C v Sunderland Youth Court

The power to make an order under section 1C of the Crime and Disorder Act 1998 is broad but must be exercised fairly, reasonably and with regard to all relevant circumstances. Where a youth court has previously declined to make an order on substantially the same material, fairness ordinarily requires an explanation for a later change of position, particularly where there has been no material change in circumstances. If the court proposes to act of its own motion, it must identify the proposed basis and disclose the material relied upon so that the defendant can make meaningful submissions. The order must also state clearly and accurately what is prohibited and its geographical scope, since breach is a criminal offence.

The claimant, aged 15, was sentenced by Sunderland Youth Court for offences including escaping from lawful custody and resisting a police constable. On 8 May 2003 the youth court had considered, but declined to make, an order under section 1C of the Crime and Disorder Act 1998. On 12 June, when sentencing the claimant for further outstanding offences, a differently constituted court made a two-year order prohibiting behaviour towards any individual or group which would cause harassment, alarm or distress.

The claimant sought judicial review. He challenged the fairness of the procedure, the court's reliance on undisclosed information, the unexplained change from its earlier decision, and the uncertainty and breadth of the order served upon him.

1. Application allowed. Permission to apply for judicial review was granted and the substantive application succeeded. The order was quashed because the youth court had not exercised its section 1C discretion fairly and reasonably.

2. Section 1C applies where the defendant has committed a relevant offence after 2 December 2002. The relevant offence need not itself be anti-social. The court must nevertheless be satisfied that the defendant has acted in an anti-social manner and that an order is necessary to protect persons from further anti-social acts.

3. The statutory discretion is broad but not unfettered. It must be exercised fairly, reasonably and with regard to all relevant circumstances. The earlier decision on 8 May not to make an order was a material circumstance. Although the court could change its mind, fairness required at least a brief explanation, particularly because the only apparent change was the addition of offences committed before the earlier sentencing and the claimant was complying with his supervision order.

4. Where a court proposes to make an order of its own motion under section 1C, elementary fairness requires it to indicate the provisional basis for the order and the material on which it proposes to rely. The defendant must have a meaningful opportunity to address whether an order should be made and, if so, its proposed terms. Information supplied by a magistrate from an earlier hearing should have been disclosed in open court.

5. The order itself must be clearly and accurately explained and recorded. The form served referred incorrectly to a section 1 ASBO and to a complaint, although the order was said to have been made under section 1C. The evidence did not establish the precise terms of the order or its geographical scope. A prohibition covering an entire local government area requires careful consideration and explanation.

6. The court declined to determine whether section 1C proceedings are civil or criminal in nature, since that issue was unnecessary to dispose of the claim. The availability of an appeal against sentence under section 108 of the Magistrates' Courts Act 1980 did not preclude judicial review in the particular circumstances.

The claimant's application was initially considered on the papers by Blackburne J, who ordered expedition. Burton J subsequently directed a rolled-up hearing of permission and the substantive judicial review application. The Divisional Court granted permission and allowed the substantive application.