Case No: CO/6182/2004
Neutral Citation Number: [2005] EWHC 358 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Monday, 14 March 2005

Before :

THE RT HON LORD JUSTICE WALLER 

and 

THE HON MR JUSTICE JACK
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CARL WAREHAM
	Appellant	
and		
 
PURBECK DISTRICT COUNCIL	
Respondent	
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Oliver White (instructed by Turners) for the Appellant
Mr. Peter Greenfield (instructed by Purbeck District Council Legal Dept.) for the Respondent

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Judgment
Mr Justice Jack : 
Introduction 

1.	The issue raised by this appeal is whether a person in respect of whom an authority is considering making an application to the magistrates’ court for an anti-social behaviour order has a right to be consulted, or heard, as part of that consideration.  It is submitted that Articles 6 and 8 of the European Convention for the Protection of Human Rights, particularly Article 8, require there to be such a right.  At the conclusion of the hearing we stated we were against the appellant on that question, that is to say that we did not consider that there was such a right, and would give our reasons subsequently.

2.  	On 23 July 2004 an anti-social behaviour order was made against the appellant, Carl Wareham, by the District Judge sitting in the East Dorset Magistrates’ Court at Bournemouth.   The applicant was the Purbeck District Council, the respondent to the present appeal.  On 3 December 2003 an anti-social behaviour case conference had been held at the instigation of the Council.  After consideration of Mr Wareham’s behaviour it was agreed that the most appropriate course of action was an application for an anti-social behaviour order.  It is submitted that he should have been permitted to put his view before that decision was reached.

The course of events

3.	Before coming to the statutory provisions relating to the making of anti-social behaviour orders, I will set out the course of events in history in more detail.  

(a)  	Mr Wareham was born on 2 January 1985 and so was 19 when the order was made against him.

(b)  	On 21 November 2003 the Council wrote to Mr Wareham saying that it had become increasingly aware of his anti-social behaviour and that the Purbeck Crime and Disorder Reduction Partnership – which included the Dorset Police, Purbeck District Council and Dorset County Council, had concluded that action was required to protect the public.  It said that a meeting would be held on 3 December 2003 to consider the most appropriate action, which might include requiring him to enter an ‘acceptable behaviour contract’, or applying to the court for an anti-social behaviour order, or other appropriate interventions.  The letter stated that he would be told the outcome of the meeting.  It did not invite any response from him.  Nor did he make any.

(c)	On 3 December 2003 the meeting was held.  It was attended by representatives of the District Council, Purbeck Crime & Disorder Reduction Partnership, the Dorset police, Lytchett Matravers Parish Council and Purbeck Community Warden Scheme, seven persons in all.  The meeting had before it a schedule of 40 incidents known to the police involving Mr Wareham between January 2000 and October 2003.  They included incidents of violence by Mr Wareham, of dangerous or anti-social driving by him and public disorder.  I use those descriptions in their popular rather than legal sense.  It does not appear that a print-out of Mr Wareham’s criminal convictions was before the meeting: but I record that he had convictions for 9 offences between June 2001 and the date of the meeting.  He had received two supervision orders and a detention and training order.   The meeting considered that as Mr Wareham had received supervision orders an acceptable behaviour contract would be futile, and that it was appropriate to apply for an anti-social behaviour order.

(d)  	Mr Wareham was advised of that outcome by letter of 12 December 2003 and was advised to seek legal advice at the earliest opportunity.

(e)  	The application for the order dated 1 March 2004 was sent to the Magistrates’ Court on 2 March 2004 with various documents.  The same documents, consisting of the summons, application, case conference minutes, summary of evidence of anti-social behaviour (8 pages), 17 witness statements and print out of previous convictions, were sent to Mr Wareham on 5 March 2004.

(g)  	The application first came before the court on 29 March 2004, when it was adjourned at the request of the defence.

(f)  	It was listed for pre-trial review on 23 April 2004, when again the defence sought an adjournment.

(h)  	The application was listed for full hearing on 10 June 2004 but did not proceed because the point with which this appeal is concerned was raised for the first time.  On the next day, 11 June, the District Judge heard submissions on that point.  He held that the fact that Mr Wareham had not been involved in the decision-making process prior to the application for an anti-social behaviour order did not mean that the proceedings were in breach of Articles 6 and 8.   

(i)  	The substantive hearing as to whether an order should be made and if so on what terms, took place on 1 and 23 July 2003.  An order was made substantially, but not wholly, in the terms of the Council’s application.

