T, R (on the application of) v Manchester Crown Court

An anti-social behaviour order cannot be made merely because the proposed subject consents. The court must independently be satisfied, to the criminal standard, that the statutory conditions are met and must exercise its own judgment on whether an order is necessary. Consent is relevant evidence, but it is not determinative and cannot deprive an appellate Crown Court of jurisdiction. An appeal against an anti-social behaviour order is a rehearing and must be considered on its merits, even where consent was given below.

The claimant, aged 14, sought judicial review of a decision by a Recorder dismissing his appeal against an anti-social behaviour order. The order had been made after his mother, under pressure, indicated that she would not oppose it. The Recorder treated that consent as preventing an appeal unless there was a compelling reason to set it aside, such as mistake, deception or undue pressure.

The central issue was whether consent to the making of an anti-social behaviour order barred an appeal or deprived the Crown Court of jurisdiction to consider the order on its merits.

1. The application was granted. The Recorder’s decision was quashed and the appeal was ordered to be reheard before a differently constituted Crown Court.
2. Under section 1 of the Crime and Disorder Act 1998, the court must itself be satisfied, to the criminal standard of proof, that the person has acted in an anti-social manner within section 1(1)(a). It must also exercise its own value judgment under section 1(1)(b) as to whether an order is necessary. The court relied on Chief Constable of Lancashire v Potter [2003] EWHC 2272 (Admin) and R (McCann & Ors) v Manchester Crown Court & Anr [2002] UKHL 39.
3. Consent by the proposed subject, or by a parent, may be relevant both evidentially and to the assessment of necessity. It cannot replace the statutory proof or the court’s independent judgment. The order is made in the interests of the public, so parental consent cannot be decisive.
4. An appeal to the Crown Court is a rehearing. Consent below does not bar the appeal and does not remove the Crown Court’s jurisdiction. It may provide powerful evidence that the appeal lacks merit, but the appeal must still be heard and determined on its merits.

The judgment describes an appeal to the Crown Court from the making of the anti-social behaviour order. On 8 October 2004, the Recorder dismissed that appeal without considering its merits, treating consent as a bar to the appeal. The Administrative Court quashed that decision and ordered a rehearing before a differently constituted Crown Court.