Manchester City Council, R (on the application of) v Manchester Magistrates' Court

Under rule 5(2) of the Magistrates' Courts (Anti-Social Behaviour Orders) Rules 2002, the justices' clerk decides only whether it is necessary for an interim ASBO application to be heard without notice. That is distinct from the magistrates' court's later decision under section 1D of the Crime and Disorder Act 1998 whether it is just to make the interim order. The clerk must assess the likely effect of notice on the complainant and defendant, the urgency and gravity of the alleged conduct, the prohibitions sought, and the safeguards protecting the defendant. A decision based on the wrong balancing exercise, relevant matters being ignored, or an irrational assessment of seriousness is unlawful.

Manchester City Council sought judicial review of a decision by a delegated legal adviser at Manchester Magistrates' Court refusing leave under rule 5(2) of the Magistrates' Courts (Anti-Social Behaviour Orders) Rules 2002 for an interim ASBO application to be made without notice. The application concerned alleged threats of violence, including threats to kill and to burn the complainant's house. The central issues were whether the adviser had applied the correct test, whether relevant considerations had been taken into account, and whether the assessment of the alleged conduct was irrational.

1. The claim succeeded. A mandatory order was made requiring leave to be granted under rule 5(2) for the interim application to be heard without notice.
2. The clerk's function under rule 5(2) is confined to deciding whether it is necessary for the first hearing of the interim application to take place without notice. This is different from the magistrates' court's function under section 1D of the Crime and Disorder Act 1998, namely deciding whether it is just to make an interim order. The court's later balancing exercise is necessarily more stringent because the court may hear the application without notice and still refuse the order.
3. The clerk must consider all relevant circumstances. Relevant factors include the likely response to notice, the risk of prejudice to a vulnerable complainant, the gravity of the conduct in the context of conduct addressed by ASBOs generally, urgency, the nature of the proposed prohibitions, the defendant's right to know of the proceedings, and the safeguards limiting interference with that right.
4. The decision was unlawful because the adviser applied the wrong balancing exercise, failed to consider relevant information and the likely reaction to notice, failed to address the safeguards available to the defendant, and failed to consider the nature of the proposed prohibitions.
5. The conclusion that alleged threats to kill and burn the complainant's house were at the lower end of the scale was irrational. If proved, the conduct was serious criminal conduct and could not properly be characterised in that way.
6. The records of the decision did not clearly establish whether the later written reasons involved reconsideration. The court declined to treat the conduct as a flagrant instance of improper behaviour warranting costs against the Magistrates' Court. The circumstances were unfortunate and bordering on discourteous, but were explicable by pressures of work.

First-instance judicial review proceedings. Permission was granted by Forbes J on 1 November 2004.