Chief Constable of Lancashire v Potter [2003] EWHC 2272 (Admin)

Case No CO/5154/2002

[2003] EWHC 2272 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday 13 th October 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE AULD

MR JUSTICE GOLDRING

Between

THE CHIEF CONSTABLE OF LANCASHIREAppellant

LISA MARIE POTTERRespondent

(Transcript of the Handed Down Judgment of

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Mr. Jason Barrington Bear (instructed by Corporate Services Directorate of the Lancashire Constabulary Headquarters) for Appellant

Mr. Michael Hayton (instructed by Inghams) for Respondent

Judgment

[1]This is an appeal by the Chief Constable of Lancashire by way of case stated from the decision of Deputy District Judge Alan Lloyd Jones at Preston Magistrates’ Court on 24th July 2002 dismissing his application for an anti-social behaviour order under section 1(1) of the Crime and Disorder Act 1998 against the Respondent, Lisa Marie Potter,arising out of her activities as a street prostitute in certain residential areas of Preston.

The legislative scheme

[2]Section 1 of 1998 Act is one of a group of provisions in Chapter 1 of the Act designed to enable the police, the council for the local government area and (by amendment made by the Police Reform Act 2002) a social landlord to seek the assistance of the courts to combat anti-social behaviour in the areas for which they are responsible. The courts may give such assistance in the first instance by way of the grant of an anti-social behaviour order prohibiting, for a minimum of two years, further anti-social acts, and in the second instance in the event of breach of such order, by punishment of it by a fine and/or imprisonment in criminal proceedings.

[3]These proceedings are concerned with the first stage, the making of the order, not the second stage, the imposition of sentence in criminal proceedings for breach of it. The proceeding giving rise to the order here was by way of application to a magistrates’ court under section 1 of the Act. But the Act also provides (again by amendment introduced by the 2002 Act), in section 1B for a county court to make such an order and, in section 1C, for a criminal court to do so on conviction of a person for some other offence, and, in section 1D, for an interim order in proceedings in the magistrates’ or county courts under section 1 and 1B.

[4]The statutory test in all three forms of proceedings for the making of an order is complicated. It consists: first, of a condition, which may be broken up into three constituents, the first two cumulative and the third an alternative to the second, all of which, in proceedings in the magistrates court and county court under sections 1 and 1B respectively, the Act requires the applicant to prove; second, of a condition that it is necessary to make the order, which, despite the requirement of proof in the Act is essentially a matter of value judgment for the court; and third, of a decision of the court in the exercise of its discretion to make such an order. These conditions also apply to a criminal court considering whether to make such an order under section 1C after conviction of a person in criminal proceedings for another offence. But the basis upon which it satisfies itself under section 1C of the fulfilment of those conditions may possibly be of less formal nature, since section 1C does not talk of proof, but simply whether the court “considers” that they are fulfilled.

[5]With that short preamble in mind, here are the conditions, as set out in section 1(1) at the material time and the court’s power to act on them as set out in section 1(4): “(1)…(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 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.” “(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 …. which prohibits the defendant from doing anything described in the order.” [my emphases]

[6]I should mention here that the 2002 Act has amended and simplified the second of the three conditions by substituting for the whole of section 1(1)(b) the words: “ that such an order is necessary to protect relevant persons from further anti-social acts by him”, and defines “relevant persons” in section 1(1B). Section 1(6), which describes the prohibitions that may be imposed by an anti-social behaviour order, has been correspondingly immaterially amended and simplified so as to refer to “prohibitions … necessary for the purpose of protecting persons … from further anti-social acts by the defendant”.

[7]This appeal concerns the interpretation of the condition, or set of conditions, in section 1(a), which, as I have said, may be broken up into three constituents, namely: first, that a person has acted in a certain manner; and second, that that manner is one that caused harassment, alarm or distress to one or more persons outside the defendant’s household; or third,that the manner of acting was likely to cause such harassment, alarm or distress. In the light of those three distinct constituents of the condition, but particularly the third, the likelihood of harassment etc., as an alternative to the second, caused harassment etc., the appeal in turn raises three overlapping issues: 1) whether, in order to prove that a defendant’s conduct was “likely” to cause harassment, alarm or distress to another person or persons, it is necessary to prove that likelihood to the criminal standard of proof, or, put another way, what does “likely” mean in this context; 2) whether, in considering an application for an order under the second or third constituents, it is permissible to aggregate the defendant’s behaviour with that of other persons who have engaged at the material time and in the same area in that or similar behaviour; and 3) whether, in any event, the Deputy District Judge’s finding that the defendant’s conduct was not likely to cause harassment, alarm or distress, was perverse.

