Birmingham City Council v Damaine Dixon

In proceedings for an anti-social behaviour order, evidence of conduct after the complaint is capable of being relevant to whether the defendant acted anti-socially during the period pleaded. It may assist in proving the pleaded allegations, including by showing propensity or another factual connection. It cannot, without amendment, enlarge the complaint or itself prove conduct alleged in the complaint. Later conduct is also plainly relevant to whether an order is necessary, and recent behaviour may be particularly important to that assessment. Whether relevant evidence should nevertheless be excluded in the exercise of discretion is a separate question.

Birmingham City Council appealed by way of case stated against a preliminary ruling made during proceedings for an anti-social behaviour order. The District Judge had excluded evidence that the defendant had engaged in further anti-social behaviour after the complaint was made, including while an interim order was in force. The substantive application was later dismissed because the alleged anti-social behaviour during the pleaded period was not proved, but that final decision was not challenged.

The issue was whether post-complaint conduct was legally irrelevant both to the question whether the defendant had acted anti-socially and to the question whether an order was necessary.

1. The appeal was allowed. The District Judge had decided the issue as one of legal relevance, not as an exercise of discretion to exclude evidence for fairness.

2. Evidence of later behaviour could, in principle, be relevant to whether the defendant had acted in an anti-social manner during the period covered by the complaint. It could show a propensity to behave anti-socially or have probative value on another factual issue raised by the complaint. The analogy with propensity evidence in Adenusi [2006] EWCA Crim 1059 supported that conclusion.

3. The Council still had to prove the allegations specified in the complaint, or sufficient of them to establish the statutory condition. Later conduct could assist in proving those allegations, but could not itself substantiate the complaint where the pleaded conduct had not been proved. Any enlargement of the complaint required an amendment.

4. Post-complaint behaviour was also relevant to whether an order was necessary to protect relevant persons from further anti-social acts. Evidence of rehabilitation, illness or disabling injury could count against the necessity of an order, while further anti-social behaviour could support it. Recent evidence might tip the balance where the earlier conduct was limited.

5. The court expressed no view on whether the evidence might properly be excluded in the exercise of discretion. The unchallenged final decision dismissing the substantive case therefore stood, and there was no remittal. There was no order as to costs.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The preliminary ruling on relevance was reversed, but the District Judge’s unchallenged final dismissal of the substantive application was left undisturbed.