Gosport Borough Council, R (on the application of) v Fareham Magistrates Court

For an anti-social behaviour order under section 1(1)(a) of the Crime and Disorder Act 1998, the prosecution must prove to the criminal standard that the defendant’s conduct caused, or was likely to cause, harassment, alarm or distress to one or more persons outside the defendant’s household. The “likely to cause” alternative requires evidence that potential victims were present or otherwise exposed to the conduct. Dangerous or irresponsible conduct, viewed in isolation, is insufficient where no potential victim is shown to have been present. The separate necessity requirement in section 1(1)(b) must also be satisfied.

Gosport Borough Council applied for an anti-social behaviour order concerning Mr Manczur’s repeated high-speed jet-ski use in harbour waters. Fareham Magistrates’ Court dismissed the application. The district judge declined to state a case for the opinion of the High Court.

On judicial review, the Council argued that the district judge had applied the wrong test and should have found that the conduct was likely to cause harassment, alarm or distress. The central issue was whether section 1(1)(a) was satisfied where no swimmer or other potential victim was shown to have been present.

1. Disposition. The district judge should have stated a case, and the application for judicial review was therefore properly arguable. Nevertheless, the court declined relief because the dismissal of the ASBO application was a decision to which the district judge was entitled to come. The judicial review application was dismissed.
2. Statutory test. Section 1(1)(a) of the Crime and Disorder Act 1998 requires proof to the criminal standard that the defendant acted in a manner which caused, or was likely to cause, harassment, alarm or distress to one or more persons not of the same household. The criminal standard identified in R v Crown Court at Manchester ex parte McCann and Others [2003] 1 AC 787 applied.
3. The alternative “was likely to cause” formulation adds something to the actual-causation limb. Actual causation would ordinarily require evidence from a person affected. The alternative permits police or other evidence showing that potential victims were present and were likely to have been affected. It does not dispense with the need for an identifiable or evidenced class of potential victims.
4. Where no swimmer or other member of the public was shown to have been present near the jet ski, irresponsible or dangerous conduct alone did not satisfy section 1(1)(a). The evidence established speeding and disregard of harbour directions, but not that any person was actually or likely to have been harassed, alarmed or distressed.
5. Even if section 1(1)(a) were established, the magistrates would still have to decide under section 1(1)(b) whether an ASBO was necessary to protect relevant persons from further anti-social acts. That issue had not been reached.

First-instance judicial review. Fareham Magistrates’ Court dismissed the ASBO application and refused to state a case. The High Court held that a case should have been stated but dismissed the judicial review because the substantive decision was lawful.