NO: CO/4661/2001
Neutral Citation Number: [2002] EWHC 244 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2

Tuesday, 12th February 2002
B e f o r e:

LORD JUSTICE SIMON BROWN

and

MR JUSTICE SCOTT BAKER

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S

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POOLE BOROUGH COUNCIL

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Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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MR J GAU (instructed by Turners) appeared on behalf of the Claimant
MRS B BATH (instructed by Legal Services, Poole Borough Council) appeared on behalf of the Defendant

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J U D G M E N T

1.	LORD JUSTICE SIMON BROWN: This is an appeal by way of case stated against the order of the Bournemouth Crown Court -- Judge Beashel and two lay justices -- made on 16th March 2001, dismissing the appellant's appeal against a two-year, anti-social behaviour order (hereafter “ASBO”) made against him by the district judge at the Poole Magistrates' Court on 3rd August 2000. The appellant was born on 17th July 1984 and so is now aged 17. At the time of the events in question he was aged 14 or 15.
2.	ASBOs were introduced into the armoury of the law by section 1 of the Crime and Disorder Act 1998, which, so far as presently material, provides:
“1(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely-
“(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;
“and in this section 'relevant authority' means the council for the local government area or any chief officer of police any part of whose police area lies within the area.
“(2) A relevant authority shall not make such an application without consulting each other relevant authority.
“(3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the place where it is alleged that the harassment, alarm or distress was caused or was likely to be caused.
“(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 (an 'anti-social behaviour order') which prohibits the defendant from doing anything described in the order.”
“(7) An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.” 
3.	I need read no more.
4.	The order made by the magistrate and upheld by the Crown Court was in these terms:
“It is adjudged that the Defendant acted in the following manner, which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself:
“1. Persistent abusive and intimidating behaviour towards elderly residents at Hope Court and Stanfield Close, Poole, causing them fear and distress.
“2. Persistent unruly behaviour and damage to property leading to verbal abuse and threats of violence and intimidation of staff, pupils and visitors to Martin Kemp Welch School and Leisure Centre site.
“3. Consistent display of anti-social behaviour leading to the intimidation of staff and customers at the Dillons Store, 97 Melbury Avenue, One Stop, 184 Herbert Avenue, Poole (formerly known as Dillons) and Alldays, 36 Rossmore Road, Poole.
“And it is further adjudged that this Order is necessary to protect persons in the following Local Government area(s) of Poole from further anti-social acts by him.
“And it is ordered that the Defendant is prohibited from:-
“1. Entering on the grounds or premises of the Martin Kemp Welch School or Leisure Centre site.
“2. Loitering outside or entering premises known as:-
“(a) One Stop, formerly known as Dillons, 184 Herbert Avenue, Poole.
“(b) Alldays, 36 Rossmore Road, Poole.
“3. Causing a nuisance or disturbance or loitering outside of:
“(a) Hope Court, 198 Herbert Avenue, Poole.
“(b) Stanfield Close, Poole.
“4. Using threatening, intimidating or other such behaviour likely to cause alarm, distress or harassment, or inciting or encouraging others to do so within the Poole area.
“5. Causing or attempting to cause vandalism or damage to property within the Poole area.
“Until (... 03.08.2002 ... )” 
5.	It will be seen from the order that part of the appellant's misbehaviour was found to have occurred at Martin Kemp Welch School, a school from which we are told today that he had been excluded, and indeed the order as made prohibited him from entering those premises.
6.	On the same date as the respondents applied for the ASBO, 21st March 2000, they also laid informations against him in respect of a number of offences under section 547(1) of the Education Act 1996. That section provides:
“Any person who without lawful authority is present on premises to which this section applies and causes or permits nuisance or disturbance to the annoyance of persons who lawfully use those premises (whether or not any such persons are present at the time) is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.” 
7.	On 15th May 2000, before therefore the ASBO was made, the appellant was convicted in the Central Dorset Youth Court on his own pleas of guilty to five such offences contrary to section 547(1), for which fines totalling £50 were imposed, payable at £5 per week for ten weeks by the appellant's father, RS, who was bound over. All five offences occurred in October 1999. The relevance of that to the present appeal will shortly appear.
8.	Rather than setting out the facts found by the court in the conventional manner, the case stated instead annexes Judge Beashel's judgment, given on 16th March 2001, a judgment which was plainly extempore and covers some eight and a half pages of transcript. For present purposes, I can adequately summarise the facts found as follows. According to a large body of evidence before the Crown Court (which heard this case for two days, as had the district judge before them), the appellant was one of two main ringleaders of a group of some ten to 15 youths regularly gathering in the Poole Borough area. For a period of nearly 18 months, starting in about November 1998 and continuing up until March 2000, this appellant, his fellow ringleader and the group as a whole had repeatedly engaged in anti-social behaviour. There was a wealth of general evidence, both direct and hearsay, to that effect. The conduct in question included shouting, swearing, spitting, threats, intimidation, criminal damage, theft and general boorishness of the worst and most offensive kind. That said, the judgment condescends to a detailed account of only some six or seven specific occasions, three of them occasions which had already been the subject of section 547 proceedings. It is sufficient to give one example of a school incident and one of a non-school incident.
