Kenny, R (on the application of) v Leeds City Council

On 2 September 2003 District Judge Darnton sitting in the Leeds Magistrates’ Court made interim anti-social behaviour orders (‘ASBOs’) against 66 individuals, including Luke Kenny and M. The orders were made under section 1D of the Crime and Disorder Act 1998 as amended.

By his claim form filed on 31 October 2003, Luke Kenny seeks to challenge both the decision dated 2 September 2003 making an interim anti-social behaviour order against him and secondly the further decision of District Judge Darnton on 16 October 2003 dismissing his application for discharge of the interim anti-social behaviour order. On 31 October 2003 I directed that Luke Kenny’s application for permission to apply for judicial review be considered at an oral hearing, and that if permission was granted, the substantive hearing was to be heard immediately after the permission hearing.

By his application filed on 4 November 2003, M seeks to challenge the interim anti social behaviour order made against him on 2 September 2003. On 10 November 2003 Ouseley J ordered that the application for permission be adjourned to open court, with the substantive hearing to follow immediately afterwards if permission was granted.

Having had the advantage of considering the skeleton arguments submitted in advance of the hearing by counsel for the Claimants, for the interested party to each application, the Leeds City Council, and for the First Defendant to the claim by M, the Secretary of State for Constitutional Affairs and the Lord Chancellor (to whom I shall refer as the Lord Chancellor), I arrived at the provisional conclusion that there was an arguable case in relation to both claims, and therefore invited the parties to address the substantive issues. The hearing was in two parts. First I heard submissions as to the lawfulness of the procedure by which the interim anti-social behaviour orders were made. Secondly, and on the premise that the procedure was lawful, I heard submissions as to the contention that the District Judge erred in law making such orders, and in the case of Kenny in refusing to discharge the order.

The factual background

Detective Sergeant Thompson, upon whose evidence the applications to the District Judge for ASBOs were made, says in his witness statement served in response to these applications that the area has been the subject of many police operations over the past two years, none of which have had a lasting effect on the core problem of drug-dealing and abuse, and associated crime. Police officers called to the area have been met by increasingly aggressive and abusive groups of young males, and information has been received that the carrying and use of firearms has become prevalent within the area. DS Thompson says that “ … the area was fast becoming a very difficult and dangerous one to police.”

The police came to the conclusion that the problem of violent crime and general lawless behaviour associated with drug-dealing and drug abuse would remain unless the drugs market could be removed. Consideration was therefore given to addressing the problem by seeking ASBOs under section 1D of the Crime and Disorder Act 1998 as amended, and in late July the West Yorkshire Police met officials of the Home Office ASBO Department. On 1 August 2003 Ruth Gaborak, a principal legal officer employed by the Leeds City Council, and her section head were invited to meet the West Yorkshire Police with a view to commencing proceedings for ASBOs. After further consultation with interested parties it was decided to pursue ‘Operation Cape’, the name given to the plan to seek ASBOs against those involved in drug-dealing and their associates.

The police were responsible for the collation of evidence from their intelligence records and for obtaining witness statements from police officers. An initial list of 132 names of those linked to the drugs trade in the area was produced, but reduced to 66 on 22 August. An application for permission to hear applications for ASBOs without notice was heard and granted on 27 August. The applications were heard by the District Judge on 1/2 September, and ASBOs were made against 66 individuals, including Luke Kenny and M.

The orders made against the Claimants on 2 September 2003 were not in identical terms. The order made against M prohibited him from -

“1.

Acting in a manner which causes or is likely to cause nuisance, harassment, alarm or distress to any person in the area of West Yorkshire.

2.

Abusing, insulting, harassing or threatening any person in the area of West Yorkshire.

3.

Using or threatening violence towards any person in the area of West Yorkshire.

4.

Entering or remaining within the area(s) marked in red on the attached map(s).

5.

Being in possession of a drug or substance described as controlled by the Misuse of Drugs Act 1971.

6.

Being present when controlled drugs (as defined by Misuse of Drugs Act 1971), or substances are traded, sold, supplied (commercial or otherwise) or otherwise distributed in any place to which the public have access.

