T, R (on the application of) v Manchester Crown Court

J U D G M E N T

Tuesday, 7th June 2005

1. MR JUSTICE MOSES: This is an application for judicial review pursuant to permission granted by Elias J on 9th February 2005. In this application the claimant, a boy of 14 whom I shall call T, who brings the application through his mother, seeks to strike out the decision of Mr Recorder Farley QC. On 8th October 2004 he struck out an appeal against the imposition of an Anti-Social Behaviour Order on the grounds that it was made by consent.

2. The application before me is not opposed. The Department for Constitutional Affairs, in its acknowledgment of service, says that it does not intend to make a submission. Manchester City Council, which was the applicant for the ASBO, wrote, by letter dated 5th May 2005, to those instructed by the claimant saying that they confirm that they were not objecting to the appeal.

3. It is, therefore, all the more unfortunate that it appears to be their counsel which triggered the decision of the Recorder and this application. The time and money that this has taken would have been far better spent, firstly, in considering the merits of the Anti-Social Behaviour Order, and, secondly, in using those funds for the excellent work undertaken by the many people involved in considering the making of Anti-Social Behaviour Orders and the teams that do so much good and hard work prior to the matter ever reaching court.

4. The background is that the claimant is aged 15. There was a series of complaints about his behaviour which, for the purposes of this application, it is unnecessary to identify or outline. His behaviour culminated in a summons for an application for an Anti-Social Behaviour Order dated 6th June 2003. The matter came before a district judge sitting at Manchester Magistrates' Court on 21st October 2003. At that time the claimant was represented by solicitor and counsel and his mother was present.

5. The decision of the Recorder on a subsequent appeal sets out the applicant's mother's account of the proceedings before the district judge. She was under some considerable pressure, apparently, due to her own difficulties at work and obvious concern for her son. She consulted with the barrister, whom she had not met before, and after some thought decided that she would not oppose the making of the order. According to a description given by the Recorder, the district judge, on the claimant's mother taking the view that she did not oppose, looked at the papers, and having been satisfied on those papers, made an order.

6. The precise terms of the order, again, need not be described in detail. It forbade the claimant from acting in any anti-social manner in the city of Manchester. It prohibited the use of abusive and similar intimidating language or behaviour in a public place and communication with certain named people. It prohibited him from entering into an area delineated on a map and congregating in a group greater than a number of three in a different area. There were also further prohibitions against certain associations.

7. The order having been made, it appears that the claimant's mother thought better of it and wished to challenge it. Accordingly an appeal was entered, in what I was told was the normal form, dated 19th July 2004. It asserted that the circumstances of the making of such an order was not "necessary".

8. The matter came before a Recorder on 8th October 2004. Manchester City Council was represented by counsel who took the point as a preliminary point that the appellant was not entitled to advance the appeal or, as it was recorded by the Recorder, the appeal must fail because the appellant had agreed to the order and therefore "his consent should bar an Appeal."

9. The Recorder appears, having heard submissions from both sides, to have taken the view that the appropriate test was whether there was "a good and compelling reason such as the parties are labouring under a mutual mistake or have been deceived, or that because of the conduct of a third party the consent was not true or freely given." He took the view, although he pointed out there was no authority on the point, that the analogy was with a plea of guilty in the Magistrates' Court. He concluded, having considered the attitude of the mother which I have already outlined, as follows:

"I can see nothing by mistake of fact or undue pressure and find no compelling reason to vacate the consent given. Therefore, the Appellant must fail."

10. He then dismissed the appeal without considering the merits. The claimant now argues that such an approach was inconsistent with the statutory provisions pursuant to which ASBOs are made. He says that an ASBO cannot be made by consent. Accordingly, the fact that it appeared to the Recorder that the mother had consented to the making of an ASBO, whilst it might, evidentially, be some support for the making of an ASBO, cannot found the grounds for making it. In those circumstances it cannot debar a claimant from appealing against an ASBO, even though no objection to the ASBO was made at the court below.

11. In order to determine this issue it is necessary to look at the statutory provisions pursuant to which the ASBO was made under the Crime and Disorder Act 1998. By section 1(1):

"An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely -

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons [in the local government area in which the harassment, alarm or distress was caused or was likely to be caused] from further anti-social acts by him.

(1A) In this section... 'relevant authority' means -

(a) the council for a local government area;

...

(b) the chief officer of police of any police force maintained for a police area..."

12. By subsection (4):

"If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order."

13. By subsection (9):

"Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order."

14. It is plain that the statutory provisions require the relevant authority to be satisfied of certain matters before it has the power to make an order. As was made clear in Chief Constable of Lancashire v Potter [2003] EWHC 2272 (Admin) , the court must be satisfied of the likelihood to which section 1(1)(a) refers to the criminal standard of proof.

15. Furthermore, the court must exercise its own value judgment as to the necessity of making such an order (see R (McCann & Ors) v Manchester Crown Court & Anr [2002] UKHL 39 per Lord Steyn at paragraph 37).