9.	One of the school incidents occurred on 5th November 1999, this, be it noted, albeit the subject of a criminal summons, did not in the event lead to a conviction; rather, on this particular summons, the prosecution offered no evidence and it was accordingly dismissed. At the Crown Court two witnesses gave evidence as to what happened at the school on that occasion. The school's site manager described the appellant as being aggressive towards pupils, disrupting a class, spitting at pupils through the window, refusing to leave and being verbally abusive. One of the teachers takes up the story from that point and describes the appellant and another youth shouting, spitting in at the windows, throwing dirt through the windows and verbally abusing the teacher by telling him to “fuck off” and so forth, and the class being severely disrupted by the incident.
10.	By way of non-school-based activity, I will simply quote the judgment's summary of the evidence of a Mrs James, evidence which the court plainly accepted. She had formerly been supervisor at the One Stop store and described all sorts of misbehaviour:
“She said that this group of local youths had threatened the staff, they stole, they caused damage, eggs were thrown at the shop windows, customers were spat at and had their way blocked by the youths, and the intimidation was so bad that, on some occasions, the store had to be closed. [The judgment then indicates where this witness's statement is to be found.] She told us that, having had a lot of dealings with this group and having observed them for some long time (and her statement was made exactly a year ago), she believed that there were two main ringleaders [and then she names the other one and this defendant]. She told us how she would see younger children, who had previously been well-behaved and polite, take up with these two and suddenly change in their attitude towards the staff, becoming rude and disorderly.
“She told us how they would harass the staff, causing damage to the store, and on one occasion the group pulled all the shutters down on the outside of the store preventing the customers inside from leaving, threw eggs, spat at customers, blocked their way and the store had to be closed.
“She described an incident on 8th March when the group, including [the other ringleader] and the defendant, were outside the store throwing plastic bins and signs at the windows, they also tried to remove a pane of glass, and their behaviour was so brazen, she said, that, no matter how many people were around, they still continued with their actions and were abusive and threatening to anyone who tried to remonstrate with them.
“In cross-examination, Mrs James told us that, at first, the defendant was a perfectly nice young man and that [the other boy] was the ringleader, but gradually the defendant behaved in the way she has described. She said that, so far as 8th May was concerned, she was there that night. She said that the defendant was there and was causing a disturbance, 'although I cannot say particularly what he was doing, but in another instance I could'.” 
11.	Having in this and other such passages thus summarised much of the direct, eye-witness evidence, the judgment continues as follows:
“There was a great deal more evidence. The police officers had set up a team to concentrate on the problem in the locality. Inspector James gave evidence before us, and told us how, over the six months up until July [1999], two youths in particular had caused a particularly serious problem, being [the other ringleader] and this defendant. The police kept a log of all reported incidents involving the two of them, which is to be found in our bundle of documents, and we referred to a letter that was sent to the defendant's parents telling him that, if his behaviour was no better, an application would be made for an ASBO.” 
12.	The judge then observed how it was perfectly true that there was a great deal of hearsay, if not double hearsay, involved in aspects of the evidence, but he described it as “extremely useful background” and said that the court was:
“Concentrating on the real issues that we have found proved on the criminal standard of proof.” 
13.	In conclusion, the judgment made plain that they were satisfied to that same standard on both limbs of section 1 of the 1998 Act and concluded:
“We consider that the behaviour of this defendant was serious behaviour. We consider his behaviour to be appalling, and we think this Act was brought in to deal with this very sort of troublemaker. We have no hesitation in dismissing the appeal and confirming the order made by the learned district judge on 3rd August last year.” 
14.	I can now return to the case stated, which formulates three questions for the opinion of this court as follows:
“i. Whether it is proper for the identical facts relied on by the Respondent in a Criminal Prosecution for nuisance under the Education Act 1996 to be relied on at a later date by the Respondent in a civil hearing under the Crime and Disorder Act 1998, which hearing is intended to be an alternative procedure to any criminal prosecution?
“ii. Whether as a matter of law the facts found proved by the Court could reasonably be described as Anti Social Behaviour under Section 1 of the Crime and Disorder Act 1998?
“iii. Whether as a matter of the law on the facts found proved whether the Court could reasonably be satisfied that such an Order was necessary?” 
15.	We will now address those three questions briefly and in turn. The reference in question i to the 1998 Act being “intended to be an alternative procedure to any criminal prosecution” I understand to be a reference to two paragraphs in the Master of the Rolls' judgment in The Queen on the Application of McCann v Manchester Crown Court [2001] 4 All ER 264, the case which decided that section 1(1) proceedings for an ASBO are civil proceedings both under the domestic law and for the purposes of Article 6 of the European Convention on Human Rights. The two paragraphs in question are these, at page 271:
