K, R (on the application of) v Knowsley Metropolitan Borough Council

MR JUSTICE HARRISON: This is an appeal by way of case stated from a decision of the Merseyside Justices, sitting at Knowsley Magistrates' Court on 24th July 2003, when they declined to make an order under Section 39 of the Children and Young Persons Act 1933 prohibiting publication of material likely to lead to the identification of the appellant, following the making of an Interim Anti-Social Behaviour Order, ("ASBO") under Section 1D of the Crime and Disorder Act 1998.

Section 39 (1) of the 1933 Act provides:

At the relevant time, the appellant was 15 years old. As the application for an ASBO is a civil matter which is heard in the Magistrates' Court rather than in the Youth Court, the provisions of section 49 of the 1933 Act did not apply, under which there is automatic anonymity subject to the power to dispense with it under section 49 (4A).

The application for the ASBO in this case listed some twelve allegations of anti-social behaviour. Seven alleged insulting or abusive behaviour towards police officers. Three related to behaviour in relation to motor vehicles, although one of those also involved threats to damage, not only a lady's motor vehicle, but to rape her. One involved an alleged assault on a resident and another involved a nuisance outside a person's home.

The application sought a number of countrywide prohibitions against the appellant relating to abusive or insulting behaviour, violent behaviour, damaging property, and driving or riding in motor vehicles. It also sought to prohibit the appellant from being in a public place in Knowsley with two or more people who were not members of the appellant's family, and it sought to prohibit him from entering an area known as Tower Hill marked on a plan.

When the matter came before the justices on 24th July 2003, it became clear that it would involve at least a two day hearing, so it was adjourned to a convenient date for a pre-trial review.

The Local Authority applied for an interim ASBO. Their reasons for doing so were that the anti-social behaviour had been of a serious and disruptive nature and that it had continued despite attempts to control it by means of an acceptable behaviour contract and by the institution of injunctive proceedings against the appellant's father. It was said that the appellant had no respect for the police or other authorities, he had no regard for the property or welfare of others, and it was improbable that his anti-social behaviour would cease unless an interim order was granted.

The justices granted that application and made an interim ASBO. The prohibitions against the anti-social behaviour were those that I have already mentioned in relation to the application for the full ASBO.

An application was then made on behalf of the appellant for what I will call an anonymity order to be made under section 39 of the 1993 Act, which was resisted by the respondent.

At this point, I take the matter up from the case stated. In paragraph 2 of the case stated the justices record the fact that, since this was an interim order, no live evidence could be called or tested by either party. The justices were served with documentary evidence and the matter proceeded by way of submissions.

It was contended by the appellant that the starting point should be that a youth should not be named and that reporting would be potentially prejudicial as the evidence had yet to be tested. Further, the issue should not be considered until the conclusion of the case. It was also argued on behalf of the appellant that most of the witnesses were police officers and that they would be well aware of the terms of the interim ASBO.

It was contended, on the other hand, by the respondent that the reporting of the matter was necessary to ensure that the order would be effective and that failure to publicise the order would restrict its effectiveness.

The case stated also refers to the fact that the justices were not, sadly, referred to any case law. I say "sadly" because there is a relevant decision of this court, albeit that it was unreported, which the justices would have found helpful to be referred to.

Paragraph 6 of the case stated reads as follows:

The case stated then goes on to pose the question for the opinion of this court as follows:

Following the decision of the justices, the respondent, in consultation with the police, issued a leaflet containing a photograph of the appellant which, amongst other things, contained this statement:

Subsequently, the hearing for the full ASBO took place on 19th January 2004, when an ASBO was made on the basis of five of the twelve allegations of anti-social behaviour which had been included in the application.

I am told that the proceedings were compromised in the sense that the appellant admitted those five allegations, and the scope of the order which was then made was agreed between the parties. It follows that there was no finding of fact by the justices after hearing evidence. The resulting prohibitions in the full ASBO were less far-reaching than those that had been sought in the application.