7.

Encourage or inciting others to carry out any of the prohibited acts on your behalf.

8.

Having contact with, in public, whether by being in a group with, talking to or otherwise associating with any of the following -…”

There then followed a list of 13 names. The order stated that it would end on 15 December 2003, and further ordered the claimant to attend at the magistrates court on 15 September 2003.

The order made in Luke Kenny’s case contained five prohibitions, the first four being identical to the first four in M’s case, and the fifth being in the same form as the seventh prohibition in M’s case.

On 16 October both M and Kenny applied for discharge of the orders made against them. The orders were modified but not discharged.

By letter dated 12 November the Leeds City Council applied to the Magistrates’ Court to extend the interim orders to 15 March 2004. But arrangements have been made for the substantive hearings on notice to take place during the months of December 2003 and January and February 2004.

The statutory framework

Section 65 of the Police Reform Act 2002 introduced a further section to the Crime and Disorder Act 1998.

Section 4 provides that -

“4 (1) An appeal shall lie to the crown court against the making by a magistrate’s court of an anti-social behaviour order or sex offender order.

(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 an appeal under this section (other than one directing that an application be re-heard by a magistrates court) shall, for the purposes of section 1(8) or 2(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.”

The Magistrates’ Court Anti-social Behaviour Orders Rules 2002 make express provision for interim ASBOs.

Rule 6 makes provision for applications for variation or discharge of an ASBO.

“6(1) This rule applies to the making of an application for the variation or discharge of an order made under section 1, 1C, or subject to rule 5(8) above, 1D.

(2)

An application to which this rule applies shall be made in writing to the magistrates court which made the order, or in the case of an application under section 1C to any magistrates’ court in the same petty sessions area, and shall specify the reason why the applicant for variation or discharge believes the court should vary or discharge the order as the case may be.

(3)

Subject to rule 5(8) above, where the court considers there are no grounds upon which it might conclude that the order should be varied or discharged, as the case may be, it may determine the application without hearing representations from the applicant for variation or discharge or from any other person.

(4)

Where the court considers that there are grounds upon which it might conclude that the order should be varied or discharged, as the case may be, the justices chief executive shall, unless the application is withdrawn, issue a summons giving not less than 14 days notice in writing of the date, time and place appointed for the hearing.

(5)

…

The District Judge’s reasons for making the interim ASBOs

Before considering the substantive issues to which these applications give rise, there is a preliminary point that must be addressed. Mr Garside QC, who appeared for the Leeds City Council, argued that the Claimants should be refused permission to apply for judicial review as it was open to them to appeal to the Crown Court against the ASBOs. Counsel for the Claimants responded to that argument by referring me to the decision of the Court of Appeal in R v Hereford Magistrates’ Court Ex parte Rowlands [1998] QB 110 in which it was held that –

“..having regard to the central role performed by magistrates’ courts in administering the criminal justice system and to the absence of any supervisory jurisdiction by the Crown Court over their proceedings, it was the more important to retain the Divisional Court’s supervisory jurisdiction to ensure the maintenance of high standards of procedural impartiality and fairness; that where a party complained of procedural irregularity or bias, he should not, by denial of leave to move for judicial review, be required to pursue such rights as he might have in the Crown Court, and that, accordingly the existence of a right of appeal to the Crown Court, particularly if unexercised, should not ordinarily weigh against the grant of leave to move or of substantive relief.”

In this case it is submitted on behalf of the Claimants that the proceedings before the District Judge were flawed by procedural irregularity, and in my judgment it is appropriate for the supervisory jurisdiction of this court to be invoked for the reasons set out in the judgment of Lord Bingham in Rowlands.

