Sierny v Director of Public Prosecutions [2006] EWHC 716 (Admin)

Case No CO/8435/2005[2006] EWHC 716 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 15th February 2006
Strand
London WC2
B E F O R E:
LADY JUSTICE HALLETT
MR JUSTICE NELSON
Between
SARAH ANN SIERNYClaimant-v-
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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)
MR P WEATHERBY (instructed by Grayson Willis Bennett, Sheffield S1 1TD) appeared for CLAIMANTMISS A WROTTESLEY (instructed by CPS Sheffield 18) appeared for DEFENDANT
J U D G M E N T

LADY JUSTICE HALLETT:

This

[1]matter began as an appeal by way of case stated from the decision of Deputy District Judge Mottram, sitting at the Sheffield Magistrates' Court, by four appellants. They were all convicted by the Deputy District Judge of, amongst other offences, offences of knowingly contravening a direction given by a police constable under section 30(4) of the Anti-Social Behaviour Act 2003 requiring them, as part of a group, to disperse. Only one appellant, Sarah Sierny, has pursued her appeal; the others have been withdrawn and abandoned.[2]The background to the offence of which Miss Sierny was convicted can be stated shortly. A Superintendent Brennan of the South Yorkshire Police was concerned about anti-social behaviour in a particular area of Sheffield. He consulted widely and he then issued an authorisation pursuant to section 30 of the Anti-Social Behaviour Act 2003. The effect of that authorisation was given the appropriate publicity locally.[3]At about 9.15 on the evening of 29 October, 2004 four police officers attended the junction of Nethershire Lane and Belhouse Road, Sheffield. They found a group of 10 to 15 young people shouting, drinking alcohol from cans and bottles and chasing each other about. A Sergeant Leake, among other officers, decided that he had reason to believe that the presence of the group was likely to intimidate, harass, alarm or distress members of the public and required them to disperse in accordance with the authorisation given by Superintendant Brennan. Some of the young people complied. Others, including the appellant, failed to do so, despite three warnings. Members of the group were abusive and assaulted the officers at the scene. The appellant remained at the scene as more people gathered. She was arrested.[4]Section 30 of the Anti-Social Behaviour Act reads where relevant:
"(1) This section applies where a relevant officer has reasonable grounds for believing- (a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in his police area (the "relevant locality"), and (b) that anti-social behaviour is a significant and persistent problem in the relevant locality. (2) The relevant officer may give an authorisation that the powers conferred on a constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months. (3) Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed. (4) The constable may give one or more of the following directions, namely- (a) a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify)."
[5]The relevant officer is a police officer of the rank of a superintendent or above. Section 31, which is at the heart of this appeal, is headed "Authorisations Supplemental". Subsection (1) reads:
"An authorisation - (a) must be in writing, (b) must be signed by the relevant officer giving it, and (c) must specify - (i) the relevant locality, (ii) the grounds on which the authorisation is given, and (iii) the period during which the powers conferred by section 30(3) to (6) are exercisable. (2) An authorisation may not be given without the consent of the local authority or each local authority whose area includes the whole or part of the relevant locality. (3) Publicity must be given to an authorisation by either or both of the following methods- (a) publishing an authorisation notice in a newspaper circulating in the relevant locality, (b) posting an authorisation notice in some conspicuous place or places within the relevant locality. (4) An 'authorisation notice' is a notice which- (a) states the authorisation has been given, (b) specifies the relevant locality, and (c) specifies the period during which the powers conferred by section 30(3) to (6) are exercisable."
[6]The point in issue before us is a narrow one and it goes to the adequacy of the authorisation given by Superintendent Brennan, the relevant officer. The authorisation reads as follows:
"I John Donal Brennan. Being a Superintendent Of South Yorkshire Police stationed at West Bar Police Station, Sheffield Central District Have reasonable grounds to believe that - members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons within the area specified namely Shiregreen, Sheffield in accordance with the attached map. AND that anti-social behaviour is a significant and persistent problem in the aforementioned area. I therefore authorise any constable in uniform within that area to exercise the powers conferred under section 30(3) to (6) of the Anti Social Behaviour Act 2003. This authorisation will be in force from 22 October 2004 until 14 November 2004 inclusive."
[7]We were informed by Miss Wrottesley, who appeared on behalf of the Crown Prosecution Service, that this authorisation was intended to cover the build-up to Halloween and Bonfire Night.[8]Mr Weatherby, on behalf of the appellant, contended that the authorisation was unlawful in that it failed to state on its face the grounds upon which it had been made. He argued that section 31(c)(ii) requires, in clear terms, the relevant officer to specify, within the authorisation itself, the grounds on which the authorisation is given. Here Mr Weatherby submits Superintendent Brennan has merely rehearsed the fact that he had reasonable grounds to believe that members of the public have been intimidated, harassed, alarmed or distressed, as a result of the presence of groups of people within the specified area, and that the anti-social behaviour is a significant and persistent problem, without providing any detail of the grounds for that belief. Mr Weatherby argued that Supt Brennan failed, therefore, to comply with the statutory requirements. The authorisation is defective and therefore invalid.[9]He argued it was incumbent upon Superintendent Brennan to provide details of the evidence or material upon which he had based his conclusion that members of the public had been intimidated, harassed alarmed or distressed, and that anti-social behaviour was a significant and persistent problem in the relevant locality.[10]Mr Weatherby made no challenge to the statutory regime itself. He accepted that dispersal orders under Part 4 of the Anti-Social Behaviour Act, issued pursuant to an authorisation, are lawful in principle. He accepted that the police have been provided with these powers in pursuance of a legitimate aim and if exercised properly are necessary and proportionate. He emphasised, however, that the powers must be exercised properly and he invited this court to exercise strict control over the exercise of them encroaching, as they do, upon the fundamental rights of the citizen. He reminded us that the powers given to the relevant officer are far from unqualified.