I am told that there is no decided case relating to the issue of the making of an order under section 39 of the 1933 Act in the case of an interim ASBO. There is a decision by Elias J, relating to the making of section 39 orders in the case of a full ASBO. That is the case of T v St Albans Crown Court [2002] EWHC 1129 (Admin), which, I am told, is an unreported case.

THE JUDGE: In that case, Elias J reviewed the authorities relating to section 39 orders. He referred to the set of principles which should be considered when determining whether to make such an order mentioned by Simon Brown LJ, as he then was, in the case of R v Worcester Crown Court ex parte B [2000], 1 Cr App R 11.

Those principles, which are set out at paragraph 20 of the judgment of Elias J, are as follows.

I interpose here that that is plainly a very relevant consideration in this case.

That also is a relevant consideration in this case.

That again is a relevant consideration in this case.

Although that may refer primarily to a situation after conviction, the element of deterrent is plainly a relevant consideration in this case.

Although, of course, there is no finding of anti-social behaviour at the stage of an interim ASBO, the public interest in open justice is plainly a relevant consideration in this case.

I come then to the sixth principle, which is particularly relevant in this case and upon which the appellant particularly relies.

The reason why the appellant places particular emphasis on that principle is because, at the interim ASBO stage, there is no finding of guilt or of an allegation having been proved.

I should also refer to what Elias J said at paragraph 22 of his judgment. He said:

I entirely agree with the approach taken by Elias J in that case. It seems to me that each case, whether it be an application for an interim ASBO or a full ASBO, must be considered on its own particular facts. That much is agreed by both counsel in this case.

It involves, as Elias J said, a balancing exercise, weighing up the various considerations relating, on the one hand, to the desirability of disclosure in the public interest and, on the other hand, to the welfare of the appellant.

Mr Addison, who appeared on behalf of the appellant, reminded me that the justices' attention was not drawn to the case of T, to which I have just referred, from which it followed that that their attention was not drawn to the set of principles which I have quoted and, in particular, the sixth of those principles. He suggested that I should take this opportunity of encouraging justices to take that set of principles into account when considering whether or not to make a section 39 order in ASBO cases, whether interim or full.

I say at this point, as I said before, that it was a pity that the justices' attention was not drawn to that case. It is therefore no criticism of the justices that they did not have before them, so far as I am aware, that set of principles and, in particular, principle (vi), which is very relevant to the present case.

Mr Addison reminded me that there still is, at the interim ASBO stage, a presumption of innocence until there has been a finding by the justices following a hearing relating to the full ASBO. He submits that it should be regarded as the norm to make a section 39 order in the case of interim ASBOs unless there are good and compelling reasons why it should not be made, the purpose being, he said, to prevent the world at large knowing of the allegations in their unproved state. A section 39 order therefore, he said, should be made unless it can be shown that its making would make the policing of an ASBO impossible.

He drew my attention to the provisions of section 39(1)(b) under which if a section 39 order was in force, the police or the local authority could come back to the court and ask for some element of publicity to be allowed if it was felt necessary for the ASBO to be properly policed.

Miss Ellis, who has helpfully appeared on behalf of the respondent local authority, referred to the fact that the justices were plainly aware that it was an interim order that they were dealing with, as appears from both paragraphs 2 and 6 of the case stated. I have no doubt that that is correct and that the justices were plainly aware it was an interim ASBO they were dealing with.

Although the justices were not referred to the case of T, Miss Ellis submitted that it was plain from paragraph 6 of the case stated that they had looked at all the relevant considerations. She submitted that it would not be right to lay down any general principle that a section 39 order should be regarded as the norm in the case of interim ASBOs because the issue will only arise where there is a particular reason for publicity.

She submitted that the public should know that something is being done because it takes a long time before the hearing of the full ASBO takes place. In this case, she pointed out it was only targeting publicity that took place, rather than general publicity in the newspaper, and that, on the appellant's own case, that was something which should be acceptable.

