Birmingham City Council v Pardoe

This is an appeal against a judgment of HH Judge Worster given on 18^th August 2016 in the County Court at Birmingham in proceedings under the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).

The claimant Birmingham City Council (“the Authority”) claimed an injunction pursuant to section 1 of the 2014 Act against Mr Pardoe (“the Appellant”) and four others. The Authority’s case, in a nutshell, is that over a period of years the Appellant and other defendants had repeatedly engaged in a particularly unpleasant form of anti-social behaviour by targeting elderly and vulnerable persons and charging them excessive sums for building works which were unnecessary and/or shoddy. In their Particulars of Claim, the Authority pleaded 49 specific allegations against one or more of the defendants. Some of those allegations related to matters occurring many years ago. The Appellant pleaded a number of grounds of defence, including in particular a contention that the effect of s21(7) of the 2014 Act is that the court

“… is precluded from taking into account that conduct relied on by the claimant prior to 23 September 2014 … .”

That contention was sensibly considered by HH Judge Worster as a preliminary issue. The Appellant submitted that the plain meaning of s21(7) was that the court may not take account of conduct occurring before that date, and that evidence about such conduct should therefore be excluded. In a careful reserved judgment, the learned judge rejected that contention, and concluded that s21(7) does not limit the conduct which can be considered in deciding whether it is just and convenient to grant an injunction. The Appellant in this appeal challenges his decision in that regard.

By a Respondent’s Notice, the Authority seek to uphold the judge’s decision on the additional ground that the alleged conduct occurring before 23^rd September 2014 is relevant not only to the question whether it is just and convenient to grant an injunction, but also to the antecedent question of whether the Authority can prove anti-social behaviour occurring after that date.

Before considering the grounds of appeal, it is necessary to refer to the 2014 Act, and to mention case law decided under earlier legislation.

The 2014 Act repealed and replaced earlier legislation in relation to anti-social behaviour. It introduced significant changes into the court’s powers in civil proceedings, in particular by granting the court the power to issue an injunction requiring the doing of an act as well as an injunction prohibiting particular behaviour.

Part 1 of the 2014 Act relates to injunctions in civil proceedings. Part 2 relates to orders in criminal proceedings.

So far as is relevant for present purposes, section 1 of the 2014 Act (headed “Power to grant injunctions”) provides:

“(1)

A court may grant an injunction under this section against a person aged 10 or over (“the respondent”) if two conditions are met.

(2)

The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour.

(3)

The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.

(4)

An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour –

(a)

prohibit the respondent from doing anything described in the injunction;

(b)

require the respondent to do anything described in the injunction.”

“Anti-social behaviour” is defined by section 2 of the 2014 Act as meaning –

“(a)

conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,

(b)

conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c)

conduct capable of causing housing-related nuisance to any person.”

Part 1 of the Act ends with section 21, headed “Saving and transitional provisions”, which I must quote in full:

“(1)

In this section “existing order” means any of the following injunctions and orders

a)

An anti-social behaviour injunction under section 153A of the Housing Act 1996;

b)

An injunction under section 153B of that Act (injunction against unlawful use of premises);

c)

An injunction in which anything is included by virtue of section 153D(3) or (4) of that Act (power to include provision banning person from premises or area, or to include power of arrest, in injunction against breach of tenancy agreement);

d)

An order under section 1 or 1B of the Crime and Disorder Act 1998 (anti-social behaviour orders etc);

e)

An individual support order under section 1AA of that Act made in connection with an order under section 1 or 1B of that Act;

f)

An intervention order under section 1G of that Act;

g)

A drinking banning order under section 3 or 4 of the Violent Crime Reduction Act 2006.

(2)

The repeal or amendment by this Act of provisions about any of the existing orders specified in subsection (1)(a) to (d), (f) and (g) does not apply in relation to –

a)

An application made before the commencement day for an existing order;

b)

An existing order (whether made before or after that day) applied for before that day;

c)

Anything done in connection with such an application or order.