The lawfulness of the Rule 5 procedures for interim ASBOs

The first point to be made is that an application for an ASBO on notice unquestionably engages Article 6. In R (McCann) v. Manchester Crown Court (HL (E)) 2003 1AC 187, the House of Lords held that proceedings under section 1 of the Crime and Disorder Act 1998 are not criminal proceedings within the meaning of Article 6, and that accordingly the specific safeguards in paragraphs 2 and 3 of Article 6 do not apply, but held that such proceedings engage Article 6(1). As Lord Steyn said at paragraph 29 -

“For my part, in the light of the particular use of the civil remedy of an injunction, as well as the defendant’s right under Article 8 to respect for his private and family life, it is clear that a defendant has the benefit of a guarantee applicable to civil proceedings under Article 6(1). Moreover, under domestic English law they undoubtedly have a constitutional right to a fair hearing in respect of such proceedings.”

Similarly at paragraphs 79 and 80 Lord Hope said –

“79.

At first sight an order which prohibits a person from behaving in an anti-social manner has nothing to do with his civil rights and obligations. He has no right in domestic private law to use or engage in abusive, insulting, offensive, threatening language or behaviour or to threaten or engage in violence or damage against any person or property, which are among the acts which the defendants have been prohibited from doing in the McCann case. But as Lord Nicholls of Birkenhead said in Re S (minors)(Care Order: implementation of care plan) [2002] 2AC 291, 320, para 71, By virtue of the Human Rights Act 1998 the right to respect for private and family law which is guaranteed by Article 8 of the convention is now part of a person’s civil rights in domestic law for the purposes of Article 6(1). In my opinion the same can be said of the rights to freedom of expression of assembly and association which are guaranteed by Articles 10 and 11

80.

Section 1(6) of the Crime and Disorder Act 1998 sets no limits to the prohibitions that may be imposed, except that they must be necessary for the protection of people in the local government area against further anti-social acts by the defendant. Among the range of orders that might reasonably thought to be necessary are orders which may interfere with the defendant’s private life, his freedom to express himself either by words or conduct and his freedom to associate with other people. Although the jurisprudence of the Strasburg Court appears to me as yet to be unclear on this point, I would hold that the fact that prohibitions made under section 1(6) of that Act may have this effect is sufficient to attract the right to a fair trial which is guaranteed by Article 6(1). This means that the court must act with scrupulous fairness at all stages within the proceedings. When it is making its assessment of the facts and circumstances that have been put before it in evidence and the prohibitions, if any, that are to be imposed, it must ensure that the defendant does not suffer any injustice.”

But in McCann the House of Lords was not considering the procedure with regard to applications for interim ASBOs made without notice. It is acknowledged on behalf of the Lord Chancellor (and by the Leeds City Council which adopted the Lord Chancellor’s submissions on this issue) that without notice interim ASBOs, as in the case of all without notice interim injunctions, are made without the benefit of a hearing which complies with the requirements of a fair trial under Article 6. But it is submitted first that there is nothing inherently unlawful in permitting without notice applications for interim ASBOs to be made without notice as provided for by Rule 5, and secondly that in any event an interim ASBO is not a determination of the Claimants’ rights within the meaning of Article 6(1).

In my judgment both submissions made on behalf of the Lord Chancellor are well founded. There is nothing inherently unlawful in interim injunctions made without notice. The power to make such orders is a necessary weapon in the judicial armour, enabling the court to do justice in circumstances where it is necessary to act urgently to protect the interests of a party, or where it is necessary to act without notice to a prospective defendant in order to ensure that the order of the court is effective. Obvious examples of the latter are search orders and freezing orders. There is a well developed body of law as to the proper approach of the courts to applications without notice which it is not necessary to review in this context.

Nor do I consider that the fact that criminal sanctions attach to a breach of an ASBO renders the Rule 5 procedure unlawful. As Lord Steyn observed in McCann, Parliament has on previous occasions provided for the “…use of the civil remedy of an injunction to prohibit conduct considered to be utterly unacceptable with a remedy of criminal penalties in the event of disobedience”, for example non-molestation orders under the Family Law Act 1996, prohibitions on anti-social behaviour under the Housing Act 1996 and injunctions under the Protection from Harassment Act 1997. Such orders can be made without notice, and frequently are.

