M v Director of Public Prosecutions [2007] EWHC 1032 (Admin)

Case No CO/156/2007[2007] EWHC 1032 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 6th March 2007
Strand
London WC2
B E F O R E:
LADY JUSTICE SMITH
MR JUSTICE GROSS
Between
MClaimant-v-
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R THOMAS (instructed by Aston Clark Solicitors, London W3 9BY) appeared for CLAIMANTMR R MEIKLI (instructed by the CPS, London EC4) appeared for DEFENDANT
J U D G M E N T

LADY JUSTICE SMITH: Gross J is going to give the first judgment.

[2]MR JUSTICE GROSS: The appellant appeals by way of case stated against the decision of the Ealing Local Area Justices sitting at Acton Youth Court, on 11 October 2006, to impose an anti-social behaviour order (an ASBO) on him following his conviction for possession of cannabis.[3]The appellant, aged 17, had entered a guilty plea to a single charge in that regard on 29 August 2006. The application for an ASBO was foreshadowed on that occasion and dealt with at the sentencing hearing on 11 October. Between the two hearings, on 11 September 2006, the respondent served on the appellant's legal representatives hearsay evidence upon which the respondent intended to rely in support of the ASBO application. However, no hearsay notice was ever served.[4]Clause 1, or prohibition 1, of the ASBO, prohibited the appellant from entering a particular estate as marked on an attached map. If, and in so far as the ASBO as such survives scrutiny, then no complaint is made as to the prohibition contained in clause 1. I need, therefore, say nothing further about that clause as such. Clause 2 of the ASBO provided as follows:
"Not to knowingly associate with a person or persons whilst such person or persons are engaged in attempting or conspiring to commit any criminal offence in England or Wales."
The grounds of appeal set out in the very clear skeleton argument of Mr Thomas, counsel for the appellant, are these:
"(i) The imposition of an Anti-Social Behaviour Order ("
ASBO") based on hearsay evidence in the form of statements and public record when there had been no application to adduce the evidence under the Magistrates' Court (Hearsay Evidence in Civil Proceedings) Rules 1999 [to which I shall refer as the rules] amounted, in the circumstances of this case, to an error of law. (ii) The wording of Clause 2 of the Order offends the principle that an ASBO should be capable of being understood and complied with, and this amounts to an error of law."[5]I turn to the case. Paragraph 1 records that the Justices found the following facts:
"a. Almost all of the Respondent's evidence in the proceedings consisted of hearsay evidence. b. This evidence was served on the Appellant's solicitors on the 11th September 2006, more than 21 days before the hearing. c. The Appellant's representative was aware that most of this evidence was hearsay and the general sources of this evidence. d. No formal hearsay notice was served on the Appellant or lodged with the court. e. The appellant was in possession of drugs and was responsible for anti-social behaviour towards his neighbours."
Staying within the four corners of the case the nature of the hearsay evidence appears to have been as follows: people making complaints about the appellant, of whom there were a number, were afraid, so they were not identified in the witness statement produced by the police officer dealing with the matter. The source for that observation is paragraph 3 of the case where just that point appears to have been canvassed before the Justices on the part of the respondent.[6]In short, it may be inferred that all, or certainly the essence of the evidence before the Justices, came from anonymous complaints. There would also appear to have been evidence of meetings of residents which were recorded by the local council. Those meetings contained other, or further, complaints against the appellant. He was not present during the course of those meetings.[7]With regard to the admissibility of the hearsay evidence without a notice complying with the rules or the Act, the Justices underlined the fact that the appellant was fully aware of the nature of the evidence in question, his representatives having received it a month before the hearing. In the circumstances, the failure to serve a notice was procedural and the interests of justice would not be served by an adjournment "merely to allow the formality of service" of a hearsay notice. It was right to proceed to hear the application forthwith and to admit the hearsay evidence. There was no prejudice to the appellant in so doing.[8]The questions as stated for the court are these:
"(i) Whether it amounts to an error of law to have imposed an anti-social behaviour order based on hearsay evidence in the form of statements and public record when there had been no application to adduce the evidence under the Magistrates' Courts (hearsay evidence in civil proceedings) Rules 1999. (ii) Whether clause 2 of the order amounts to an error of law in that it offends the principal that the order should be capable of being understood and complied with by the defendant?"
[9]In his submissions before this court today Mr Thomas, for the appellant, who did not appear before the Justices, developed his argument as follows: taking question 2 and clause 2 of the ASBO first, his submission was straightforward. He said that the drafting of the order was such, whatever the intentions of the Justices might have been, that he was prohibited from knowingly associating with any person committing a criminal offence. The Justices may have intended to prohibit him from associating with those whom he knew were committing a criminal offence, but that is not what the clause in the event provided. As Mr Thomas pointed out in his skeleton and before this court in argument, on the reading of the clause for which he contended, where the appellant is stopped in the company of two friends, one of whom was found to be in possession of a knife and therefore committing the offence of possession of a bladed article, the appellant, though he had no knowledge of this, would be in breach of the ASBO as he was knowingly associating with that person. That example could, of course, be multiplied.[10]Mr Thomas referred to authorities such as DPP v T [2007] 1 WLR 2009, especially at paragraph 41, and R v McGrath (2005) 2 Cr App R (S) 85, which underline the fact that prohibitions in ASBOs should be clear and unambiguous; by contrast clause 2 here was far too broad and was incapable of being properly observed by the appellant.[11]As to ground 1 of the appeal and question 1 in the case, the complaint is not that the evidence was admitted, it is instead that it was an error of law to impose an ASBO when the requirements of the Civil Evidence Act 1995 (the Act) and the rules had not been complied with. Pausing here, it is convenient to turn to the Act at this stage. Section 1 of the Act provides that in civil proceedings evidence shall not be excluded on the grounds that it is hearsay. Section 2 provides for safeguards in relation to hearsay evidence. Subsection (2)(1) of the Act provides for the giving of notice of the proposal to adduce hearsay evidence, and such particulars of, or relating to the evidence, as is reasonable and practicable in the circumstances.[12]Subsection 2(4) of the Act provides that a failure to comply with subsection (1), or with rules of court made pursuant to the statute, does not affect the admissibility of the evidence but may be taken into account by the court:
