Chief Constable of Lancashire v Potter

LORD JUSTICE CLARKE: This was to be the hearing of an appeal by way of case stated by the Chief Constable of Lancashire against the refusal of Deputy District Judge Alan Jones sitting in the magistrates court in Preston on 24 July 2002 to grant an anti-social behaviour order against the respondent, Lisa Potter, who was said to be a prostitute.

The application arose out of what was said to be a significant problem caused by a large number of prostitutes operating, albeit not in concert, in a residential area of Preston. Applications were initially made against a number of respondents who were alleged to be prostitutes, but as I understand it, on the application of some of the respondents, which was determined by a clerk to the justices, after hearing argument on both sides, it was ordered that the cases be tried separately. In the event, only the application against the respondent has proceeded so far.

When the application was refused, the appellant requested the District Judge to state a case, which he did on 16 October 2002. In effect, the applications against the other respondents are in obeyance pending the decision of this court on this appeal.

The respondent was represented before the District Judge by Messrs Inghams, who are solicitors in Preston, but she herself did not turn up at the hearing. The application notice was served on Inghams some time in November. We are told, and entirely accept, that before that occurred, a representative of the appellant's solicitors spoke to a representative of Inghams on the telephone and was told that they were still acting for the respondent and would be acting for her in this appeal.

That telephone conversation took place on 11 November. They were, as I understand it, told that Inghams were acting for her as standing solicitors in relation to other criminal matters in which she was alleged to be a prostitute.

The appellant's solicitors naturally entirely accepted what they told, and did not investigate further whether there had been direct contact between Inghams and their client in relation to this appeal. After that, the appellant's solicitors naturally assumed that Inghams would be representing her in relation to the appeal. As I understand it, the court also proceeded on that basis, although it is right to say that no skeleton argument was ever lodged on behalf of the respondent.

On 21 January, that is just three days ago, Inghams sent a fax to the court which was in fact received on 22 January in which they say:

Mr Justice Jack and I were somewhat concerned that this meant that only the appellant's submissions would be heard at the hearing and that the court would not have the benefit of submissions on behalf of respondent. As I understand it, there was a communication yesterday between the court and Inghams. Inghams informed the court that they had communicated regularly with the respondent at 1, Dixon Street Preston and that they regularly wrote to the respondent at that address. We are however concerned as to whether the respondent ever received the letters and whether she knows that today's hearing is taking place.

This concern is of significance for two reasons. It is significant because if this appeal succeeds, and the court makes an order remitting the matter to the magistrates court for further consideration, that further application will presumably have to be served upon her personally if her solicitors are no longer acting for her. The purpose of any such remission from the appellant's point of view would of course be to obtain the order they were seeking in the first place.

The second reason we are concerned is that this appeal seems to us to raise a number of issues of potential importance, both generally and in the context of the applications relating to prostitution in Preston.

First, it raises questions of the construction of section 1 of the Crime and Disorder Act 1988. In particular, it raises questions as to the meaning of "likely to cause harassment" and it raises the question as to what the appropriate burden of proof is under section 1(1)(a) of that Act. Those are questions of some general importance.

The particular significance that the case has for the problems in Preston relates to the nature of the evidence that was put before the district judge. It was, to a significant extent, hearsay evidence. The district judge made a number of findings in relation to it; some of those conclusions are challenged on behalf of the appellant. It seems inevitable that any conclusions ultimately reached by this court will have a direct effect upon the applications against the other respondents which are at present in abeyance.

In all these circumstances, we think it is very desirable for this court to have the benefit of argument on both sides before resolving the issues. We have therefore decided that the appropriate course, notwithstanding the inevitable delay, is to adjourn the appeal today. We do not understand the appellant to object to this course.

We direct that the following steps should be taken. One, a copy of this judgment be sent to Inghams. Two, they be asked to set out the present position as they see it. Three, unless Inghams say that they are now instructed to represent the respondent on the appeal, the relevant documents be served personally on the respondent.

If the respondent does not within seven days of such service instruct solicitors, who are willing to act for her and to instruct counsel on her behalf, the Attorney General be asked to provide an advocate to the court, in order to ensure so far as possible that these issues can be properly determined.

We recognise that there may in many cases be a reluctance on the part of the Attorney General to appoint a advocate to the court, but it does seem to us this that this would be an appropriate case if the respondent does not,for any reason, have her own counsel. The matter will be adjourned on that basis.

Thank you for your assistance.

MR JUSTICE JACK: Can I ask you about one matter Mr Beer? You say in your skeleton in paragraph 49:

I think it would be very helpful to whatever court has to deal with the substantial hearing to see the basis for that, and whether they consider it admissible in evidence or admissible before them; I do not know.

It is not something that is referred to in the House of Lords when their Lordships described the social problems which have given rise to the passage of section 1.

MR BEER: I will put the Parliamentary case in the bundle.