C v Sunderland Youth Court

This is an application for permission to apply for judicial review of a decision by the Sunderland Youth Court on 12 June of this year to impose what was described by the court in its acknowledgment of service as an "anti-social behaviour order for two years prohibiting the claimant from exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress."

The power to make anti-social behaviour orders ("ASBOs") was introduced by Section 1 of the Crime and Disorder Act 1998 ("the 1998 Act") which came into force on 1 April 1999. As amended by the Police Reform Act 2002, section 1 provides as follows:

Section 1 was considered by the House of Lords in R(McCann and others) v Crown Court at Manchester [2002] 3 WLR 1313; [2002] UKHL 39. The House of Lords concluded that the procedures for making an ASBO under section 1 were civil rather than criminal in nature, and that therefore, they were not subject to the rules of evidence which are applicable in criminal proceedings.

In practice it was found that making orders under section 1 was procedurally cumbersome and time consuming. So, in addition to making amendments to section 1, the 2000 Act in sections 62 to 65 conferred additional powers by inserting sections 1A to 1D after section 1 in the 1998 Act. Section 1A gives the Secretary of State power to add relevant authorities. Section 1B gives power to the County Court to make orders, and section 1D gives power to make interim orders. Section 1C, which is in issue in the present case, is inserted by section 64 of the 2002 Act, is entitled, "Orders on conviction in criminal proceedings" and is in the following terms:

In the remainder of this judgment I will refer to an order made under section 1C as "an order" to distinguish it from an ASBO made under section 1.

The claimant was born on 5 December 1987. He has a very poor criminal record going back to 2001. The documentation before the court is in an unsatisfactory state in that there is no single document which sets out in a readily comprehensible and chronological fashion all of his previous offences and the manner in which they were dealt with by the court system.

On 17 January 2003, he escaped from lawful custody. It would appear that he had been arrested with two other youths on suspicion of violent disorder, and after a scuffle with the arresting officers, he struggled free and ran off. He pleaded not guilty to this offence on 20 March 2003. Between February and April 2003, he committed a large number of motoring offences: dangerous driving, driving whilst disqualified and driving whilst uninsured. On 9 April 2003, he committed offences of causing harassment and alarm and resisting a police constable in the execution of his duty. He pleaded guilty to the first of those offences and not guilty to the second on the following day, 10 April. On that day he also pleaded guilty to an offence of criminal damage committed on 17/18 January. A week later he was back in the youth court pleading guilty on 17 April to the various motoring offences which he had committed between 16 February and 12 April.

On 24 April he appeared before the youth court. The pre-sentence report had not caught up with all of the offences for which he was to be sentenced and so the case was adjourned for a further report. Mr Taylor, the senior Crown prosecutor who appeared on that occasion, notified the clerk to the justices and the defence solicitor, Ms Gatens, that he would be inviting the magistrates to consider whether they wished to impose an order. Mr Taylor explains in his witness statement that:

That left outstanding the offences of affray and escape from lawful custody committed on 17 January, and resisting a police constable in the execution of his duty committed on 9 April. After a trial, the claimant was found guilty of the second of these offences on 29 May. Ms Towers, counsel appearing for the prosecution on that day, provided Ms Gatens with a copy of correspondence from PC Beattie to Mr Taylor dated 1 May. That correspondence said inter alia:

The correspondence from PC Beattie went on to suggest a form of order that included a requirement not to congregate in a public place, and identified two particular estates.

So far as the first of the outstanding offences is concerned (affray), no evidence was offered against the claimant on 29 May and so that charge against him was dismissed. By contrast his co-defendant pleaded guilty and it would appear that, in opening the facts for the assistance of the court, the prosecution would have referred to events that were alleged to have involved both the claimant and his co-defendant who pleaded guilty. I say that because the only information that we have about the course of that hearing is contained in a summary of the case which, it seems likely, would have been presented by counsel to the court.

On 29 May, Ms Towers invited the court "to consider the making of an ASBO" in respect of both the defendant and his co-defendant. The case was adjourned for further reports until 12 June. On that day yet another prosecution counsel, Ms Edwards, appeared for the CPS. Ms Gatens had by then left the claimant's firm of solicitors and so the claimant was represented by a partner in the firm, Mr Robinson. The claimant changed his plea to guilty in relation to the last outstanding matter -- resisting a constable in the execution of his duty. So the youth court had to sentence him for that offence and for the offence of escaping from lawful custody. There was a further report from the Sunderland Youth Offending Service before the court. That stated that the claimant was "complying fully with his supervision order with ISSP". The justices asked Mr Oakley of the Youth Offending Service to address them. He "spoke positively about the claimant's adherence to the programme". His report suggested that, in respect of the two offences for which the claimant was to be sentenced, he should be made the subject of an 18-hour reparation order.

