Case No: CO/5301/2004
Neutral Citation Number: [2005] EWHC 457 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 23 March 2005

Before :

LORD JUSTICE MAURICE KAY
MR JUSTICE MOSES
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Between :

	ASHLEY LONERGAN	Claimant	
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	(1) LEWES CROWN COURT
(2) BRIGHTON & HOVE CITY COUNCIL

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendants

Interested Party	

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(Transcript of the Handed Down Judgment of
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Alan Newman QC and Christopher Rodwell (instructed by Tremletts solicitors) for the Claimant
Timothy Otty (instructed by Treasury Solicitor) for the Interested Party

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Judgment
Lord Justice Maurice Kay : 
1.	On 18 August 2004 the claimant, Ashley Lonergan, was made the subject of an anti-social behaviour order (ASBO) by Brighton Magistrates Court.  He appealed to Lewes Crown Court, taking issue with one part of the order but his appeal was dismissed by His Honour Judge Niblett and justices on 4 October 2004.  He now applies for judicial review of the decision of the Crown Court, having been granted permission on 16 December 2004.
2.	The claimant is aged 19.  His history of anti-social behaviour is well established.  It gave rise to eight previous court appearances in relation to 33 offences.  Of those, twenty concerned car crime of one sort or another.  Many of the offences were nocturnal.  Surprisingly, he has never received a custodial sentence.  The event which finally gave rise to the making of the ASBO was another matter of driving whilst disqualified and without insurance.  The ASBO is to run for two years from 18 August.  It contains eleven prohibitions.  All but two prohibit behaviour which would embrace criminal acts.  Of the remaining two, one is in the form of a prohibition of association with certain named individuals.  The other, which is the sole point in issue between the parties, prohibits the claimant from
“Being in any place other than 30 Stephens Road, or 16 Brentwood Road or 41 Brentwood Road or 35 Hodshrove Road, Brighton (or any other address as directed by the Youth Offending Team), or moving between those addresses, between the hours of 11.30 p.m. and 6.00 a.m..”
In reality, that provision imposes a curfew, not as a sentence upon conviction as can now be done pursuant to section 37 of the Powers of the Criminal Courts (Sentencing) Act 2000, but as part of a civil order which is intended to be preventative rather than penal, but breach of which is punishable as a criminal offence.
3.	ASBOs were introduced by the Crime and Disorder Act 1998.  The material provisions of section 1 (as amended) are as follows:
“(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…..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 relevant persons from further anti-social acts by him.
(1A) In this section…. ‘relevant authority’  means – 
(a) the council for a local government area….
(3) Such an application shall be made by complaint to the magistrates’ court whose commission area includes the local government area…..concerned.
(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 by the order…
(6) The prohibitions that may be imposed ….are those necessary for the purpose of protecting persons….from further anti-social acts by the defendant.
(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.
(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.
(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order.”
4.	The criminal sanction for breach of an ASBO without reasonable cause is, on summary conviction, imprisonment not exceeding six months, a fine or both; and, on conviction on indictment, imprisonment not exceeding five years, a fine or both (section 1(10)).
5.	To complete the basic legal framework, in Regina (McCann) v. Crown Court at Manchester [2003] 1AC 787, [2002] UKHL 39, the House of Lords held that an application for an ASBO is civil rather than criminal in nature and that, accordingly, hearsay evidence is admissible under the Civil Evidence Act 1995 but, given the seriousness of the matter involved, the court should be satisfied to the criminal standard of proof that a defendant has acted in an anti-social manner before making an ASBO.  I shall have to return to McCann later.  Meanwhile it is appropriate to record that the anti-social acts which give rise to an ASBO need not necessarily amount to criminal acts (although they usually do) and the breach of the prohibition which constitutes the criminal offence under section 1(10) need not amount to any other criminal offence.  Thus, although the claimant would commit an offence under section 1(10)) if he were to associate with his named friends, mere association would not otherwise be criminal.