[11]The Act requires the officer to obtain the agreement of the local authority to the proposed authorisation. It must be limited in time and it must be publicised. Thus a balancing exercise can be conducted by those responsible for local residents and those responsible for law and order between the interests of people often youngsters who wish to meet up on the streets and the interests of the rest of the community. If it turns out that an order is no longer necessary or proportionate, the police officer can withdraw it pursuant to section 31(6) of the Act, again with the agreement of the local authority.[12]However, Mr Weatherby argued forcefully that what was potentially lawful in this case became unlawful, where, as here, Superintendent Brennan, the relevant officer, provided no explanation for interfering with the rights of members of the public. Although Mr Weatherby did not seek to argue before us that it was not open to the District Judge to conclude on the evidence that Sergeant Leake exercised his discretion appropriately, he did seek to argue that it is important for an officer in Sergeant Leake's position to know, from the terms of the authorisation itself, why it was made and the mischief at which it was aimed. This is to ensure that he can make an informed decision and exercise his discretion appropriately when ordering a group to disperse.[13]Mr Weatherby informed us that to date the Secretary of State for the Home Department has not issued a Code of Practice authorised under the Act governing the giving or withdrawal of authorisations. However, the National Centre for Policing Excellence, NCPE, after consultation with the Association of Chief Police Officers, the Home Office and the Police Service generally has issued some very helpful guidance on behalf of ACPO. This is available, we are told, on the Home Office website.[14]Amongst other advice, the NCPE informed officers, at 2.8 under the heading"Publicity for the Authorisation":
"The authorisation notice must be in writing, signed by the relevant officer and specify all of the following in clear language: . The relevant locality to which it applies; . The grounds on which the authorisation was given; . The period when the power to disperse can be exercised."
[15]Mr Weatherby pointed out that in fact, according to the terms of the statute, it is not the authorisation notice that must include the grounds on which the authorisation was given. They are specifically excluded from what must appear in the notice. It is, he reminded us, the authorisation itself which must specify the grounds. One knows not whether the guidance at 2.8 is a misunderstanding of the legislation, or whether it was thought that the authorisation notices should contain the grounds for making them so that the local community could know what had been decided and why.[16]Mr Weatherby submitted that, read as a whole, the effect of the guidance, and indeed the statutory regime itself, is to place upon a relevant officer the duty to give very careful consideration to the need for, and the extent of, an authorisation. I, for my part, needed absolutely no persuasion of that. The powers granted under this Act involve a considerable encroachment upon the rights of individuals and, in my judgment, it is plain, from the provisions of Part 4 as a whole, that Parliament intended considerable care to be exercised before an authorisation was made.[17]There is, however, nothing in the material before us to suggest that Superintendent Brennan did not take the requisite amount of care. From my reading of the papers I have no doubt that he genuinely believed the conduct of young people in this area was distressing, alarming and intimidating members of the public. Nothing was advanced before us which would lead me to the conclusion that he did not have reasonable grounds for so concluding. Unfortunately, as Mr Weatherby has pointed out, apart from one or two general references in the witness statements of the police officers who attended the scene in this case, there is nothing else before us to indicate what those grounds were.[18]Miss Wrottesley, for the Director of Public Prosecutions, has argued, first, that the statutory regime includes the appropriate checks and balances to ensure that it is compatible with the European Convention on Human Rights. She submitted that Parliament has rightly deemed it appropriate to qualify the rights of individuals, such as the appellant, in pursuit of a legitimate aim, namely the protection of law-abiding citizens from the anti-social behaviour of others. She submitted that Superintendent Brennan did state the grounds upon which the authorisation had been given on its face. His grounds for making the authorisation were his belief that members of the public had been intimidated, harassed alarmed or distressed and that there was a significant and persistent problem of anti-social behaviour in the area.[19]She rejected the assertion that the failure to provide details of those grounds rendered the authorisation invalid. She reminded us that extensive evidence had been collected and considered by the superintendent and the local authority before the authorisation was agreed. It is not necessary, she argued, to rehearse that evidence upon the face of the authorisation. It may be considered separately. In fact she went further: she argued that to put too much detail into the authorisation might put members of the public who have made complaints about anti-social behaviour at risk. She argued that the smaller the relevant locality the more chance, if more detailed grounds have to be provided, of responsible law-abiding citizens being put at risk.[20]Given a number of decisions of this court, including the Director of Public Prosecutions v L and N [2005] EWHC 1229, and the concessions made by Mr Weatherby as to the lawfulness of the statutory regime itself, the question for us is not whether Part 4 of the Act is compatible with the Human Rights Act 1998, nor whether the superintendent and local authority were justified in this case in agreeing upon an authorisation. The only question for us is whether the superintendent's failure to provide any explanation of the grounds upon which he came to his conclusion amounts to a failure to comply with the statutory requirements so that the authorisation was invalid.