F, R (on the application of) v Bolton Crown Court

An anti-social behaviour order may be made only where it is necessary. The court must consider whether existing criminal sentences, supervision or other measures already address the conduct and risk relied upon. Hearsay evidence is admissible in ASBO proceedings, but the procedural requirements governing its admission must be followed. The court must also assess the weight of hearsay by considering the factors in section 4(2) of the Civil Evidence Act 1995. An order may be quashed where its necessity is not reasoned or is undermined by existing protective measures.

The claimant, aged 13, was convicted of possessing an imitation firearm with intent to cause fear of violence and received a two-year supervision order with a curfew. On a rehearing, the Crown Court imposed a two-year ASBO based on five incidents, relying substantially on police evidence derived from statements and computer logs. The claimant sought judicial review, challenging the hearsay evidence, procedural fairness, the terms of the order and, centrally, whether the order was necessary in addition to the supervision order and curfew.

1. Outcome. The court held that the ASBO was not necessary and quashed it.
2. ASBO proceedings are civil in nature and hearsay evidence is admissible. It may be necessary to inform the court about the scale and nature of anti-social behaviour, as recognised in R v Wadmore [2006] Crim LR 857 and R (McCann and Others) v Manchester Crown Court [2003] 1 AC 787. That does not dispense with the formal requirements governing hearsay evidence. The relevant Magistrates' Courts rules should have been followed, and the current Civil Procedure Rules should not be casually ignored.
3. The court should assess the weight of hearsay by applying the factors in section 4(2) of the Civil Evidence Act 1995, following Moat Housing Group - South Ltd v Harris and Hartless [2005] EWCA Civ 287. The use of police officers who had no direct knowledge of events created a further evidential difficulty because the claimant's participation could not readily be investigated.
4. The governing test for imposing an ASBO is necessity, under section 1C(2)(b) of the Crime and Disorder Act 2002, as stated in R v Boness [2005] EWCA Crim 2395. The existing supervision order, curfew, structured behavioural work and the claimant's positive response to an earlier referral order substantially undermined the need for an additional ASBO.
5. The court considered that there were also substantial concerns about the breadth and intelligibility of the prohibitions, including whether some conduct was already criminal and whether the restriction concerning the Castle Hill Centre was justified. It confined the decision, however, to the absence of necessity.

The claimant sought judicial review of an ASBO imposed by Bolton Crown Court following a rehearing on 20 and 21 February 2008. The High Court (Administrative Court) quashed the order.