6.	On behalf of the claimant Mr Alan Newman QC submits that the prohibition in the nature of a curfew is unlawful.  He seeks to make two alternative points.  First, he says that a curfew is mandatory rather than prohibitory in nature and cannot therefore comply with section 1(4) and (6).  Secondly, he says that a curfew is tantamount to a penal sanction and, as such, is incompatible with the classification of ASBOs as civil rather than criminal.  Before considering these submissions, it is appropriate to make two preliminary observations: (1) This case is not unique.  The Home Office guidance to magistrates contemplates ASBOs which prohibit the subject “from being outside or in particular areas at certain times”.  We are told that ASBOs often include curfew-like provisions in reliance on the guidance, although, of course, that does not underwrite their lawfulness if, upon a proper construction, they are impermissible under the legislation. (2) Although the case for the appellant may sound as if it raises issues under the Human Rights Act, it is common ground that it does not.  This is because a curfew is considered to be a restriction of movement rather than a deprivation of liberty.  Thus it is not covered by Article 5 of the European Convention on Human Rights and Fundamental Freedoms: see Cyprus v. Turkey (1976) 4 EHHR 482 and the commentary in Lester and Pannick Human Rights Law and Practice, 2nd edn, para 4.5.  There is no doubt that it would engage Article 2 of the Fourth Protocol but the United Kingdom is not a party to that and it has not been brought within the reach of the Human Rights Act.
I now turn to the grounds of challenge.
Ground 1: a curfew is mandatory rather than prohibitory
7.	Mr Newman submits that the test of whether the relevant part of an ASBO is prohibitory, as section 1(4) requires it to be, is one of substance rather than form.  Thus, he says, the mere fact that the disputed part of the order states that the claimant “is prohibited from….being in any place other than” the proscribed addresses is not conclusive.  Whatever words are used, the essence of a curfew is a positive obligation to remain in a certain place for a specified time.  The positive or mandatory substance of the obligation cannot be circumvented by expressing it in a superficially negative formulation.  I do not accept the underlying premise of this submission.  Nor do I consider that it would be helpful or appropriate to import into this context the kind of semantic analysis which once characterised the classification of covenants relating to land.  I find no artificiality in the language of prohibition deployed in the disputed part of this order.  Whilst I accept that the statute requires the order to be substantially and not just formally prohibitory,  I am satisfied that a restraint upon leaving or travelling between specified premises between particular times meets that test.
8.	In the course of his submissions, Mr Newman sought to derive support from two sources.  The first is an obiter comment by Newman J in The Queen (on the application of M) v. Sheffield Magistrates’ Court [2004] EWHC 1830 (Admin) which was in these terms (at para 57):
“Orders should contain prohibitions directed to the anti-social behaviour.  Care should be taken not to include by negative prohibitions what in truth amount to mandatory orders to do something specific.  In this instance, a condition of residence was imposed by prohibiting M from living other than at one address.  It is unnecessary in this case to decide whether the order as granted was outside the Act….”
I find nothing in that passage which is inconsistent with the conclusion I have reached in the present case.  In M it was unnecessary to decide the point and it was not decided.  In the present case it is necessary to decide it and I have done so.  I do not disagree in any way with the first sentence in the citation from the judgment of Newman J.
9.	The second piece of extraneous material said to support the claimant’s case is the definition of a curfew order in the sense of a community order imposed as punishment for an offence pursuant to section 37 of the Powers of Criminal Courts (Sentencing) Act.  The definition is of “an order requiring him to remain, for periods specified in the order, at a place so specified”.  The words I have emphasised, it is said, show the inherently mandatory nature of a curfew: it is a requirement to do something.  However, all legal obligations are requirements, whether they are positive or negative.  The definition in section 37 could have been expressed in the form of a requirement “not to leave” specified premises at particular times.  That the draftsman of the 2000 Act chose to express the definition in the way that he did does not dispose me to the view that the curfew condition in the ASBO in the present case is essentially mandatory rather than prohibitory.  Nor do I derive any steer in that direction from the fact that a condition of residence on a grant of bail is imposed pursuant to section 3(6) of the Bail Act 1976 which provides that the subject “may be required….to comply…with such requirements as appear to the court to be necessary”.  Indeed if anything, it points the other way.  The contemplated “requirements” include not only a condition of residence but also a condition not to interfere with witnesses which is undoubtedly prohibitory.
Ground 2: a curfew is a penalty