16. In those circumstances it is clear to me that an order cannot be made merely on the basis of the consent of the claimant. The court considering the making of an order must itself be satisfied to the required standard of proof as to the matters under section 1(1)(a) and, further, must exercise its own judgment pursuant to section 1(1)(b) as to the necessity of making such an order.

17. Of course, the cooperation and consent of the person who it is suggested should be made the subject of an order is welcome and relevant. If an applicant is prepared to consent, it would not only show a cooperative state of mind, but would afford considerable saving of time and money. In requiring the proof of those matters that the statute requires to be proved it is not intended in any way to discourage such cooperation or consent. But consent is only a factor, both in relation to the matters that are required to be proved, and as to the value judgment that the court must exercise in deciding whether an order is necessary.

18. It is plain from the brief description of the events before the district judge that the district judge did himself exercise his own considerations as to whether the matters were proved, albeit only on paper, and his own value judgment as to the necessity of the order.

19. Furthermore, there are other considerations, as a matter of principle, which point to the conclusion that the mere fact of consent is not sufficient for the making of the order. The order is made in the interests of the public at large after a lot of work has gone on by ASBO teams and various parties before the matter ever reaches court. Therefore, the consent, for example, of a parent, cannot be the trump card upon which an ASBO depends. It may well be that a parent would be too compliant in agreeing to an order, or an order which may perhaps be of greater width than necessary in order to protect other members of the family, or indeed the parent's own position when, for example, a tenancy is at risk.

20. Further, and more generally, as I have said, the order is made in the interests of the public at large whose interests must be considered by the court. In those circumstances, whilst, as I have said, the attitude either of the claimant or the parent is relevant, it cannot be dispositive of the issue.

21. The question then arises as to whether the Recorder was correct in the approach he took. In my judgment he was not. Since the hearing before the Crown Court is a rehearing, exactly the same considerations identified by the specific terms of the statute must govern an appellate Crown Court's consideration of an ASBO. There is no basis whatever for saying that the Crown Court is deprived of jurisdiction in relation to an appeal merely because there is evidence that consent was given by the parent below. Whether or not such consent was given, if a claimant seeks to appeal the appeal must be heard.

22. If the claimant did consent in the court below, that will be powerful evidence that there is absolutely nothing in the appeal. It will be evidence, even if there is something in the appeal, as to the merits of an ASBO as granted in the court below. In those circumstances it would, I hope, be rare indeed, that the time and effort of the Crown Court will be spent in considering an appeal where consent has been given to an ASBO before.

23. It may well be that the learned Recorder could have disposed of this matter as speedily, if he had considered the merits of the appeal, as the time taken to consider this point and indeed the evidence which he heard as to whether or not consent was given. It seems to me that it was time wasted. The whole hearing could have been over in just as quick a time, and with just as little expense, if he had considered the appeal on the merits.

24. For the reasons I have given, that is what he ought to have done. The consent did not bar the appeal, it did not deprive the Crown Court of jurisdiction to consider the appeal, and despite the evidence that the mother had consented, the Recorder ought to have considered the appeal on its merits.

25. For those reasons this application is granted. I shall quash the decision of the Recorder and order that the matter be reheard as soon as possible before the Crown Court but differently constituted.

26. MR FULLWOOD: My Lord, I am grateful. Before I address you on the issue of costs there are just two slips, I think, in my Lord's judgment. That is, firstly, I think you referred to the claimant as being 15.

27. MR JUSTICE MOSES: Is that wrong?

28. MR FULLWOOD: My understanding is that he is still 14.

29. MR JUSTICE MOSES: 14. I will change that.

30. MR FULLWOOD: The second matter is that you read out subsection (2) of section 1 of the 1998 Act, I think, from the Crown print. That has been repealed by the Anti-Social Behaviour Act 2003. So if I can invite the court simply to strike out subsection (2).

31. MR JUSTICE MOSES: It is not necessary for my decision anyway.

32. MR FULLWOOD: No, it is not at all.

33. MR JUSTICE MOSES: I will make a note to strike that out as well.

34. MR FULLWOOD: I am grateful. That leaves the issue of costs. I invite the court to make an order for costs against The Department for Constitutional Affairs. The claimant is publicly funded so I seek an order that The Department for Constitutional Affairs do pay the costs of the claimant to be assessed if not agreed and that there be a detailed assessment of the claimant's Community Legal Services funding.

35. MR JUSTICE MOSES: Why are you not seeking an order against Manchester City Council? The Department for Constitutional Affairs have behaved wholly appropriately in its acknowledgment of service and were not responsible for the point ever being taken.

36. MR FULLWOOD: Yes, my Lord. We go back to the issue which my Lord mentioned right at the beginning. I cannot --

37. MR JUSTICE MOSES: Why should Manchester not pay the costs?

38. MR FULLWOOD: As my Lord has acknowledged, it was Manchester City Council who, through their counsel, raised the point.

39. MR JUSTICE MOSES: Do you want to say anything about that, Ms Ossle?

40. MS OSSLE: Again, my Lord, I have no instructions to oppose any application for costs.

41. MR JUSTICE MOSES: I shall make an order for costs as asked against Manchester City Council.

42. MR FULLWOOD: I am grateful.

43. MR JUSTICE MOSES: Thank you very much.