Kenny, R (on the application of) v Leeds City Council

An interim anti-social behaviour order may lawfully be made without notice. It is temporary relief pending determination of the main application and does not itself determine civil rights for the purposes of Article 6(1). The court must decide whether making the order is just by balancing the need to protect the public against its effect on the defendant’s freedom of movement and association. Relevant considerations include the seriousness of the conduct, urgency, and whether proceeding without notice is necessary for effectiveness. For a defendant under 18, the child’s best interests are a primary consideration. On an application to discharge an interim order, the burden remains on the party seeking the order.

Two judicial review claims challenged interim anti-social behaviour orders made by Leeds Magistrates’ Court against Luke Kenny and M. The orders were made without notice under section 1D of the Crime and Disorder Act 1998, following evidence of extensive drug dealing and associated anti-social behaviour in the Little London area of Leeds.

Kenny also challenged the refusal to discharge his order. M challenged the legality of the without-notice procedure and the evidential basis for his order. The central questions concerned the compatibility of Rule 5 of the 2002 Rules with Article 6, the statutory test for interim relief, the relevance of the child’s best interests, and the approach to discharge applications.

1. Permission and jurisdiction. Permission was granted in both claims. Following R v Hereford Magistrates’ Court, ex parte Rowlands [1998] QB 110, the existence of a Crown Court appeal did not ordinarily preclude judicial review where procedural irregularity was alleged.
2. Lawfulness of without-notice procedure. Rule 5 of the 2002 Rules was not inherently unlawful. Article 6(1) applies to proceedings determining civil rights, but an interim order is temporary and regulates conduct until the substantive hearing. It does not itself determine the parties’ civil rights. The procedural safeguards in the Rules, including service, expiry after seven days if unserved, the right to seek variation or discharge, oral representations, and appeal, were sufficient.
3. Statutory test. The question under section 1D was whether it was just to make an interim order pending determination of the main application. This required a balancing exercise. The court had to weigh public protection against interference with the defendant’s freedom to go where he pleased and associate with others, considering the seriousness of the behaviour, urgency, and the necessity of proceeding without notice.
4. For a defendant under 18, the court had to treat the child’s best interests as a primary consideration. The assessment remained one of judgment or evaluation and did not require a separate heightened standard of proof.
5. Applications. The District Judge had applied the correct test and had an adequate evidential basis for M’s order. M’s claim was dismissed. Kenny’s evidence was tenuous and did not connect him, directly or indirectly, with the relevant anti-social behaviour. His order ought to have been discharged and was discharged.
6. On an application to discharge or vary an interim order, the burden remained on the party seeking the order to demonstrate that it was just for the order to continue pending the main application.

The judgment describes challenges to orders made by Leeds Magistrates’ Court. The High Court granted permission in both claims, dismissed M’s claim, and discharged Kenny’s interim order.