Practice and Procedure

R (On the application of LUKE KENNY) v LEEDS MAGISTRATES COURT & (1) LEEDS CITY COUNCIL (2) WEST YORKSHIRE POLICE (Interested Parties): R (On the application of M by his mother and litigation friend) v (1) THE SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS

PUBLISHED December 15, 2003

The procedure for the making of interim anti-social behaviour orders without notice was not unlawful. Where the defendant to such an application was under 18 years old, his best interests were a primary consideration.Applications by the claimants ('K and M') for judicial review of the imposition of interim anti-social behaviour orders ('ASBOs') against them. The interim ASBOs were made without notice in response to concerns by the police about the problem of drug dealing, abuse and associated criminal behaviour in the area. The claimants, who were under 18 years' old at the relevant time, sought to challenge the decision of the justice's clerk on 2 September 2003 to make interim ASBOs against them and secondly, in the case of K, the further decision of District Judge Darnton on 16 October 2003 dismissing his application for discharge of the interim ASBO. The respondents argued that the claimants should be refused permission to apply for judicial review as it was open to them to appeal to the crown court against the interim ASBOs. The claimants responded by citing R v Hereford Magistrates' Court ex parte Rowlands (1998) QB 110. M further submitted that the "without notice" procedure introduced by Rule 5 Magistrates' Court Anti-Social Behaviour Orders Rules 2002 did not comply with Art.6 European Convention on Human Rights and that there was no basis upon which interim ASBOs could properly have been made.HELD: (1) It was appropriate for the supervisory jurisdiction of the court to be invoked for the reasons set out in the judgment of Lord Bingham in Rowlands (supra). (2) An application for an ASBO on notice unquestionably engaged Art.6. However there was nothing inherently unlawful in interim injunctions made without notice. The fact that criminal sanctions attached to a breach of an ASBO did not render the Rule 5 procedure unlawful. In any event an interim ASBO was not a determination of the claimants' rights within the meaning of Art.6(1). Article 6 was concerned with procedural fairness and concerned the procedure resulting in a determination. An interim order was by its very nature temporary and served to regulate behaviour until the determination of the parties' civil rights at the substantive hearing: see Alstlerlund v Sweden (1988) 8 EHRR 1. M failed in his contention that the Rule 5 procedure for the making of interim ASBOs without notice was unlawful. (3) On the basis of the material before the justices' clerk, concerning a very serious problem of drug dealing and associated crime in the area, he could properly conclude that the imposition of an interim order was urgently required and that it was necessary for the application to be made without notice. The considerations that weighed in favour of injunctive relief had to be sufficiently serious to warrant what could amount to a serious interference with the civil rights of a defendant. Where a defendant was under 18 years old the court had to have regard to the principle that his best interests were a primary consideration when addressing the question of whether it was just to make an order: R (Howard League for Penal Reform) v Secretary of State for the Home Department (2002) EWHC 2497 (Admin). The district judge applied the correct test as to whether it was just to make the orders and took into account relevant considerations when carrying out the balancing exercise inherent in the test. The general conclusions that he arrived at were properly open to him. However the evidence specifically connecting K with the anti-social behaviour giving rise to the applications was tenuous in the extreme. Accordingly the district judge could not properly conclude that it was just to make an interim order in K's case for the protection of the community living in the area. The evidence in relation to M provided a proper basis for an interim order to be made against him. Under Rule 6(2) of the 2002 Rules an applicant for discharge or variation had to specify the reason why he believed that the court should vary or discharge the order. The effect of rule 6, which was subject to rule 5(8), was not to shift the burden to the defendant to demonstrate why an interim order made without notice should be varied or discharged, the test to be applied on such an application was that in s.1D(1)(2) Crime and Disorder Act 1998.In K's case: permission to apply for judicial review granted; interim anti-social behaviour order discharged. In M's case: permission to apply for judicial review granted; claim dismissed.

[2003] EWHC 2963 (Admin)