Furthermore the 2002 Rules provide important safeguards for the protection of a defendant, namely that an order does not take effect until served on the defendant (rule 5(4)), if not served within 7 days of being made the order will cease to have effect (rule 5(5)), it is open to a defendant to apply for the discharge or variation of an order (section 1D(4)(b)), and on such an application the defendant has the right to make oral representations (rule 5(8)), and finally that a defendant has a right of appeal to the Crown Court (section 4(1) as amended).

It is also noteworthy that counsel for M conceded that an interim ASBO may be obtained lawfully on an application made without notice interim, notwithstanding that convention rights are engaged. He submitted that in such circumstances the satisfaction (or otherwise) of the requirements of Article 6 will depend on the nature and extent of the procedural safeguards. As Mrs Outhwaite, who appeared for the Lord Chancellor, pointed out in the course of argument, the acceptance of the proposition that there may be circumstances in which an individual may fairly be subject to restrictions which engage his convention rights, notwithstanding that he has not had access to the court and has had no opportunity to make effective representations, is fatal to the argument that the Rule 5 procedure is inherently unlawful.

The second limb of the argument advanced on behalf of the Lord Chancellor is that an interim ASBO is not a determination of the claimants’ rights within the meaning of Article 6(1). The relevant part of Article 6 is in the following terms –

“RIGHT TO A FAIR TRIAL

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Paragraphs 2 and 3 of Article 6 provide specific safeguards for the protection of those charged with a criminal offence.

The 2^nd Claimant submits that the question of whether an interim ASBO amounts to a determination such as to engage Article 6, can be answered by comparing the consequences of an interim order with the consequences of a full order made at a hearing on notice. He argues that the court may in each case impose the same prohibitions, and secondly that the consequences of breach of such prohibitions are identical, namely exposure to prosecution for a criminal offence. He submits that the only distinction is in the duration for which the orders are made. A full order must be made for a period of not less than 2 years (section 1(7)). An interim order has to be for a fixed period (section 1D4(a)); but the rules provide that an interim order and the application for an ASBO must be served on the defendant in person as soon as practicable after the making of the interim order, together with a summons giving a date for the defendant to attend court. Thus an interim order will in practice have a much shorter duration than a full order. But he argues that it is the effect of the order rather than its duration that is critical, and that the effect of an interim order on the enjoyment by the claimants of their civil rights is identical to that under a full order. As the making of a full order would unquestionably amount to a determination of their civil rights, so too must the making of an interim order.

The 2^nd Claimant seeks to derive support for his submission from the speech of Lord Hope in McCann at paragraph 80 cited above, and in particular his conclusion that the fact that the prohibitions made under section 1(6) of the 1998Act may interfere with a defendant’s private life, namely with his freedom to express himself either by words or conduct and his freedom to associate with other people, attracts the right to a fair trial guaranteed by Article 6(1), which … “means that the court must act with scrupulous fairness at all stages in the proceedings.” But in my judgment that reliance is misplaced as Lord Hope was not addressing the issues raised by an application for an interim order without notice.

I am satisfied that there is no determination of civil rights within the meaning of Article 6(1) on the making of an interim ASBO without notice. The 2^nd Claimant’s case in essence is that the issue of whether there has been a determination is to be resolved by considering the effect of the order. But a determination of civil rights under Article 6(1) involves -

Secondly Article 6 is concerned with procedural fairness. It concerns the procedure resulting in a determination. An interim order is by its very nature temporary, and serves to regulate behaviour until the determination of the parties’ civil rights at the substantive hearing. As the authors of ‘The Law of Human Rights’, Clayton and Tomlinson, say at para 11.157 -

“Determination or “decisiveness” in relation to civil rights and obligations refers to the decision on the merits of a case and its finality. Proceedings which are not determinative are not subject to Article 6 guarantees. It has been held that the following are not “determinative”: applications for interim relief…”

That analysis is borne out by the convention case law which demonstrates that the making of interim orders does not trigger the protection of Article 6. In Alstlerlund v. Sweden (1988) 8 EHRR1 it was stated that –