(j)  	The order prohibits Mr Wareham from acting in a manner causing, or likely to cause, harassment, alarm or distress, and from using threatening, intimidating, insulting or abusive words or behaviour in any public place in Dorset.  It prohibits him from entering three areas marked on plans, namely an industrial estate, Upton Heath Estate, and the village of Lytchett Matravers.  It prohibits him from entering a golf club, the grounds and buildings of a school, and five others buildings - a store, a library, a service station and two public houses.  He is prohibited from associating in Dorset in public with six named individuals.  The duration of the order is 5 years.

The statutory provisions

3.	  Anti-social behaviour orders were introduced by the Crime & Disorder Act 1998.  Section 1 as amended provides that they may be applied for by a relevant authority, which includes a council for a local government area or any chief officer of police .  The application may be made if it appears to the authority that the person has acted ‘in a manner that has caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’ and that an order ‘is necessary to protect persons from further anti-social acts by him’: section 1(1).  An application is to be preceded by consultation between the local authority and police as provided by section 1E.   If the matters quoted are proved, the magistrates’ court may make an order: section 1(4).  So, even if those matters are proved, the magistrates’ court retains a discretion as to whether in the circumstances an order, and if so, what order, is appropriate.  The prohibitions which may be contained in the order are ‘those necessary for the purpose of protecting  persons …….  from further anti-social acts by the defendant’: section 1(6).  ‘Persons’ are defined.  There is a limited right for either party to apply to vary or discharge the order: section 1(8).  Section 1(10) makes it an offence for any one to do anything without reasonable excuse which he is prohibited from doing by the order.   Section 1D enables the making of interim orders.  Section 4 provides for an appeal to the Crown Court against the making of an anti-social behaviour order.

4.	  In R (McCann and others) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787 the House of Lords had to consider the nature of proceedings for anti-social behaviour orders.  It concluded that they were civil rather than criminal in nature, both under domestic law and for the purposes of Article 6.  The House held that hearsay evidence was admissible, and that before making an order magistrates should be satisfied to the criminal standard of proof that the defendant had acted in an anti-social manner.  In paragraph 16 of his speech Lord Steyn described the social problem that section 1 of the 1998 Act was designed to address.  He referred to the fear, misery and distress that might be caused by outrageous anti-social behaviour, usually in urban areas, often by young persons and groups of young persons.  He set out some of the forms such behaviour might take.  He said:

“In recent years this phenomenon became a serious social problem.  There appeared to be a gap in the law.  The criminal law offered insufficient protection to communities.  Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law failed them.”

5.	 	We were provided with a Home Office publication titled ‘Anti-Social Behaviour Orders Guidance on drawing up Local ASBO Protocols’.  We were told that there was a Dorset County Council protocol which closely followed this guidance.  We were not, however, provided with a copy of the protocol.  Enquiries with the Home Office have since revealed that the Home Office guidance provided to the court was published in June 2000 and was the second such guidance to be issued.  It was replaced by a third titled ‘A Guide to Anti-social Behaviour Orders and Acceptable Behaviour Contracts’ in November 2002.  On considering this aspect of the appeal further it seemed essential to have the relevant protocol, namely that produced by the Dorset County Council.  The protocol in force at the time of the meeting on 3 December 2003 provided in paragraph 6.8:

“There is no absolute requirement to notify a person that an ASBO is to be considered in his/her case, but there may be an advantage in doing so:
  	where the individual may not be aware of the moves to deal with his/ her behaviour; and
   	in order to take his/her views into account when considering an action plan.”
       
        The protocol was revised in March 2004 and now provides:
        
“The Home Office Guidance and the protocols do not have any statutory force.
Although there is no legal requirement to inform a person that an order is being considered it is good practice to do so and involve them in the process.  It would also be proper to involve the parents of any juvenile or an appropriate adult or agency.  The exception would be if there was a risk to the safety of witnesses or property.”

Articles 6 and 8 and the right to participate in the decision to apply

7.	In presenting the appellant’s case Mr Oliver White placed his main emphasis on Article 8, so I will consider it first.  The Article provides:

“8(1) Everyone has the right to respect for his private and  family life, his home and his correspondence.

(2)  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

8.	It was accepted that the terms of the anti-social behaviour order as proposed and as made were such as to interfere with the private and family life of Mr Wareham, not least because his mother, with whom he had on occasion been living, lived within the prohibited area in Lytchett Matravers.  I mention that his father, with whom he also lived from time to time, lives in Poole.  Mr Peter Greenfield who appeared for the Council submitted that there was no interference with Mr Wareham’s rights under Article 8 at the stage at which it was decided to apply to the magistrates’ court for an order and that the interference only came at the stage of the court proceedings.  He submitted that it was then open to the appellant to contest the Council’s allegations of fact in so far as it was possible to do so; that it was then open to the appellant to submit that no order should be made but that, for example, he should be permitted to enter an ‘acceptable behaviour contract’ instead; and that it was then open to the appellant to make submissions as to the terms of any order.  He submitted that the interference which occurred as a result of the order was plainly within paragraph (2) of the Article.  He submitted that what happened prior to the court proceedings was not an interference with the appellant’s rights under the Article and that there was no need to involve him in the decision-making process to protect those rights.

