Not a post about Christmas shopping, (which is all done, thanks to Amazon) but about delays in lodging appeals against ASBOs and the case of R (Birmingham CC) v Birmingham Crown Court; R (South Gloucestershire DC) v Bristol Crown Court [2009] EWHC 3329 (Admin).
When a Magistrates’ court makes a stand alone ASBO (s.1(1), Crime and Disorder Act 1998), appeal (by way of re-hearing) is to the Crown Court. Neither the CPR nor the Criminal Procedure Rules govern such applications, rather, they are dealt with by the Crown Court Rules 1982. Those rules require that notice of any appeal be lodged with the Crown Court within 21 days of the decision under appeal, although the court has power to extend that time. An application to extend time does not (rather surprisingly) have to be served on the respondent to the appeal.
In the Birmingham case, RR sought to appeal his ASBO some ten months after it was made and only after he was convicted for breaching the terms of the ASBO. He suggested that he had been unaware of the ASBO trial (which was untrue, as he had been personally served with both the interim and final ASBO). The judge granted permission to appeal out of time on the papers. BCC questioned this, noting both the lengthy delay and taking issue with the suggestion that RR had not known about the ASBO trial.
A different Judge listed a hearing to permit BCC to make representations and, at that hearing, the original judge who had granted permission out of time confirmed his decision. Even though the court had been misled by the suggestion that RR had not known of the ASBO trial, it was still appropriate to grant permission to appeal out of time.
In the South Gloucestershire case, AW and NW sought to appeal some six weeks out of time. When the council questioned these decisions, it was informed that the judge was “not prepared to revisit” the decision and that the court did not “have to show how it made its decision.”
Both authorities issued procedings for judicial review of the respective Crown courts.
The claims were dismissed. It was important not to treat the 21 day rule as an unimportant formality and an appellant had to explain why they were appealing out of time. The court should also have regard to the problems inherent in a re-hearing, both in terms of deterioration of the memory of witnesses and the additonal costs to a public authority. Whatever decision is reached, the judge must give adequate reasons for his decision.
It was significant in both cases that the appellants were teenagers. Courts were well aware that even unproblematic teenagers did not always do what was in their best interests at the right time. In addition, an ASBO was a serious remedy, particularly when made against younger persons.
In the Birmingham case, it was entirely possible that RR had not fully appreciated the importance of the ASBO being made against him. At the material time he had been arrested for serious drugs offences and was suspected of involvement in an attempted murder. The ASBO may not have been upper-most in his mind. The judge had been wrong, however, not to consider more fully (or at all) the merits of the proposed appeal. The prospect of success was clearly material to whether or not to grant permission.
However, the defect had been cured once the question of leave was revisited at the oral hearing. That hearing had gone on for some 75 minutes and had involved BCC making submissions. In those circumstances, it could not be said that the decision was unreasonable or irrational.
In the South Gloucestershire case, the judge had been given adequate information on which to base his decision. The problem was that he did not give adequate reasons. That was not, however, a sufficient basis to set aside his decision.
However, for the future, appellants should provide details as to the merits of the appal in their grounds of appeal and give reasons for delay in applying. They should also, if possible, address the question of prejudice to the proposed respondent. Consideration should also be given to amending the 1982 rules so as to require such an application to be made on notice to the proposed respondent.
I’m not entirely happy with this as it seems to me that both authorities were treated quite badly here. There is an easy solution of course – simply amend CPR 2.1 so as to make it apply to the Magistrates and Crown Courts in their civil capacity. Perhaps I should mention that in my letter to Santa…
Surely this decision has to be seen in the context of just how draconian a remedy an ASBO is . Not only may a person be rendered liable to criminal sanctions for acts which are not of themselves criminal but the Crown Court appeal, especially out of time , is a crucial safeguard for an applicant especially in the light of the highly questionable provisions of Section 1(9) CADA 1998 which makes the consent of the relevant authority a condition on discharge of an order .