R (McGarrett) v Kingston Crown Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,MR JUSTICE CRANSTON |
| Judgment Date | 08 June 2009 |
| Neutral Citation | [2009] EWHC 1776 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11736/2008 |
| Date | 08 June 2009 |
[2009] EWHC 1776 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Pill
Mr Justice Cranston
CO/11736/2008
Matthew Feldman (instructed by HCL Hanne & Co) appeared on behalf of the Claimant
The Defendant was not represented and did not attend
(Approved by the court)
: Cranston J will give the first judgment.
MR JUSTICE CRANSTONIntroduction
This is an application for judicial review in relation to an anti-social behaviour order (“Asbo”). The claimant challenges the decision of the Kingston Crown Court in September 2008 to impose an indefinite anti-social behaviour order. It is said that the imposition of the order, in the circumstances of this case, falls outside the broad area of the Crown Court's sentencing discretion. It is also contended that the reliance of the Crown Court on disputed written allegations in making the Asbo was wrong and that the reasons given by the court were wrong in law.
Background
The background is briefly this. The claimant has been a tenant at 20 Crestway in South West London since the middle of 1996. He originally lived there with his wife, Carol, to whom he was married for 25 years, and his two daughters. Tragically, Carol died in 2004 and, as the claimant himself concedes, he went off the rails at that point. In early 2007 he met his current wife, Rachael, and in July that year they were married.
In January 2007 at the Wandsworth County Court the Wandsworth County Council (“the Council”) issued proceedings for possession of the premises based on allegations of nuisance and annoyance over the years 2004 to 2006. On 10th May 2007 the County Court made a postponed possession order of 1 year's duration. The conditions imposed on the claimant were that he was not to cause or commit, or to permit visitors to cause or commit, conduct causing a nuisance or annoyance to residents in the neighbourhood. Nor was he to cause or commit or permit visitors to use threats or intimidation towards either the employees of the Council or residents in the neighbourhood.
Subsequently, on 6th November 2007, the Council applied for an order that the date be fixed for the claimant to give up possession of the premises on the basis of alleged breaches of that postponed order of May. Eventually the matter was heard at the Wandsworth County Court in early December 2008. There was a contested hearing in which the Council relied on six principal allegations. The County Court found two allegations to be proven. They were, first, that on 21st May 2007 there was an altercation between the claimant and his two daughters in the street and, secondly, that there was a wedding reception on 21st July 2007, which was accepted to be a breach of the postponed possession order of May 2007. The other four allegations were not proved to the civil standard. As a result of those proceedings, the order of May 2007 was extended until early January 2010.
Meanwhile, in July 2007 the wedding reception to which I have just referred had taken place. On 7th July 2007 the claimant had sent a letter to the Council and to his neighbours saying that he was proposing to have a wedding reception at the premises on 21st July 2007. In response to that the Council served on him, on 10th July 2007, a noise abatement notice. That was a notice issued under section 80 of the Environmental Protection Act 1990 prohibiting “shouting, arguing, loud noise and cheering”. Notwithstanding that noise abatement notice, the claimant went ahead and the wedding reception occurred on 21st July 2007.
In February 2008 the Council prosecuted the claimant in relation to six offences of failing to comply with that noise abatement notice. There was a trial at the South Western Magistrates' Court in May 2008. The claimant was acquitted of all charges except that relating to the wedding reception on the 21st July. He was sentenced to a fine of £75, a victim's surcharge of £15 and costs of £275. He appealed to the Crown Court against conviction.
The appeal was heard on 4th and 5th September 2008 at the Crown Court in Kingston, sitting at Wimbledon. The appeal was heard by His Honour Judge Fergus Mitchell and two justices. The hearing began with an application on behalf of the Council to introduce evidence of bad character in relation to the claimant. The judge ruled that that evidence could be admitted, not as bad character evidence, but as background to the alleged breaches of the noise abatement notice. At the end of the hearing, the case against the claimant was found to be proved and he was sentenced to a fine of £75, a victim surcharge of £15 was imposed, and he was ordered to pay costs of £290.
