R (McGarrett) v Kingston Crown Court (Divisional Court, 8.6.09)

This case appeared as a note on Lawtel this morning and there is no transcript available yet. Mr McGarrett was a tenant of the local authority. He had a PPO on grounds of nuisance hanging over his head. One of the terms of the PPO was that he should not cause a nuisance to residents in the neighbourhood.

After the PPO was made, he informed the local authority and his neighbours that he would be hosting a wedding reception. The local authority responded by serving a noise abatement notice. Notwithstanding the notice, the reception took place and the local authority prosecuted him for breach of the notice.

He was convicted and, apparently of its own motion, the court imposed an ASBO. M sought judicial review of that decision, contenting that it was not proportionate to the risk to be guarded against and was outside the court’s discretion on the facts of the case.

The application for judicial review was allowed. It was clear law – see  R v Boness and other appeals [2005] EWCA Crim 2395 – that the only consideration for the court was whether it was “necessary” to make an order (s.1(1)(b) Crime and Disorder Act 1998). It was wrong to see an ASBO as ancillary to punishment. The whole purpose of an ASBO was to prevent further acts of the sort complained of.

It was also appropriate to consider what other orders were in place before the court could determine whether it was “necessary” to make an ASBO. In the instant case, the court had not properly appraised itself of the terms and scope of the PPO. Whilst the Judge had said that the local authority would be slow to proceed to eviction, there was no evidence to indicate that.

Further, the breach of the noise abatement notice was a single offence and no other relevant offending had occurred. It was difficult to see how it could be necessary to make an order where there was no suggestion that the behaviour complained of would continue.

The application was granted and the ASBO quashed.

One hopes that, when the transcript comes out, it might contain some useful guidance to the Crown Court and Magistrates’ Court about the circumstances in which it is appropriate to consider imposing an ASBO of their own motion. Whilst the test of “necessity” under s.1(1)(b) Crime and Disorder Act 1998, is one of judgment (Lord Steyn in R (McCann) v Manchester Crown Court [2002] UKHL 39; [2003] 1 AC 787) there would be nothing wrong with giving courts some guidance as to when it would be appropriate to consider exercising that judgment, or the procedure to be adopted.

There is some guidance as to the procedure to be adopted where the prosecuting authority seek an ASBO (see M v DPP [2007] EWHC 1032 (Admin)) but – so far as I’m aware – nothing to assist the trial Judge where she considers making an order of her own volition.

Having said all that, this sounds like a fairly clear example of where it could not be “necessary” to make an ASBO, given the absence of any proven risk that the behaviour complained of would happen again.

As a side note – and probably only the people involved in the case can tell me this – I wonder if Mr McGarrett argued that the holding of the wedding reception was “reasonable in all the circumstances ” (s.1(5) Crime and Disorder Act 1998) and, hence, could not amount to conduct which caused or was likely to cause harassment, alarm or distress under s.1(1)(a)?