The facts

[8]Those issues arise from the following facts of the case, which I take from the case stated. The complaint giving rise to the application against the respondent was that, over a three-months period between 21st February 2002 and 26th April 2002, she had acted in an anti-social manner in certain residential areas of Preston that had caused or had been likely to cause harassment, alarm or distress to one or more persons outside her own household and that an anti-social behaviour order was necessary to protect persons in that area from further anti-social acts by her. As I have said, the Deputy District Judge refused the application. He did so because, in applying the criminal standard of proof to all the three constituents, he found: 1) that the activities of street prostitutes as a whole, rather than of any individual prostitute, had caused “a substantial problem” in the area of Preston concerned; 2) that the respondent’s conduct as a street prostitute in the area had caused or contributed to “the problem”; 3) that her conduct could not be aggregated with that of the other prostitutes when considering whether she had caused or had been likely to cause harassment, alarm or distress; 4) that it had not been proved that her conduct, considered on its own, had caused or had been likely to cause harassment, alarm or distress; but 5) that, if he had been permitted to consider the question of likelihood of harassment, alarm or distress on a balance of probabilities, he would have found that her conduct was likely to have caused it so as to fulfil the condition in section 1(1)(a). He added that, as he had dismissed the application for want of satisfaction of the conditions in section 1(1)(a), the issue whether the evidence would have supported a finding under section 1(1)(b) that it was necessary to make an anti-social behaviour order did not arise.

[9]The Respondent, between 21st February 2002 and 26th April 2002, was a street prostitute operating in certain residential areas of Preston. Over a period long before and during those three months, the activities of street prostitutes had caused and were causing substantial problems to residents of, and lawful visitors to, that area. The problems were caused by activities of the prostitutes considered as a whole, not by those of the respondent or any other prostitute operating in the area considered on her own.

[10]The uncontradicted evidence in support of the application, which formed the basis of the Deputy District Judge’s findings, was given by two police officers. Much of it, by its very nature, hearsay, and some of it opinion, was, in summary, as follows. Most of the prostitutes frequenting the area did so in order to fund purchases of illegal drugs, mainly heroin and crack cocaine. A local Crime and Disorder Audit in 1998, to which reference was made in the evidence, showed that “prostitution was the main quality of life issue highlighted in the problem areas, namely, residential areas not far from the City centre. The problem, measured by the numbers of street prostitutes involved and their areas and times of operation and resultant increase in kerb crawling, had progressively become worse. There had been some incidents of assault on prostitutes, indicating that their presence had attracted some people of violence to the area.

[11]Some of the prostitutes engaged in what the Deputy District Judge described as “aggravated conduct”, which included: the abandonment of used condoms and hypodermic syringes; telling parents to take their children indoors; and uninvited boarding of vehicles driven by lone males.

[12]On weekdays a number of prostitutes might be seen in the problem area at about 5 p.m., with the peak period between 7 and 9 p.m.; while at weekends, the peak periods were after public house and club closing times. At peak periods as many as five cars an hour driven by kerb crawlers visited the area. Full acts of sex rarely took place in the open, but mostly in vehicles. However, acts of oral sex often occurred in small alleyways behind skips and between buildings. A respectable female might, on occasion and in certain circumstances, have found it an uncomfortable experience to walk in those streets as a result of seeing some of that activity, or of being stared at or approached by a kerb crawler, or of encountering drunken men looking for prostitutes.

[13]The police in Preston had devoted considerable resources in an attempt to eradicate the problem of prostitution in the residential areas in question, but without much success. They had accordingly decided to seek anti-social behaviour orders in respect of prostitutes who appeared to be regular offenders and who had not responded to other measures. They were in suitable cases prepared to seek similar orders against kerb crawlers.

[14]The respondent did not appear to answer the complaint or respond to the application, but was legally represented at the hearing before the Deputy District Judge. She was a 22 years old drug user believed to have been using heroin and crack cocaine. She had first been convicted of a street prostitution offence in February 2002. Since then she had been convicted twice and had been seen regularly loitering and soliciting for the purpose of prostitution in streets within the problem area. When she had loitered and solicited, her behaviour had been confined to those basic activities, which included, on one occasion, stepping forward and looking into moving motor vehicles to attract attention. Although she was only one of the many females who had regularly resorted to street prostitution in the problem area, the case against her was that, by her mere presence there for that purpose, she caused, in the sense of contributed, to the problem, albeit that there were other contributors and her contribution was relatively small.

The decision challenged

[15]The case for the police before the Deputy District Judge was; 1) that the uncontradicted evidence showed that the respondent had either caused or was likely to have caused harassment, alarm or distress to another person or other persons within the meaning of section 1(1)(a) of the 1998 Act; and 2) that the evidence was sufficient to establish the complaint on a balance of probabilities in that it showed, first, the respondent’s particular activities and, second, the “routine of prostitution” of which she was part.

[16]The case for the respondent, by way of submission from her legal representative, was: 1) that the evidence in support of the complaint and application did not show that the police witnesses or any other persons had been caused harassment, alarm or distress by her activities; and 2) that the hearsay evidence of the officers on which the complaint and application depended was of no evidential value, in particular there were no records of any specific complaints.

