Samuda v Director of Public Prosecutions

An unchallenged anti-social behaviour order must generally be treated as lawfully made when the court considers an application to vary or discharge it. Its original finding that the specified conduct caused, or was likely to cause, harassment, alarm or distress is the starting point. The applicant must show a material change justifying discharge. Begging is not necessarily anti-social conduct of that kind, but particular methods of begging may be. Any continuing prohibition must remain proportionate in its geographical and temporal scope. A magistrates’ court has no power under section 142 of the Magistrates’ Courts Act 1980 to reopen an ASBO application treated as civil proceedings.

The claimant appealed by case stated against a decision of Birmingham Magistrates’ Court refusing to discharge or vary an anti-social behaviour order made in 2003 under section 1C of the Crime and Disorder Act 1998. The order prohibited entry to specified streets and approaching unknown persons for money or alms throughout England and Wales, without a time limit.

The parties accepted that the order was defective and disproportionate. The issue was whether it should be discharged or varied, and whether the district judge had correctly concluded that the prosecution did not need to prove afresh that the claimant’s conduct caused, or was likely to cause, harassment, alarm or distress.

1. Original order. The appeal was an appeal by case stated, not a rehearing of the original ASBO or an appeal on the merits. Since the original order had not been successfully challenged, its finding that the conduct caused, or was likely to cause, harassment, alarm or distress had to be treated as the starting point on an application to vary or discharge it. Only in a very exceptional case, where the conduct described could not reasonably have had that effect, would the court revisit that starting point.
2. Need for discharge. Begging does not necessarily cause, or threaten to cause, harassment, alarm or distress. Particular methods of begging may do so. This was not an exceptional case. The claimant’s subsequent convictions, together with the absence of evidence of any material change in his modus operandi, were sufficient on the limited information available to justify refusing discharge.
3. Section 142. An application to vary or discharge an ASBO was civil proceedings. Section 142 of the Magistrates’ Courts Act 1980 applied to the magistrates’ criminal jurisdiction and did not permit the district judge to correct the defective order. The court applied the approach explained in R(Periasamy Mathialagan v London Borough of Southwark [2004] EWCA Civ 1689).
4. Proportionality and order. The proposed ten-year prohibition was plainly disproportionate to the conduct described. The geographical area proposed also appeared excessive. Exercising its power under section 28A of the Supreme Court Act 1981, the court deleted the first prohibition and varied the second so that the order expired on 29 January 2008. The claimant succeeded on the variation issue and was awarded costs against the CPS.

• High Court (Administrative Court): The appeal by case stated was allowed in part. The refusal to discharge the order was upheld, but the order was varied by deleting the first prohibition and limiting the second so that it expired on 29 January 2008.
• Birmingham Magistrates’ Court: The district judge refused the application to discharge the order and intended to vary it by deleting the first prohibition, limiting the geographical scope of the second, and imposing a ten-year duration.