Gosport Borough Council, R (on the application of) v Fareham Magistrates Court

Neutral Citation Number: [2006] EWHC 3047 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/737/2006 Royal Courts of Justice Strand London WC2 Tuesday, 21 November 2006 B E F O R E: MR JUSTICE BEAN - - - - - - - THE QUEEN ON THE APPLICATION OF GOSPORT BOROUGH COUNCIL (CLAIMANT) (DEFENDANT) -v- FAREHAM MAGISTRATES' COURT - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS C BOLTON (instructed by Gosport Borough Council) appeared on behalf of the CLAIMANT The Respondent did not appear and was not represented - - - - - - - J U D G M E N T 1. MR JUSTICE BEAN: On 2 September 2005, Gosport Borough Council made an application to Fareham Magistrates' Court for an anti-social behaviour order under section 1(1) of the Crime and Disorder Act 1998. The application came before District Judge Wollard at the Fareham Magistrates' Court on 16 December 2005. After hearing evidence the judge dismissed the application. 2. The council applied to him to state a case for the opinion of this court. He declined. The application before me is thus for judicial review of that refusal to state a case. Holman J granted permission for that judicial review and said that it was clearly arguable that the district judge should have stated a case. 3. However, in response to these proceedings the learned judge has provided a witness statement, the content of which is wholly consistent with the note of his judgment made by the council's legal adviser at the time. Miss Bolton for the council has accepted that in substance today I have to consider whether the decision of the district judge refusing an ASBO, as I shall call it, was wrong or arguably wrong. 4. Like Holman J I consider that it would have been preferable for a case to be stated and that the application was not frivolous, but we are here now and Miss Bolton does not ask me to put off to another day my examination of whether the district judge was arguably wrong. 5. There were four incidents complained of before the district judge. The first one: 7 August 2005 was conceded, or is now conceded, not to be relevant. That leaves three: 17 August, 2 September and 3 September. As to the last two, there is some lack of clarity on the evidence as to whether they took place on the 2nd or the 3rd or the 1st and 2nd September, but nothing turns on that. They were separate incidents but of the same kind. 6. Mr Manczur, the interested party, was the owner of a jet ski personal watercraft, which he uses in Stokes Bay, Gosport. He came before the district judge as a man of good character, but the district judge had this to say about him: "... In many ways that fact that the defendant is a man of good character comes as a surprise when considering the way he behaves to authority. It is more surprising since he holds a responsible job in the defence industry. The defendant acted irresponsibly and immaturely when dealing with the authorities trying to regulate the use of power craft in the Solent area." 7. Having read the evidence in the case, and admittedly without having heard any submissions on behalf of Mr Manczur, I entirely agree with the district judge in his characterisation of the behaviour of Mr Manczur as irresponsible and immature. 8. On 17 August 2005, the council alleged that Mr Manczur behaved in a threatening manner towards one of their employees, a Mr Grant. The district judge rejected that on the facts. He was not satisfied that the person identified by Mr Grant was Mr Manczur. He was entitled to come to that conclusion, and I say no more about it. I do not include that incident in the behaviour which I have characterised (as did the district judge) as irresponsible and immature. 9. The other part of what is alleged on 17 August 2005 is contained in the witness statement of retired police officer John Lee, which is in the papers before me. It is clear that the interested party was riding his jet ski in the relevant area at a grossly excessive speed and was showing off by circling buoys in the harbour and riding in the wake of a ferry. 10. This part of the events of 17 August 2005 was unfortunately not dealt with in the oral judgment of the district judge. It is, however, dealt with in his witness statement in which he says: "Gosport Borough Council submitted that I failed to have regard to two specific incidents, namely that on 17.08.05 Mr Lee observed the defendant riding at excessive speed and riding the wash of a ferry..." He then goes on to refer to the incident of 3 September and continues: "Although not explicitly referred to in the course of my judgment, these incidents were considered." 11. I too have considered that incident. The witness statement of Mr Lee does not state that any identified person was caused harassment, alarm or distress, or that there were any swimmers in the water. The furthest he goes is to say at page 14: "On 17th August 2005 it is conceivable that there may have been swimmers in the water near the respondent." 12. I shall return to the view I take of this incident when I have dealt with the September incidents. The witness statements of PC Spensley-Corfield, PC Gledhill and PC Murray indicate that on the 2 and 3 September the interested party was riding his jet ski again circling buoys, showing off and riding at a significantly excessive speed, well beyond the ten mile an hour limit prescribed by the harbour bye-laws, and simply ignoring indications from the harbourmaster's patrol craft that he should behave more responsibly. Once again there is no evidence of swimmers in the water or of any individual actually being harassed, alarmed or distressed. 13. The learned judge in his judgment said of the 2 September incident (though he gives the date as 1 September) that he had seen a video of the incident. He said: "The Gosport Borough Council say [he] was breaching Gosport Regulation and was riding in a dangerous manner. I have seen the defendant's contact with the police on video and it is a good example of how he does not engage with the authority appropriately. However it is not threatening, abusive words or behaviour. ... I think something needs to be done about the defendant." 14. At this point Miss Bolton, on behalf of the council, very properly rose to her feet and pointed out courteously that the test under the Act was whether the judge was satisfied that the individual concerned had caused, or was likely to cause, harassment, alarm or distress, not whether his behaviour was threatening or abusive. The council's case was that speeding within a swimming zone was likely to cause harassment, alarm or distress. 