[17]As I have said, the Deputy District Judge decided that he could only find any of the three constituents of the condition in section 1(1)(a) proved against the respondent by reference to the criminal standard of proof, namely if he was sure of it. And, as I have also indicated, he made plain that all his findings of fact, and some “non-findings” of fact in the case stated were based on that approach. In addition, he introduced three notions into his analysis on the question whether the respondent’s conduct could be aggregated with that of the other prostitutes: 1) whether the respondent had caused or contributed to “the problem”; which he distinguished from 2) whether she had been individually responsible for or associated with any of the “aggravated behaviour” described by the police officers, only the latter, in his view, being sufficient to fulfil the condition in section 1(1)(a); and 3) whether the Respondent intended to cause harassment etc. or the likelihood of it, or acted in concert with the other prostitutes with the knowledge that their combined conduct would have that effect. These notions permeate his treatment of the two main and distinct issues that he had to consider, namely whether the Respondent’s conduct, which he found proved, had caused harassment, alarm or distress, or whether it was likely to have done so.

[18]On the first of those questions - actual causation of harassment etc. - here is the Deputy District Judge’s account of his reasoning in paragraph 6 the case stated:

“(E) … I found that her mere presence when loitering or soliciting in the problem area sufficed for her conduct to have been the cause of the problem because it contributed to the presence of the prostitutes as a whole and to the presence of kerb crawlers. … (G) I could not tell from the evidence what attitude the Respondent had towards other people when she was seeking trade as a prostitute. I doubted that many of those prostitutes who conduct their business in a typical way intended to cause harassment, alarm or distress: I thought that they were probably indifferent as to what effect their activities had on respectable people in the area. (H) There was no direct evidence before me that any individual had actually been caused harassment alarm or distress by the behaviour of the Respondent. … (I) I heard no direct evidence at all from any local resident or person. All the evidence I heard was from police officers. The evidence contained hearsay evidence from unidentified people …. (J) In finding the facts on which to base my decision when the evidence on behalf of the Appellant was hearsay evidence. I had to make an evaluation of the weight it was proper to attach to the various relevant parts of the evidence (bearing in mind that although it had been subject to cross-examination there was no conflicting evidence on behalf of the Respondent). (K) I considered and applied section 4 of the Civil Evidence Act 1995 … (N) I considered harassment, alarm and distress (those words bearing their normal meanings) to be quite high-level emotions, even accepting that there may be degrees within each one and that they may be transient or continuing. In my view, reactions to the problem … could include harassment alarm or distress, but others would not amount to any of those emotions. (N) [sic] I also considered that a person’s experience or perception of the problem associated with prostitution may have been based on some of the aggravated behaviour not associated with the Respondent and which I had decided should not be taken into account. (P) I decided that the weight I should estimate to be properly applicable to the evidence meant that I could not be sure that anyone had actually been caused harassment, alarm or distress by the Respondent’s behaviour.”

[19]As to the second main question before him - the likelihood of harassment etc. - the Deputy District Judge’s reasoning in his account of his decision in paragraph 6 of the case stated was as follows: “(Q) I then considered whether notwithstanding that no harassment alarm or distress had been proved, it would be a proper finding that it would have been likely to have been caused to someone. Even if I were to accept that the areas affected were likely to contain a broad normal distribution of resident and visitors based on age, gender and other characteristics, I decided that the answer was ‘not necessarily’. To have found otherwise would effectively mean that anyone in the Respondent’s position who has conducted her trade in any residential street would always be deemed to have been likely to have caused harassment alarm or distress to someone and be quite unable to prove the negative to defend herself. That seemed to me to be an unfair position. Given that evidence could properly have been introduced to support a finding of ‘likely’ harassment, alarm or distress without relying on such a principle, I was of the opinion that it would have been unfair to have drawn such a conclusion to the standard of proof necessary. Certain behaviour, especially of the ‘threatening, abusive and insulting words or behaviour’ kind which is the subject of criminal offences can more easily lend itself to a finding of likely harassment alarm or distress for the purpose of an application such as this, … but in my opinion the behaviour which this case was dealing with did not. The situation which came nearest to establishing likely harassment, alarm or distress was the ‘lone female would feel intimidated/be afraid to walk in the problem area’ opinion evidence … but I considered that this was a situation which ought to have been described to me by real examples rather than opinion for it to achieve the standard of proof. [my emphases] (R) I considered whether the tests I had applied to evaluate the evidence were too strict and whether they would require too heavy an onus on the Applicant when gathering evidence for such an application. I decided that while it would require the case to be prepared more thoroughly, this was consistent with the nature of the application. The order sought would have substantial consequences if the Respondent breached it; courts always regard breaches of court orders as serious offences and substantial sentences result from them. … … I considered that the evidence presented was simply too vague and that it did not adequately focus on the issue of the causation by the Respondent of the actual or likely harassment, alarm or distress. If, as I had been told, the problem represented a quality of life issue in Preston then there ought to have been an abundance of evidence available which could have been presented to prove actual or likely harassment, alarm or distress. Direct evidence from an interested or affected person willing to attend court in person might have been forthcoming but even if this were not so, actual statements, given anonymously if so requested … but nevertheless using the maker’s own, original, words would be admissible as hearsay evidence and the court could then properly decide exactly what was affecting the makers of them, and what that effect was, and why. [my emphasis] (S) For all those reasons I decided that the evidence I had heard, whilst I did not actually disbelieve it, could not in the circumstances properly be estimated to have sufficient weight to entitle me, on applying the correct standard of proof, to find that the Respondent’s behaviour was anti-social as defined in section 1 of the Act. …” [my emphases]