“As regards the interim measures requested by the applicant, the commission recalls its case law according to which a decision on such measures does not constitute a determination of ‘civil rights and obligations’”

In Österreichische Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria (unreported) the claimant attempted to rely upon Article 6 in a challenge to a without notice interim injunction preventing it from using the word ‘Camel’ or using a picture of a camel in their anti-smoking campaign. The application was declared inadmissible. The commission said -

“As regards the applicants’ complaints about the interlocutory proceedings, the commission finds that in these proceedings, the applicants’ rights and obligations were not determined, but only an interim decision taken pending the main proceedings. The interim injunction proceedings therefore fall outside the scope of Article 6 of the convention…the applicants’ complaint is accordingly incompatible ratione materiae with the provisions of the convention and must be rejected under Article 27 para 2.”

It is further submitted on behalf of the Lord Chancellor, in my judgment correctly, that there may be a determination within the meaning of Article 6(1) at an application to vary or discharge the order made without notice, at the substantive hearing of the application or at an appeal. Mrs Outhwaite also acknowledged that after the making of the interim order, Article 6 is engaged, as procedural fairness is necessary prior to the determination so that there can be a fair hearing at the determination. But at that stage the requirements of Article 6 are in my judgment satisfied by the procedural safeguards embodied in the 2002 Rules, to which I have already made reference.

It follows that in my judgment the 2^nd Claimant fails in his contention that the Rule 5 procedure for the making of interim ASBOs without notice is unlawful. It is not therefore necessary to address the issue of whether the court has power to quash Rule 5.

I turn then to consider the issues addressed in the second part of the hearing. It is the Claimants’ case in broad terms that there was no basis upon which interim ASBOs could properly have been made. That raises a number of issues namely –

Issues 1 and 2 - The role of the justices’ clerk

Issues 3 and 4 - The decisions made by the District Judge on 2 September 2003

Consideration of whether it is just to make an order without notice is necessarily a balancing exercise. The court must balance the need to protect the public against the impact that the order sought will have upon the defendant. It will need to consider the seriousness of the behaviour in issue, the urgency with which it is necessary to take steps to control such behaviour, and whether it is necessary for orders to be made without notice in order for them to be effective. On the other side of the equation it will consider the degree to which the order will impede the defendant’s rights as a free citizen to go where he pleases and to associate with whosoever he pleases.

It is submitted on behalf of the Claimants that such relief can only be granted in exceptional circumstances, and that there must be compelling urgency to justify an application without notice. In my judgment that would be an unwarranted and unnecessary gloss upon the test set out in section 1D. But it is implicit in the balancing exercise that the considerations that weigh in favour of injunctive relief must be sufficiently serious to warrant what may amount to a serious interference with the civil rights of a defendant.

41 of those against whom ASBOs were made on 2 September were under the age of 18. In Luke Kenny’s case, the order was made seven days before his 18^th birthday. Mr Wise submitted that in considering whether it is just to make an interim ASBO, the court must have regard to the principle that the best interest of the child are a primary consideration. He relied upon Article 24(1) of the European Union Charter of Fundamental Rights which provides that -

“(1)

Children shall have the right to such protection and care as is necessary for their well-being.

(2)

In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”

In this context he also drew my attention to the persuasive analysis of the duty on public bodies to have regard to the principles embodied in the United Nations Convention on the Rights of the Child and the European Union Charter of Fundamental Rights undertaken by Munby J in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin) in the context of those under 18 detained in Young Offender Institutions. At para 67 of his judgment Munby J conclued that –

“Such measures (the measures taken with regard to those detained in YOIs) must strike a fair balance between the competing interests of the particular child and the general interests of the community as a whole…but always having regard to;

(i)

first, to the principle that the best interests of the child are at all times a primary consideration.”

I respectfully adopt his analysis which I consider to be applicable to proceedings before a magistrates’ court for an interim ASBO. Where a defendant is under 18 the court must have regard to the principle that his best interests are a primary consideration when addressing the question of whether it is just to make an order.