The justices in this case, quite properly in my view, attached particular weight to the public interest in the publicity helping to make the interim ASBO more effective. They also, quite properly, weighed in the balance the appellant's age, his welfare, and his right to privacy. Those matters were specifically referred to by them in paragraph 6 of the case stated.

Thus far, no criticism can be made. But what seems to me to be missing is any consideration of, or importance being attached to, the interim nature of the proceedings. It is right to say that they did mention in paragraph 2 of the case stated that no live evidence was called or tested and that the matter proceeded by way of submissions. But that seems to me to have been mentioned simply to explain the way in which the matter proceeded before the justices.

In giving their reasons in paragraph 6 of the case stated, there is no mention of the consequences that follow from the nature of the procedure, namely that there is at that stage no finding of fact made by them and that the allegations had not at that stage been proved and that the appellant had no opportunity at that stage to challenge any of the allegations.

Those are, in my view, weighty matters to take into account when considering whether to make a section 39 order in the case of an application for an interim ASBO. It is necessary to bear in mind that the allegations are unproven at that stage and that they may or may not be proved at the hearing for the full ASBO.

The facts of this case demonstrate, albeit, I accept, with hindsight, the importance of bearing that in mind. There is a very significant difference between the allegations made and the prohibitions sought in the application for the full ASBO and the allegations upon which the justices subsequently made the full ASBO and, indeed, the scope of the prohibitions which they imposed.

I do not go so far as to say, as Mr Addison invites me to do, that a section 39 order should be the norm in the case of applications for interim ASBOs because the very nature of the allegations of antisocial behaviour reinforce the importance of the public interest in public disclosure. But I do say that the interim nature of the proceedings, which do not involve any finding on the allegations, is a very important consideration to put into the balance so that it can be balanced against the undoubtedly important consideration that the justices did take into account relating to publicity assisting in the effectiveness of enforcing the interim order.

It is, as I have said, a pity that the justices were not referred to the case of T and to the sixth of the set of principles which is particularly apposite to this case. It is, as I have said, no criticism of the justices in those circumstances that they failed, in my view, to attach importance to that aspect of the matter.

In those circumstances, it seems to me that their decision did involve an error of law and that the decision should be quashed. No useful purpose would be served by remitting the matter to the justices in the light of the fact that the final order has now been made.

MR ADDISON: I think in practical terms, my Lord, remitting it to the Justices at this stage would achieve nothing.

MR JUSTICE HARRISON: Yes, you are quite right.

MR ADDISON: Can I explain? I was not involved in this case until near to the actual hearing itself, in January. My instructing solicitors applied for a case stated, following the decision of the Justices at the interim stage. They were told by the justice's clerk, wrongly in my view, that such a case stated was inappropriate at this stage because it was still an interim decision. I think they made a mistake because it was actually a complete decision that had been made and they were told to re-submit the application at the end of the case.

When I heard about that, my view was that it was wrong but we were then by that time well into the proceedings so there was no point in, as it were, judicially reviewing their decision when we were close to a hearing date.

In effect, I think your Lordship's judgment is extremely helpful for those dealing with these matters. I think in view of the fact that the final order has been made, there is no value in remitting it to the Justices at this stage. I think your Lordship's judgment is of assistance to those such as my learned friend and myself, who are dealing with these cases in the future.

MR JUSTICE HARRISON: I think that must be right, must it not, Miss Ellis, on reflection?

MISS ELLIS: Yes, my Lord.

MR JUSTICE HARRISON: There is not any useful purpose in remitting the matter to the Justices, is there?

MISS ELLIS: No, my Lord, I think that is right. In fact, there was a further application in relation to Section 39 once the final order had been made. Your Lordship may interested to know that no further publicity was allowed at that stage. So it is not something which is going to affect what happens in this case if the matter is remitted back to the Magistrates.

MR JUSTICE HARRISON: I see. I will amend the last part of my judgment simply to say that the decision is quashed and that there is no useful purpose in remitting the matter to the Justices because there has been a final order.

MR ADDISON: I respectfully agree.

MR JUSTICE HARRISON: I am very grateful for the assistance of you both.