Bucknell v DPP [2006] EWHC 1888 (Admin)

Case No CO/3872/2006[2006] EWHC 1888 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 10th July 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE MAY
MR JUSTICE AIKENS
Between
MARC BUCKNELLClaimant-v-
Between
DPPDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS BRENDA CAMPBELL (instructed by Messrs MIchael Fisher Solicitors) appeared for CLAIMANTMR JOHN HARDY (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAY:

[1]Section 30 of the Anti-Social Behaviour Act 2003 provides for the designation by a senior police officer of dispersal areas where he has reasonable grounds for believing that there has been significant and persistent antisocial behaviour by groups of two or more persons in the area and the other relevant requirements of Part 4 of the 2003 Act are complied with. By section 36, antisocial behaviour means "behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the person". If a constable in uniform has reasonable grounds for believing that the presence or behaviour of two or more persons in a designated locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed, the constable may gave a direction requiring the persons in the group to disperse and, if they do not live in the designated area, to leave it. A person who knowingly contravenes such a direction commits an offence punishable upon summary conviction; see section 30(2).[2]In May 2005, the Centre Court Shopping Centre at Wimbledon, London, SW19, was a duly designated dispersal area. The Centre Court Shopping Centre is very close to most of the public transport arrangements that centre on Wimbledon Station; indeed, it is more or less just across the road from Wimbledon Station. On 18th May 2005, at 5 o'clock in the afternoon, as, no doubt, many children were going home from school, the appellant, a young person of 17, was one of a total of 15 or 20 black and Asian youths in that area. He was, so far as we understand, with his friends going home from school. The youths were not behaving in an antisocial manner. They were in two groups. Police Constable McNally was there on duty. It was his regular beat. He, I am sure, was aware that the details given of why the senior police officer, Chief Superintendent Michael Wood, had designated this a dispersal area were that there had been a continuous trend in recent years, and measured specifically on a daily basis since March 2004, of differing gangs of youths using the Wimbledon Broadway area to congregate and fight and frighten and alarm members of the public present in this area. In particular, the rate of street crime was the densest in the borough. There was also a documented history of fights between school students, involving some several of the schools in the Wimbledon area.[3]As I said, the Constable was the local constable for that area. He had considerable experience of it and its problems. He formed the view, understandable perhaps in personal terms, that the presence of the groups of youths was likely to cause harassment, intimidate and alarm or distress members of the public. He gave the groups, including the appellant, a direction to disperse. Most of them did disperse but the appellant did not immediately do so. PC McNally invited him to read the notice on the nearby lamp-post giving notice of the dispersal area. The appellant said he would read it in five minutes. The Constable explained that the appellant could be arrested if he did not move away. The appellant did not leave the area and so the Constable arrested him.[4]On 16th June 2005, the Magistrates to the Merton area convicted the appellant of an offence under section 32(2) of the 2003 Act. He was conditionally discharged and ordered to pay £50 towards the costs.[5]He now appeals by way of case stated. The thrust of the appeal is that no reasonable Magistrates' Court could have found, as this court did, that PC McNally had reasonable grounds for believing that the presence of the youths was likely to result in members of the public being intimidated, harassed, alarmed or distressed. It is said that the Constable was not entitled to take account of the previous experiences of the impact of groups of youths loitering in this area. The question for this court, posed by the case stated, is in these terms:
"The question for the opinion of the High Court is were we entitled, on the evidence that we heard, to convict the appellant of the offence of knowingly contravening a direction given by a constable under s.30(4) of the Anti-Social Behaviour Act 2003 requiring him, as a person whose place of residence was not within the relevant locality, to leave the relevant locality or any part of the relevant locality immediately?"
[6]Ms Campbell, on behalf of the appellant, submits essentially as follows. She says that the facts proved did not amount to the offence charged. She submits that there is a real danger that the power of dispersal was invoked because of racial assumptions or stereotypes. The Constable agreed that he would not have dispersed a group of pensioners. That seems to me, incidentally, to be perhaps a miscomparison between race on the one hand and age on the other. She submits, however, that the mere presence of two well-behaved groups of youths was not capable of generating the necessary and reasonable belief of the likelihood of intimidation, harassment, alarm or distress. This was based solely on the presence, not the behaviour, of the groups. Reasonable grounds, at least on facts such as these, must, she submits, be based on something more than the Constable's previous experience. Ms Campbell refers us to Article 11 of the European Convention on Human Rights and to R (on the application of Laporte and others) v Chief Constable of Gloucestershire Constabulary and others [2004] EWCA Civ 1639. This case is of interest but it is not suggested that the legislation offends Article 11 and, as Ms Campbell agrees, its application depends on the facts of each case. The facts of the case on Laporte were very different from those in the present case.[7]The single question for this court is whether the facts proved were capable of giving rise to the necessary reasonable belief by the Constable. Although Section 30(3) is, by its words, in some circumstances capable of operating by presence alone of two or more persons, in my judgment great care is needed if that alone is relied on. Mr Hardy points out that mere presence of the groups in question was capable, he submits, of giving rise to reasonable belief and he points to the Constable's experience in the area and to the terms of the reasons for the designation of the dispersal area in the first place. He submits that this is not a serious intrusion into anybody's rights, just a temporary diversion from one small area of Wimbledon, and he submits that, on any view, the Justices' decision was not perverse.[8]There is no evidence that any member of the public in the present case was harassed, intimidated, alarmed or distressed. In my view, unless there are exceptional circumstances not present in this case, a reasonable belief for the purpose of section 30(3) must normally depend, in part at least, on some behaviour of the group which indicates in some way or other harassment, intimidation, the cause of alarm or the cause of distress. If this were not so, there would, in my judgment, in a case such as this be an illegitimate intrusion into the rights of people to go where they please in public. In particular, as this case illustrates, it would intrude into the legitimate activities of young people going home from school by a reasonable route, behaving properly as they do so. Objectively, in my judgment, it was not on the facts a proportionate response within the terms of the legislation for PC McNally to act as he did. I have some sympathy with the Constable because he was put in the position of having to operate what, at the margins, is difficult legislation, but in my judgment the apparent characteristics of these groups alone, at 5 o'clock in the afternoon of an early summer day, was not capable, objectively, of giving rise to the necessary reasonable belief.[9]For these reasons, I would allow the appeal and answer the Justices' question that they were not entitled, on the evidence they heard, to convict the appellant.

MR JUSTICE AIKENS: I agree.

[11]MS CAMPBELL: Thank you, my Lord.

LORD JUSTICE MAY: Thank you very much.