“18. The Home Office has published a guidance document which, it emphasises, is non-statutory and should not be regarded as authoritative legal advice. This includes the following commentary:
'The order making process itself is a civil one akin to that for an injunction. The order is aimed at deterring anti-social behaviour and preventing escalation of the behaviour, without recourse to criminal sanctions. Breach of the order, however, is a criminal offence. The process is not suitable for private disputes between neighbours (which are usually civil matters), but is intended to deal with criminal or sub-criminal activity which, for one reason or another, cannot be proven to the criminal standard, or where criminal proceedings are not appropriate. The orders are not intended to replace existing criminal offences, for example in the Public Order Act 1986, but there may be circumstances where they provide alternative means to deal with such behaviour.'
“19. It may be that Lord Woolf had this passage in mind when he spoke of an object of the legislation as being to make anti-social behaviour easier to prove. It may be that he had in mind the legislative history. No evidence has been put before us in relation to this, but it is apparent from the Act itself that its purpose is to adopt a novel method of attacking anti-social behaviour. It can properly be implied that the reason for so doing was that the existing provisions of the criminal law were not proving adequate for this purpose.” 
16.	Basing himself on those paragraphs, I understand Mr Gau to be submitting that, because some at least of the incidents relied upon as part of the evidence in support of the ASBO had already produced convictions under the Education Act, they could not properly found part of the material supporting the making of the order. I see no warrant whatever for that submission. It seems to me perfectly proper to use the same material to found a criminal conviction and then in a civil process to support the making of an order akin to an injunction. Indeed, it would seem to me positively eccentric to have omitted reference to part of the conduct which undoubtedly contributed to the public mischief when it came to seeking to deter it in future.
17.	Question ii I can deal with yet more briefly. The answer to it is in my judgment a resounding and emphatic “yes”. If the appellant's conduct, as described by the various witnesses, was not such as to cause or be likely to cause harassment, alarm or distress to others within the meaning of section 1(1)(a) of the 1998 Act, it is difficult to see what would be. The Crown Court described the appellant's conduct as “appalling”. So it was. The appeal in this regard seems to me an impertinence.
18.	Question iii strikes me as no less easily answered. Mr Gau suggests that the Crown Court, having found section 1(1)(a) proved, did not then go on to ask itself whether section 1(1)(b) also was proved, whether in short it was proved that an ASBO was necessary. His contention is that the Crown Court imposed the order, or rather upheld the order, by way of “punishment for historical behaviour”. Mr Gau's argument in this regard I understand to be based essentially on the fact that the last incident of misbehaviour relied upon by the applicant authority occurred in March 2000, just before the application was made, and nothing had been alleged, let alone proved, against the appellant between then and 3rd August, when the district judge originally made the ASBO, let alone between then and the date of the Crown Court hearing some seven and a half months later.
19.	With the best will in the world, that to my mind is a hopeless argument. It must be expected that, once an application of this sort is made, still more obviously once an ASBO has been made, its effect will be likely to deter future misconduct. That, indeed, is the justification for such orders in the first place. It would be a remarkable situation were a defendant, against whom an order has rightly been made, then able, on appeal to the Crown Court, to achieve its quashing because in the interim he has not disobeyed it; rather the very effectiveness of such an order would to my mind justify its continuance. The conduct on which the Magistrates' Court and in turn the Crown Court should concentrate on determining whether such an order is necessary is that which underlay the authority's application for the order in the first place. To my mind, indeed, it would have been surprising here had the Crown Court not been satisfied that this order was necessary and that its continuation was justified in the particular circumstances of this case.
20.	It follows that I would answer all three questions in the affirmative and would unhesitatingly dismiss this appeal.
MR JUSTICE SCOTT BAKER: I agree.
LORD JUSTICE SIMON BROWN: Now, Mrs Bath, are there any consequential orders to be sought?
MRS BATH: My Lord, yes, I would ask for my costs of this appeal.
LORD JUSTICE SIMON BROWN: Any resistance to that, Mr Gau?
MR GAU: My client is a legally aided 17-year old under a representation order.
LORD JUSTICE SIMON BROWN: That makes your application somewhat difficult, does it not?
MRS BATH: My Lord, yes. I would ask for the usual order.
LORD JUSTICE SIMON BROWN: You want a football pool order, do you?
MRS BATH: My Lord, yes. He is 17. One expects that he will be 18 shortly and he will enter the working world and have some money in due course.
MR JUSTICE SCOTT BAKER: So you want an order for costs not to be enforced without further order?
MRS BATH: Please, my Lord.
LORD JUSTICE SIMON BROWN: Yes, Mr Gau. Can you resist an order in those terms? 
MR GAU: No, my Lord, not with such a low reference from Mrs Bath.
LORD JUSTICE SIMON BROWN: Very good. Do you seek a legal aid taxation?
MR GAU: I do, my Lord.
LORD JUSTICE SIMON BROWN: Yes, you may have it.
Mr Gau, I do not want to be tiresome but I do, with respect, think that, before you raise such points as you sought to raise at the outset, you really ought to be very clear indeed that they are soundly based and not just pulled out of a hat without reference to the case stated, except for a very compelling reason.
MR GAU: My Lord, I agree. I apologise.