Chief Constable of Lancashire v Potter

For an anti-social behaviour order under Crime and Disorder Act 1998, the applicant must prove to the criminal standard that the defendant acted anti-socially. Where reliance is placed on likely harassment, alarm or distress, “likely” means more probable than not. The court must nevertheless be sure, on the evidence, that the defendant’s conduct created that likelihood.

The court must distinguish actual from likely effects. A defendant’s conduct may be considered together with the conduct of others, even without concert, intention to cause harm, or proof that the defendant personally committed aggravated acts. Whether the statutory condition is satisfied remains a question of fact and degree.

The Chief Constable appealed by way of case stated from the dismissal by Deputy District Judge Alan Lloyd Jones at Preston Magistrates’ Court of an application for an anti-social behaviour order against Lisa Marie Potter, arising from her street prostitution in residential areas of Preston.

The District Judge found that street prostitution as a whole caused substantial problems, but held that the respondent’s conduct could not be aggregated with that of other prostitutes. He also applied the criminal standard to the likelihood of harassment, alarm or distress and concluded that the statutory condition was not proved.

The appeal concerned the meaning and standard of proof of “likely”, the permissible aggregation of conduct, and whether the decision was erroneous or perverse.

1. The appeal was allowed. The matter was remitted to the Deputy District Judge for reconsideration on the existing evidence, and any further evidence relevant to the necessity and discretion stages.

2. Under section 1(1)(a) of the Crime and Disorder Act 1998, the applicant must prove to the criminal standard the defendant’s anti-social conduct and either that it caused, or that it was likely to cause, harassment, alarm or distress. The question whether an order is necessary under section 1(1)(b) is an evaluative exercise, not a separate issue of proof.

3. “Likely” in this context means more probable than not. That is a higher threshold than the real or substantial risk applicable in the child-protection context considered in Re H and Ors (Minors) (Sexual Abuse, Standard of Proof) [1996] AC 563. The court must nonetheless be sure to the criminal standard that the defendant’s conduct has caused that likelihood. The court must not confuse the likelihood of an effect with proof that the effect actually occurred.

4. The District Judge erred by requiring evidence of actual examples of harassment, alarm or distress when considering the likelihood alternative. He also erred in treating “aggravated conduct”, concert with other prostitutes, or an intention to cause the relevant effects as necessary requirements.

5. Conduct may be considered alongside the conduct of others, even where the defendant did not act in concert with them. Street prostitution in residential areas may, depending on the number, regularity and concentration of the activity, cause or be likely to cause harassment, alarm or distress. Whether an individual defendant’s contribution satisfies section 1(1)(a) is a question of fact and degree. Not every instance of prostitution in a residential area will do so.

6. The District Judge was directed to reconsider whether the respondent’s conduct, alone or in conjunction with that of other street prostitutes, caused or was likely to cause the statutory effects. If section 1(1)(a) was satisfied, he was then to consider necessity under sections 1(1)(b) and 1(4), and whether to exercise the power to make an order.

• High Court (Administrative Court): allowed the Chief Constable’s appeal by way of case stated from the dismissal of the application by Deputy District Judge Alan Lloyd Jones at Preston Magistrates’ Court. The matter was remitted for reconsideration.