9.	Mr White’s answer to this had two strands to it.  He did not contend that the proceedings themselves constituted any breach of Article 8.  First he relied by analogy on the position in care proceedings as established in the decisions of the European Court of Human Rights and in English domestic law.  For the former he referred to Venema v the Nederlands [2003] 1 FLR 552, and for the latter to Re L (Care:Assessment:Fair Trial) [2002] EWHC 1379 (Fam) and Re G [2003] EWHC 551 (Fam), [2003] 2 FLR 42.  Those decisions show that where an authority is considering removing a child from its parents the parents should be informed and kept informed and should be permitted to express their views.  As is stated in the headnote to Re G: ‘The procedural protection offered by Article 8 was not confined to the trial process, not merely before and during care proceedings, but also after those proceedings had come to an end and whilst the local authority was implementing the care order.’  I do not think that the analogy sought to be drawn by Mr White is appropriate.  The intervention by a local authority into family life with the possible object of removing a child or children from the family is particularly, perhaps uniquely, sensitive in the context of Article 8.  Further, the authority’s decisions may in some circumstances be given effect to without a court order.  It is to be expected and is wholly understandable that Article 8 is applied in this context as the cases cited show.  I do not think that an analogy can be safely drawn with the present situation.  In my judgment, because what occurs prior to the court proceedings is no more than a decision to apply for an order and because when the application is heard a defendant has a full opportunity to resist it, in the context here there is no infringement of any right under Article 8 by not inviting the proposed defendant to put his view prior to the decision to apply being made.

10.	The second strand to Mr White’s argument was that in reality a defendant does not get a real opportunity to put his case before the magistrates’ court and in fact the order asked for will nearly always be made.  So, he submitted, it is essential that, if a defendant is to have a real chance of avoiding an order and the infringement of his Article 8 rights, he must have an opportunity of addressing the decision to apply for an order.  To support this submission Mr White referred to Home Department figures showing that between April 1999 and June 2004 3069 anti-social behaviour orders were made in England and Wales and 42 were refused.  The figures for Dorset were 16 applied for, none refused.  The figures do not show how many were granted in terms which were different from those applied for.  If magistrates were granting orders without a proper consideration of their merits, that would be a serious breach of their duty.  For my part I am not prepared to accept that that has happened.  It is equally an explanation for the figures that there is a considerable need for these orders to curb the activities of persons such as the appellant but local authorities and police forces are only applying for them in strong cases.  Considerable work has to go into an application, which takes time and money.  In any event there was plainly a full investigation of the merits by the District Judge in the present case because the hearing took two days.  

11.	Article 6 is titled ‘Right to a fair trial’.  Of its three paragraphs only paragraph (1) relates to both civil and criminal proceedings.  Mr White did not submit that  the trial before the District Judge infringed Article 6.  His submission was that the right to a fair trial was not limited to the proceedings itself.  He relied again on Re L.  Munby J stated in paragraph 113 of his judgment in Re L that unfairness at any stage of the litigation process might involve a breach not merely of Article 8 but also of Article 6.  I do not consider that Article 6 can be applied, in the present context at least, to a decision whether or not to embark on an application to a court.

12.    I have quoted from the two protocols issued by the Dorset County Council.  I fully accept that in some, perhaps many, cases it may be worthwhile to involve the proposed defendant before a decision is taken.  In other cases his behaviour and history will show that it would not be productive but would be a waste of time.  It is for the decision-making group to consider the practical sense of involving the proposed defendant. What in my judgment is clear is that it is not required by law, either as a matter of statute or to secure compliance with Article 8 or Article 6.  

The questions posed by the District Judge

13.	The first question posed in the case stated was:

“Was the failure by the respondent District Council to consult the appellant, the subject of an intended anti-social behaviour order, during that decision making process, a breach of his human rights under Articles 6 and 8 of Schedule 1 of the Human Rights Act 1998?”

	I would answer this ‘no’ and would hold that the decision of the District Judge on this point on 11th June 2004 was right.

14.	The second question only arises if the answer to the first is ‘yes’, and so does not require an answer.  It questioned whether the appellant was right to proceed, as he did, by way of case stated, or whether he should have applied for judicial review of the Council’s decision to apply for the order.  

Lord Justice Waller:-	I agree