Chief Constable of Lancashire v Potter

Where an appeal raises important legal and evidential issues, the court should ensure that both sides have a fair opportunity to make submissions before determining it. Where the respondent’s representation is uncertain and personal awareness of the hearing cannot be established, the appropriate course may be to adjourn, arrange personal service and, if necessary, invite the Attorney General to provide an advocate to the court.

The Chief Constable appealed by way of case stated against the refusal of a deputy district judge to grant an anti-social behaviour order against Lisa Potter. The application arose from alleged prostitution in a residential area of Preston and relied substantially on hearsay evidence. The appeal raised issues concerning the construction of section 1 of the Crime and Disorder Act 1988, including the meaning of conduct likely to cause harassment and the burden of proof.

The respondent’s solicitors had indicated that they would act, but subsequently stated that they had no recent instructions and would not arrange representation. The central issue was whether the appeal should proceed without submissions on the respondent’s behalf.

1. The appeal was adjourned. The court considered it highly desirable to have argument from both sides before resolving issues of general importance concerning the construction of section 1 of the Crime and Disorder Act 1988, the meaning of conduct likely to cause harassment, the burden of proof and the treatment of hearsay evidence.
2. The court was concerned that the respondent might not know that the hearing was taking place. That concern was particularly material because a successful appeal could lead to remission of the application to the magistrates’ court, where the respondent might need to be personally served.
3. A copy of the judgment was to be sent to the respondent’s solicitors, who were directed to clarify whether they were instructed to represent her. Unless they confirmed that they were instructed, the relevant documents were to be served personally on the respondent.
4. If the respondent did not instruct willing solicitors and counsel within seven days of personal service, the Attorney General was to be asked to provide an advocate to the court, so far as possible ensuring that the issues could be properly determined.
5. The court made no determination on the construction of section 1, the burden of proof or the admissibility and weight of the evidence. Mr Justice Jack also requested the basis for the submission that prostitution in residential areas was among the social problems intended to be addressed by the legislation.

• Magistrates’ court: Deputy District Judge Alan Jones refused the application for an anti-social behaviour order on 24 July 2002.
• High Court (Administrative Court): The Chief Constable’s appeal by way of case stated was adjourned on 24 January 2003 pending clarification of representation and, if required, personal service and the provision of an advocate.