There are two further points to be made. First it is submitted that on the authority of McCann a court considering an application for an interim ASBO should apply the heightened civil standard of proof. But as I have already observed, the House of Lords was not considering the position with regard to an application for interim relief in McCann. Secondly the balancing exercise involved in consideration of whether it is just to make an interim order, is an exercise of judgment or evaluation. As Lord Steyn said in McCann -

“The inquiry under section1(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard proof; it is an exercise of judgment or evaluation. This approach should facilitate correct decision making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance.”

The second point is that the Home Office has provided guidance in relation to ASBOs, the most recent of which was issued in November 2002, and was drawn to the attention of the District Judge at the hearing on 1/2 September. It contains the following passages -

“Anti-social behaviour has a wide legal definition … among the forms it can take are … dealing with drugs, with all the problems to which it gives rise.”

“The benefit of the interim order is that it enables a court to order an immediate stop to anti-social behaviour and thereby to protect the public more quickly. It reduces the scope for witness intimidation by making it unlawful for the offender to continue the behaviour whilst the ASBO application is being processed. It also removes any incentive for delaying the proceedings on the part of the perpetrator. The interim order will send a clear message to the community that swift action against anti-social behaviour is possible.

The orders can be made at the outset of proceedings for an application for an ASBO if the court considers that it is just to make such an order. The applicant authority should request an interim order at the same time as submitting an application for a full order.

When considering whether to make an interim order the court will be aware that it may not be possible at the time of the interim order application order to compile all the evidence that a full ASBO is necessary. Rather the court will determine the application for the interim order on the question of whether the application for the full order has been properly made and whether there is sufficient evidence of an urgent need to protect the community.

Applications for interim order will be appropriate, for example, in cases where the applicant feels that persons need to be protected from the threat of further anti-social acts which might occur before the main application can be determined.

Where an interim order is granted ex parte (without notice of proceedings to the defendant) it is expected that the court will usually arrange an early return date. An individual who is subject to an interim order will have the opportunity to respond to the case at the hearing for the full order.. The defendant is also able to apply to the court for the interim order to be varied or discharged. In this instance the matter will be dealt with at a hearing dealing specifically with the interim matter.”

Such guidance is entirely consistent with the statutory scheme.

The question is therefore whether the District Judge applied the appropriate test. His reasons for his decision begin with the statement that the law had been properly set out in the skeleton argument provided by counsel for the Leeds City Council, Mr Pema. I have had the advantage of seeing that skeleton. It is consistent with the analysis set out above.

The District Judge concluded that “… there is sufficient evidence that the main application is properly made and it is just to make an interim order until resolution of the full applications.” His reasons for arriving at that conclusion are set out in paragraph 18 above.

The District Judge also considered the implications of the Human Rights Act and the issue of proportionality concluding “I am satisfied that the application is proportionate and that the defendants their right to private life and a fair trial have not been offended and it is therefore proper in my view that I should grant the application.”

Although the reasons given by the District Judge are brief, I am satisfied that he applied the correct test, namely whether it was just to make the orders, and that in carrying out the balancing exercise inherent in that test, he took account of the relevant considerations. Secondly I am satisfied that the general conclusions at which he arrived were properly open to him on the material before him.

I turn then to the issue of whether there was material before him in relation to each of the Claimants upon which the orders could properly be made. The first point to be made is that in the course of the hearing on the 1/2 September counsel for the Leeds City Council took the District Judge to the evidence relating to each of the 66 defendants in turn. Thus although the District Judge did not give individual decisions in relation to each of the defendants, I am satisfied that he gave individual consideration to their cases.

M

In M’s case there were two schedules before the District Judge setting out details of anti-social behaviour in which he had allegedly been involved. The 13 incidents in the first schedule were directly witnessed and provable by statements. The second schedule, which listed 20 incidents and connected M with a number of other individuals involved in anti-social behaviour, related to matters in relation to which there was hearsay evidence, or which had occurred outside the six month period prior to issue of the application.

It is unnecessary to rehearse the details of such evidence; but I am entirely satisfied that it provided a proper evidential basis for an interim order to be made against him, and secondly afforded justification for the refusal of his application to discharge the order that came before the District Judge on 16 October.