[21]For my part, I accept Miss Wrottesley's submission that the Act does not require the relevant officer to go into a considerable amount of detail. It cannot be right that an officer is required to rehearse specific details of the evidence upon which he is relied, or to name those who have made complaints. Had it been Parliament's intention to require that degree of detail it could, and no doubt would, have said so. It is highly unlikely that this was Parliament's intention, as Miss Wrottesley argued. If they knew that details of their complaints would be made public any member of the public might be reluctant to complain about even appalling anti-social behaviour for fear of being identified by those responsible. Without complaints the police would find it increasingly difficult to justify any authorisation and Parliament's clear intention would be thwarted.[22]I do, however, see force in Mr Weatherby's argument that the clear words of the statute require the relevant officer to state not merely that he has reasonable grounds for believing that members of the public have been intimidated, harassed, alarmed or distressed, and that there is a significant and persistent problem in the locality of anti-social behaviour, but to specify what those reasonable grounds are, if only in general terms. For example, in the case of Parminder Singh v the Chief Constable of the West Midlands Police,[2005] EWHC 2840, the relevant officer there provided details of the behaviour that in his opinion had intimidated, harassed, alarmed or distressed members of the public in these terms:
"In Broad Street there is an increasing amount of anti-social behaviour and violent incidents associated with both alcohol and the volume of individuals, increasing during the run up to Christmas, condensed into a small area. This order is to allow the police to take positive action against the small minority who are intent on causing alarm, distress and harassment to the majority looking for a safe and enjoyable night out. Anti-social behaviour can be evidenced in a police document. The anti-social behaviour detailed above is a significant and persistent problem in this locality."
[23]This court in Parminder Singh upheld the lawfulness of that authorisation and, for my part, it seems to me it is a good example of the extent of the detail required by Parliament in providing, or specifying, the grounds upon which an authorisation is given. It informs the reader, albeit in broad terms, of the nature of the problem and the mischief at which the authorisation is aimed.[24]Here the only information offered to a South Yorkshire police officer or any other reader by the authorisation itself, was that Supt Brennan believed that members of the public had been intimidated, harassed, alarmed or distressed as a result of the presence of two or more people in a specified and quite large area. There is no clue within the body of the document as to the grounds for that belief. Without more that might cover a multitude of situations, including, for example, a residential area in which a football club is based and where noisy crowds gather on a Saturday afternoon.[25]I accept that an authorisation given in respect of one particular problem and one particular group of people may be relied upon to order the dispersal of a previously unforeseen group (see the case of Parminder Singh ). In my judgment, however, this cannot detract from the fact that the provisions of section 31 are clear. Parliament requires the officer when making the authorisation to specify the grounds on which the authorisation is made within the authorisation itself. The words “must specify” the grounds are mandatory. Stating a belief pursuant to section 30 is not specifying grounds for that belief pursuant to section 31. Thus, I am very reluctantly driven to the conclusion that however much I may sympathise with Superintendent Brennan and whatever his good intentions, (and I, for one, have no doubt that that is what they were), Parliament does require the authorisation to do more than merely recite the words of the statute and recite that the officer has reasonable grounds.[26]I say I am driven reluctantly to that conclusion because I intend no criticism whatsoever of the South Yorkshire Constabulary in finding as I have done, and I am acutely conscious of the demands made upon them. Unfortunately the only guidance provided for officers in the situation of Superintendent Brennan at the time that he made his authorisation came from the NCPE. Although the NCPE has provided very full and sensible practical advice, their guidance does not purport to help on the crucial issue in this case, namely on the content of the authorisation itself. Therefore it is totally understandable, in my judgment, that he took the course that he did.[27]Applying the law as laid down by Parliament as I must, therefore, I have no alternative but to answer the first question posed: "Was I correct in law to conclude that Section 31(1)(c)(ii) of the Anti-Social Behaviour Act 2003 does not require that the grounds upon which an authorisation is given appear within the body of the instrument of authorisation?" in the negative. In the circumstances I do not need to answer the last two questions posed. I should emphasise that we have not heard and dealt with any arguments from the other appellants; as I have indicated, their appeals having been abandoned.[28]MR JUSTICE NELSON: I agree. The statement of belief alone is, in my opinion, clearly not enough to satisfy the mandatory requirements of section 31 which states that an authorisation must specify, among other things, the grounds on which the authorisation is given, namely the grounds for the belief. It cannot therefore be sufficient simply to state the belief itself. The section is designed to ensure that there is a proper thought-out basis for making the authorisation and expressing that basis in written form, which can later be examined and challenged, and which explains to the police, who may later be required to give dispersal directions, information as to the nature of the problem which gave rise to the authorisation and hence in what circumstances the need for directions may arise.[29]There is absolutely no need for the evidence itself to be recited, nor is it in any way necessary or relevant to identify any individuals who have made complaints. What is necessary is that there should be a brief, relevant and concise summary of the nature of the material which gives the authorising officer the grounds for his belief. The example which my lady has given of the authorisation of the grounds therein set out and recited in the case of Parminder Singh, is a good example of how brief a description of the grounds will suffice in order to provide the relevant information to interested parties, to the police officers and to any later court, as Mr Weatherby submits.[30]Such a task for the authorising officer is not, in my opinion, too onerous, but, in any event, it is one which is essential for compliance with the terms of the statute.

