McGarrett, R (on the application of) v Kingston Crown Court [2009] EWHC 1776 (Admin)

[2009] EWHC 1776 (Admin)

Case No CO/11736/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 8th June 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE PILL

MR JUSTICE CRANSTON

Between

THE QUEEN ON THE APPLICATION OFClaimant

JOSEPH MCGARRETTClaimant

Between

KINGSTON CROWN COURTDefendant

Computer-Aided Transcript of the Stenograph Notes of

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(Official Shorthand Writers to the Court)

Matthew Feldman (instructed by HCL Hanne & Co) appeared for Claimant

for The Defendant was not represented and did not attend

J U D G M E N T

LORD JUSTICE PILL: Cranston J will give the first judgment.

MR JUSTICE CRANSTON: Introduction

[3]This is an application for judicial review in relation to an anti-social behaviour order ("Asbo"). The claimant challenges the decision of the Kingston Crown Court in September 2008 to impose an indefinite anti-social behaviour order. It is said that the imposition of the order, in the circumstances of this case, falls outside the broad area of the Crown Court's sentencing discretion. It is also contended that the reliance of the Crown Court on disputed written allegations in making the Asbo was wrong and that the reasons given by the court were wrong in law. Background

[4]The background is briefly this. The claimant has been a tenant at 20 Crestway in South West London since the middle of 1996. He originally lived there with his wife, Carol, to whom he was married for 25 years, and his two daughters. Tragically, Carol died in 2004 and, as the claimant himself concedes, he went off the rails at that point. In early 2007 he met his current wife, Rachael, and in July that year they were married.

[5]In January 2007 at the Wandsworth County Court the Wandsworth County Council ("the Council") issued proceedings for possession of the premises based on allegations of nuisance and annoyance over the years 2004 to 2006. On 10th May 2007 the County Court made a postponed possession order of 1 year's duration. The conditions imposed on the claimant were that he was not to cause or commit, or to permit visitors to cause or commit, conduct causing a nuisance or annoyance to residents in the neighbourhood. Nor was he to cause or commit or permit visitors to use threats or intimidation towards either the employees of the Council or residents in the neighbourhood.

[6]Subsequently, on 6th November 2007, the Council applied for an order that the date be fixed for the claimant to give up possession of the premises on the basis of alleged breaches of that postponed order of May. Eventually the matter was heard at the Wandsworth County Court in early December 2008. There was a contested hearing in which the Council relied on six principal allegations. The County Court found two allegations to be proven. They were, first, that on 21st May 2007 there was an altercation between the claimant and his two daughters in the street and, secondly, that there was a wedding reception on 21st July 2007, which was accepted to be a breach of the postponed possession order of May 2007. The other four allegations were not proved to the civil standard. As a result of those proceedings, the order of May 2007 was extended until early January 2010.

[7]Meanwhile, in July 2007 the wedding reception to which I have just referred had taken place. On 7th July 2007 the claimant had sent a letter to the Council and to his neighbours saying that he was proposing to have a wedding reception at the premises on 21st July 2007. In response to that the Council served on him, on 10th July 2007, a noise abatement notice. That was a notice issued under section 80 of the Environmental Protection Act 1990 prohibiting "shouting, arguing, loud noise and cheering". Notwithstanding that noise abatement notice, the claimant went ahead and the wedding reception occurred on 21st July 2007.

[8]In February 2008 the Council prosecuted the claimant in relation to six offences of failing to comply with that noise abatement notice. There was a trial at the South Western Magistrates' Court in May 2008. The claimant was acquitted of all charges except that relating to the wedding reception on the 21st July. He was sentenced to a fine of £75, a victim's surcharge of £15 and costs of £275. He appealed to the Crown Court against conviction.

[9]The appeal was heard on 4th and 5th September 2008 at the Crown Court in Kingston, sitting at Wimbledon. The appeal was heard by His Honour Judge Fergus Mitchell and two justices. The hearing began with an application on behalf of the Council to introduce evidence of bad character in relation to the claimant. The judge ruled that that evidence could be admitted, not as bad character evidence, but as background to the alleged breaches of the noise abatement notice. At the end of the hearing, the case against the claimant was found to be proved and he was sentenced to a fine of £75, a victim surcharge of £15 was imposed, and he was ordered to pay costs of £290.

