Perry v Chief Constable of Humberside Police

An Anti-Social Behaviour Order requires persistent and seriously anti-social behaviour. Offensive, unsubstantiated or defamatory blogs do not satisfy that threshold merely because they cause reputational concern or distress. The court must assess the conduct overall, but must distinguish publication from threatening or seriously intrusive personal conduct. Where Article 10 is engaged, the decision-maker must identify the particular social harm and balance it against the interference with freedom of expression. A general assertion that restrictions are necessary and proportionate is insufficient. The statutory criteria must be established on the evidence, not by repeating allegations of harassment, alarm or distress.

This was an appeal by way of case stated from a decision of District Judge Rutherford at Hull Magistrates’ Court. The District Judge had made a ten-year Anti-Social Behaviour Order against Christopher Perry under section 1(1) of the Crime and Disorder Act 1998.

The order followed online allegations of corruption and misconduct, photographs of individuals and their property, telephone calls, visits and an alleged threat to bring one person down through journalism. The District Judge found that the conduct caused harassment, alarm and distress, that an order was necessary, and that the restrictions were compatible with Article 10. The Divisional Court considered whether the statutory criteria were met and whether the order was necessary and proportionate.

1. Appeal allowed. The Anti-Social Behaviour Order and the costs order made below were quashed.
2. Section 1 of the Crime and Disorder Act 1998 is directed to persistent and seriously anti-social behaviour, not minor unacceptable conduct. The court referred to the threshold identified by Lord Steyn in R (on the application of McCann) v Manchester Crown Court [2002] UKHL 39 at paragraph 25.
3. The conduct had to be assessed overall, but the blogs raised separate issues. The allegations did not incite or threaten violence or disorder. The District Judge had not found that they were untrue, that Perry did not believe them, or that they were unreasonable. Their being uncorroborated or defamatory was insufficient, without more, to satisfy the statutory criteria.
4. Article 10 was engaged because the blogs purported to investigate or expose public wrongdoing. The decision-maker had to identify the particular social harm presented, balance that harm against the interference with freedom of expression, and ensure that the restriction was necessary and proportionate. The District Judge’s reasoning was perfunctory and dismissive and did not perform that analysis.
5. The personal conduct was offensive and tiresome, but the evidence fell substantially short of the statutory threshold. The incidents did not amount to the kind of persistent conduct found in stalking cases. Repetition in the future might justify intervention, but the threshold had not been reached when the order was made.
6. Although unnecessary to the outcome, a ten-year order was far beyond anything reasonable or necessary on the facts.

• High Court (Administrative Court): On an appeal by way of case stated, the Divisional Court allowed the appeal, quashed the Anti-Social Behaviour Order and quashed the costs order made by the magistrates’ court.
• Hull Magistrates’ Court: District Judge Rutherford made a ten-year Anti-Social Behaviour Order on 20 January 2012.