LADY JUSTICE HALLETT: Very well then, the appeal is allowed, Mr Weatherby.

[32]MR WEATHERBY: I am obliged. My client is legally publicly funded. Can I suggest legal aid taxation?

LADY JUSTICE HALLETT: A representation order is on the file, so I am told we do not have to do anything. Having answered that question in the way that we have, the appeal is allowed. The matter presumably has to be remitted to the Magistrates' Court?

[34]MR WEATHERBY: Yes, I think once the appeal is allowed in the circumstances where it is on a legal basis in respect of the authorisation not being valid, it would be available to the Magistrates' Court to retry the issue.

LADY JUSTICE HALLETT: Should we be making consequential orders such as quashing the conviction?

[36]MR WEATHERBY: In my submission, allowing the appeal does quash the conviction, and in these circumstances there is no need to remit it to the Magistrates' Court.

LADY JUSTICE HALLETT: That would be my reading. What do you say about that, Miss Wrottesley?

[38]MISS WROTTESLEY: I must admit I do not know the answers in terms of the alternative. I will be guided by the court.

LADY JUSTICE HALLETT: There is a conviction recorded. The Magistrates themselves cannot quash it. We have to quash the conviction. Of that I have no doubt. I think that it is pointless, is it not, remitting it to the Magistrates' Court, for any kind of determination, because there is nothing to determine? We have determined it.

[40]I make it plain our order is that the appeal is allowed and we quash the conviction.

Cited in 1 later judgment