"(a) in considering the exercise of its powers with respect to the course of proceedings and costs, and (b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4."
Section 4 provides a number of considerations relevant to the weight to be given to hearsay evidence.[13]So far as concerns the rules, rule 3 deals with hearsay notices and, in particular, rule 3(4) provides that a hearsay notice must:
"(d) identify the hearsay evidence; (e) identify the person who made the statement which is to be given in evidence; and (f) state why that person will not be called to give oral evidence."
[14]Building on that foundation, Mr Thomas said there had been a failure to produce a notice in accordance with the Act and the rules, and in consequence of that failure no consideration had been given as to why the unidentified witnesses were unwilling to come and give evidence. No consideration had been given as to such special measures, as might have been taken to deal with that problem, and no consideration had been given to matters of weight. The procedural error of not requiring a notice under the Act and the rules had led, he submitted, to substantive errors.[15]For the respondent before this court today, Mr Meikli, instructed as he was at the last minute, valiantly sought to defend cause 2. He will forgive me if I do not take time detailing his arguments, but he struggled manfully to uphold the justification for that prohibition. So far as prohibition 1 was concerned, Mr Meikli's submission was itself straightforward. He said the complaint was about notices. The reasoning of the Justices was unimpeachable. He supported it. There had been no error of law in that regard.[16]I take, first of all, the complaint as to question 2, the prohibition 2 in the ASBO. In my judgment Mr Thomas, in his criticism of prohibition 2, was plainly right. 1. I am inclined to the view that Mr Thomas' construction of clause 2 was correct given the location of the word "knowingly" in the prohibition. It may well be that the prohibition is not to knowingly associate with those whom, whether or not the appellant knew it, were engaged in committing, or attempting, or conspiring to commit any criminal offence. Even if Mr Thomas is not correct in that construction, there is a very real risk that he might be, and that is bad enough. 2. It follows and it would be an unintended consequence of the Justices' order, that if the appellant was knowingly associated with friends, or others, whom unknown to him had, for example, a bladed article in a public place, or cannabis in their possession, or were formulating a conspiracy, he would be at risk of very serious consequences. That was manifestly not what the Justices intended, but that, however unintended, is a risk of the prohibition as it stands. 3. As has been repeatedly stated, the terms of any prohibition in an ASBO should be precise, clear and certain. They should also be no wider than necessary. Even if the clause was to be construed, as the Justices intended, it would still be subject to the criticism that the prohibition called for an exercise in value judgment on the part of the appellant, who, might have to take an instant decision as to whether those with whom he was associated were in the process of attempting to commit a crime, or had reached a stage where they were engaging in a conspiracy. That cannot be right, even on the construction which the Justices clearly intended.[17]In those circumstances it seems to me that a clause of this nature is to be avoided just as, if for not entirely the same reasons, prohibitions in ASBOs as to the commission of criminal offences are to be avoided. In my judgment this clause cannot stand. The answer to question 2 in the case is, in my judgment, yes.[18]I turn to question 1 in the case. This is not nearly so straightforward and as was apparent in the course of argument, it troubled this court very considerably. I seek to express my opinion on question 1 in, I hope, precise terms.(1) The complaint at the time before the Justices and as contained in the case goes and only goes, to the notice requirements of the Act and the rules. That is the gravamen of the complaint, as it was before the Justices, as can be seen from the argument addressed to them and as it featured in the case before this court.(2) On that basis nothing I say should lend support to the notion that the requirements of the Act and the rules are mere formalities or technicalities. So much is certainly clear from the authority, to which Mr Thomas helpfully referred us, R v W and Another [2007] 1 WLR 339, especially at paragraphs 37 and 38. Had those concerned with the prosecution of this matter, or the Justices, taken just a little longer over this matter, it would have been time well spent. The course followed, though it may have saved time and expense then, has, on any view cost time and money now, and it is not a course which I would, for a moment, wish to commend.(3) The question nonetheless arises of whether, based on the criticism of the failure to follow the notice requirements, the complaint is justified that there was here an error of law in proceeding absent the formal notices. I am not on the particular facts of this case (and I underline the gravamen of the complaint then and now) persuaded that there was such an error of law and that the decision taken by the Justices was one to which they could not reasonably have come. The reason in essence for that conclusion is that a month before the hearing the substance of the evidence was provided to the appellant's representatives.[19]Against that background, and keeping a firm grip on the argument before the Justices - I underline again Mr Thomas was not there - it was understandable that the Justices should say that it would not have been in the interests of justice to adjourn, merely for the formality of the service of a notice. On the argument before them the Justices cannot be said to have erred in law in concluding that there was no prejudice to the appellant in proceeding. I underline still further that there appears to have been no argument before the Justices as to the questions, which Mr Thomas sought to canvass today, namely, the availability of special measures directions, what steps might have been taken to identify the witnesses whose anonymous evidence formed the basis of the ASBO and moreover there appears to have been no, and certainly no detailed, issue raised with the Justices as to how they should approach such evidence in terms of complaint.[20]Therefore, although for my part, I could not commend the manner in which this matter proceeded, I would not be prepared to say that there was a question of law on which the Justices had erred. For that reason, for my part, I would answer question 1 in the case "no".[21]All that said I add this: lurking in the background, but not before this court today, was a far more fundamental question as to the appropriateness of proceeding to make an ASBO when the crucial evidence comes from anonymous witnesses. The answer to that question may well not be straightforward, as can be seen from the efforts of the criminal courts to grapple with just such problems, in particular, in cases where witnesses do not wish to appear through fear.[22]Save to underline that that is a problem of gravity and which no doubt will fall to be addressed in an appropriate case, it would not be right for me to say anything further, when that problem and the necessary underlying facts, did not arise before the magistrates here and have not been canvassed in the case. In short, therefore, as already indicated, I answer question 1 on the facts of this case no, and question 2 yes.

