Walkling, R (on the application of) v The Director of Public Prosecutions

MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated by the appellant, who was born on 15th April 1986, who was charged with an offence that on 18th January 2003, in Snodland in the County of Kent, without reasonable excuse, he did an act, namely that he behaved in a threatening manner and used foul language which was abusive, which he was prohibited from doing by an anti-social behaviour order made under section 1 of the Crime and Disorder Act 1998 on 12th November 2001 by Maidstone Magistrates' Court, contrary to section 1(10) of the Act. He was charged with that offence on 19th January 2003 and appeared before the Magistrates whose decision, which is the subject of this appeal, was made on 25th April 2003. They found the following facts:

The last of those subparagraphs of the case stated purports to be a finding of fact. It is rather a decision on a question of law that was before the Magistrates, or possibly a question of mixed fact and law, but a question of law it essentially is. I say that, because the argument before the Magistrates was whether the order that was made on 12th November 2001 was the order pronounced orally in court by the Chairman of the Magistrates, or the written document signed by the Chairman of the Bench and handed to the parties for distribution at the end of the hearing when a copy, no doubt, was delivered to the appellant himself.

Subsection 7 of section 1 of the 1998 Act provides:

Subsection 9 provides:

The argument before the Magistrates was that the order which was made on 12th November 2001 was not the order that was pronounced in court, but that it was the document which came into existence as a result of the open court hearing which purports to be the order. That order was not an order complying with the requirements of subsection 7 of section 1, because it, in its terms, would have effect for a period which was less than two years, albeit by only one day.

This case stated effectively raises two questions. Firstly, is an anti-social behaviour order the order pronounced orally in court by the judge, or is it a document which comes into existence in consequence of the judge's pronouncement? Secondly, in the circumstances of this case, was the error such as to render the order a nullity if the order was the written order rather than that pronounced in open court?

As I have already indicated, the order that was pronounced in open court did comply with the requirements of the Act, because the order was stated to have effect for two years. The written document did not, however, comply with either the requirements of the Act or reflect what was said by the Chairman for the Magistrates in open court.

Mr Sinclair, on behalf of the appellant, relies on subsection 9. He says that it is explicit in its terms that the order is a written order, since the service of the order is referred to, and only a document can be served. He refers to the terms of the order in this case, which is headed "Anti-Social Behaviour Order" and thus purports to be the order itself.

Mr Sinclair accepts that the general rule before the Magistrates' Court, and indeed in our courts generally, is that the order of the court is that pronounced by the judge in open court. See by way of example R v Kent [1983] All England Law Reports page 1, at page 5, per Lord Lane, Lord Chief Justice. He says that anti-social behaviour orders are an exception to that general rule established by subsection 9 of section 1 of the Act.

Mr Marsden-Lynch, on behalf of the respondent, submits that the order that was made in the present case was that pronounced orally in court, as District Judge Kelly held and as the Magistrates in this court held.

There is no doubt that whether one interprets the order as that pronounced in open court or as the written document which ought subsequently to be served on the person made subject to the order, certain difficulties arise.

The Act envisages that the minimum period for the effect of an order is two years (see subsection 7 and subsection 9). Clearly, there will be cases in which the date of service of the order may be different from the dates in which it is pronounced in open court. That will occur most commonly when the defendant does not appear before the court when the application is made.

In such circumstances, in an order for a period in excess of two years or until a further order is made, there will be a discrepancy between its minimum period in terms of the order itself and the period of two years stipulated by subsection 9. That is to say, no application can be made until the end of the period beginning with the date of the service of the order, and that may be some time after the order is pronounced in open court. Moreover, that delay may be the fault of the applicant for the order rather than the person who is made subject to the order.

On the other hand, one can envisage cases in which the person who is to be made subject to the order leaves court immediately after the order is pronounced, cannot be served for some time and is not served for some time, and immediately does an act prohibited by the order. The Magistrate may not have signed the order there and then. He may not have done so because he or the bench have a busy list, and although the order was in draft, there have been discussions as to its terms and there have been significantly amended requirements to the terms. It would be curious if, in such a case, the person made subject to the order could ignore it with impunity until service.

Mr Sinclair is right to rely on the fact that the terms of such orders are often of some complexity or length, and in specifying the conduct which is prohibited, often have a map attached to them specifying an area into which the defendant is precluded from entering. Clarity and certainty point to the desirability and perhaps the necessity of a written order. It is also relevant that these orders are made in respect of young persons. On the other hand, it is the general practice of the High Court in granting injunctions that injunctions, like undertakings, are effected immediately when made, provided the defendant is, in the case of an injunction, notified of its terms, albeit that the order is not served on him.

