Leeds City Council v Fawcett

When making an anti-social behaviour order, the court must determine whether the proposed prohibitions are necessary to protect relevant persons from further anti-social acts. That evaluative judgment includes proportionality, including the effect on private and family life. An appellate court should intervene only for a plain error, such as a mistaken factual assessment, application of the wrong test, or failure to consider a required matter. Clear and readily enforceable prohibitions, including exclusion zones, may be preferable to conduct-based prohibitions where they prevent the circumstances giving rise to the anti-social behaviour.

Leeds City Council obtained an anti-social behaviour order against David Fawcett, its former tenant, after evidence of prolonged harassment, intimidation and aggressive conduct towards neighbours, culminating in criminal offences involving a bladed implement and criminal damage. The Leeds County Court, before Mr Recorder Kershaw, imposed a five-year exclusion zone and other prohibitions.

Mr Fawcett appealed, principally arguing that excluding him from Miss Nelson’s home was disproportionate because it interfered with his family life. The parties agreed amendments concerning access to a school, possible employment and an omitted general prohibition. The central issue was whether the Recorder had erred in finding the order, including the exclusion from Miss Nelson’s home, necessary and proportionate.

1. Appeal dismissed. The agreed amendments to the exclusion zone and the addition of the intended general prohibition were accepted as matters to be reflected in the order.
2. Per Lord Justice Rix, the making of an anti-social behaviour order involves an evaluative judgment based on the trial judge’s findings of fact. The statutory question is whether the prohibitions are necessary to protect relevant persons from further anti-social acts. Proportionality, including the impact on private and family life under Article 8 of the European Convention on Human Rights, is part of that assessment.
3. The appellate court should intervene only where the judge has plainly erred, for example by misassessing the facts, applying the wrong test or omitting a matter which had to be considered. The Recorder had applied the correct test, considered Mr Fawcett’s good behaviour and family concerns, and repeatedly addressed necessity.
4. The exclusion from Miss Nelson’s home was justified because the turbulent relationship with her was both geographically and causally central to the anti-social behaviour. Allowing access to the home would undermine the protective purpose of the order and create enforcement risks, particularly because breach could result in imprisonment.
5. Clear and readily enforceable prohibitions are important both for the defendant’s understanding and for effective protection. An exclusion zone may be preferable to conduct prohibitions which are difficult to evaluate and enforce. This approach was supported by Boness v Bebbington (EWCA Crim 2395).
6. Lady Justice Arden agreed, adding that the agreed amendments could be implemented by consent, subject to clarification of service, the court’s ability to act in Mr Fawcett’s absence and the precise wording of the general prohibition. Lord Justice Rimer agreed with Rix LJ. Order: appeal dismissed.

• Court of Appeal (Civil Division): Appeal from the Leeds County Court dismissed. The court upheld the Recorder’s evaluative decision on necessity and proportionality, subject to agreed amendments to the order.
• Leeds County Court: Mr Recorder Kershaw made the anti-social behaviour order on 18 October 2007.