(3)

The repeal or amendment by this Act of provisions about an order specified in subsection (1)(e) does not apply in relation to –

a)

An individual support order made before the commencement day;

b)

Anything done in connection with such an order.

(4)

As from the commencement day there may be no variation of an existing order that extends the period of the order or any of its provisions.

(5)

At the end of the period of 5 years beginning with the commencement day –

a)

In relation to any of the existing orders specified in subsection (1) (a), (b) and (d) to (g) that is still in force, this Part has effect, with any necessary modifications (and with any modifications specified in an order under section 185(7)) as if the provisions of the order were provisions of an injunction under section 1;

b)

The provisions of this Part set out in subsection (6) apply to any injunction specified in subsection (1)(c) that is still in force as they apply to an injunction under section 1;

c)

Subsections (2) to (4) cease to have effect.

(6)

The provisions referred to in subsection (5)(b) are –

a)

Section 1(7);

b)

Sections 4(2) and 9 (if a power of arrest is attached);

c)

Sections 6 to 8;

d)

Section 10;

e)

Section 11 and schedule 1;

f)

Section 12 and schedule 2

g)

Section 18(1).

(7)

In deciding whether to grant an injunction under section 1 a court may take account of conduct occurring up to six months before the commencement day.

(8)

In this section ‘commencement day’ means the day on which this Part comes into force.”

Part 1 came into force on 23^rd March 2015. It follows that the period specified in section 21(7) began on 23^rd September 2014.

Part 2 of the Act relates to criminal behaviour orders. By section 22 the power to make such orders only applies if a person (“the offender”) has been convicted of an offence. The court may then make a criminal behaviour order against the offender (in addition to a sentence for the offence or an order for conditional discharge) if two conditions are met. First, the court must be satisfied beyond reasonable doubt that the offender has engaged in behaviour which caused or was likely to cause harassment, alarm or distress to any person. Secondly, the court must consider that making the order will help in preventing the offender in engaging in such behaviour.

The saving and transitional provisions for Part 2 are contained in section 33. Section 33(5) provides –

“In deciding whether to make a criminal behaviour order a court may take account of conduct occurring up to 1 year before the commencement day”.

That Part came into force on 20^th October 2014. The period specified in s33(5) therefore began on 20^th October 2013.

Counsel referred me to a number of cases decided under earlier legislation relating to anti-social behaviour.

Under the Crime and Disorder Act 1998, now repealed, the court had the power to make an anti-social behaviour order (“ASBO”) against a person under section 1, or a criminal anti-social behaviour order (“CRASBO”) against a person under section 1C, where 2 conditions were fulfilled:

“(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 from further anti-social acts by him.”

Applications for ASBOs were made by way of complaint in a magistrates’ court, and were therefore subject to the general time-limit imposed by section 127(1) of the Magistrates’ Courts Act 1980:

“Except as otherwise provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”

In Ryan Stevens v South East Surrey Magistrates’ Court and Surrey Police [2004] EWHC 1456 (Admin), the claimant contended that the effect of s127 of the 1980 Act was that an authority applying for an ASBO could not adduce evidence of anti-social behaviour which occurred more than 6 months before the making of the complaint. A Divisional Court rejected that argument. At paragraph 14 of his judgment, Auld LJ noted that s127 is concerned with jurisdiction, not with the admissibility of evidence once jurisdiction had properly been accepted. He went on to say, at paragraph 18 –

“But on the facts of this case — and I suspect many such applications based on a long course of alleged anti-social behaviour — the fairer and possibly more intellectually respectable approach is not one going to jurisdiction, but to the propriety and fairness of reliance on evidence of “out-of-time” incidents in relation to “in time” incidents alleged to constitute a course of anti-social behaviour.”

