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Varying an ASBO – an (un)appealing option

By J

We here at NL still haven’t decided how much ASB law to cover on the blog. On the one hand, only possession proceedings and s.153A-E Housing Act 1996 injunctions could be said to be ‘true’ housing law. But, on the other, ASB remedies are, to a very significant extent, conferred on public sector landlords, with the clear implication that they’re to be used as one of the range of remedies against/for the benefit of ones own tenants. If readers have any strong views about whether we should include more or less ASB cases, please let us know. We can’t guarantee to blog everything, but it’d be interesting to know what you want to read about.

Ashley Langley v (1) Preston Crown Court (2) West Lancashire DC (3) The Secretary of State for Justice [2008] EWHC 2623 (Admin) concerns the routes of appeal from an order varying an ASBO.

The claimant, Ashley Langley, was made subject to a “stand alone” ASBO under s.1(1) Crime and Disorder Act 1998 in February 2004. It was to run until 19 August 2007. On 17 August 2007, West Lancashire DC applied to vary the order, so as to extend it for another two years. This application was granted by the Chorley Magistrates’. They found that Mr Langley had been convicted of a number of breaches of the original ASBO and that he had been convicted of an offence of violence. The order was necessary to protect the community.

Mr Langley appealed to the Crown Court against that variation. The issue was whether or not the Crown Court had jurisdiction to hear the appeal.

There was no doubt that, in the magistrates’ court,  there was an automatic right of appeal against the making of an ASBO, whether that ASBO was interim or final, (s.4(1) Crime and Disorder Act 1998), but the position as regards a variation of an existing order was less clear.

The Divisional Court held that:

(a) an ASBO which was made by and varied in the county court could be appealed to the High Court or Court of Appeal, as appropriate and with permission; (CPR 52)

(b) an ASBO made on conviction in and then varied by the Crown Court could be appealed to the Court of Appeal (Crminal Division), but only with the leave of that Court; (ss9 and 50 Criminal Appeal Act 1968)

(c) an ASBO made in the magistrates’ court (whether on conviction or a free standing application) and then varied cannot be appealed to the Crown Court. The defendant can only seek judicial review or to have a case stated.

The common feature of all the routes of challenge was that they did not permit a re-hearing on the facts, but were confined to errors of law. This did not even come close to amounting to a violation of Art. 6.

It would be an abuse of process, save in the most exceptional case, to attempt to get around these restrictions by seeking to appeal the original ASBO out of time.

The point that this case does not deal with (and, to my mind, the far more important point) is the different appeal rights from the making of the ASBO. In the magistrate’ court, a stand alone ASBO is subject to an automatic right of appeal to the Crown Court for a complete re-hearing. In the county court, one needs permission to appeal and the appeal will usually be confined to a point of law. Given that the ASBOs have the same effect in each case, this difference is hard to explain or justify.

Posted in: ASB | Housing law - All
J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

1 Comment

  1. JS

    Following the earlier decision in the Leeds case this is no surprise.

    Fortunately , however Mr Langley’s advisers have chosen to j.r rather than appealing by way of case stated and thus can seek permission to appeal further and can therefore seek to attack the Leeds case. Generally, civil appeals by way of case stated should be avoided at all costs as S1 Administration of Justice Act 1960 prevents any further appeal from the High Court . NB McCann was a j.r whilst its associated case Clingham was an appeal by way of case stated

    The Leeds case on S1(8) variation holding that this includes extending the term is highly questionable, extending an ASBO on the basis that the Section 1 test continues to be met and therefore a further ASBO is required is making a new ASBO on the evidence available at that date .It ought to be attended by the procedural safegaurds in Section 1E for a start.

    As for the different appeal routes from county court ASBOs this does not make sense but is just another consequence of how County Court ASBO was tacked on without much thought . After the collapse of the pilot project for ASBOs against children in the County Court( largely it is suspected because unlike so many undefended or poorly defended mags court ASBOS the O/S tended to instruct specialist counsel who made life much more difficult for applicants) , county court ASBOs have become rarer than hen’s teeth.


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