Only tangentially relevant to housing law, but R v Charles [2009] EWCA Crim 1570 is a decision of the Court of Appeal (Criminal Division) dealing with the question of burden of proof for a “reasonable excuse” defence when charged with breaching an ASBO.
An ASBO can be imposed in one of three ways: by complaint to a magistrates’ court (sitting in its civil capacity); by the county court in principle proceedings (i.e. ancillary to another claim) or by a criminal court which has first convicted someone for a relevant offence. In all cases, it is a crime to breach the terms of an order.
Section 1(10) Crime and Disorder Act 1998 provides a person charged with breaching an ASBO with a defence if they had a reasonable excuse for so doing.
In Charles, Mr Charles had been made subject to a post-conviction ASBO which he was alleged to have breached by threatening, assaulting and attempting to unlawfully evict one of his tenants. He contended that he had merely been trying to deal with noise nuisance and collect rent arrears and that, therefore, he had a defence under s.1(10). He argued that it was for the prosecution to prove that he did not have a reasonable excuse.
His argument was rejected by the trial judge but upheld by the Court of Appeal. Section 1(10) merely imposed an evidential burden on a defendant. Once that had been discharged, it was for the prosecution to prove that there was no reasonable excuse. This had to be done to the criminal standard of proof.
This question was free from authority previously, so it’s useful to have the law clarified. The authors of the “Guide for the Judiciary on ASBOs” can feel vindicated, since they had already formed the view that this was the law (available here as a .doc file, see para. 6.5).
So Charles had an evidential burden to raise an issue, such as that he had a defence, then there was a legal burden on the prosecution to prove that his defence was untrue?
Interesting will definitely give the case a thorough reading.
In general I despise asbos and any form of quasi-criminal administrative legislation.
Yes, that is my reading of the case, s.1(10) CDA 1998 is an evidential burden only.
I’m much less conceptually opposed to ASBOs than you but that, I suspect, is for another day ;-)
Sounds like a horrible landlord and incident.
But
1. “Engaging in any behaviour which causes or is likely to cause harassment, alarm or distress to any person, not of the same household as himself, in England and Wales” sounds stupidly vague and ill defined (I thought ASBOS were supposed to be specific)
2. Why wasnt he prosecuted under the protection from eviction act?
Here was a case where he was committing what appears to be a criminal act (and presumably had done previously) with statute on the books specifically geared to dealing with eviction and harrassment.
Phooieee.
Cait,
All you say about ASBO clauses is correct. Remarkably though, that clause tends to get through just about every application made. There is limited support for such a clause in R v Boness (Court of Appeal Criminal Division) but I find it hard to see how such a broad clause can ever be necessary.
As for a prosecution under the PEA 1977… who knows? We’ve had this discussion elsewhere on the blog but I’d be surprised if there were very many such prosecutions each year. In fairnes to Mr Charles as well, he did deny the version of events that the prosecution alleged. Perhaps the prosecution thought the ASBO prosecution would be easier?