Auld LJ also made the following observation at paragraph 21:

“Before turning to the particular finding in this case, we should observe that section 127 relates only to proceedings for an anti-social behaviour order in the magistrates’ courts. There is provision in the Act, in section 1B, for county courts to make an anti-social behaviour order if satisfied of the same two constituents following the making of an order in the county court proceedings. There is similar provision in section 1C of the Act, for a Crown Court judge, if satisfied of the two constituents necessary for making an order, to, as counsel put it in their submissions, bolt it on to any sentence imposed on conviction in the Crown Court. In neither of those cases would any time limit of the sort provided for the magistrates’ courts by section 127 apply. It would be curious if that section were to have an additional role as an “evidential filter” for conduct outside the six months' limit denied to the county court and crown court.”

The court concluded that on the facts of the case, the magistrates had been entitled to admit evidence of “out of time” conduct for the purpose of deciding whether it was necessary to make an order.

In R (Chief Constable of West Mercia Constabulary) v Boorman [2005] EWHC 2559 (Admin) a magistrates’ court had purported to rely on Ryan Stevens when declining to hear evidence of “out of time” conduct and concluding that such evidence could only be relevant to the issue of necessity under s1(1)(b) of the 1998 Act and not to the issue under s1(1)(a) of whether the respondent had acted in an anti-social manner. Calvert-Smith J held that the magistrates had been wrong on both points. At paragraph 7 of his judgment he noted that counsel for Mr Boorman had effectively conceded that there were circumstances in which evidence of conduct occurring before the period provided for by s127 of the 1980 Act might be admissible,

“for instance, if, within the ordinary rules of evidence, the pre-limitation period behaviour was relevant to prove behaviour alleged to have taken place within the limitation period.”

Calvert-Smith J went on to conclude, at paragraphs 8 - 9 and 11 - 12 –

“8 Insofar as the magistrates believed that in all circumstances it would be wrong for them to hear evidence, or having heard it to take it into account in deciding whether the conditions in subsection (1)(a) are made out, then they were wrong. …

9.

… It is perfectly clear that, for instance, similar fact evidence may go to proof of harassment, ie under subsection (1)(a).

11.

… In my judgment magistrates are perfectly capable of hearing all the evidence, whether it goes to both issues or to only one issue, and making up their minds whether they are satisfied on limb 1 and, if so, whether to go on and make an order under limb 2.

12.

In those circumstances it is perfectly clear that pre-period evidence will be heard. …”

In R v McGrath [2005] EWCA Crim 353, [2005] 2 Cr App R (S) 85 an issue was raised on appeal as to whether a judge making a CRASBO under the 1998 Act, following the appellant’s conviction of an offence involving anti-social behaviour committed after the relevant commencement date, had been entitled to have regard to earlier conduct. It was held that the judge had been so entitled. At paragraph 10 of the judgment, Gross J (as he then was) said –

“The statute requires the offender to have acted anti-socially after the commencement date. It does not go on to preclude the judge from considering the totality of the offender's behaviour in determining the necessity for such an order. To read such a limitation into the statute would be artificial and wrong and would run contrary to the purpose of the legislation.”

There does not appear to be any decision under the 2014 Act which is relevant to this appeal.

HH Judge Worster referred to the two conditions which must be satisfied before an injunction can be granted under the 2014 Act. He acknowledged the force of the Appellant’s submission as to the plain meaning of s27(1), but concluded that to interpret the subsection in that way would lead to “an absurd and unworkable result”. He observed that it would be curious if Parliament had intended that a court, in deciding whether it was just and convenient to grant an injunction under Part 1 of the 2014 Act, was not entitled to take account either of the fact that a respondent had a string of previous convictions for similar misconduct or, conversely, of the fact that a respondent who had recently behaved very badly had in the past “undertaken a series of community spirited acts which demonstrated that he was someone who deserved a chance and would respond to the court’s trust”. He therefore felt it right to look to the structure and purpose of the Act to see whether the words of s21(7) should bear something other than their ordinary meaning. He concluded that –

“… section 21(7) is to be read in a way which does not limit the matters which the court can consider at the condition 2 stage”

The judge’s reasoning can be summarised as follows:

At paragraphs 32 and 33 of his judgment, the learned judge concluded –

“ 32… ‘conduct’ in section 21(7) is conduct for the purposes of condition one, and it is not necessary to construe the section as imposing a limitation on what can be considered under condition two.