There is not, unfortunately, full agreement as to all of the details of what happened on 12 June. It would appear that, when Mr Robinson arrived at court, he was told by the clerk, Ms Ward, that Ms Edwards and a police officer were discussing the terms of a proposed "ASBO" with the advocate representing the co-defendant. Mr Robinson declined to participate in those discussions making it clear that he considered that an ASBO would be inappropriate for the claimant.

Having outlined the facts relating to the two offences and produced the claimant's record of previous convictions, Ms Edwards reminded the court that it "had the power to impose an ASBO". Mr Robinson submitted that such an order would be inappropriate. The magistrates do not appear to have been told in terms that the court had been reminded of its powers under section 1C on 8 May, but had decided not to make such an order on that date. This is perhaps explained by the fact that neither Ms Edwards nor Mr Robinson had appeared on 8 May. Ms Ward says in her witness statement that she reminded the justices of their powers under section 1C and of the detail of section 1C(2). She confirmed that the power to impose such an order had been available to the court which sentenced the claimant on 8 May to a supervision order with ISSP. She told the justices that no procedure was prescribed in the rules for making such an order. The magistrates retired. Paragraph 10 of Mr Robinson's witness statement is as follows:

This complaint was clearly flagged up in Ground 3 of the detailed statement of grounds in the claim form; which said:

Various complaints about the procedure adopted were advanced in the grounds which were prepared by Mr Robinson. A number of these complaints were not pursued by Mr Simblet who appeared before us on behalf of the claimant. But he had been given permission to amend the claim form to include further complaints in an additional ground, Ground 7. Among those complaints were the following:

In her witness statement, Ms Ward does not dispute paragraph 10 of Mr Robinson's witness statement. She merely says this:

Ms Ward does not have any notes of the hearing on 12 June because, as she explains, it was a sentencing hearing and the documents exhibited with her witness statement do not include the court record setting out the terms of the order actually made by the magistrates. The acknowledgment of service filed on behalf of the court, which included a certificate of truth by the deputy clerk to the justices, states that the magistrates "made the following orders in respect of the offence of resisting a police constable: a reparation order". In respect of the escape from lawful custody, the sentence was "reparation order: 24 hours; anti-social behaviour order: 2 years prohibiting the defendant from exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress".

That the magistrates made what they themselves described as an ASBO unlimited in geographical area is confirmed by the endorsement on the prosecutor's file which is exhibited by Mr Taylor's witness statement. That endorsement says, in respect of 12 June 2003, defendant sentenced to "anti-social behaviour order" in following terms:

A document purporting to be a copy of the order made by the magistrates was served on the claimant's parents on 13 June. It is headed in these terms:

Ms Ward's witness statement describes the service of this form as "an administrative oversight" and says that the order should have said "order on conviction in criminal proceedings, section 1C Crime and Disorder Act 1998". A claim form seeking the quashing of the order made by the magistrates was filed on 23 July. Blackburne J considered the application on the papers and ordered expedition. After an oral hearing on 25 September in which the interested parties were represented, Burton J directed that there should be a rolled-up hearing of the application for permission to apply for judicial review and the substantive application if permission was granted by the divisional court today. A tight timetable was imposed for the filing of evidence and skeleton arguments.

In his skeleton argument on behalf of the claimant, Mr Simblet submitted that there is a distinction between proceedings relating to ASBOs under section 1 and orders under section 1C. While the former are civil in nature, the later are criminal since an order under section 1C can only be made in addition to a sentence imposed in relation to a criminal offence. That submission, which did not appear in the claim form, was advanced in response to Mr Duff's skeleton argument on behalf of the interested parties, which emphasised the fact that ASBOs under section 1 and orders under section 1C are separate and distinct orders. The interested parties argue that ASBO is "a term of art" which refers only to orders made under section 1 and not to orders made under section 1C.

This led to the appearance of Mr Crow on behalf of the Home Office. He submitted that the question of whether orders under section 1C were civil or criminal in nature, and therefore, whether McCann should be distinguished, was an important issue of general significance. He sought an adjournment so that the Home Office could be joined as a party and detailed submissions could be made on the point. In a supplementary skeleton, Mr Duff contended that the issue was "fundamental" to the operation of the legislation.