[10]After the learned judge had given judgment he introduced, for the first time, the possibility of making an anti-social behaviour order in relation to the claimant. From the transcript, this seems to have come as some surprise to counsel appearing for the Council. The judge was entitled to consider an anti-social behaviour order on his own initiative, as I shall describe.

[11]The learned judge said that he had read the statements and he had no difficulty, in particular, in accepting what one of the witnesses, a Mrs Lang, who was a neighbour, had said at the end of her statement. That was to the effect that in August 2007 she had been walking up a street in the immediate neighbourhood with her granddaughter and her daughter. The claimant, his wife, his daughter and another girl "were walking along the road towards us". As the claimant approached Mrs Lang, he had looked directly at her and said she would soon be dead. The learned judge said of that statement:

"I ignored this for the purpose of these hearings, that he, in August of last year, made a threat to the witness. I want the Council reminded if there is the slightest hint of that, and I want the police reminded, who do not seem to bother to do anything about this sort of appalling behaviour, because there is a section of the Criminal Justice and Public Order Act, namely section 51, which is taking revenge."

[12]There was further discussion of the sentence to be imposed. Counsel for the claimant, Mr Feldman, who appears for him today, informed the court that there was the extant possession order and active proceedings in the County Court. Mr Feldman went on to submit to the learned judge that the relevance of those proceedings was that there was already a sanction on the claimant's behaviour, ultimate eviction from the property. Mr Feldman also submitted that there had been no allegations of bad behaviour by the claimant for the 9 months prior to the hearing. Mr Feldman pointed out that Mrs Lang had not given evidence in relation to the part of her statement to which I have referred.

[13]Nonetheless, after further discussion, the learned judge gave a short judgment in relation to penalty. In the course of that he turned to whether or not an Asbo should be imposed. He said:

"This case is a complete and clear example, in our view, of a person who does not listen, who is given a warning, is asked nicely by people, they complain. I got the feeling — it is only a feeling, it is not substantiated — that he has probably got some sort of tie-up with somebody in the local authority, because somebody came along that night and knocked on the window. They had got wind of a complaint, I have no doubt. But I do not need to go further into that."

He went on to reiterate that in his view the claimant took no notice of things: he had been told not to have the wedding reception, but had nonetheless gone ahead with it.

[14]The learned judge then went on to discuss the terms of the Asbo that he had drafted. There was a final remark by the learned judge about the uncertainty as to where the claimant would be living in the future:

"... because if Wandsworth do not get on and do something about it, he may be there for some time, whether he wants to go or not, until further order."

Thus, the Crown Court imposed an Asbo. The terms of that Asbo are as follows:

"1. Not to cause loud noise within the premises 20 Crestway, London, SW15 5BY or within 150 metres of those premises. 2. Not to contact directly or indirectly the named parties: Mrs Ann Lang Mrs Gunersacera Mr Keith Sullivan in connection with completed case in the proceedings in Wandsworth County Court. 3. Not to place any amusement facility, including swimming pools, trampolines or barbecues on the grass enclosed by Number 42 Crestway and, and to (sic) 20 Crestway."

[15]The claimant issued an application for judicial review in September 2008 seeking a quashing order in relation to the Asbo or its variation. Permission was granted by Dobbs J in February 2009. The Crown Court has filed an acknowledgment of service in which it says, not surprisingly, that it does not intend to make submissions to the court. The respondent in the Crown Court, the Council, has not appeared before us today. The law

[16]There are three broad areas of law relevant to our considerations. The first relates to the abatement notice itself. That was issued under section 80(1) of the Environmental Protection Act 1990 ("the 1990 Act") under which a local authority, if satisfied that a statutory nuisance exists, or is likely to occur or recur, may serve a notice requiring the abatement of that nuisance or prohibiting or restricting its occurrence or recurrence. Where a local authority is satisfied that a statutory nuisance falling within section 79(1)(g) of the 1990 Act exists is or is likely to recur, in other words, noise which is prejudicial to health or is a nuisance, the authority may take steps for the purpose of persuading the appropriate person to abate the nuisance or to prohibit or restrict its occurrence or recurrence. Under section 80(4) of the Act, if without reasonable excuse a person contravenes or fails to comply with any requirement or prohibition imposed by an abatement notice, that person is guilty of an offence.