33.To give the word “conduct” that more limited meaning, avoids the absurd consequences I have outlined, and is informed by the structure of the Act and the way the word is used in section 2. There is a sound rationale for such a limitation, which strikes a balance between respect for the rule against retrospective legislation, and the facilitation of a transition from the old regime to the new. To impose that limitation on condition two would risk working a serious injustice, on both sides of the argument. It cannot be that that was the intention of Parliament”

The challenge to the judge’s decision was formulated in six grounds of appeal, but there was a substantial degree of overlap between those grounds and counsel sensibly considered them collectively. I will adopt a similar approach. I am grateful to both counsel for their written and oral submissions.

For the Appellant, Mr Singleton repeats his submission that the wording of s21(7) is clear and unambiguous. The words “in deciding whether to grant an injunction under section 1” are not limited to the first of the two conditions in section 1 of the 2014 Act: the court only has power to grant an injunction if both conditions are fulfilled. Parliament could have expressed a limitation, for example by using words such as those which appeared in section 1 of the 1998 Act (“has acted, since the commencement date …”), but did not do so. It follows, he submits, that s21(7) must have been intended to apply to both stages of the court’s consideration under s1. He argues that to give the words their plain meaning does not lead to an absurd result: on the contrary, he submits, the judge’s interpretation would give rise to considerable satellite litigation because it would permit an authority to seek to adduce evidence of events long ago. It would moreover involve the application of a retrospective penalty or sanction, in contravention of ECHR Art 7 where a criminal order is made, and be contrary to principle where a civil order is made.

Mr Singleton refers to the words of s33(5) of the 2014 Act in relation to criminal behaviour orders and submits that in both s21(7) and s33(5) the intention of Parliament was to place a time-limit on how far back a court could look when deciding whether to make an order. He argues that, whereas under the previous legislation there was a restriction which was confined to a single condition, the 2014 Act imposes a time-limit which was intended to, and does, apply to the court’s consideration of all the pre-conditions for making either a civil or a criminal order. He submits that s21(7) is properly treated as a transitional provision because it facilitates the change from the old to the new statutory regime “by permitting applications to be made as soon as Part 1 was in force and preventing such applications being defeated on the basis that the conduct complained of pre-dated the Act”.

As to the point raised by the Respondent’s Notice, Mr Singleton submits that it does not arise for consideration, because the Particulars of Claim are pleaded in such a way as to rely on the old events as allegations of anti-social behaviour, not as evidence probative of later anti-social behaviour.

For the Authority, Mr Manning submits that the judge was correct to interpret s21(7) as he did, but that he should have gone further and held that conduct prior to 23^rd September 2014 may also be relevant to proof (for example, by way of similar fact evidence) of conduct occurring after that date. He argues that the judge was entitled to have regard to the purpose of the Act. The use in s1(3) of the phrase “just and convenient” shows a clear intention to confer a power in the widest of terms, and it would be surprising if the scope of that power were to be restricted by words appearing only in a section dealing with saving and transitional provisions, and not in the section which confers the power. It would be all the more surprising when one takes into account that such a restriction would have only a transitional effect, in that the longer the Act remains in force, the further back in time the court will be entitled to go when considering whether the criteria for granting an injunction are fulfilled.

As to the Appellant’s submission that the judge’s interpretation would result in unlimited reference to past events, and consequent satellite litigation, Mr Manning submits that the court’s case management powers under CPR 32.1 are amply sufficient to prevent any such waste of the court’s time and resources.