Speaking for myself, I accept that the question is both important and of general interest, but I am not persuaded that it is necessary to answer it for the purpose of determining this application. An adjournment would be particularly undesirable. The order was made on 12 June. Since then the claimant has been arrested and twice charged with breaching the terms of the order. He is still only 15 years old. It is important that he, his parents and the community know what his obligations are as soon as possible. That is why the case was expedited and a tight timetable was imposed.

While section 1C does not prescribe any particular procedure for making an order, whether the proceedings are civil or criminal it is common ground that, in making an order, the Magistrates' Court must act fairly and have regard to all relevant considerations. What fairness requires and what considerations are relevant will depend upon the circumstances of each particular case. In addition to the requirement to act fairly, there is the elementary requirement that there should be clarity as to the basis for, and scope of, any order made by the magistrates under section 1C, particularly if breach of such an order exposes a person to potential criminal penalties. In my judgment, the procedure adopted by the court in the present case failed to meet these criteria and was wholly unsatisfactory for the following reasons.

The magistrates had been invited to consider whether to make an order under section 1C when the claimant was sentenced for numerous offences including causing harassment, alarm, distress and criminal damage on 8 May 2003. After having had matters fully explained to them by Mr Taylor, the court clearly decided not to make an order under section 1C on that occasion. I accept that the court had a discretion to make such an order on 12 June. Section 1C applies if a relevant offence is committed. The offence does not itself have to be of an anti-social character. It is sufficient that it is an offence and it has been committed after 2 December 2002. The claimant had committed an offence (on 17 January 2003) therefore section 1C applied and the court could make an order if it was satisfied that the conditions in subsection (2), paragraphs (a) and (b) were met. Paragraph (a) was met if the court was satisfied that the claimant had acted in an anti-social manner at any time since 2 December 2002.

But it is common ground that the discretion conferred by section 1C although broad is not unfettered. As with any statutory discretion, it must be exercised fairly, reasonably and having regard to all relevant circumstances. One, most relevant circumstance in the present case was that, at the same youth court just over a month earlier, it had been decided not to make an order despite the claimant's past history of anti-social behaviour from 2 Decmeber 2002 up to that date. I do not suggest that the court was not entitled to change its mind on 12 June, particularly if it was satisfied that there had been a material change of circumstances since 8 May. Whatever may be the extent of the general duty upon magistrates to give reasons for their decisions, in the particular circumstances of this case, fairness to the claimant required the court to give him an explanation, however brief, as to why it was now considered appropriate to make an order under section 1C. Consistency in the exercise of discretionary powers is an important aspect of fairness. If, having had the matter fully explained to them on 8 May, the magistrates decided not to make a section 1C order, then absent any further evidence justifying the making of such an order, it would not be prima facie reasonable to make one on 12 June. The only change of circumstances since 8 May was the two matters for which the claimant was being sentenced on 12 June.

Since the magistrates have chosen not to give any reasons for their decision, the extent to which they revisited the anti-social conduct evidenced by the offences for which the claimant was sentenced on 8 May, is not clear. The acknowledgment of service states that the magistrates were satisfied that the claimant was a persistent offender (that echoes PC Beattie's report which did refer to the claimant's offences on and after 17 January, and described him as a persistent offender).

The acknowledgment of service further states that the magistrates concluded that, having escaped from lawful custody, the claimant had been convicted of an offence and acted in an anti-social manner after 2 December 2002 "and having regard to the defendant's previous convictions together with the matters they were dealing with", the court was satisfied that the claimant satisfied the criteria in section 1C. Thus, it would appear that the claimant's convictions after 17 January 2003 were considered. Whereas the order states "the defendant has acted in an anti-social manner on divers dates before 17 January 2003, on 17 January 2003 in an anti-social manner" (my emphasis). It is not at all clear what acts between 2 December 2002 and 17 January 2003 were being relied upon by the magistrates. The offence of resisting a police constable in the execution of his duty had been committed on 9 April 2003, long after the dates mentioned in the order served upon the claimant's parents.

I would accept as a matter of common sense the argument that "the last straw may break the camel's back" so there may well be cases where the addition of a relatively minor offence may finally tip the balance in favour of making an order when previously the balance had been struck the other way. However, the offences committed on 17 January were committed well before the claimant was sentenced to a 12-month supervision with 90 days ISSP on 8 May. The evidence from the Youth Offending Service was that the claimant was complying fully with that order which was an order intended to address his offending behaviour. In these circumstances, it is not immediately apparent why, no order having been thought necessary on 8 May, it could reasonably have been concluded that an order was necessary on 12 June to protect persons from further anti-social acts by the defendant.

