Delaney v Calderdale Magistrates' Court

An anti-social behaviour order must state the prohibited conduct with sufficient clarity for the subject to understand what is permitted and for enforcement authorities and courts to identify any breach. The wording must also be reasonable and proportionate to the order’s legitimate purpose. The court should focus on the terms of the prohibition, read in their factual context. Illustrative scenarios given by the magistrates do not themselves expand or determine the prohibition. A prohibition directed at preventing vexatious calls for medical assistance may be lawful where the subject can understand that genuine calls remain permitted. Nevertheless, the High Court may amend the wording to secure greater simplicity and clarity.

Miss Delaney appealed by way of case stated against the Calderdale Magistrates’ Court’s decision to extend and vary an anti-social behaviour order. The order regulated her repeated and abusive calls to NHS Direct and the emergency services. The principal challenge concerned a prohibition against making such calls, or encouraging others to make them, where there was no potentially life-threatening situation requiring immediate assessment, action or treatment.

The appeal raised whether the prohibition was unambiguous, clear, reasonable and capable of being policed; whether the magistrates had misdirected themselves in explaining its operation; and whether those explanations showed that the prohibition itself was incomprehensible.

1. Extension of time. The appeal was lodged late because of an understandable mistake concerning preparation and filing of the case stated. Time was extended to 15 July 2009.
2. Clarity of the prohibition. An ASBO must be precise and comprehensible. The subject must know what conduct is prohibited, and the police and court must be able to identify and prove a breach. The requirements of clarity, reasonableness and proportionality apply to the order’s wording.
3. The court focused on the actual terms of the third prohibition, read in the context of the findings about Miss Delaney’s conduct and capacity. Its purpose was to prevent vexatious calls, not to prevent genuine requests for urgent medical advice or assistance. The prohibition therefore did not remove her right to seek assistance for a real emergency, attend her GP or attend hospital when treatment was required.
4. The magistrates’ scenarios were illustrative explanations of their reasoning. They did not amend or enlarge the prohibition. Whether a breach had occurred would still require proof before the magistrates, and the court could conclude that the conduct was not unreasonable or that the breach was not proved.
5. The original wording was sufficiently clear in context for this appellant to understand its object and effect. However, greater simplicity was appropriate. With the parties’ agreement, the words referring to a potentially life-threatening situation were replaced by wording prohibiting calls made otherwise than when genuinely in need of assistance of the relevant services.
6. The appeal was allowed to that limited extent. The second and third questions in the case stated were answered in the negative. There was no order as to costs, subject to detailed assessment of the publicly funded party’s costs.

The judgment describes an appeal by way of case stated from the Calderdale Magistrates’ Court. The High Court extended time and allowed the appeal only to amend the wording of the third prohibition.