After the learned judge had given judgment he introduced, for the first time, the possibility of making an anti-social behaviour order in relation to the claimant. From the transcript, this seems to have come as some surprise to counsel appearing for the Council. The judge was entitled to consider an anti-social behaviour order on his own initiative, as I shall describe.
The learned judge said that he had read the statements and he had no difficulty, in particular, in accepting what one of the witnesses, a Mrs Lang, who was a neighbour, had said at the end of her statement. That was to the effect that in August 2007 she had been walking up a street in the immediate neighbourhood with her granddaughter and her daughter. The claimant, his wife, his daughter and another girl “were walking along the road towards us”. As the claimant approached Mrs Lang, he had looked directly at her and said she would soon be dead. The learned judge said of that statement:
“I ignored this for the purpose of these hearings, that he, in August of last year, made a threat to the witness. I want the Council reminded if there is the slightest hint of that, and I want the police reminded, who do not seem to bother to do anything about this sort of appalling behaviour, because there is a section of the Criminal Justice and Public Order Act, namely section 51, which is taking revenge.”
There was further discussion of the sentence to be imposed. Counsel for the claimant, Mr Feldman, who appears for him today, informed the court that there was the extant possession order and active proceedings in the County Court. Mr Feldman went on to submit to the learned judge that the relevance of those proceedings was that there was already a sanction on the claimant's behaviour, ultimate eviction from the property. Mr Feldman also submitted that there had been no allegations of bad behaviour by the claimant for the 9 months prior to the hearing. Mr Feldman pointed out that Mrs Lang had not given evidence in relation to the part of her statement to which I have referred.
Nonetheless, after further discussion, the learned judge gave a short judgment in relation to penalty. In the course of that he turned to whether or not an Asbo should be imposed. He said:
“This case is a complete and clear example, in our view, of a person who does not listen, who is given a warning, is asked nicely by people, they complain. I got the feeling—it is only a feeling, it is not substantiated—that he has probably got some sort of tie-up with somebody in the local authority, because somebody came along that night and knocked on the window. They had got wind of a complaint, I have no doubt. But I do not need to go further into that.”
He went on to reiterate that in his view the claimant took no notice of things: he had been told not to have the wedding reception, but had nonetheless gone ahead with it.
The learned judge then went on to discuss the terms of the Asbo that he had drafted. There was a final remark by the learned judge about the uncertainty as to where the claimant would be living in the future:
“… because if Wandsworth do not get on and do something about it, he may be there for some time, whether he wants to go or not, until further order.”
Thus, the Crown Court imposed an Asbo. The terms of that Asbo are as follows:
“1. Not to cause loud noise within the premises 20 Crestway, London, SW15 5BY or within 150 metres of those premises.
2. Not to contact directly or indirectly the named parties:
Mrs Ann Lang
Mrs Gunersacera
Mr Keith Sullivan
in connection with completed case in the proceedings in Wandsworth County Court.
3. Not to place any amusement facility, including swimming pools, trampolines or barbecues on the grass enclosed by Number 42 Crestway and, and to (sic) 20 Crestway.”
The claimant issued an application for judicial review in September 2008 seeking a quashing order in relation to the Asbo or its variation. Permission was granted by Dobbs J in February 2009. The Crown Court has filed an acknowledgment of service in which it says, not surprisingly, that it does not intend to make submissions to the court. The respondent in the Crown Court, the Council, has not appeared before us today.
The law
There are three broad areas of law relevant to our considerations. The first relates to the abatement notice itself. That was issued under section 80(1) of the Environmental Protection Act 1990 (“the 1990 Act”) under which a local authority, if satisfied that a statutory nuisance exists, or is likely to occur or recur, may serve a notice requiring the abatement of that nuisance or prohibiting or restricting its occurrence or recurrence. Where a local authority is satisfied that a statutory nuisance falling within section 79(1)(g) of ...
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