Summary
A magistrates’ court may make an interim anti-social behaviour order without notice where the statutory safeguards are observed. The court must apply the statutory test of whether making the order is just. It must consider all relevant circumstances, including the absence of notice, the need for protection and the order’s intrusiveness. An extremely strong prima facie case for the final order is not required.
An interim order following its normal course does not determine civil rights for the purposes of article 6(1). It is temporary, takes effect only on service and remains subject to prompt variation or discharge. The procedure must nevertheless satisfy common law fairness. Even if article 6 applied, fairness would be assessed across the civil process as a whole.
Factual background
Leeds City Council and the police sought anti-social behaviour orders against 66 people following serious drug dealing and associated violence. A justices’ clerk permitted applications for interim orders to be made without notice. The magistrates’ court made such an order against M, then aged 17½, restricting his conduct, entry into part of Leeds and public contact with named individuals.
M sought judicial review. Owen J refused relief, holding that the without-notice procedure was lawful and that the proper statutory tests had been applied. Laws LJ granted permission to appeal.
The appeal concerned whether the procedure was compatible with common law fairness and article 6(1) of the European Convention on Human Rights, the proper test for making an interim order, and whether proceeding without notice was justified in M’s case.
Held
Appeal dismissed. The statutory power to make an interim anti-social behaviour order without notice was lawful. Although orders against an absent person are unusual, they are permissible where necessary and accompanied by safeguards enabling early review or discharge.
The greater the intrusion caused by the proposed order, the stronger the proof required that the order is necessary in the form sought. An interim order made without notice takes effect only when served. The prescribed form also provides either a return date or a date for hearing the substantive application. At a return hearing, the magistrates’ court may reconsider, vary or discharge the order. An early return date is desirable unless the substantive application can be heard very promptly.
A defendant may apply under rule 6 of the Magistrates’ Courts (Anti-Social Behaviour Orders) Rules 2002 to vary or discharge the order. The requirement for at least 14 days’ notice of that hearing was sensible and did not prevent rapid relief. The defendant bears no burden of justifying discharge: the relevant authority must justify continuation of the order in its existing form.
An interim order following its normal statutory course does not determine civil rights within article 6(1) of the European Convention on Human Rights. It is ancillary, temporary, ineffective until served and capable of review or discharge. It therefore differs from a final anti-social behaviour order and from an interim measure which causes irreversible prejudice or substantially deprives the final proceedings of significance. Article 6(1) was not engaged, although common law fairness applied throughout.
Alternatively, if article 6(1) applied, the fairness of this civil procedure would be assessed as a whole. The available safeguards, review procedure and subsequent inter partes hearing disclosed no breach.
Under section 1D(2) of the Crime and Disorder Act 1998, the operative test is whether it is just to make the interim order. The court must consider all relevant circumstances, including that the application was made without notice and whether the substantive application was properly made. It need not find that the evidence establishes an extremely strong prima facie case for the final order.
The District Judge applied the correct test. The evidence of continuing drug dealing, the risk of reprisals and escalation, the coordinated nature of the operation and the comparatively limited restrictions supplied ample grounds for making the order against M without notice.
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Appellate history
Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the refusal of judicial review and the legality and application of the without-notice interim ASBO procedure.
Administrative Court: Owen J refused M’s claim for judicial review on 5 December 2003. He held that rule 5 was lawful and that the appropriate tests had been applied. He refused permission to appeal.
Permission to appeal: Laws LJ granted permission on 12 January 2004.
Appeal route
- Appealed fromNot stated in the judgmentThis appealappeal dismissed (unanimous)
- This judgment [2004] EWCA Civ 312 Court of Appeal (Civil Division)
Key cases cited
15 authorities cited.
- Clingham (formerly C (a minor) v Royal Borough of Kensington and Chelsea (on Appeal from a Divisional Court of the Queen's Bench Division); Regina v Crown Court at Manchester Ex p McCann (FC) and Others (FC) [2002] UKHL 39
- In re S (FC) In re S and Others In re W and Others (First Appeal (FC) In re W and Others (Second Appeal (Conjoined Appeal) [2002] UKHL 10
- R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42
- Southwark London Borough Council v St Brice (St Brice v Southwark London Borough Council) [2001] EWCA Civ 1138
- Director of Public Prosecutions, R (on the application of) v Camberwell Green Youth Court [2003] EWHC 3217 (Admin)
- R v Lord Chancellor, Ex parte Witham (Witham, Ex parte) [1998] QB 575
- R v Hereford Magistrates’ Court, Ex parte Rowlands (Ingram, Ex parte, Prussia, Ex parte, R v Harrow Youth Court, Ex parte Prussia, R v Hereford Magistrates’ Court, Ex parte Ingram, Rowlands, Ex parte) [1998] QB 110
- Markass Car Hire v Cyprus ECtHR, 6 November 2002
- Findlay v United Kingdom [1997] 24 EHRR 221
- Dick v United Kingdom Application no 26249/95, 23 October 1997
- Schuler Zgraggen v Switzerland [1993] 16 EHRR 405
- Albert and Le Compte v Belgium [1983] 5 EHRR 533
- Le Compte, van Leuven & De Meyere v Belgium [1981] 4 EHRR 1
- Calvin v Carr [1980] AC 574
- Ansah v Ansah [1977] Fam 138
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Cases citing this case
3 later cases · 3 positive
Most senior citing decisions:
- Moat Housing Group- South Ltd. v Harris & Anor [2005] EWCA Civ 287 applied
- Scott, R (on the application of) v Heathrow Airport Ltd [2005] EWHC 2669 (Admin) followed
- Manchester City Council, R (on the application of) v Manchester Magistrates' Court [2005] EWHC 253 (Admin) applied
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