[17]The second area of law relates to our powers. This case comes to us under section 29(3) of the Supreme Court Act 1981, which provides that the Crown Court is susceptible to judicial review, except in matters relating to trial on indictment. Thus a person sentenced by the Crown Court on appeal from the Magistrates' Court can apply for judicial review.

[18]The jurisdiction of this court to interfere with sentences imposed by the Crown Court is governed by principles established in a series of cases. In the seminal decision of R v St Albans Crown Court, ex parte Cinnamond

[1981] QB 480

Donaldson LJ said that an applicant had to show that the sentence "is so far outside the normal discretionary limits as to enable this court to say that its imposition must involve an error of law of some description" (page 484 E-F). Watkins LJ, in R v Crown Court at Croydon, ex parte Miller

[1987] 85 Cr App R 152

, emphasised that this court would only interfere with a sentence where the court had acted in excess of jurisdiction or otherwise wrongly in law. The law was succinctly summarised in R v Truro Crown Court, ex parte Adair [1990] COD 296:

"It was clearly established by earlier cases, in particular R v St Albans Crown Court, ex parte Cinnamond and R v Crown Court at Croydon, ex parte Miller, that judicial review did not offer a backdoor means of appeal against the sentences imposed by the Crown Court on appeal from justices. It was nonetheless recognised by those authorities that there came a point at which a penalty was so far outside the reasonable range of penalties as to be indicative of a manifest error of law. Per Lord Bingham of Cornhill CJ: 'The court has on previous occasions suggested a test of whether the sentence in question is regarded by any acceptable standard as truly astonishing. I would, for my part, question whether that is an ideal test since some people are more readily astonished than others and it would appear to be a somewhat subjective approach. It would perhaps seem more helpful to ask the question whether the sentence or order in question falls clearly outside the broad area of the lower court's sentencing discretion'."

[19]The third area of law relevant to our considerations is the Crime and Disorder Act 1998. Under section 1(7) of that Act provision for anti-social behaviour orders, Asbos, is laid down. An Asbo takes effect for a period of not less than 2 years, as specified in the order, and breach of that is an offence triable either way. Section 1C of the 1998 Act provides that where an offender is convicted of an offence, it is possible for an Asbo to be imposed where the court considers the offender has caused, or is likely to cause, harassment, alarm or distress to others and the Asbo is necessary to protect them from anti-social behaviour. Let me set out the exact terms of sections 1C(1) and (2):

"(1) This section applies where a person (the 'offender') is convicted of a relevant offence. (2) If the court considers— (a) that the offender has acted, at any time 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 an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him, it may make an order which prohibits the offender from doing anything described in the order."

[20]The nature of anti-social behaviour orders has been considered by the courts on a number of occasions. In R (McCann) v Crown Court at Manchester

[2003] 1 AC 787

the House of Lords held thatproceedings under section 1C are civil in nature, so hearsay evidence is admissible. Nonetheless, the House of Lords held that the court had to be satisfied to the criminal standard that a person had acted in an anti-social way. The House of Lords, at paragraph 37, explained that the test of necessity in section 1C requires the exercise of judgement and evaluation. It does not require proof beyond reasonable doubt.