[20]The Deputy District Judge, when giving his Reasons for Decision in a reserved judgment, before stating the case as above for this Court, posed and answered, at paragraph 16, in much the same way the question set out in paragraph 6Q whether he could be sure that the effect of prostitutes behaving as the Respondent had behaved would have been likely to cause harassment, alarm or distress. Mr. Beer suggested that in the somewhat fuller reasoning in paragraph 16 of the Reasons, the Judge appears to have conflated the separate and alternative tests of actual and likely effect. Whilst textually that is a possible criticism of part of the reasoning in the paragraph, it seems to me that, read as a whole, the Judge there had his mind on the likelihood alternative. However, his call, in the concluding sentence of paragraph 6(Q), for evidence of real examples of a lone female having felt intimidated or afraid to walk in the problem area suggests some conflation or confusion of the separate and alternative constituents of actual and likely effect when he should only have been considering the latter.

[21]There is a further point to be made about his reasoning on this issue. In paragraph 16 of his Reasons, in answer to the question, which he posed for himself - “… can I properly be sure, basing a finding on ‘common sense’ principles, that the likely effect of prostitutes operating in their neighbourhood and behaving in the way Miss Potter has behaved has been [as I read the paragraph - likely] to cause harassment alarm or distress to someone ” he made the following significant comment, not all of which appears in the statement of case: “I can see some merit in such an argument. But in my view the correct answer is ‘not necessarily’ having regard to the range of emotions which might be caused. On a balance of probabilities I would answer the question as ‘yes’ but since I am applying a high standard of proof, ‘not necessarily’ amounts to ‘no’. [my emphasis]

The issues in the appeal

[22]The three overlapping issues in the appeal that I have summarised in paragraph 7 above are derived from the following four questions posed by the Deputy District Judge in the case stated: 1) Was he correct to ignore evidence of aggravated conduct shown by other prostitutes when deciding whether the Respondent’s actions had caused harassment alarm or distress, or were likely to do so, to another person? 2) Was his estimation of the weight properly to be attached to the evidence of the effect of the Respondent’s conduct defective and unreasonable and therefore erroneous in law? 3) In the face of his findings of fact and his estimation of the weight to be attached to the evidence of the effect of the Respondent’s behaviour, was his conclusion that the evidence did not prove to the necessary standard required that the Respondent’s conduct had caused harassment or alarm or distress to another person, or was likely to have done so, perverse and unreasonable and therefore erroneous in law? 4) Was he correct, as a matter of law, when considering whether the conduct that he had found proved was likely to cause harassment, alarm or distress, to require that he should sure of that likelihood? . 1). The meaning of “likely”

[23]This issue lies behind the Deputy District Judge’s fourth question in the case stated, as to whether he was correct, as a matter of law, to require proof to the criminal standard of likelihood of causing harassment, alarm or distress.

[24]It has now been established by the House of Lords in R (McCann) v. Manchester Crown Court

[2002] 3 WLR 1313

, that: 1) an application for an anti-social behaviour order is a civil proceeding under our domestic law and not a criminal proceeding for the purpose of

Article 6 of the European Convention

of Human Rights; 2) that, nevertheless, it engages the right to a fair trial under Article 6.1; 3) that the use of hearsay evidence admissible in such proceedings under the Civil Evidence Act 1995 is not unfair and, therefore, does not violate that right; but 4) given the serious nature of the proceedings, the court should not make an order unless satisfied to the criminal standard of proof that the defendant had acted in an anti-social manner.

[25]Mr. Beer submitted, by reference to passages in the speeches of their Lordships in McCann, that whilst it is clear that they intended that the first constituent - the conduct relied on - and, where relied on, the second constituent - that it had caused harassment etc. - must be proved to the criminal standard, it is not clear that they so intended in relation to the third constituent, where relied on - the likelihood of causing harassment etc. He submitted that it is, therefore, open to this Court to, and it should, hold that the third constituent, whether proved conduct was likely to have caused harassment, alarm or distress, is not a matter of proof - to any standard -.but an evaluative or judgmental exercise requiring the court to be satisfied of such likelihood. And he maintained that likelihood in this context means merely that, as a matter of common-sense, there is a real possibility that such conduct might have one or other of those effects.