Mr Manning further submits that the judge’s interpretation correctly results in the court only being able to grant an injunction where there is qualifying behaviour after 23^rd September 2014. Behaviour prior to that date is nonetheless properly relevant to the court’s evaluative judgment in relation to the second condition. But, he says, the judge was wrong to limit its relevance to the second condition, because it may also be relevant and admissible at the first stage to prove that qualifying behaviour occurred after 23^rd September 2014. One way in which it may be so relevant is as similar fact evidence, as Boorman shows. Mr Manning argues that section 127 of the 1980 Act, as interpreted in Boorman, operates in a similar way: it prevents a complaint being made solely on the basis of conduct occurring more than 6 months previously, but it permits evidence of earlier conduct where it is relevant either to prove the qualifying conduct or to the court’s evaluation of whether an order should be made in all the circumstances of the case.

As to Mr Singleton’s submission in relation to the point raised in the Respondent’s Notice, Mr Manning argues that a possible need for amendment of the Particulars of Claim, in order to clarify how precisely the Authority puts its case, is not an obstacle to the court deciding the point in the Authority’s favour. I accept Mr Manning’s submission in this regard.

Anti-social behaviour will by its very nature generally involve a course of conduct. It is often the cumulative effect of anti-social behaviour over a period of time, rather than the individual acts, which causes serious harm. In many cases, there will be at least some interval of time between the earliest conduct complained of, and an application to the court for an injunction. Against that background, the following factors are in my view relevant to the correct interpretation of section 21(7).

As a transitional provision, the subsection serves an obvious purpose and makes obvious sense. Without it, an authority seeking to restrain anti-social behaviour would have faced potential difficulty where the conduct relied on as qualifying behaviour preceded the commencement date of the 2014 Act by a short period, or straddled the commencement date to a limited extent. Without it, there would have been a period, shortly after the Act came into force, when an authority would have been limited to such acts as had occurred since the commencement date, which may well have meant that those who were affected by the anti-social behaviour concerned would have had to endure more of it before a successful application could be made to the court. As a transitional provision, however, the subsection avoids that undesirable result, and permits an authority to rely on conduct occurring during the six months prior to the commencement of the Act as qualifying anti-social behaviour. This transitional purpose and effect of the subsection will inevitably reduce as time goes by, because the longer the Act has been in force, the less likely it is that an authority will be relying on pre-commencement conduct as qualifying behaviour.

In contrast, to interpret s21(7) as a provision which limits the court’s power under section 1 of the 2014 Act, and requires the court wholly to ignore behaviour prior to 23^rd September 2014, would – as the judge rightly held – lead to absurd results. In my view, those absurd results would arise at each of the two stages which section 1 requires the court to consider.

On long established principles applicable in both civil and criminal contexts, past behaviour may be probative of more recent behaviour: for example, as similar fact evidence which is probative of the identity of the perpetrator of the recent conduct, or as evidence which serves to rebut a defence of accident or innocent error. I can see no reason why Parliament should be taken to have intended to impose a severe limitation upon the application of those principles in a context where the court will more often than not be considering conduct which has taken place over a period of time. Suppose, for example, that a respondent had made his neighbours lives a misery by a specific form of anti-social behaviour (say, graffiti of a particular kind) over a period of months prior to 23^rd September 2014, but had then been imprisoned for unrelated matters at a time when the local authority was about to commence a claim for an injunction. Suppose that within days of his release from prison, graffiti of that particular kind suddenly reappeared, but there was only limited direct evidence available to prove that the perpetrator was the respondent rather than an unknown person with a coincidental penchant for such graffiti. It would to my mind be very surprising if Parliament had intended to prevent the authority from adducing any evidence about the previous incidents if it would otherwise be admissible in order to prove the identity of the perpetrator. In the same way, if a respondent repeatedly caused a nuisance by holding noisy parties late at night, but claimed that the occasions when that had happened after 23^rd September 2014 had occurred without any fault on his part when unknown persons had unexpectedly gate-crashed his parties, it would be very surprising if Parliament had intended to prevent the authority from adducing any evidence about the earlier parties if it was otherwise admissible in order to rebut that defence.

