Wareham v Purbeck District Council

A person whom a public authority is considering making the subject of an anti-social behaviour order has no legal right to be consulted before the authority decides to apply to the magistrates’ court. The decision to apply is not itself an interference with Article 8 rights where the person will have a full opportunity to resist the application and challenge its terms before the court. Article 6 does not extend, in this context, to the preliminary decision whether to commence court proceedings. Consultation may be good practice in suitable cases, but it is not required by statute or by the Convention.

Purbeck District Council decided, following an anti-social behaviour case conference, to apply for an anti-social behaviour order against Carl Wareham. The Council notified him of the proposed meeting and later informed him of its decision, but did not invite his representations before deciding to make the application.

An order was subsequently made by a district judge in the East Dorset Magistrates’ Court. On a case stated, the issue was whether the failure to consult Mr Wareham during the Council’s decision-making process breached Articles 6 or 8 of the Convention. The district judge answered that question in the negative. This appeal challenged that conclusion.

1. Appeal dismissed. The district judge was correct to hold that the Council’s failure to consult Mr Wareham before applying for an anti-social behaviour order did not breach Articles 6 or 8.
2. The proposed order and the order made interfered with Mr Wareham’s private and family life. However, the relevant interference occurred through the order made by the magistrates’ court, not through the Council’s preliminary decision to apply. The application process gave him a full opportunity to contest the allegations, argue that no order should be made, propose an alternative such as an acceptable behaviour contract, and make submissions on the terms of any order.
3. The analogy with care proceedings was not appropriate. The authorities concerning removal of children from their families arose in a particularly sensitive Article 8 context, and a local authority may sometimes give effect to its decision without a court order. That context did not apply to an application for an anti-social behaviour order.
4. Article 6, although applicable to civil proceedings, did not extend in this context to the decision whether to embark on an application to a court. The fairness of the subsequent hearing was not challenged.
5. The statutory scheme under the Crime and Disorder Act 1998 requires the relevant statutory conditions and inter-authority consultation, but does not require the proposed defendant to be consulted before an application is made. Whether to involve that person may be sensible in a particular case, but it remains a matter for the decision-making group and is not a legal requirement.

The second question in the case stated, concerning the appropriate procedural route, did not arise because the answer to the first question was no.

1. East Dorset Magistrates’ Court: on 11 June 2004 the district judge held that the absence of pre-application consultation did not breach Articles 6 or 8. An anti-social behaviour order was later made on 23 July 2004.
2. High Court (Administrative Court): the court upheld the district judge’s conclusion and dismissed the appeal.