[26]Mr. Michael Hayton, for the Respondent, submitted that the criminal standard of proof applied to the whole of the condition in section 1(1)(a). He maintained that the words “likely to be caused” was a matter for proof in the same way as the word “caused” to which they were alternative, and that section 1(4) so provided. And there is no basis, he submitted, for applying to the alternative a lower standard of proof from that governing proof of the conduct in question or that it had caused harassment, alarm or distress. That is to say, he rejected both the civil standard of more probable than not and the test of “a real possibility”. Accordingly, he submitted that the Deputy District Judge had applied the correct standard of proof.

[27]Their Lordships, when dealing with this issue in McCann, seemingly considered the requirements of section 1(1)(a) as a whole. There was abundant evidence in both cases before the House in that appeal that the conduct in question had caused harassment, alarm and distress. Their Lordships were not asked to and did not expressly consider whether any distinction should be drawn between the standard of proof required for the second and third alternative constituents of the condition. They did, however, distinguish in this respect between that condition and the second, in section 1(1)(b), as to the necessity of making an order, holding, as Lord Steyn stated at 1329G-1330A, that it did not involve a standard of proof, but an exercise of judgment and evaluation. This is how Lord Steyn, with whom the other Law Lords briefly agreed, put it: . “… in my view, pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted 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. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1) ”

[28]It might be open to this Court to focus in a way that the House of Lords did not in McCann, on the possibility of a lower than criminal standard of proof of the likelihood of a defendant’s conduct having caused harassment, alarm or distress. However, in my view, it would be a futile exercise. “Proof”, to whatever standard, of a likelihood is necessarily a different mental exercise from that of proving a fact in the sense that something has actually happened. It might be described as an evaluative exercise of a similar kind to that in section 1(1)(b), notwithstanding that section 1(4) requires proof of it, as well as the condition in section 1(1)(a). Or it might, true to that requirement, be characterised as proof of a speculative outcome.

[29]However the exercise is analysed, it is a familiar enough task for magistrates and juries. There are many examples of it in the criminal statutes. For example, it is common in offence-creating provisions in public order, insolvency and company law matters. In the field of public order offences, justices, for three or more centuries have managed to cope with the offence of breach of the peace, not only as to when conduct has caused such a breach but also as to whether it was likely to do so; see R v. Howell

[1982] QB 416

, CA. There are also a number of instances in the Public Order Act 1986, for example, in section 4(1), where the offence of causing fear or provocation of violence may be committed where the victim is “likely to believe” that violence will be used or “it is likely” that violence will be provoked. In the quite different context of prosecutions for fraudulent trading under section 458 of the Companies Act 1985 juries often have to determine whether a defendant carried on the business of a company when he knew that there was a risk that the company would not be able to meet its debts as they fell due. And the word “calculated” used in some older statutory provisions making it an offence to do something “calculated” to have a certain effect has routinely been interpreted by the courts as requiring proof to the criminal standard that the conduct in question was “likely” to have that effect.

[30]The critical question, the answer to which informs the way in which the standard of criminal proof operates in applications under section 1(1) of the 1998 Act, is what, in this context, is meant by the word “likely”. Mr. Beer has drawn the Court’s attention in some other contexts to its meaning as the same or something less than the normal civil standard of proof. But, as he acknowledged, much depends on the statutory or other context in which the word “likely” is used. Thus, in Re H and Ors. (Minors) (Sexual Abuse, Standard of Proof)

[1996] AC 563

, the House of Lords upheld the decision of the Court of Appeal that the standard of proof required in order to establish for the purpose of section 31(2)(a) of the Children Act 1989 that a child “is likely to suffer significant harm” is satisfied if there is a real or substantial risk of significant harm. Their Lordships considered that, depending on the context, “likely” could mean something less than more probable, or more likely, than not. They spoke variously of: “quite likely” (per Lord Lloyd, at 575); “what may happen”, “a real risk”, “a risk that ought not to be ignored”; “a real possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”, namely to the safety of a child (per Lord Nicholls, at 584-585); and “a real possibility” (per Lord Browne-Wilkinson, at 572). Mr. Beer also referred the Court to similar formulations by the courts of the word “likely” in other contexts.

[31]Clearly, in cases such as that considered by the House of Lords in Re H & Ors, where the context is the prevention of harm to a child, there is a need to give some elasticity of meaning to the word “likely”. But where, as here, the word is used in the important, but normally less acutely risky, context of proceedings against a person to prohibit him from engaging in anti-social conduct, it would be more appropriate to give it the meaning of more probable than not. But it does not follow that the mental process for a court in determining proof of likelihood in that sense is to have the same threshold of probability. The court has to be satisfied, on whatever basis, of something that is inherently speculative. Considered in that way, it is nonsensical, or at least unreal, to expect a court to determine whether a likely, in the sense of a more probable than not, outcome has itself been proved on a balance of probabilities. Paradoxically, the task for it is more manageable, though still difficult of analysis, if it is required to be sure to the criminal standard that a defendant’s conduct has caused such a likelihood.

