Manchester City Council v Muir & Anor

Before an interim anti-social behaviour order can be considered under the Crime and Disorder Act 1998, there must be a properly made application for a final order, including consultation with the chief officer of police. The judge hearing the interim application has jurisdiction, and an obligation, to decide any consultation challenge. A competent determination of that precondition binds a later judge unless successfully appealed. Once a person is properly joined under section 1B(4), proceedings against that person may continue after the principal proceedings end. The statutory procedure cannot be used to create sham principal proceedings. A consultation certificate is not itself required by statute; evidence of consultation is sufficient.

Manchester City Council sought an injunction against a tenant under section 153D of the Housing Act 1996 and applied to join her son, N, so that an order could be sought against him under section 1B(4) of the Crime and Disorder Act 1998. On 30 March 2005 HHJ Holman made an interim order under section 1D and decided that the consultation requirement had been satisfied. At a later hearing, HHJ Armitage QC reheard the consultation issue, held that consultation was insufficient and dismissed the application against N. The Council appealed, raising the binding effect of HHJ Holman’s decision, the relationship between sections 1D and 1E, and whether N’s proceedings could continue after the proceedings against his mother ended.

Lord Justice May gave the leading judgment. Lord Justice Keene and Lord Justice Wall agreed. The appeal was allowed and the order dismissing the application against N could not stand.

1. Consultation and interim orders. Section 1D applies to applications for an anti-social behaviour order and to applications under section 1B. A valid application for a final order, including compliance with the consultation requirement in section 1E, is therefore a necessary precondition to an interim application. The fact that the interim test is whether it is just to make the order does not alter that jurisdictional requirement. If consultation is challenged, the judge hearing the interim application has jurisdiction and is obliged to decide the issue. The court applied the principle stated by Kennedy LJ in B v Secretary of State for Constitutional Affairs and the Lord Chancellor [2003] 1 AE 531 that the court must consider whether the final-order application has been properly made.
2. Effect of the earlier decision. HHJ Holman had formally determined the consultation issue. HHJ Armitage was therefore not entitled to rehear it. The appropriate route was an appeal from HHJ Holman. The matter was a court record rather than an evidential issue, so the Court of Appeal could act on the true position despite the misinformation given to HHJ Armitage.
3. Procedural irregularity. Independently, HHJ Armitage’s dismissal resulted from a serious procedural irregularity because he was materially misinformed about the earlier hearing and incorrectly considered that HHJ Holman had not been required to decide consultation.
4. Continuation of joined proceedings. The court construed section 1B as allowing proceedings against a person properly joined under section 1B(4) to continue even after the principal proceedings against the original defendant had ended. This does not permit proceedings to be commenced as a sham solely to enable an order against another person.
5. The court observed that a consultation certificate mentioned in Home Office guidance was not a statutory requirement. The statute required evidence that consultation with the chief officer of police had occurred. The Court of Appeal did not finally determine whether HHJ Holman’s consultation decision was correct, although it considered there was every indication that it was.
6. N’s reported good behaviour did not make the appeal academic. It might affect the order made after the appeal was allowed.

Order: application allowed.

• Court of Appeal (Civil Division): On 20 March 2006, allowed the Council’s appeal. [2006] EWCA Civ 423
• Manchester County Court: On 27 May 2005, HHJ Armitage QC dismissed the application against N after deciding that the consultation requirement had not been satisfied. On 30 March 2005, HHJ Holman had made an interim order and decided that the consultation requirement had been satisfied.