Lawtel document - 29/01/2016 10:06

R (on the application of JOHN CARNEY) v NORTH LINCOLNSHIRE COUNCIL (2016)
QBD (Admin) (Lloyd Jones LJ, Supperstone J) 27/01/2016
CIVIL PROCEDURE - HUMAN RIGHTS - LOCAL GOVERNMENT - COSTS (LTL)
ANTI-SOCIAL BEHAVIOUR ORDERS : COSTS ORDERS : FREEDOM OF EXPRESSION : HARASSMENT : LOCAL AUTHORITIES : NECESSARY IN DEMOCRATIC SOCIETY : CRIME AND DISORDER ACT 1998 s.1(1) : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.10
A judge had been entitled to find that an anti-social behaviour order prohibiting an appellant from engaging in any behavior likely to cause harassment, alarm or distress to any local authority employee for five years was necessary and proportionate. Local authority employees should be able to carry out their functions without being subjected to threatening behaviour.
The appellant appealed by way of case stated against the imposition of an anti-social behaviour order (ASBO) and a costs order.

The respondent local authority had applied for an ASBO under the Crime and Disorder Act 1998 s.1(1). The judge found that the appellant had verbally attacked various people associated with the local authority, made allegations of serious impropriety against them and had threatened one person with violence. He made an ASBO prohibiting the appellant from engaging in any behaviour likely to cause harassment, alarm or distress to any of the local authority's employees. He also made a costs order of 16,984 against the appellant. The questions for the court were whether the judge had been right to find that (i) the appellant had acted in an anti-social manner which had caused persons harassment, alarm or distress; (ii) an ASBO was necessary, and if so, whether the terms of the ASBO were proportionate and lawful. The judge had also been directed to state a case with regard to the costs decision, but due to time constraints that had not been done.

The appellant submitted that (1) the judge had used the wrong standard of proof in deciding the matter, namely the civil rather than criminal standard of proof, and that he had not been entitled to find on the facts that the appellant's behavior amounted to anti-social behaviour; (2) the ASBO was not necessary and proportionate, its terms were so wide so as to offend legal certainty, five years was too long, and the judge had not considered the least restrictive means of achieving the legitimate aim; (3) the costs order was unlawful.

HELD: (1) There was no basis for concluding that the judge had failed to apply the criminal standard of proof. There had been threatening and distressing conduct, and he was entitled to conclude that it had been persistent and serious to justify making an ASBO. There had been personal threats, intimidation, allegations of personal abuse, abuse concerning employees' physical disabilities, and the appellant had also accused local authority employees of animal abuse and paedophilia. Having regard to the context, it amounted to anti-social behavior. The judge had been entitled to consider the cumulative effect. The fact that the appellant might have genuinely believed his accusations was irrelevant, as was whether an allegation was true.

(2) Although the appellant had been described as a "passionate political activist" the judge had been entitled to make the ASBO for the protection of the public. The judge had observed the appellant and had assessed his grievance and denial. The effect of the ASBO did not infringe the appellant's right to share opinions on political matters, or to attend local authority meetings. A fair balance had to be struck between the interests of the community and individual fundamental rights under ECHR art.10. It was important that local authority employees could carry out their functions without being subjected to threatening behaviour. The appellant had a deep-seated and bitter grievance towards local authority employees, and the judge had been entitled to find that the only way of protecting them from harassment was to encompass all local authority members and employees. The ASBO was necessary and proportionate. As for the duration, five years was not unnecessary, unreasonable or disproportionate. Alternatives, such as barring the appellant from meetings, would only have had a limited effect.

(3) As no question in the case stated on costs had been put before the instant court, it had no jurisdiction to deal with the matter. However, as the case stated was supposed to have dealt with that matter, the appeal was adjourned and the district judge directed to amend the case stated to include a question on costs.

Judgment accordingly
Counsel:
For the appellant: Sam Skinner
For the respondent : Nicholas Mason

LTL 28/1/2016 EXTEMPORE
AC9502283