”). It was due to expire on 19 August 2007. In July 2007 the Council laid a complaint under s.1(8) of the Act to vary the ASBO by extending it for two years. On 17 August 2007 the Chorley justices granted that application. The order provided under the heading “ date” that the order was made 20 February 2004 and varied on 19 April 2004, 26 October 2006 and 17 August 2007.” It recorded under the heading “ decision”:

“The court found that:

i) The defendant has acted in an anti-social manner, which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the defendant;

AND

ii) This order is necessary to protect persons from further anti-social acts by the defendant;

AND

iii) See schedule of facts/reasons attached.”

The schedule describes how the claimant had been convicted of breaking the terms of the ASBO on four occasions between June 2005 and January 2007 and been sentenced to a total of 24 months in custody during this period and to a further 4 months imprisonment after January 2007 for an offence of battery and breach of the ASBO. It concluded that an extended ASBO was necessary in order to provide ongoing protection for the community.

The appellant appealed to the Crown Court against this variation and the matter came before Judge Nield sitting with two justices. They decided they had no jurisdiction for reasons set out in a reserved judgment.

The statute

S.4 of the Act, as amended, provides:

“(1) An appeal shall lie to the Crown Court against the making by a magistrates' court of an anti-social behaviour order, an individual support order, an order under section 1D above.

(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.

(3) Any order of the Crown Court made on appeal under this section (other than one directing that an application be reheard by a magistrates' court) shall, for the purposes of s.1(8) 1AB(6) above, be treated as if it were an order of the magistrates' court from which the appeal was brought and not an order of the Crown Court.”

An order under s.1D is an interim ASBO. S.1AB(6) relates to individual support orders that are irrelevant to the present case.

S.1(8) provides that:

“Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.”

Subsection 1(9) provides that:

“Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of the service of the order.”

Subsections 2(6) and (7) (now repealed) contained identical provisions with regard to sex offender orders except that the period during which they could not be discharged was five years rather than two.

The right of appeal under s.4(1) lies against “the making by a magistrates' court of an anti-social behaviour order.” S.1(8) refers to variation or discharge by a further order. On the face of it, a further order granting a variation is an anti-social behaviour order within the meaning of s.4(1). As Mr Hawks, for the applicant puts it, the variation order is itself an ASBO. After 17 August 2007 the appellant could only break the later order; the earlier order was discharged by implication. By subsection 4(1) an appeal lies against the making of an order. So, submits Mr Hawks, the question is whether the order was made on 17 August 2007, because if it was then an appeal lies against it under the subsection. The alternative construction is that the variation is not a fresh order within the meaning of s.4(1) but an extension of the original order.

On any view there is no right of appeal against the discharge under s.1(8) of an ASBO, nor, it should be noted, does s.4(1) give any right of appeal against the refusal by a magistrates' court to make an ASBO. Mr Hawks submits that the fact that the order of 17 August 2007 arose from a variation application does not preclude that order from constituting “the making” of an ASBO by a magistrates' court, thus falling within s.4(1).

Discussion

We think the starting point is s.1 of the Act and to see what must be established before an ASBO can be obtained. It provides as amended:

“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 relevant persons from further anti-social acts by him.”

There are therefore two distinct features that must be established (1) past behaviour and (2) a need to protect relevant persons from future possible anti –social acts by the subject of the ASBO. As Buxton L.J. pointed out in R (on the application of Manchester City Council) v Manchester Crown Court (unreported 13 October 2000) at para 11, the provisions of variation or discharge are in the Act to deal with change of circumstances or potentially with the passage of time, where the offender is able to come back to the court and say he has mended his ways, left the area, got a proper job or any other considerations which may lead the court to think that the prohibition on him can be lifted. S.1(8) makes it clear that either side can come back to get a variation.

Variations by extension of time will focus not on the first criterion, whether the defendant's past behaviour warrants the making of an order, but on the second, whether the order continues to be necessary. The type of factual disputes that are likely to arise in relation to a defendant's past behaviour are unlikely to trouble the court on a variation application. On a variation application, by either side, the magistrates' court will be concentrating on whether, as a matter of judgment, the current state of affairs concerning the subject of the ASBO warrants a change in the conditions in the ASBO. The need for a full right of appeal to the Crown Court, on both the facts and the exercise of judgment by the court, is less apparent.

There is no authority directly on point on the true construction of s.4(1), although Latham L.J., giving the judgment of the court in Leeds City Council v RG [2007] 1 WLR 3025, had no doubt there was no right of appeal against the decision to vary an ASBO. He said at para 11:

“The fact that there is no appeal from any variation is a matter which has caused us concern. But it seems to us this is insufficient in itself to justify a departure from the clear meaning of the subsection. The protection for a defendant is, in our view, provided by the fact that an application to vary, if it imposes more stringent obligations (such as greater length) on a defendant, can only succeed if the applying authority can put before the justices material which justifies the extension as necessary in order to achieve the statutory objective. The usual burden and standard of proof will apply to the determination of that question. Further, in an application to vary length the applying authority will have to persuade the justices that it is appropriate to vary the length of the existing ASBO rather than make application for a new one. There would be a clear rationale for example, for asking for an extension of an ASBO for less than two years, on the basis that the authority did not consider that it was necessary to have a further period as long as the minimum period of two years which would be necessary were a fresh ASBO to be ordered.”

Mr Hawks submits that the point was not argued in RG and that certainly appears to be so. Nevertheless, the decision was the decision of the court...