Accordingly in his case I give permission to apply for judicial review, but dismiss his claim.

Luke Kenny

In the first schedule put before the District Judge four incidents were relied upon by the Leeds City Council; but it is now acknowledged that the second did not relate to him at all but to an individual who has been known to use his name. As to the remaining three incidents, the first is a report that on the 12 August 2003 he was present with three others on Wakefield Road when approached by police officers, and that he and the others were abusive and aggressive to the officers. But Wakefield Road is some miles from the area in question. The third incident is alleged to have taken place on the 28 May when he is said to have been one of four persons reported to the police by members of the public for boisterous and loud behaviour on Lidgett Green. That is also a considerable distance from the area. The fourth incident allegedly took place on 25 March 2003, when he was one of a group of fifteen to twenty youths on Iveson Approach. A number of calls were apparently received from members of the public concerning the boisterous and noisy behaviour and menacing nature of the group. Iveson Approach is five miles from the exclusion zone. In a further witness statement dated 10 October 2003, and before the District Judge on the discharge application, DS Thompson stated that on 12 September 2003 Luke Kenny was checked by officers on Cowper Street, Chapeltown “ … in an area where youths were dealing drugs.” But it transpires that on that day he visited his solicitors in that area; and reliance upon that incident therefore proves to have been misplaced.

I have carefully considered the whole of the evidence relied upon by the City Council in Kenny’s case, both at the hearing on 1/2 September and at the discharge hearing on 16 October. The general assertion by DS Thompson set out in paragraph 54 above was simply not borne out by the evidence that specifically related to him. The evidence connecting Kenny with the anti-social behaviour giving rise to the applications was tenuous in the extreme. Mr Wise, who appeared for Kenny, was justified in describing it as “guilt by association on the flimsiest of evidence”. Taken at its highest it did not in my judgment provide the evidential basis to connect him, whether directly or indirectly, with the problem of drug dealing and associated criminal behaviour in the area in question. Accordingly the District Judge could not properly on 1/2 September conclude that it was just to make an interim order in his case for the protection of the community living in the area. The order ought to have been discharged on 16 October.

In the light of those conclusions it is not necessary to address the issue of whether the District Judge took proper account of the fact that Luke Kenny was under 18 at the date when the order was made.

It follows that in his case there will be permission to apply for judicial review, and the order made against him will be discharged.

There is a further and important point that arises in relation to the discharge hearing. It was submitted on behalf of the Claimants that on a proper reading of the 2002 Rules, the burden is on the defendant to justify the discharge or variation of an order, and furthermore that a discharge hearing will not amount to a full hearing on the facts as the scheme envisages that matters will be ventilated in full on the substantive hearing. Counsel for the Claimants submitted that it would be of assistance for magistrates’ courts to be given guidance as to the proper approach to applications for a discharge of an interim ASBO.

Applications to vary or discharge an ASBO are dealt with in Rule 6 (see paragraph 17 above). Under Rule 6(2) an applicant for discharge or variation must specify the reason why he believes that the court should vary or discharge the Order. Rule 6(3) provides that where the court considers that there are no grounds upon which it might conclude that the order should be varied or discharged, it may determine the application without hearing representations. But that Rule is expressly subject to Rule 5(8) which provides that where an interim order has been made without notice, an application for variation or discharge shall not be dismissed without the defendant being given the opportunity to make representations to the court. Thus a defendant has the right to a hearing on an application for discharge or variation of an interim order made without notice.

I do not consider that the effect of the Rules is to shift the burden to the defendant to demonstrate why an interim order made without notice should be varied or discharged. The test to be applied on such an application will be that set out in section 1D(1)(2), namely whether “… it is just to make an order under this section pending the determination of that application (the main application)”. In applying that test the court will necessarily consider the material relied upon by the party seeking the interim order, and will obviously take account of any evidence adduced by and/or submissions made on behalf of the defendant. The burden remains on the party seeking the order to demonstrate that it is just for there to be an interim order until the hearing of the main application.