[21]In R v Boness and Others

[2005] EWCA Crim 2395

[2006] 1 Cr App R (S) 120

Hooper LJ, giving the judgment of the Court of Appeal, Criminal Division, set out a number of important propositions in relation to Asbos: firstly, that an Asbo has to be precise and capable of being understood by the offender (paragraph 20); secondly, that following a finding that the defendant has acted in an anti-social manner, the test for making an order prohibiting the offender from doing something is one of necessity (paragraph 29); thirdly, that given the requirement that the order has to be necessary to protect persons from further anti-social acts by a person, the purpose of an Asbo is not to punish (paragraph 30); fourthly, that the court should not impose an order which prohibits a person from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent (paragraph 31); and, fifthly, that the terms of the order have to be proportionate, in the sense that it has to be commensurate with the risk to be guarded against. The importance of that last proposition demands that I set it out in full in this judgment:

"38. Not only must the court before imposing an order prohibiting the offender from doing something consider that such an order is necessary to protect persons from further anti-social acts by him, the terms of the order must be proportionate in the sense that they must be commensurate with the risk to be guarded against. This is particularly important where an order may interfere with an ECHR right protected by the Human Rights Act 1998, eg Articles 8, 10 and 11."

[22]In R v W and F

[2006] EWCA Crim 686

[2007] 1 WLR 339

Aikens J (as he then was), giving judgment for the Court of Appeal, Criminal Division, set out in a meticulous manner the principles which had emerged from the previous authorities. There is no need to reiterate them, except to underline the third principle that he identified, namely that the findings of fact giving rise to the making of an order have to be recorded by the court. In my judgement that third principle Aikens LJ annunciated represents a broader principle of procedural fairness.

[23]Finally, there is the recent case of R (F) v Bolton Crown Court EWHC 240 (Admin) in which Simon J discussed how the test of necessity demanded a consideration of the interaction between any existing order and the Asbo. Simon J said this at paragraph 13:

"The supervision order would include structured sessions to address his behaviour. Nothing had been said, when giving reasons for the imposition of the ASBO, about the necessity of an ASBO in addition to the supervision order and the curfew."

That, in my judgement, emphasises the need to take into account other orders to which a person is subject before imposing an Asbo. However, it may well be that even though other orders are in existence a court can still decide that an Asbo is necessary. The issue of the interaction of the Asbo and other orders must, however, be addressed. The claimant's submissions

[24]In his cogent submissions to us today, Mr Feldman said that this Asbo fell short, in terms of the law, such that it was clearly outside the broad area of a court's sentencing discretion. He contended that it ought to be quashed or, if not quashed, aspects of it should not be allowed to stand. In particular, he said that the claimant was convicted of a single offence of breach of the noise abatement notice, in that he held the wedding reception at his home on 21st July 2007, notwithstanding the Council having warned him against doing so in the noise abatement notice. Not only was there this single offence, but by the time of the hearing before the Crown Court, over a year later, in September 2008, no further offending had occurred. Inasmuch as there had been allegations by Mrs Lang in relation to what was said to be a threat to her in August 2007, that evidence had not been led before the Crown Court. In any event, Mr Feldman submitted to us, its shaky basis was demonstrated by the subsequent finding in December 2008 by the Wandsworth County Court that it could not be proved. Mr Feldman submitted, as well, that the reasons given by the learned judge for imposing the Asbo were inadequate. There was the allusion to the civil proceedings, but effectively the interaction between the Asbo and them was not properly explored. There was also what Mr Feldman described as the bizarre aside to the claimant colluding with someone inside the Council.

[25]Finally, Mr Feldman submitted that if we thought that the Asbo was justified, then the third clause, which was not to place any amusement facility, including swimming pools and trampolines, on the grass outside, could not be justified. He took us to passages, in the course of the evidence before the Crown Court, where the swimming pool and the trampoline had been mentioned. The claimant himself had explained how they had been erected. In Mr Feldman's submission, there seemed to be no finding that somehow these constituted anything approaching a nuisance. In summary, Mr Feldman submitted, the Asbo, on its face, was unclear and was disproportionate to the risk to beguarded against. Conclusions

[26]In my view, this indefinite Asbo imposed in September 2007 must be quashed. That follows, in my view, for two reasons: first, the making of the order breached the principle of procedural fairness; and, secondly, it seems impossible, in my view, for the Crown Court to have concluded that, in the circumstances of this case, an Asbo was necessary. To use the characterisation adopted by Lord Chief Justice Bingham (as he then was) in Adair, it is an order which is so far outside the reasonable range of orders as to be indicative of an error of law. In my view, it is impossible to justify it. It clearly falls outside the broad area of discretion which the courts accord a Crown Court.