An injunction cannot be enforced unless and until the formal order containing the penal notice is served on the defendant in general, but the injunction itself is effective and binding on the defendant if notified of it, and indeed on third parties who are given notice of it, immediately. That to my mind means there is no inherent requirement that the order itself be written.

It is true that subsection 9 refers to the date of service of the order as if the order were a written document rather than an oral pronouncement. However, injunctions and indeed undertakings are often referred to in similar terms. One speaks in terms of the service of the injunction. One may speak in those terms even though the injunction has been made in open court in the presence of the parties.

In my judgment, the terms of subsection 9 of section 1 of the Act are an insufficient basis for the conclusion that Parliament intended to depart from the general rule applicable to orders made by Magistrates Courts. If such a departure had been intended, I should have expected much clearer wording, and certainly not wording which related only to the date of service of the order. It follows that, in my judgment, the order that was made on 12th November 2001 was that pronounced in court, there was a valid order, and the appellant was rightly convicted of its breach.

I would, however, go further. Even if the order in this case had been the written order, I should have held that it was not invalidated, that is to say rendered a nullity, because it did not comply with the requirements of subsection 7 of section 1. If it is relevant, I point out that the infringement of the requirements for that subsection was by one day only. More importantly, the error was an error which was favourable to the appellant; that is to say it abbreviated the duration of the anti-social behaviour order rather than prolonged it.

I see no reason to conclude that Parliament intended any contravention of the requirements of subsection 7 to result in the nullity of the order pronounced in open court or the order signed by the Magistrate as a result of the hearing before the bench.

If the order is irregular, doubtless judicial review proceedings could be taken in relation to it, although it is difficult to see on what basis the appellant would have the justification for judicial review of an order which in so far as it was in error, made an error in his favour, but it is not a legal nullity.

In those circumstances, I conclude that the Magistrates came to a correct decision, and this appeal is dismissed.

MR SINCLAIR: I am grateful, my Lord. My Lord, may I explain one thing? The application to remit was partly fuelled by an annoyance, I have to say, among counsel in my area, that whenever one asks this particular bench to state a case, one ends up with a document which does not always reflect what happened in court. I meant to say that earlier, and I want to say it now. I am very grateful.

MR JUSTICE STANLEY BURNTON: Well, I do not think there is anything I need to say. Magistrates must take care to ensure that the case stated does state the perhaps necessary decision when a point of law is sought, and as far as possible to reflect the argument put before them. Beyond that, there is nothing I can say.

MR SINCLAIR: I am very grateful, my Lord.

MR JUSTICE STANLEY BURNTON: Thank you both very much. Have there been any reporting restrictions in this case?

MR SINCLAIR: My Lord, I have not asked for them, and no, there were not.

MR JUSTICE STANLEY BURNTON: Well, I notice that the case has been listed as "W".

MR SINCLAIR: Yes. It has always been "Walkling". I think that in the criminal proceedings there were reporting restrictions, because it is a different court and it would matter that there be reporting restrictions, but for the application for the anti-social behaviour order and arguments as to its validity, there has never been an order made in respect of those.

MR JUSTICE STANLEY BURNTON: So you are not asking me to make an order?

MR SINCLAIR: My Lord, I am not. I do not think it will affect the young man at all.

My Lord, I hesitate in saying this. I do not suppose this is a matter upon which your Lordship would be willing to certify the question?

MR JUSTICE STANLEY BURNTON: Does this go straight to the House of Lords?

MR SINCLAIR: My Lord, yes.

MR JUSTICE STANLEY BURNTON: There are two issues: certifying the question and giving leave.

MR SINCLAIR: Yes.

MR JUSTICE STANLEY BURNTON: What is the question?

MR SINCLAIR: The question is, I suppose --

MR JUSTICE STANLEY BURNTON: There were two questions.

MR SINCLAIR: Yes, the two questions, almost precisely those two questions. One can perhaps tinker with them slightly.

MR JUSTICE STANLEY BURNTON: Let me hear what Mr Marsden-Lynch has to say. This is a civil matter. It goes to the Court of Appeal.

MR SINCLAIR: Oh, of course it is. In which case --

MR JUSTICE STANLEY BURNTON: In which case I do not have to certify. You could ask for leave.

MR SINCLAIR: Yes, I could ask for leave.

MR JUSTICE STANLEY BURNTON: You could.

MR SINCLAIR: I always think it is rude asking a particular judge for leave. I always prefer going to Court of Appeal. I am uninstructed. I suppose it is probably the best thing, from my point of view, if I ask your Lordship whether your Lordship will grant leave.

MR JUSTICE STANLEY BURNTON: Thank you very much. Leave is refused. Thank you both for your arguments. Frankly, I rarely would consider it in any way an affront for it to be suggested that someone else might decide the case differently. Who knows, he might be wrong.

Thank you both very much.