10.	The argument in support of this ground of challenge is a simple one.  In McCann, the House of Lords held that an ASBO is made in proceedings which are civil rather than criminal on the ground that the order does not impose a penalty.  A curfew does impose a penalty.  Therefore it is inappropriate for inclusion in an ASBO.  Mr Newman seeks to support this analysis by reference to the use of curfew orders as a sentence.  As I have just described, by section 37(1) of the Powers of Criminal Courts (Sentencing) Act 2000, where a person is convicted of an offence.
“the court by or before which he is convicted may….make an order requiring him to remain, for periods specified in the order, at a place so specified.”
Section 37 prescribed a maximum duration of six months for such curfew orders, or three months if the offender is under 16. (Amendments to section 37 by the Criminal Justice Act 2003 have not yet been brought into force).  So, it is submitted, if a sentence in the form of a curfew order is penal and cannot exceed six months’ duration, by parity of reasoning an order which imposes a curfew for two years, or for longer if the magistrates see fit, must also be penal.
11.	On behalf of the Secretary of State for the Home Department (who has been permitted to intervene in these proceedings), Mr Otty submits that the answer to Mr Newman’s submission is to be found in McCann.  Lord Steyn approved (at para 25) a passage in the judgment of Lord Phillips of Worth Matravers MR in the Court of Appeal [2001] 1 WLR 1084, para 39:
“…..when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequences and to consider its purpose.”
Lord Hope of Craighead added (at paras 75-76):
“The defendants say that prohibitions which banish the defendant from an area of the city where he lives, or which expose him to harsher penalties than he would normally face if he commits an offence, have all the characteristics of a penalty for the anti-social acts which he is found to have committed.  An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases.  But these restrictions are imposed for preventative reasons, not as punishment.  The test that has to be applied under section 1(6) is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendant.  The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct.”
And later (at para 80):
“Section 1(6)…..sets no limits to the prohibitions that may be imposed, except that they must be necessary for the protection of people in the local government area against further anti-social acts by the defendant.”
12.	In my judgment, these passages from McCann demonstrate that Mr Newman’s second ground of challenge is unsustainable.  When a curfew order is imposed as a sentence under the Powers of the Criminal Courts (Sentencing) Act, it is properly described as a penalty because that is its purpose – to punish.  However, when a prohibition is imposed as part of an ASBO, even though it restricts freedom of movement in the same way and possibly for a more prolonged period of time, its purpose is not to punish but is preventative and protective.  It is implicit in the above passages from Lord Hope’s speech that, because the content and duration of an ASBO is conditioned solely by what is necessary for the purpose of protecting members of the public from further anti-social behaviour, the court is not required to consider what sentence would have been imposed, whether by way of curfew order or otherwise, if it had been sentencing the same person for one or more of the same acts which justify the making of an ASBO.  Accordingly, I find nothing legally objectionable in the inclusion of a curfew provision in an ASBO if it is necessary for protection.
13.	Having said that I do think that it behoves magistrates’ courts to consider carefully the need for and duration of a curfew provision when making an ASBO.  Just because the ASBO must run for a minimum of two years it does not follow that each and every prohibition within a particular order must endure for the life of the order.  A curfew for two years in the life of a teenager is a very considerable restriction of freedom.  It may be necessary but in many cases I consider it likely that either the period of curfew could properly be set at less than the full life of the order or that, in the light of behavioural progress, an application to vary the curfew under section 1(8) might well succeed.
14.	In this case we have been asked to address the point of principle.  We are doing so with the knowledge that, shortly before the hearing, the local authority indicated that it would not oppose an application to the magistrates’ court to vary the order by removing the curfew provision.  I consider that to be sensible.  The material before the Crown Court on appeal was to the effect that there has been remarkable improvement in the claimant’s behaviour in the time since the interim ASBO was first imposed.  In the light of his lamentable behaviour in the years before, that is a tribute to him and those who support him.  It is also an illustration of the potential utility of ASBOs.
15.	It follows from what I have said that, whilst I hold that this application for judicial review must fail, the position of the claimant is not without hope.
Mr Justice Moses:
16.	I agree.
LORD JUSTICE MAURICE KAY:  In this matter there will be an order reflecting the order that has been drawn up, consequent upon the handing down of the judgment which is now effected.  The claim is dismissed and the order makes provision for the legal aid assessment of costs.