[32]Accordingly, as to the meaning of “likely” in this context, my view is that a higher threshold of likelihood is called for than, for example, that of “a real possibility” arising in the context of the safety of children under the Children Act. It is true that the making of an anti-social behaviour order is not a criminal sentence, and serves only to prohibit in specified ways further anti-social behaviour of the sort giving rise to it. However, breach of such an order is a serious matter and can lead to a substantial term of imprisonment or fine. I would give “likely” the meaning in this context of “more probable than not”. That meaning, it seems to me, is much the same as that of the Divisional Court in Parkin v, Norman

[1983] QB 92

, which concerned a charge of insulting behaviour “likely” to occasion a breach of the peace. McCullough J., giving the judgment of the Court consisting of Donaldson LJ and himself, emphasised that the test was whether the conduct in question was “likely”, not “liable”, to have that effect.

[33]As to the standard of proof required, probably the fairest and simplest solution is to say that a court, in conducting what is necessarily an evaluative exercise on this issue a well as that under section 1(1)(b), must, on the evidence before it, be sure to the criminal standard, that a defendant’s conduct has caused the likelihood in the sense I have indicated. It seems to me that, whether that is a matter of proof and/or of evaluation is no more a matter for philosophical analysis or agonising by courts than, say, a magistrates or a jury having to decide to the criminal standard whether an accused’s conduct was dishonest or intentional or reckless. As I have said, determining whether conduct had a likely effect is a frequent demand made on lay and professional decision-makers in our courts in all sorts of criminal offences.

[34]In the end, Mr. Beer accepted as a matter of logic that a court could be sure of the likelihood of something, whether in the sense of its probability or possibility. But, he said, that is not what the Deputy District Judge did when considering the likelihood alternative; the test he set himself was whether he was sure that the Respondent had actually caused another harassment, alarm or distress. The case demonstrates the importance for a court when dealing with the issue of likelihood in this context of avoiding at least two pitfalls critical to its final decision. The first is not to confuse the second and third constituents of the section 1(1)(a) condition so as to require proof to the criminal standard that a defendant’s conduct has actually caused someone harassment, alarm or distress when considering the alternative whether it is likely to have caused that result. It is in that respect, it seems to me, that the Deputy District Judge, in the passages from his paragraphs 6(Q) and (R) of the statement of case that I have set out and emphasised in paragraph 19 above fell into error. The thrust of those passages is that he rejected the likelihood alternative because the evidence was wanting as to any instances of actual harassment, alarm or distress. The second pitfall is not to confuse the likelihood of harassment, alarm or distress caused by the conduct in question with the standard of proof required to establish that likelihood, a further error into which the Deputy District Judge fell in paragraph 6(Q) when read with the passages from paragraphs 10 and 16 of his Reasons for Decision, which I have set out in paragraph 37 below and 21 above respectively.

[35]It follows that I am against Mr. Beer and in favour of Mr. Hayton in holding that an applicant for an anti-social behaviour order relying on the likelihood alternative in section 1(1)(a) must prove it to the criminal standard of sureness. However, for the reasons I have given, I am of the view that the Deputy District Judge wrongly applied that standard of proof to the facts he found proved in failing to keep clearly in mind on this issue that he was concerned with proof that the Respondent’s conduct was likely to have caused harassment, alarm or distress as distinct from having actually caused any of such effects. 2). Aggregation of a defendant’s anti-social conduct with that of others

[36]There is some overlap between the last issue and this one. Here, the question is whether it is permissible to aggregate the Respondent’s conduct with that of others with whom she was not acting in concert, but with whom she was alleged to have collectively caused or was likely to cause others harassment, alarm or distress. As a matter of practicality, if it is permissible to aggregate such conduct, it is a shorter step to finding that it was likely to have such effect.

