Practice and Procedure


PUBLISHED December 1, 2003

Successful application for judicial review of a youth court's decision, of its own motion, to impose an anti-social behaviour order on an offender under s.1(C) Crime and Disorder Act 1998. The youth court had failed to exercise their discretion under s.1(C) fairly and reasonably.Application for judicial review of the decision of the first defendant ('the youth court') to impose an anti-social behaviour order on the claimant ('C') on 12 June 2003. C had a poor criminal record dating back to 2001. On 8 May 2003, when sentencing C, magistrates chose not to impose an anti-social behaviour order as part of his sentence. However on 12 June 2003, when C was being sentenced for two further offences, the youth court made an order pursuant to s.1(C) Crime and Disorder Act 1998. The order was imposed for a period of two years and prohibited C from exhibiting any behaviour towards any individual or group that would cause them harassment, alarm or distress. It was unlimited in geographical area. There was no evidence as to the youth court's reasons for making the order. A document purporting to be a copy of the order made by the youth court was served on C's parents. It referred to s.1 of the Act, rather than s.1(C)G and contained other errors. The acknowledgement of service stated that the youth court was satisfied that C was a persistent offender and that, having escaped from lawful custody, C had been convicted of an offence and acted in an anti-social manner after 2 December 2002.HELD: (1) While s.1(C) of the Act did not prescribe any particular procedure for making an order, it was common ground that a magistrates' court must act fairly and have regard to all relevant considerations. In addition, there was an elementary requirement that there should be clarity as to the basis for, and scope of, any order made under s.1(C), particularly if breach of such an order exposed a person to potential criminal penalties. The procedure adopted by the youth court had failed to meet these criteria and was wholly unsatisfactory. (2) It was relevant that the same youth court just over a month earlier had decided not to make an order despite C's past history of anti-social behaviour. In the particular circumstances of the case, fairness to C required the youth court to give him an explanation as to why it was considered appropriate to make an order under s.1(C). Consistency in the exercise of discretionary powers was an important aspect of fairness. If, having had the matter fully explained to them on 8 May, the magistrates decided not to make a s.1(C) order, then absent further evidence justifying the making of such an order, it would not be prima facie reasonable to make one on 12 June. The only change of circumstances since 8 May was the two matters for which C was being sentenced on 12 June. It was not at all clear what acts after 2 December 2002 were being relied on by the youth court. (3) Elementary fairness required a court, if it proposed to make an order under s.1(C) of its own motion, to indicate the basis on which it provisionally considered an order might be appropriate, and the material on which it proposed to rely so that the relevant person could make meaningful submissions as to why the order should not be made at all or should not be made in the form proposed by the court. That did not happen in the instant case. The youth court appeared to have taken into consideration evidence that had not been given in open court and did not explain the reasons for its change of stance between 8 May and 12 June. (4) The errors on the purported copy of the order sent to C's parents were not merely technical. It was vital that the terms of an order were clearly and accurately explained to the offender by the magistrates in open court. Even if, contrary to the evidence, the youth court did refer to the Sunderland local government area when pronouncing the order in open court, it was by no means clear from the evidence why such a broad geographical limit was appropriate.Application allowed.

[2003] EWHC 2385 (Admin)