M, R (on the application of) v Secretary Of State For Constitutional Affairs & Anor

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.

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

1. 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.

2. 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.

3. Permission to appeal: Laws LJ granted permission on 12 January 2004.