Factual and Procedural Background
This appeal arises from the decision of Deputy District Judge Alan Lloyd Jones at Preston Magistrates' Court on 24th July 2002, which dismissed an application by the Chief Constable of Lancashire for an anti-social behaviour order (ASBO) under section 1(1) of the Crime and Disorder Act 1998 against the Respondent, a street prostitute operating in residential areas of Preston. The application concerned the Respondent's conduct over a three-month period from 21st February 2002 to 26th April 2002, alleging that her activities caused or were likely to cause harassment, alarm, or distress to persons outside her household. The Deputy District Judge applied the criminal standard of proof and found that while the collective activities of street prostitutes caused a substantial problem, the Respondent's conduct alone had not been proven to cause or likely cause harassment, alarm, or distress. The Judge refused to aggregate her conduct with that of others and dismissed the application. The Chief Constable appealed this decision.
Legal Issues Presented
- Whether the likelihood that a defendant's conduct causes harassment, alarm, or distress must be proved to the criminal standard of proof, and what the term "likely" means in this context.
- Whether it is permissible to aggregate the defendant's anti-social conduct with that of other persons engaging in similar behaviour in the same area and time.
- Whether the Deputy District Judge's finding that the Respondent's conduct was not likely to cause harassment, alarm, or distress was perverse and unreasonable.
Arguments of the Parties
Appellant's Arguments
- The Respondent's conduct, when considered with that of other street prostitutes, had caused or was likely to cause harassment, alarm, or distress to persons in the area.
- The court should consider all circumstances, including the collective effect of the Respondent's conduct and that of others, when determining whether harassment, alarm, or distress was caused or likely.
- The Deputy District Judge erred in requiring proof of likelihood to the criminal standard in a manner conflating actual and likely effects, and in failing to aggregate conduct.
- The Judge's conclusion that any prostitute operating in a residential area would always be deemed likely to cause harassment, alarm, or distress and thus unable to defend herself was incorrect and led to an unfair evidential burden.
- The requirement for specific examples of intimidation or fear was an unnecessary and illogical evidential burden on the applicant.
Respondent's Arguments
- The criminal standard of proof applies to the entire condition in section 1(1)(a), including the likelihood of causing harassment, alarm, or distress.
- The Respondent's conduct was limited to basic activities of prostitution and should not be aggregated with the aggravated behaviour of other prostitutes.
- The hearsay evidence was of no evidential value due to lack of specific complaints or direct evidence of harassment, alarm, or distress caused by the Respondent.
- The Deputy District Judge correctly required evidence of specific examples or complaints to satisfy the standard of proof.
- Not all street prostitution in residential areas necessarily breaches the Act.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (McCann) v. Manchester Crown Court [2002] 3 WLR 1313 |
- ASBO applications are civil proceedings engaging Article 6 fair trial rights.
- Hearsay evidence admissible under Civil Evidence Act 1995 is not unfair.
- Serious proceedings require proof to criminal standard that defendant acted anti-socially.
|
The court applied McCann to confirm that the criminal standard applies to proving anti-social conduct, including the likelihood of causing harassment, alarm or distress. |
| R v. Howell [1982] QB 416, CA |
Standard of proof for likelihood in public order offences (breach of the peace). |
Used as an example of courts managing the proof of likelihood to criminal standard over centuries. |
| Re H and Ors (Minors) (Sexual Abuse, Standard of Proof) [1996] AC 563 |
Meaning of "likely" as a real or substantial risk in child protection context. |
Distinguished the lower threshold of "likely" in child protection from the higher threshold appropriate in ASBO context. |
| Parkin v. Norman [1983] QB 92 |
Interpretation of "likely" in the context of insulting behaviour likely to occasion breach of the peace. |
Supported the interpretation of "likely" as "more probable than not" in the ASBO context. |
Court's Reasoning and Analysis
The court began by outlining the legislative framework for anti-social behaviour orders under the Crime and Disorder Act 1998, focusing on the conditions for granting such orders, particularly the requirement in section 1(1)(a) that the defendant's conduct caused or was likely to cause harassment, alarm or distress.
The court analysed the standard of proof applicable to the likelihood condition. It confirmed that an ASBO application is a civil proceeding engaging Article 6 rights, but given the serious consequences of breach, the criminal standard of proof applies to whether the defendant acted in an anti-social manner, including the likelihood of causing harassment, alarm or distress. The court rejected arguments for a lower standard of proof for the likelihood element, concluding that "likely" in this context means "more probable than not" and must be proved to the criminal standard.
The court identified errors in the Deputy District Judge's reasoning, notably his conflation of the actual and likelihood conditions and his failure to distinguish between proof of actual harassment and proof of likelihood. The Judge incorrectly required evidence of actual harassment to establish likelihood and imposed an unfair evidential burden on the applicant.
Regarding aggregation, the court found the Deputy District Judge erred in law and fact by refusing to consider the Respondent's conduct in conjunction with that of other street prostitutes. The Act does not require proof of intent or concerted action, and the conduct of multiple persons can be considered collectively to establish causation or likelihood of harassment, alarm or distress.
On the question of perversity, the court held that the Deputy District Judge's conclusion that the Respondent's conduct was not likely to cause harassment, alarm or distress was unreasonable and inconsistent with the facts found. The Judge's requirement for specific examples or complaints was unnecessarily restrictive and not mandated by the legislation or evidential rules.
Overall, the court emphasized the need for proper application of the criminal standard of proof to the likelihood condition, correct aggregation of conduct, and a fair evidential approach consistent with the serious consequences of an ASBO.
Holding and Implications
The court ALLOWED the Chief Constable's appeal.
The decision of the Deputy District Judge was set aside to the extent that he had erred in law by:
- Misapplying the criminal standard of proof to the likelihood condition by conflating it with proof of actual harassment, alarm or distress;
- Refusing to aggregate the Respondent's conduct with that of other street prostitutes;
- Making an unreasonable and perverse finding that the Respondent's conduct was not likely to cause harassment, alarm or distress.
The matter was remitted to the Deputy District Judge with directions to reconsider, applying the correct legal principles and criminal standard of proof, whether the Respondent's conduct alone or together with others had caused or was likely to cause harassment, alarm or distress, and if so, whether an ASBO should be made.
The ruling clarifies the application of the criminal standard of proof to the likelihood element in ASBO proceedings and confirms the permissibility of aggregating conduct when assessing causation or likelihood of harassment, alarm or distress. It does not establish a new precedent but reinforces existing principles and ensures correct legal standards are applied in similar future cases.