The Chief Constable of Lancashire and Lisa Marie Potter
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Mr Justice Goldring,LORD JUSTICE AULD |
| Judgment Date | 13 October 2003 |
| Neutral Citation | [2003] EWHC 2272 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 October 2003 |
| Docket Number | Case No: CO/5154/2002 |
[2003] EWHC 2272 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld and
Mr Justice Goldring
Case No: CO/5154/2002
Mr. Jason Barrington Bear (instructed by Corporate Services Directorate of the Lancashire Constabulary Headquarters) for the Appellant
Mr. Michael Hayton (instructed by Inghams) for the Respondent
This is an appeal by the Chief Constable of Lancashire by way of case stated from the decision of Deputy District Judge Alan Lloyd Jones at Preston Magistrates’ Court on 24 th July 2002 dismissing his application for an anti-social behaviour order under section 1(1) of the Crime and Disorder Act 1998 against the Respondent, Lisa Marie Potter,arising out of her activities as a street prostitute in certain residential areas of Preston.
The legislative scheme
Section 1 of 1998 Act is one of a group of provisions in Chapter 1 of the Act designed to enable the police, the council for the local government area and (by amendment made by the Police Reform Act 2002) a social landlord to seek the assistance of the courts to combat anti-social behaviour in the areas for which they are responsible. The courts may give such assistance in the first instance by way of the grant of an anti-social behaviour order prohibiting, for a minimum of two years, further anti-social acts, and in the second instance in the event of breach of such order, by punishment of it by a fine and/or imprisonment in criminal proceedings.
These proceedings are concerned with the first stage, the making of the order, not the second stage, the imposition of sentence in criminal proceedings for breach of it. The proceeding giving rise to the order here was by way of application to a magistrates’ court under section 1 of the Act. But the Act also provides (again by amendment introduced by the 2002 Act), in section 1B for a county court to make such an order and, in section 1C, for a criminal court to do so on conviction of a person for some other offence, and, in section 1D, for an interim order in proceedings in the magistrates’ or county courts under section 1 and 1B.
The statutory test in all three forms of proceedings for the making of an order is complicated. It consists: first, of a condition, which may be broken up into three constituents, the first two cumulative and the third an alternative to the second, all of which, in proceedings in the magistrates court and county court under sections 1 and 1B respectively, the Act requires the applicant to prove; second, of a condition that it is necessary to make the order, which, despite the requirement of proof in the Act is essentially a matter of value judgment for the court; and third, of a decision of the court in the exercise of its discretion to make such an order. These conditions also apply to a criminal court considering whether to make such an order under section 1C after conviction of a person in criminal proceedings for another offence. But the basis upon which it satisfies itself under section 1C of the fulfilment of those conditions may possibly be of less formal nature, since section 1C does not talk of proof, but simply whether the court “considers” that they are fulfilled.
With that short preamble in mind, here are the conditions, as set out in section 1(1) at the material time and the court's power to act on them as set out in section 1(4):
“(1)… (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 persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him.”
“(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates’ court may make an order under this section …. which prohibits the defendant from doing anything described in the order.” [my emphases]
I should mention here that the 2002 Act has amended and simplified the second of the three conditions by substituting for the whole of section 1(1)(b) the words:
“ that such an order is necessary to protect relevant persons from further anti-social acts by him”,
and defines “relevant persons” in section 1(1B). Section 1(6), which describes the prohibitions that may be imposed by an anti-social behaviour order, has been correspondingly immaterially amended and simplified so as to refer to “prohibitions … necessary for the purpose of protecting persons … from further anti-social acts by the defendant”.
This appeal concerns the interpretation of the condition, or set of conditions, in section 1(a), which, as I have said, may be broken up into three constituents, namely: first, that a person has acted in a certain manner; and second, that that manner is one that caused harassment, alarm or distress to one or more persons outside the defendant's household; or third, that the manner of acting was likely to cause such harassment, alarm or distress. In the light of those three distinct constituents of the condition, but particularly the third, the likelihood of harassment etc., as an alternative to the second, caused harassment etc., the appeal in turn raises three overlapping issues:
) whether, in order to prove that a defendant's conduct was “likely” to cause harassment, alarm or distress to another person or persons, it is necessary to prove that likelihood to the criminal standard of proof, or, put another way, what does “likely” mean in this context;
) whether, in considering an application for an order under the second or third constituents, it is permissible to aggregate the defendant's behaviour with that of other persons who have engaged at the material time and in the same area in that or similar behaviour; and
) whether, in any event, the Deputy District Judge's finding that the defendant's conduct was not likely to cause harassment, alarm or distress, was perverse.
The facts
Those issues arise from the following facts of the case, which I take from the case stated. The complaint giving rise to the application against the respondent was that, over a three-months period between 21 st February 2002 and 26 th April 2002, she had acted in an anti-social manner in certain residential areas of Preston that had caused or had been likely to cause harassment, alarm or distress to one or more persons outside her own household and that an anti-social behaviour order was necessary to protect persons in that area from further anti-social acts by her. As I have said, the Deputy District Judge refused the application. He did so because, in applying the criminal standard of proof to all the three constituents, he found: 1) that the activities of street prostitutes as a whole, rather than of any individual prostitute, had caused “a substantial problem” in the area of Preston concerned; 2) that the respondent's conduct as a street prostitute in the area had caused or contributed to “the problem”; 3) that her conduct could not be aggregated with that of the other prostitutes when considering whether she had caused or had been likely to cause harassment, alarm or distress; 4) that it had not been proved that her conduct, considered on its own, had caused or had been likely to cause harassment, alarm or distress; but 5) that, if he had been permitted to consider the question of likelihood of harassment, alarm or distress on a balance of probabilities, he would have found that her conduct was likely to have caused it so as to fulfil the condition in section 1(1)(a). He added that, as he had dismissed the application for want of satisfaction of the conditions in section 1(1)(a), the issue whether the evidence would have supported a finding under section 1(1)(b) that it was necessary to make an anti-social behaviour order did not arise.
The Respondent, between 21 st February 2002 and 26 th April 2002, was a street prostitute operating in certain residential areas of Preston. Over a period long before and during those three months, the activities of street prostitutes had caused and were causing substantial problems to residents of, and lawful visitors to, that area. The problems were caused by activities of the prostitutes considered as a whole, not by those of the respondent or any other prostitute operating in the area considered on her own.
The uncontradicted evidence in support of the application, which formed the basis of the Deputy District Judge's findings, was given by two police officers. Much of it, by its very nature, hearsay, and some of it opinion, was, in summary, as follows. Most of the prostitutes frequenting the area did so in order to fund purchases of illegal drugs, mainly heroin and crack cocaine. A local Crime and Disorder Audit in 1998, to which reference was made in the evidence, showed that “prostitution was the main quality of life issue highlighted in the problem areas, namely, residential areas not far from the City centre. The problem, measured by the numbers of street prostitutes involved and their areas and times of operation and resultant increase in kerb crawling, had progressively become worse. There had been some incidents of assault on prostitutes, indicating that their presence had attracted some people of violence to the area.
Some of the prostitutes engaged in what the Deputy District Judge described as “aggravated conduct”,...
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