M v Director of Public Prosecutions

An anti-social behaviour order must contain prohibitions that are precise, clear, certain and no wider than necessary. A prohibition which requires the subject to make an immediate value judgment about whether another person is attempting or conspiring to commit an offence is impermissibly uncertain. Failure to comply with hearsay-notice requirements does not automatically make the evidence inadmissible or establish an error of law. On the facts, where the substance of the evidence had been provided a month before the hearing and no prejudice was shown, the justices were entitled to proceed. The wider question whether an ASBO may properly rest on anonymous hearsay alone was left open.

The claimant, aged 17, appealed by way of case stated against an ASBO imposed by Ealing Local Area Justices sitting at Acton Youth Court. The order followed his guilty plea to possession of cannabis. The appeal concerned two issues: whether the justices erred in law by admitting hearsay evidence without a notice under the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999; and whether the second prohibition was legally uncertain.

The second prohibition restrained knowingly associating with persons engaged in attempting or conspiring to commit any criminal offence.

1. Appeal allowed in part. The second prohibition was quashed. The answer to question 2 in the case stated was yes.
2. Prohibitions in an ASBO must be precise, clear and certain, and must be no wider than necessary. The wording of clause 2 could expose the claimant to criminal consequences merely because he knowingly associated with a person who, unknown to him, possessed a weapon or cannabis, or was formulating a conspiracy. Even on the construction intended by the justices, the clause required the claimant to make an immediate and impermissible value judgment about another person's criminal conduct.
3. The failure to serve a hearsay notice did not affect admissibility under sections 1 and 2 of the Civil Evidence Act 1995. It could affect case management, costs and the weight given to the evidence. The statutory and procedural requirements were not mere formalities, as explained in R v W and Another [2007] 1 WLR 339.
4. Nevertheless, on the limited case presented to the justices and this court, the procedural failure did not constitute an error of law. The substance of the hearsay evidence had been supplied to the claimant's representatives a month before the hearing. No prejudice was demonstrated, and the arguments concerning special measures, witness identification and the assessment of anonymous complaints had not been properly raised before the justices.
5. The court deliberately left open the more fundamental question whether an ASBO could lawfully be based solely on anonymous hearsay. That issue was important and potentially grave, but it did not arise for determination on this appeal.

• High Court (Administrative Court): appeal by case stated allowed in part; clause 2 of the ASBO quashed, while the challenge based on the absence of a hearsay notice failed.
• Ealing Local Area Justices, Acton Youth Court: imposed an ASBO following the claimant's conviction for possession of cannabis.