James v Birmingham City Council

An application to vary an anti-social behaviour order does not require proof of a fresh anti-social act. The court may consider any event or change of circumstance said to make the existing order inadequate to protect the public. An extension of the order’s duration is not legally different from variation of its other terms.

The complaint must nevertheless be made within six months of the relevant matter arising under section 127 of the Magistrates’ Courts Act. The relevant matter need not itself amount to anti-social behaviour sufficient to justify a fresh order. Where later conduct is closely connected with the original order, variation may be preferable to a fresh order, provided the proposed variation is necessary and supported by cogent evidence.

The appellant was subject to an anti-social behaviour order made in 2006 for three years. Birmingham City Council applied by complaint to widen the exclusion zone, extend the list of prohibited associates and extend the order by two years. The application relied on further drug-related offending, alleged gang activity, breaches and other conduct.

The District Judge allowed the variation. On appeal by way of case stated, the appellant argued that the Council should have applied for a fresh order and that section 127 of the Magistrates’ Courts Act, read with section 1(5A) of the Crime and Disorder Act 1998, required proof of a fresh anti-social act within six months before the complaint. The central issues were whether a fresh anti-social act was required and whether variation was appropriate where a fresh order might have been available.

1. Appeal dismissed. The questions posed by the District Judge were answered “yes” and “yes”.
2. Section 1(8) of the Crime and Disorder Act 1998 gives a general power to vary or discharge an anti-social behaviour order. It does not restrict the evidence which the court may consider. A fresh anti-social act is therefore not a precondition to variation.
3. Variation may be justified by a change of circumstance unrelated to a fresh anti-social act, such as a change affecting the defendant’s location or likely associations. The same principle applies to extending the duration of an order. The court must decide whether the variation is necessary to provide adequate protection for the public, and cogent evidence will ordinarily be required where more stringent terms are sought.
4. Section 127 of the Magistrates’ Courts Act requires the complaint to be made within six months of the relevant matter arising. The matter may be an event or circumstance alleged to make the original order inappropriate. It need not be conduct which would independently justify a fresh order.
5. The appellant’s analogy between variation and criminal sentencing was rejected. An anti-social behaviour order is not a criminal sanction, as explained in R (McCann) v Crown Court at Manchester [2003] 1 AC 787. The court adopted the purposive approach reflected in the authorities concerning protective orders.
6. It may be appropriate to vary rather than replace an order where fresh anti-social behaviour or other unacceptable conduct is closely interlinked with the original order. That remains so even where the extension is two years or more. Variation would be inappropriate if used merely to defeat the defendant’s right of appeal, but there was no evidence of that here.
7. The case stated proceeded on the unchallenged premise that relevant conduct had occurred within the six-month period. Uncertainty about the appellant’s imprisonment did not justify disturbing the decision on that basis.

• High Court (Administrative Court): James v Birmingham City Council [2010] EWHC 282 (Admin). Appeal by way of case stated dismissed; the District Judge’s variation of the anti-social behaviour order was upheld.
• Birmingham Magistrates’ Court: District Judge Zara varied the existing order by widening the exclusion zone, extending the prohibited-association list and extending its duration by two years.