R (W) v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 11 May 2006 |
| Neutral Citation | [2006] EWCA Civ 458 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 2006 |
| Docket Number | Case No: C1/2005/1798 |
[2006] EWCA Civ 458
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT DIVISIONAL COURT
LORD JUSTICE BROOKE and MR JUSTICE MITTING
Royal Courts of Justice
Strand, London, WC2A 2LL
President of The Queen's Bench Division
Lord Justice May and
Lord Justice Wall
Case No: C1/2005/1798
CO/4587/2004;
Javan Herberg and Victoria Windle (instructed by Liberty) for the Claimant
Sam Grodzinski (instructed by Directorate of Legal Services, Metropolitan Police and Legal Services, Richmond LBC) for the Defendants
Timothy Otty (instructed by the Treasury Solicitors) for the Home Secretary
This is a judgment of the Court.
There has been much concern in recent years about anti-social behaviour. Part 1 of the Crime and Disorder Act 1998 enables a relevant authority, including a local government council and a chief officer of police, to apply to a court for an anti-social behaviour order prohibiting a person aged 10 or over from doing anything described in the order. Breach of such an order is an offence and the offender is liable to imprisonment or a fine. The present appeal concerns Part 4 of the Anti-social Behaviour Act 2003, which provides for dispersal of groups.
The legislation
Section 30 of the 2003 Act provides:
" Dispersal of groups and removal of persons under 16 to their place of residence
(1) This section applies where a relevant officer has reasonable grounds for believing
(a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence of behaviour of groups of two or more persons in public places in any locality in his police area (the "relevant locality") , and
(b) that anti-social behaviour is a significant and persistent problem in the relevant locality.
(2) The relevant officer may give an authorisation that the powers conferred on a constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months.
(3) Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.
(4) The constable may give one or more of the following directions, namely-
(a) a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify) ,
(b) a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality (either immediately or by such time as he may specify and in such way as he may specify) , and
(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24 hours) from the giving of the direction as he may specify;
but this subsection is subject to subsection (5) .
(5) A direction under subsection (4) may not be given in respect of a group of persons-
(a) who are engaged in conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), or
(b) who are taking part in a public procession of the kind mentioned in section 11(1) of the Public Order Act 1986 (c. 64) in respect of which-
(i) written notice has been given in accordance with section 11 of that Act, or
(ii) such notice is not required to be given as provided by subsections (1) and (2) of that section.
(6) If, between the hours of 9pm and 6am, a constable in uniform finds a person in any public place in the relevant locality who he has reasonable grounds for believing-
(a) is under the age of 16, and
(b) is not under the effective control of a parent or a responsible person aged 18 or over,
he may remove the person to the person's place of residence unless he has reasonable grounds for believing that the person would, if removed to that place, be likely to suffer significant harm."
Section 36 defines "anti-social behaviour" as:
"… behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as the person."
It defines "public place" as:
"(a) any highway, and
(b) any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission."
This would, so it seems, include cinemas, restaurants, coffee bars and public houses. It defines "relevant officer" as "a police officer of or above the rank of superintendent".
Section 30 of the 2003 Act thus enables a senior police officer to delineate an area in which there has been significant and persistent anti-social behaviour. The officer may then authorise uniformed constables for a period not exceeding 6 months to give dispersal directions to groups of persons whose public presence or behaviour in the delineated area has resulted, or is likely to result, in members of the public being intimidated, harassed, alarmed or distressed. A person who knowingly contravenes a direction given to him under section 30(4) commits an offence and is liable on summary conviction to a fine or imprisonment (section 32(2) ) . An authorisation may not be given without the consent of the local authority for the relevant area (section 31(2) ) . Publicity must be given to the authorisation before the beginning of its operative period (section 31(3) , (4) and (5) ) . Designated community support officers have power to exercise the powers conferred on a uniformed constable by section 30(3) to (6) (section 33, amending the Police Reform Act 2002). When the power in section 30(6) to remove a person under the age of 16 is exercised, the relevant local authority must be notified (section 32(4) ) .
By section 34, the Secretary of State may issue a code of practice about authorisations under section 30 and the exercise of the powers conferred by section 30(3) to (6) . The Secretary of State has not yet done so. If he had, relevant officers and uniformed constables or community support officers would be obliged to have regard to it (section 34(4) and (5) ) . The Home Office issued a circular in January 2004 – Circular 004/2004.
The dispersal areas
Richmond-upon-Thames had trouble with widespread anti-social behaviour during 2004. Around the Green and along the Riverside, on weekends in the summer months, large numbers of people would come into the area to drink. On a weekend evening, up to 8,000 people might be drinking along the Riverside. In the area of the town centre, the Green and the Riverside, the police could expect to receive an average of a call a day concerning disturbances in a public place or on licensed premises, excluding reports of crime. On 14 th May 2004, Superintendent Channer duly authorised the exercise of the powers conferred by section 30(3) to (6) of the 2003 Act in respect of a defined area of central Richmond for a period from 1 st June 2004 to 29 th October 2004. The London Borough of Richmond-upon-Thames duly consented to the giving of this authorisation.
In another part of the Borough, around Ashburnham Road in Ham, residents complained of frequent occasions when youths and children were brawling in the street, racing cars, letting off fireworks, committing criminal damage and intimidating residents. In the 3 months from August to October 2004, there were in this area 31 disturbances reported to the police, as well as 53 reported incidents of criminal damage. There was a particular problem with the bus service, with young people lying in the road stopping buses, pulling off windscreen wipers, and attacking bus drivers. As a result, the bus company withdrew services to the area after 6p.m.
Superintendent Davis, with the consent of the local authority, duly gave an authorisation under section 30(2) of the 2003 Act for a designated area around Ashburnham Road from 4 th December 2004 to 4 th January 2005.
The designation of these two dispersal areas was popular with local people and successful in reducing reports of crime and disturbance. During the operative period of the two dispersal areas, the police used the powers under section 30(6) to remove a person under 16 to the person's place of residence once only. On 1 st October 2004, a police officer took a boy aged 13 from Richmond town centre to his home in Ealing. The boy had been found in the company of some 16 to 18 year olds who were drinking and carrying alcohol, shouting and swearing. The police officer reckoned that the 13 year old needed to be removed to a place of safety. The power under section 30(6) was never used in the Ham dispersal area. Two children under 16 were spoken to by the police during the authorisation period and advised to go home.
The claimant
The judgment of the Divisional Court in the present proceedings [2005] 1 WLR 3706; [2005] EWHC 1586 (Admin) has the following account of W, the claimant, and his concerns and those of his parents:
"16. W lives with his...
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