[37]As I have said, the Deputy District Judge: 1) found to the criminal standard of proof that the activities of the prostitutes as a whole had caused “a substantial problem” in the residential areas of Preston concerned and that the Respondent had caused, in the sense of significantly contributing to, that problem; and 2) stated that he could not find to that standard of proof that her conduct had caused or was likely to cause harassment, alarm or distress because he had not found that her own conduct was of an “aggravated” nature and that it could not be aggregated with the aggravated conduct of other prostitutes. This is how he reached that outcome, first in paragraphs 2-4, 9 and 10 of his Reasons for Decision, and second, in paragraph 6(F) of the case stated: Reasons for Decision “2. There is clear evidence that residents in certain parts of Preston, and other persons lawfully there from time to time, are experiencing substantial problem as a result of the operation of street prostitutes in those areas …. 3. I can quite easily conclude that the activities as a whole of the prostitutes represent a problem to some degree to those local persons …. 4. A court has to look for much more than there being a problem when considering whether the grounds for making an … [anti-social behaviour order] has been proved … 9. When Miss Potter has operated as a prostitute in a street where such a problem is experienced she has, therefore, in my opinion by her mere presence been causing that problem in the sense of being a cause of it, though obviously the problem has had many other contributory causes and her contribution is relatively small though not insignificant. Her conduct has contributed to attracting kerb crawlers and generating hostility from local people, which are the more direct causes of the problem. So I am able to find that Miss Potter’s conduct has caused the problem as it exists in the areas in which she operates. 10.What I have much more difficulty with is in concluding that her conduct has caused or was likely to cause harassment, alarm or distress. There is no evidence that anyone has directly and immediately been caused harassment, alarm or distress by anything she has done. If there has been any such harassment alarm or distress it must have stemmed indirectly from the problem which she has contributed to having caused.” Case stated “6(F) I did not consider it correct to say that the prostitutes operated in concert, even though by the nature of the activity they would tend to congregate, in a general sense, in particular areas. I decided that it would be improper to ascribe any responsibility for the behaviour of other prostitutes to her. Therefore, in deciding whether the Respondent’s behaviour caused harassment, alarm or distress or was likely to do so, I decided that I must exclude whatever the effects on the local people may have been of the specific ‘aggravated’ incidents which had been the subjects of complaints and confine myself to the effects of her standard or typical behaviour”.

[38]Mr. Beer submitted that the Deputy District Judge’s conclusion that the Respondent’s conduct, when considered together with that of the other street prostitutes frequenting the same areas at the same or similar times, had not caused harassment, alarm or distress was both wrong and inconsistent with his finding that the Respondent has caused, in the sense of contributing to, the “substantial problem” caused by the street prostitutes as a whole. He said that a court, in determining whether a defendant has caused or was likely to cause harassment, alarm or distress, should take into account all the circumstances of the case, and that the actual or likely consequences of his or her conduct can only be properly considered if all those circumstances are taken into account. Here, the facts that the Respondent had loitered and solicited for prostitution in the residential areas where other prostitutes frequently congregated for the same purpose and that those others engaged in more overtly anti-social behaviour were highly material circumstances.

[39]Mr. Hayton submitted that the Respondent’s conduct, which the Deputy District Judge found to involve the “basic activities” of prostitution, should not be aggregated with the “aggravated behaviour” of other prostitutes, as the Judge had not found that she had been responsible for any such behaviour. He acknowledged, as did the Deputy District Judge, that the conduct of one street prostitute could be said to be a cause of “the problem of prostitution” in an area, but said that such a “problem”, even if distasteful, undesirable or unpleasant, does not necessarily equate to causing harassment, alarm or distress. He maintained that the Judge’s reliance on the lack of proof that the Respondent was responsible, in the sense of acting in concert with the other prostitutes in their aggravated behaviour, was a permissible approach to his determination that the Appellant could not prove the case to the necessary criminal standard by that route.

[40]It is not clear to me what sort of “substantial problem” caused by the activities of the other street prostitutes and Respondent “as a whole” in the residential areas in question the Deputy District Judge had in mind, if not in the nature of actual or likely harassment, alarm or distress to local residents and others in the areas. The Act says nothing about a “substantial problem”. If the Judge had any consequence different from or less serious than harassment, alarm or distress in mind, it was irrelevant or, at best, muddling, to introduce it into his reasoning, albeit that he did, in paragraph 4 of his Reasons for Decision, indicate a possible distinction, depending on degree, from harassment, alarm or distress. Equally, the Act says nothing about “aggravated conduct”, and it does not seem to me to assist clear thinking in considering whether it is proved that certain of the conduct, whether committed individually or with others, had caused or been likely to cause harassment, alarm or distress, was of an aggravated nature. Section 1(1)(a) does not require proof of intent to cause any such effects, or, where the conduct of a number of persons is involved that a sole defendant was acting in concert with them. Nor, where harassment, alarm or distress are caused by the conduct of a number of people, including the defendant, does it require proof that the defendant’s conduct on its own should have been of a sufficiently aggravated nature to cause harassment, alarm or distress or, if not, that she should have in some way shared responsibility with the others for their aggravated conduct. Section 1(1)(a) is concerned simply with a defendant’s conduct and its effect, whether looked at on its own or with the conduct of others.