15. The district judge resuming his judgment said that he was not satisfied so that he was sure that the activities of Mr Manczur had been sufficient to be characterised as having caused, or having been likely to cause, harassment, alarm or distress and that he was not satisfied that the grounds were made out for an ASBO. He warned Mr Manczur about his conduct, about trespassing and about the possibility of an injunction being obtained against him. 16. The witness statement of the learned judge said that he did apply the "harassment, alarm or distress" test. He wrote: "... I was not satisfied to the requisite standard that it would cause or be likely to cause harassment, alarm or distress. It is perhaps noteworthy that the riding of the ferry's wash was likely to be a danger to the defendant only. Gosport Borough Council submit that I misdirected myself in relation to the correct test to be applied under s.1(1)(a) the Act. Gosport Borough Council may be correct to say that at one point in the course of delivering judgment reference was made "threatening or abusive words or behaviour", or similar, I had in fact correctly stated the test at least once earlier in my judgment. Moreover counsel for the Gosport Borough Council indicated an error may have occurred when stating the test, and I proceeded to once again state the correct test. I was fully aware of the correct test that was to be applied. [The council] submit that I misdirected myself in finding that the incident of 2 September 2005 (referred to above in my judgment as 1 September) was not anti-social within the meaning of the Act. Whilst finding the defendant was riding in a dangerous manner [sic], whether a person's conduct is dangerous to himself or others is not the test specified in the Act. I am required to determine whether the behaviour caused or was likely to cause harassment, alarm or distress. On the facts, I had no evidence to prove that there was in fact a swimmer in the area whilst the defendant was riding in that fashion. In consequence I could not be satisfied to the requisite standard that a person was caused harassment, alarm or distress. During the course of evidence I was shown a video of a local news report in which a local resident complained about persons using jet-skis yet the defendant was not identified as being part of the activities stated by the resident. It seemed to me to be no more than conjecture that the behaviour was likely to cause harassment, alarm or distress, and certainly not a matter proved to the requisite standard." 17. Miss Bolton has very properly referred me to the decision of the House of Lords in R v Crown Court at Manchester ex parte McCann and Others HL [2003] 1 AC 787 in which their Lordships laid down that on an application for an ASBO it must be shown to the criminal standard of proof that the defendant has acted in a manner which has caused, or was likely to cause, harassment, alarm or distress. Miss Bolton has also referred me to the decision of the Divisional Court in R (Sunworld Ltd) v Hammersmith and Fulham London Borough Council [2000] 2 All ER 837, which is the basis for her sensible submission that I should not simply deal with whether a case ought to have been stated but go on to deal with the merits. 18. The merits, as I see it, boil down to the question of whether the requirements of section 1(1) of the Crime and Disorder Act 1998 are satisfied if it has been shown that a person has acted in a manner that would have caused, or would have been likely to cause, harassment, alarm or distress to one or more persons if there had been any such persons there. All that has been shown in respect of the 17 August, 2 and 3 September 2005 incidents is that Mr Manczur acted in an irresponsible manner in speeding in the harbour and that this would have caused harassment, alarm or distress to any swimmers had there been any there. 19. If the council's evidence had demonstrated that there was at least one swimmer in the water close to where the defendant was riding his jet ski vessel on one or more of these days, then, in my judgment, the district judge would have been almost bound to find that Mr Manczur had acted in a manner that caused, or was likely to cause, harassment, alarm or distress. In my judgment it would have been sufficient, in order to establish that, for evidence to have been given that a swimmer was present. The swimmer would not necessarily have to be called to give evidence. 20. I accept what Miss Bolton says that the word "or was likely to cause" in section 1(1)(a) must add something to the word "caused". In order to show that the behaviour "caused" harassment, alarm or distress it would probably be necessary to have evidence from one of the harassed, alarmed or distressed victims; whereas the alternative formulation: "or was likely to cause" enables police witnesses to demonstrate that there were potential victims present who it was likely were caused harassment, alarm or distress. 21. I emphasise that it would even then be a matter for the district judge or magistrates to decide whether an ASBO was necessary to protect relevant persons from further anti-social acts as required by section 1(1)(b). In this case the matter never got that far. However, I am not satisfied that, where it cannot be shown that a potential victim was present, section 1(1)(a) is complied with. I put to Miss Bolton a case which seems to be analogous: if a man is swaggering around in a public place brandishing a knife, but he is the only person in the area, his behaviour is observed on close circuit television and police arrive in a police car and arrest him, I doubt very much whether that behaviour would be sufficient to found an ASBO. It would be quite different if the CCTV showed one or more members of the public in the vicinity. 22. Here, in my judgment, the district judge was entitled to come to the conclusion that the council had not established, to the criminal standard of proof, that Mr Manczur's behaviour on any of the relevant days had actually caused or had been likely to cause harassment, alarm or distress to one or more of the persons not of the same household as himself. I therefore find that the district judge should have stated a case, but I decline to grant any relief by way of judicial review since, in my judgment, his decision on the merits was one to which he was entitled to come. 23. I have already made it clear in the course of this judgment that Mr Manczur, in my view, has nothing to be proud of. If the behaviour indicated in these papers is repeated by him or by others who behave in a similar manner they may well find themselves on the receiving end of applications in the criminal court for ASBOs, or in the civil court for injunctions, but that is for another day. I dismiss this application for judicial review.