Further, although it is perhaps unlikely, it seems to me that it is at least possible that a respondent accused of anti-social behaviour after 23^rd September 2014 might wish to rely on his own earlier conduct by way of defence. If such circumstances arose, it is difficult to think that Parliament intended to deprive the respondent of any opportunity to do so.

Turning to the second stage of the court’s consideration, it would again be very surprising if the court in considering whether it was just and convenient to grant an injunction were required to ignore evidence which was logically highly relevant to that decision. As the judge rightly pointed out, evidence of conduct prior to 23^rd September 2014 might militate either in favour of or against the granting of an injunction. If there was evidence to prove that a respondent had repeatedly behaved in an anti-social manner over a long period of time, and had done so despite warnings from police officers and local authority officials, that might be a strong reason for the court to grant an injunction. If on the other hand the evidence showed that the recent anti-social behaviour had occurred at a time when the respondent was subject to specific stresses in his personal life, and stood in marked contrast to a long history of being an exemplary neighbour, that might be a strong reason for the court to conclude that it would not be just or convenient to make him subject to an injunction. In short, it would be surprising if Parliament had intended the court to decide what was just and convenient without taking into account conduct which, although occurring some time ago, was relevant to that evaluative judgment.

All these consequences would be even more surprising if they were achieved, not by a limitation expressed in section 1 of the 2014 Act, but by a transitional provision to be found at the end of Part 1. That is especially so when, as Mr Manning pointed out (see paragraph 29 above), the effect of the transitional provision would change as time passed from the commencement of the Act. It is difficult to think that Parliament intended that there would be different approaches to the relevance of past events depending on whether an application under the Act was made in 2015 or in 2020.

Although Boorman was decided under different legislation, it seems to me that the basis of Calvert-Smith J’s decision is equally applicable to this issue under the 2014 Act. I do not find anything in either Ryan Stevens or McGrath which dictates a contrary approach: those cases support the conclusion that evidence of past events may be considered at the second stage (in terms of the 2014 Act), but do not preclude the consideration of such evidence where it is relevant to prove qualifying behaviour at the first stage.

I cannot accept Mr Singleton’s submission that the judge’s decision would result in extensive satellite litigation as to the relevance of disputed allegations about events long ago. I agree with Mr Manning that such issues can satisfactorily be resolved through the court’s ordinary case management powers under CPR32, by excluding evidence which is stale and irrelevant, or which would give rise to an inappropriate level of satellite litigation.

Like the judge, I see the force of Mr Singleton’s core submission as to the apparent meaning of s21(7). But, again like the judge, I conclude that the interpretation for which Mr Singleton contends produces such absurd results that it cannot have been Parliament’s intention. Section 21(7) must in my view be treated purely as a transitional provision and not as having the wider effect for which Mr Singleton argues.

It follows that in my judgment the judge was correct in his decision that conduct prior to 23^rd September 2014 could be taken into account at the second stage, but that he fell into error insofar as he concluded that evidence of such conduct could not also be taken into account at the first stage. Section 21(7) of the 2014 Act is in my judgment a genuinely transitional provision which permits the court, in deciding whether qualifying behaviour has been proved for the purposes of an application under s1, to take account of conduct occurring on or after 23^rd September 2014, and not merely of conduct occurring on or after the commencement date of 23^rd March 2015. It does not prevent a court from taking account of conduct prior to 23^rd September where evidence of such conduct (assuming there is no other bar to its admissibility) is relevant to the issue of whether the applicant authority can prove anti-social behaviour by the respondent since 23^rd September 2014. Nor does it prevent a court from taking account of conduct prior to 23^rd September where evidence of such conduct (again assuming there is no other bar to its admissibility) is relevant to the court’s evaluation of whether it is just and convenient to grant an injunction.

To summarise my conclusions:

This appeal accordingly fails. I will ask counsel to seek to agree the terms of an order reflecting this judgment, and any consequential orders.