In his submissions on behalf of the interested parties, Mr Duff pointed out the practical difficulties which had been experienced in implementing the provisions of section 1C. I have set out the relevant provisions of sections 1 and 1C above. From these it will be seen that, unlike section 1 which defines the "relevant authorities" who may make an application for an order, section 1C contains no such limitation. Subsection 1C(3) provides that a court may make an order whether or not an application has been made for such an order. Thus section 1C envisages that an application for an order may be made by someone, but does not specify who that person might be. Mr Duff has told the court that hitherto the CPS has been reluctant to make applications under section 1C as opposed to merely reminding the magistrates of their own power to make an order under that section because of doubt as to whether the CPS has power as a creature of statute to make an application under the section. We understand from Mr Crow that a bill is presently before Parliament which seeks to resolve that uncertainty. The practical problem which was frankly acknowledged by Mr Duff is this: if no application is made to the magistrates for an order, there is a danger that the defendant may suffer unfairness because he will not be in a position to know the case that he has to meet under section 1C. The nature of the case may be obvious from the surrounding context, e.g. where the defendant has just been convicted, and is about to be sentenced, for a string of anti-social offences. But that was not the case here, particularly having regard to the decision on 8 May. Elementary fairness requires a court, if it proposes to make an order of its own motion, to indicate the basis on which it provisionally considers an order may be appropriate, and the material on which it proposes to rely so that the person potentially liable can make meaningful submissions as to why the order should not be made at all or should not be made in the form provisionally proposed by the court. That did not happen in the present case.

The uncertainty and confusion as to the true basis of the magistrates' decision in the present case is compounded by the unchallenged evidence in paragraph 10 of Mr Robinson's witness statement above. His understanding that one of the magistrates had been present on 8 May may well be in error. Ms Ward's witness statement states that Mrs Robson was present on 29 May at the trial of the claimant and his co-defendant for the offence of escape from lawful custody. On that day the co-defendant pleaded guilty to affray. As I have mentioned, no evidence was offered against the claimant in respect of that offence and that charge was dismissed against him. But the case summary which it appears likely was read to the court set out the allegations relating to the affray insofar as they related to both defendants. We are left with the unanswered question: what was the "additional detail" that Mrs Robson, the magistrate who had sat on the hearing on 29 May, was able to give to the Chairman, Mr Dickson? Ms Ward says, in effect, that it could not have been very much, but elementary fairness required that any additional information should have been disclosed to the parties in open court.

It was particularly important that justice should be seen to be done, in this respect, in the present case because something, we know not what, caused this court to take a different view from its predecessor just over a month previously on what appears, on the material that was available in open court, to have been substantially the same facts, save for the offence on 17 January 2003, which had been committed before the supervision order had been imposed and had had time to take effect. I do not suggest for a moment that there was any intention to act unfairly towards the claimant, but in the event, there was unfairness because the court appeared to take into consideration evidence which had not been given in open court, and did not explain the reasons for its change of stance between 8 May and 12 June.

The muddle is compounded rather than clarified by the various explanations as to what the court actually ordered and by the terms of the order served upon the claimant's parents. Given the emphasis laid in the interested parties' skeleton argument upon the separate and distinct nature of orders under section 1(3), it is curious to say the least that this distinction is nowhere reflected in the evidence. As mentioned above, the acknowledgment of service filed on behalf of the magistrates states in terms that they made an "ASBO". The same phraseology is used in the endorsement on the prosecution files and by Mr Robinson in his witness statement. That evidence is entirely consistent with the form of order that was served upon the claimant's parents, which refers, in terms, to section 1 of the 1998 Act. It does not appear that service of any order is required under section 1C. Subsection (5) of section 1C merely provides:

This is a most unfortunate lacuna in the Act because it is important that an official document which tells the defendant in clear terms what he must not do is provided to him. In the absence of any court record, all that we have is the form served upon the claimant's parents. Contrary to Ms Ward's view that the form used has an "administrative oversight", it was not simply the heading to the form that was inappropriate. The form referred to a complaint. There was no complaint. As the explanatory note printed at the foot of the form makes clear, the form is appropriate for an ASBO which the interested parties insist the court did not make, not an order under section 1C. The lack of clarity as to precisely what the court did take into account and what it did order does not end there.

