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).