[27]As far as procedural fairness is concerned, there can be no objection, in these circumstances, to the court taking the initiative to consider whether or not an Asbo should be imposed. The statute entrusts the court with that power, despite the fact that the prosecution had not advanced the case for an Asbo. However, the matter proceeded in a manner which breached the principles of procedural fairness. In particular, there were no findings of fact recorded by the learned judge in his judgment. Reading the transcript, it also seems to me that the learned judge did not put precisely to the claimant the concerns that he had in relation to the claimant's behaviour. Mr Feldman attempted to make submissions to the learned judge in relation to, for example, Mrs Lang's statement, but the judge seemed not to give them sufficient attention.

[28]In relation to the Asbo being justified in terms of necessity, I have no doubt that the claimant was, prior to this incident, not the best of neighbours. On his own admission, he went downhill after the death of his wife, Carol, and behaved in a way that could well be regarded as anti-social by those in the immediate neighbourhood. However, the last allegation was about the wedding party in July 2007, which was a year prior to the Crown Court hearing. As the judge seemed to accept in the course of the hearing, the party had finished at about 11.00 pm in the evening. It was, of course, in direct breach of the noise abatement notice issued by the Council. That, however, was the only breach. The claimant had given evidence that, after meeting his new wife, he had moved on and his life was now back on track. There was, of course, the altercation with the daughters in the street in May 2007, but that preceded this particular incident. There was the incident of August 2007, involving Mrs Lang, but the evidence in relation to that had not been led during the hearing. Nonetheless, the learned judge accepted it as fact. Subsequently, as I have said, it was not proved to have occurred in civil proceedings before the Wandsworth County Court.

[29]So by September 2008 there was only the allegation in relation to the wedding in July 2007. Moreover, there were the ongoing proceedings before the County Court. These involved the suspended possession order — suspended on the basis that the Council would not proceed to eviction so long as the claimant did not create a nuisance to his neighbours. For some reason the judge seemed to have thought that the Council would be slow in taking action to enforce that possession order. There seemed to be no evidence to that effect during the course of the hearing.

[30]In R (F) v Bolton Crown Court Simon J said that there had been no analysis in that case about the necessity of the Asbo when put alongside the suspension order and curfew. So, too, in this case there was no analysis of the necessity of the Asbo in the light of the suspended possession order and the deterrent effect which it was likely to have.

[31]In my view, Asbos are a useful part of the armoury for local authorities and other bodies in addressing anti-social behaviour by, as in this case, one of their tenants. However, the circumstances before the court in this case were such that an indefinite Asbo could not be justified. In my view, it must be quashed.

LORD JUSTICE PILL: I agree.

[33]Are there any applications?

[34]MR FELDMAN: My Lord, I am very grateful for the judgment. My Lord, simply in relation to costs, my client is publicly funded so I would ask for the usual order in relation to that.

[35]From the claim form it is clear that there is an application for costs, as well, in relation to this application for judicial review. I appreciate that the Crown Court is a public body, but make the application in any event.

LORD JUSTICE PILL: What are our powers?

[37]MR JUSTICE CRANSTON: Only very limited powers against a tribunal or court. Very, very limited powers.

[38]MR FELDMAN: My Lord, I must admit I was looking up the point last night and I could not actually find any particular provision on that, but I note that in R (F) v Bolton, in which the Asbo was quashed, that at the very end, at paragraph 16, Maurice Kay LJ asked the --

LORD JUSTICE PILL: That is public funding, not an order for costs inter partes.

[40]MR FELDMAN: My Lord, in that case, yes, the court simply makes an order for an assessment.

LORD JUSTICE PILL: If you cannot refer us to powers, our own impression is that we only have very limited powers, which we would not be prepared to exercise in this case.

[42]MR FELDMAN: My Lord, in that case it is simply a detailed assessment.

LORD JUSTICE PILL: You have your direction for assessment.

[44]MR FELDMAN: My Lord, I am grateful.