LADY JUSTICE SMITH:

[23]I agree that the answer to question 2 is yes, for the reasons given by my Lord. The scope of this appeal was limited to the question posed within the case stated, namely whether it amounted to an error of law to have imposed an ASBO based on hearsay evidence, when there had been no application to adduce that evidence under the Magistrates' Court (Hearsay Evidence in Civil Proceedings) Rules 1999. In my view the answer to that question is no, for the reasons given by my Lord.[24]During the hearing it emerged that all the evidence relied on in making the ASBO in this case was not only hearsay, but anonymous hearsay. However, the question was not raised by the request to state a case, nor in the case itself, whether it was lawful to make an ASBO based solely on hearsay evidence comprising statements made by unidentified people. This seems to me to give rise to an extremely important point, but it is not before this court. If an ASBO is ever made based on such evidence in the future, the issue will, no doubt, be brought before another division of this court, but that will be on another day.[25]Thank you both very much. The appeal is allowed in part, as we have indicated in the judgment, in that clause 2 of the order is quashed.

LADY JUSTICE SMITH: Is there any other application? Thank you very much. Can we check this case has been listed as "M" anonymized, as the appellant was 17 at the time.

[27]MR THOMAS: He is still 17.

LADY JUSTICE SMITH: In that case anonymization will remain in place. If, by any chance in the course of the hearing, we have given any indication of his real name, no publication must be made that could reveal his identity.