The order as served states that it is necessary to protect persons in the Sunderland local government area from further anti-social acts. There is no evidence that the order actually made by the court, whether as pronounced in open court or as recorded in the court records, included such a geographical limit. These are not mere technical quibbles. Breach of an order made under section 1C is a criminal offence, although the note to the order is further in error in suggesting that the defendant, who is under 18, would be liable on conviction to a term of imprisonment not exceeding five years. Whether section 1C proceedings are civil or criminal, it is vital that the terms of the order are clearly and accurately explained to the defendant by the magistrates in open court. That was not done in this case. Even if it is assumed, contrary to the evidence above, that the magistrates did refer to the Sunderland local government area when pronouncing the order in open court, it is by no means clear from the evidence why such a geographical limit, encompassing the entire local government area of Sunderland, was appropriate.

PC Beattie's report referred to the claimant being involved in youth disorder in or around a particular estate where the claimant lives with his parents. One other estate was also mentioned in the terms of his suggested prohibition. I do not suggest for one moment that an order may not properly relate to the whole of a local government area, but the magistrates must give very careful consideration as to what is the appropriate area for an order, and there is no evidence that they gave such consideration in the present case. There may have been a good reason for making an order with a more extensive geographical application than the particular estates referred to in PC Beattie's correspondence, but if there is, it has not been explained to us, and was not explained to the claimant by the magistrates.

I return to the point that I made at the outset of these conclusions. The discretion conferred by section 1C is broad, deliberately so, but magistrates must ensure that they exercise it fairly and reasonably, particularly if they are making orders of their own motion.

For the reasons set out above, I am satisfied that this was not done in the present case, and for myself I would grant permission to apply for judicial review and allow the substantive application. For the sake of completeness I should mention that there is a right of appeal against the order under section 108 of the Magistrates' Court Act 1980. I would not wish to encourage applications for judicial review when there is an alternative remedy to appeal against sentence to the Crown Court. The claimant in these proceedings has always challenged (albeit for somewhat different reasons to those now advanced by Mr Simblet) the validity of the order. Before us no issue has been raised as to the appropriateness of applying for judicial review in the particular and, I hope, unusual circumstances of this case.

LORD JUSTICE BROOKE: One of the real success stories in the courts seen in England and Wales of recent years has been the new procedural regime created by the Civil Procedure Rules and Practice Directions which gave flesh to the Civil Justice Reforms which are associated with the name of Lord Woolf. Proposals are now before Parliament which should lead in due course to the creation of a similar procedural regime on the criminal justice side of things. The history of this case shows how bad this actual regime is needed. At a policy level, Parliament enlarged the regime created by section 1 of the Crime and Disorder Act 1998 to enable courts of criminal jurisdiction to make an order similar to an anti-social behaviour order after a defendant has been convicted of a criminal offence without the necessity for the delay and further expense involved in having to seek a section 1 order from a different court. Parliament, however, was completely silent about the nature of the evidential material, if any, that might be placed before a criminal court on such an occasion, in addition to the evidence relating to the offence for which the defendant was convicted and details of any other convictions against him in relation to anti-social conduct since the commencement date of the 2002 Act. Nor did it make it clear who might apply for such an order, although as Sullivan J has observed, it clearly envisaged by section 1C(3) that an application might be made by somebody or the procedure that should be followed.

We do not know if any standard forms were issued to courts in relation to the new form of order. If they were and counsel were unable to help us in this respect, they do not seem to have reached the Sunderland Youth Court, although the order in this case was drawn up on the wholly inappropriate standard form which related to section 1 orders. It is clear that, in the absence of a clear procedural rule and/or Practice Direction, everyone involved in this case was wholly at sea about how the new regime was supposed to operate. I have very great sympathy with all of them since they did not receive the help they deserved from primary or secondary legislation or other authoritative material with similar affect.

Mr Duff, who appeared for the Northumbria Police and the Crown Prosecution Service, begged the court to give general guidance because his clients were experiencing very great practical difficulties in making effective use of section 1C. I regret that I consider it unwise to do so because we do not need to do so on the present application, and in the absence of greater experience of the workings of the Act, we might make errors which reflected our inexperience. This would make an already confusing situation even more confused.

What is essential, however, is that whatever procedure is adopted must be a fair procedure culminating in the making of an order which correctly reflects the order the justices actually made. These elementary requirements were not observed on the present occasion and I agree with the order my Lord proposes.