M v Burnley, Pendle & Rossendale Magistrates’ Court  EWHC 2874 (Admin) (on Lawtel only)
The claimant were two brothers, aged 13 and 14. They were subject to ASBOs which prohibited them from engaging in certain anti-social behaviour in the borough of Pendle. With seven months of the ASBO still to run the family moved to another area and the police (who appear to have obtained the original ASBO) applied to vary the geographic scope of the order.
The brothers instructed a solicitor who appears to have attended the first hearing of the variation application on their behalf. The application was opposed and a trial date set for December 2008.
When the trial came on, neither of the brothers attended, but their solicitor attended on their behalf. One of the brothers was at school (having been taken to school that morning by a taxi arranged by the local education authority) and the other was unable to attend because his mother was indisposed.
The Magistrates’ had to decide whether or not to proceed in the absence of the brothers. They concluded that they should do so. They proceeded to hear the evidence and varied the ASBO in the manner sought by the police.
The brothers applied – successfully – for judicial review of the variation. Langstaff J held that there had been a breach of the audi alteram partem principle (the right to be heard). The reasons for non-attendance were genuine and not designed to frustrate the process of the court and, in those circumstances the Magistrates’ should have adjourned the matter for a short time. It would be a rare case where it was appropriate to proceed in the absence of one party where that party was not intentionally absent.
The variation was accordingly quashed.
I’m not entirely with Langstaff J on this one (which will no doubt cause his Lordship considerable distress). Not only were the brothers represented by their solicitor (albeit he did not have full instructions) but it does not appear that any application to adjourn was made. In those circumstances, I’m not entirely surprised that the Magistrates’ decided to proceed. The rights of the community and the inconvenience to the witnesses must, contrary to the view of Langstaff J, be a relevant consideration (see, by analogy, West Kent Housing Association v Davies (1999) 31 HLR 415, where Robert Walker LJ explains the importance of appreciating the difficulty that a claimant can have in marshal ling evidence and witnesses in ASB cases).