Chief Constable of West Mercia Constabulary, R (on the application of) v Boorman

In an application for an anti-social behaviour order, evidence of conduct outside the six-month period is not automatically inadmissible. It may be relevant to either the existence of anti-social conduct or the necessity for an order, subject to ordinary evidential principles, fairness and weight. There must nevertheless be a finding of qualifying conduct within the statutory period. The court must assess objectively whether the conduct caused, or was likely to cause, harassment, alarm or distress. A respondent’s lack of mens rea and a complainant’s subjective assertion are each insufficient by themselves. The two statutory conditions should ordinarily be considered within one hearing, rather than by separate trials.

The Chief Constable appealed by way of case stated against the dismissal by the Kidderminster Justices of an application for an anti-social behaviour order. The case raised four questions concerning: the use of conduct occurring outside the six-month period; whether in-time conduct had to be objectively anti-social; and the adequacy of the justices’ reasons.

The central issue was how evidence and the two statutory conditions for an anti-social behaviour order should be addressed under the Crime and Disorder Act 1998.

1. Appeal and evidence. The justices erred by treating evidence outside the six-month period as incapable of being considered on the first statutory condition. Evidence of earlier conduct may be admissible if relevant to either condition under section 1, including as similar-fact evidence relevant to proving in-time anti-social conduct. Its admissibility and weight depend on the ordinary rules of evidence, relevance, reliability and fairness.
2. There must still be a finding of in-time conduct sufficient to justify an order. Earlier conduct must not be used to circumvent the limitation period by overshadowing less serious conduct within time.
3. Single hearing. An anti-social behaviour order application should not be divided into two trials by analogy with criminal proceedings. The magistrates should hear the evidence and decide whether the first condition is satisfied, and, if so, whether an order is necessary under the second condition.
4. Objective assessment. The inquiry under section 1(1)(a) is objective. Mens rea need not be proved, but the court must make its own reasonable assessment of whether the conduct was such as to cause, or be likely to cause, harassment, alarm or distress. A complainant’s subjective evidence alone is insufficient.
5. Reasons and disposal. Reasons are generally desirable in an anti-social behaviour order application, consistent with article 6 of the European Convention on Human Rights. However, the justices’ reasons were adequate for the narrow preliminary issue they had been asked to determine. The legal error justified correction, but the case was not remitted for rehearing because it was an exceptionally weak case, near the lower end of conduct capable of attracting an order. No order for costs was sought.

• High Court (Administrative Court): The appeal by way of case stated identified an error in the justices’ approach to evidence outside the six-month period. The court corrected that approach but declined to remit the application for rehearing.