[41]Despite the distinction drawn by the Deputy District Judge in paragraph 4 of his Reasons for Decision between the “substantial problem” or “the problem” and what is required by section 1(1)(a), it is plain that his use of those expressions were intended on occasion and capable of serving shorthand forms for harassment, alarm or distress. At the very least, his use of those expressions provided scope for muddle or misunderstanding in the route he took to his final decision. Looking at his reasoning as a whole, it was plainly inconsistent of him, on the one hand, to find to the criminal standard that the Respondent’s conduct had caused or had been likely to cause the “substantial problem” or “problem”, in the sense of contributing to it, but, on the other, that she had not caused, in the same sense, harassment, alarm or distress, because it had not been proved to that or any standard that her own conduct had included “aggravated behaviour” or that she had been responsible for that of any of the others. Street prostitution in residential areas, whatever the extremes of behaviour by individual prostitutes, is clearly capable, when considered as a whole and depending on the circumstances, including the number, regularity and degree of concentration of activity, of causing or being likely to cause harassment, alarm or distress to others in the area. It is a question of fact whether any individual prostitute, by her contribution to that activity and its overall effect, has caused a “problem” which is caught by section 1(1)(a). Proof of such a fact need not depend on the attribution to her of proved “aggravated conduct” of other prostitutes that might, considered on its own, constitute harassment, alarm or distress.

[42]For those reasons, I am of the view that the Deputy District Judge erred in law and in his findings of fact on this issue. 3). Whether the Deputy District Judge’s decision was, in any event, perverse

[43]Mr. Beer challenged the District Judge’s decision as perverse or irrational, in any event, in two respects. First, by reference to the first of the two passages in paragraph 6(Q) of his case stated that I have set out and italicised in paragraph 19 above, he said that the Judge was seemingly deterred from finding as a matter of common sense that the Respondent had caused or had been likely to cause harassment, alarm or distress in the residential areas in question because that would have meant that any prostitute, like the Respondent, who solicited in a residential area – . “would always be deemed to have been likely to have caused harassment, alarm or distress to someone and be quite unable to prove the negative to defend herself.”. Second, he referred to the second of those two passages in which the Judge indicated that, although he had heard evidence from a police officer that lone females felt intimidated and afraid to walk in the red light districts, that ought to have been described to him by “real examples” rather than opinion evidence.

[44]As to the first of those reasons, Mr. Beer said that, if, as here, the cumulative effect of street prostitutes operating in residential areas would, as a matter of common sense, have caused or have been likely to cause harassment, alarm or distress to at least some of the broad range of residents of and visitors to those areas, then the fact that any one of the prostitutes contributing to that effect might have faced a strong case under section 1(1)(a) was simply a proper and intended consequence of the provision in that context, not a reason for not giving it effect. As to the second of the reasons, he submitted that the Judge imposed an unnecessary and illogical burden on an applicant for anti-social behaviour order in requiring it to produce evidence by way of example of lone females having been intimidated or afraid to walk in the red light district. He pointed out that the Judge had expressly stated, in paragraph 6(S) of the case stated, that he did not disbelieve any of the evidence, and asked, rhetorically, how could he have been more satisfied of the likelihood of the conduct to which the Respondent had contributed having caused, or having been likely to cause, harassment, alarm or distress by an officer giving him examples of it?

[45]Mr. Hayton submitted that there was no perversity in those findings of the Deputy District Judge. He maintained, consistently with his submission on the second issue, that not all prostitution on the streets of a residential area falls foul of the Act and that the Deputy District Judge was entitled, in his application of the Civil Evidence Rules, to require evidence of specific examples or complaints.

[46]I agree with Mr. Hayton that not all prostitution on the streets of a residential area falls foul of the Act, especially when the conduct relied upon by an applicant is that of a single prostitute or a small number of prostitutes or where, however few or many there are, there is no significant concentration of their activities in a particular area to mark it out as “red light district”. It is all a matter of fact and degree. But, for the reasons advanced by Mr. Beer, it is difficult to understand the Judge’s conclusion on this aspect of the evidence that the Respondent’s conduct had not at least been likely to cause harassment, alarm or distress and, therefore, to have constituted anti-social behaviour within section 1(1)(a).

[47]Accordingly, in allowing the Chief Constable’s appeal, I would answer the questions posed in the case (see paragraph 21 above) stated as follows: 1), No; 2) Yes; 3) Yes, and 4) Yes.

[48]I would accordingly remit the matter to the Deputy District Judge directing him: 1) to reconsider, on the evidence already before him and to the criminal standard of proof, whether the appellant had proved under section 1(1)(a) either that the Respondent’s conduct, whether considered on its own or in conjunction with that of the other street prostitutes, had caused, or had been likely to cause, harassment, alarm or distress to others; and, if he so finds, 2) to consider, on the evidence already before him and any further evidence that the parties might put before him, whether, pursuant to section 1(1)(b) and section 1(4) it is necessary to make an anti-social behaviour order; and 3) to determine whether, in the exercise of the discretion given to him by section 1(4), he should make such an order.

[49]I agree. _______________________

Chief Constable of Lancashire v Potter [2003] EWHC 2272 (Admin)

The legislative scheme

The facts

The decision challenged

The issues in the appeal

Cited in 4 later judgments