Walkling, R (on the application of) v The Director of Public Prosecutions

An anti-social behaviour order is ordinarily the order pronounced by the court in open court, rather than the later written document prepared to record it. The reference in section 1(9) of the Crime and Disorder Act 1998 to service of the order does not clearly displace that general rule. A written document that inaccurately records the order does not necessarily invalidate it. Non-compliance with the minimum-period requirement in section 1(7) does not automatically render the order a nullity, particularly where the error shortens the order and benefits the person subject to it.

The claimant had been convicted of breaching an anti-social behaviour order made by magistrates. The order was pronounced orally as lasting two years, but the subsequent written document stated that it lasted until 10 November 2003, one day short of two years. The magistrates held that the order was valid and that the claimant had breached it. On appeal by way of case stated, the Administrative Court considered whether the operative order was the oral pronouncement or the written document, and whether the discrepancy invalidated the order.

1. Appeal dismissed. The magistrates had reached the correct decision, and the conviction for breach of the anti-social behaviour order stood.
2. Section 1(7) of the Crime and Disorder Act 1998 requires an anti-social behaviour order to have effect for a specified period of at least two years, or until further order. Section 1(9), which refers to the date of service, was insufficiently clear to establish that Parliament intended to depart from the general rule applicable to court orders.
3. The operative order was therefore the order pronounced orally in open court on 12 November 2001. That order complied with section 1(7), notwithstanding that the later written document did not accurately reproduce it. The general rule that a court order is the order pronounced in open court was supported by R v Kent [1983] All England Law Reports 1.
4. Alternatively, even if the written document were treated as the order, its one-day deficiency would not make the order a nullity. The court saw no reason to conclude that Parliament intended every contravention of section 1(7) to invalidate the order. The error shortened the order and was favourable to the claimant. An irregular order might be challenged by judicial review, but it was not thereby legally void.
5. The judge also observed that magistrates should take care when stating a case to record the necessary legal decision and, as far as possible, the arguments advanced.

The judgment states that the matter came before the Administrative Court as an appeal by way of case stated from the magistrates’ decision. Leave to appeal was refused.