M, R (on the application of) v Secretary Of State For Constitutional Affairs & Anor

Factual and Procedural Background

Prior to July 2003, the Little London area of The City experienced escalating problems related to drug-dealing and associated violent crime, causing significant distress to local residents. In response, the City Council and the police, in consultation with other agencies including the Home Office, decided to seek Anti-Social Behaviour Orders (ASBOs) against individuals linked to drug-dealing and their associates. By late August 2003, applications were prepared against 66 individuals. On 27th August 2003, leave was granted by a Justices' Clerk for interim ASBO applications to be made without notice to the named individuals.

On 2nd September 2003, the applications were made by the City Council and the police, and sixty-six interim ASBOs were issued by a District Judge at the Magistrates' Court, including one against the Appellant, who was then 17 years old. The interim order prohibited various anti-social behaviours, including exclusion from the Little London area and contact restrictions with certain individuals. The order was initially set to expire on 15th December 2003, with a court attendance date fixed for 15th September 2003.

Subsequently, the Appellant applied to discharge the interim order on 16th October 2003; the order was modified but not discharged. The City Council applied to extend the interim order to 15th March 2004, which was granted. The full ASBO hearing was scheduled for 10th March 2004.

On 4th November 2003, the Appellant initiated judicial review proceedings challenging the legality of the interim order on the basis that it was made without notice, alleging incompatibility with common law and Article 6(1) of the European Convention on Human Rights (ECHR). The judicial review was heard expeditiously, resulting in refusal of relief for the Appellant but granting relief to another claimant due to insufficient evidence.

Legal Issues Presented

1. Whether Article 6(1) of the European Convention applies to the making of an interim ASBO without notice, given its effect on civil rights or obligations.
2. Whether Rule 5 of the Magistrates' Courts (Anti-Social Behaviour Orders) Rules 2002, permitting interim ASBO applications without notice, is lawful and compatible with common law and the ECHR.
3. The proper test to be applied by the court when deciding whether to make an interim ASBO without notice.
4. Whether the test was correctly applied in the present case.
5. Whether the application for an interim ASBO against the Appellant justified the use of the without-notice procedure.

Arguments of the Parties

Appellant's Arguments

• The adversarial nature of English law requires notice to be given to parties, and orders made without notice should be rare, strictly limited in time, and followed by an early return hearing.
• The statutory provisions do not adequately provide for early reconsideration after an interim ASBO made without notice.
• Domestic law and common law principles require scrupulous fairness and generally oppose orders made without notice unless strictly necessary.
• The procedure under Rule 6 is insufficiently effective as a safeguard because it places the burden on the defendant to initiate review and is not designed to operate urgently.
• Article 6(1) of the ECHR applies to interim ASBOs because they can impose significant restrictions and sanctions affecting civil rights.
• The test applied for making interim orders without notice should be more stringent, requiring a strong prima facie case that the full ASBO application will succeed.
• In the Appellant's case, there was no urgent need for a without-notice order given the length of police operations, absence of vulnerable witnesses, and no immediate catalyst.

Respondents' Arguments (Secretary of State and City Council)

• Primary and secondary legislation provide safeguards ensuring interim ASBOs without notice are only granted when necessary, including leave from a justices' clerk and judicial discretion.
• An interim ASBO is ineffective until served, can be varied or discharged at any time, and the defendant must be heard if seeking variation or discharge.
• The Magistrates' Court has inherent jurisdiction to prevent abuse of process and to reconsider interim ASBOs if necessary.
• Interim ASBO applications are ancillary to the full ASBO application and require a different, less stringent test focusing on whether it is "just" to make the order pending determination.
• The test applied by the District Judge was appropriate, considering the need to protect the public, urgency, proportionality, and the limited impact on the defendant.
• In the Appellant's case, there was a documented urgent need for a without-notice order due to risks of retaliation, witness intimidation, and the ongoing nature of drug-related anti-social behaviour.
• The absence of an automatic early return date does not breach Article 6 or natural justice because the procedure as a whole is fair, and the defendant has multiple avenues for challenge and appeal.
• Comparisons to other types of without-notice orders (e.g., freezing orders) demonstrate the necessity and acceptability of such procedures when accompanied by safeguards.
• The relief sought by the Appellant is too broad and not appropriate even if some procedural defects were found.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (McCann) v Manchester City Council [2003] 1 AC 787	ASBOs constitute civil proceedings engaging Article 6(1) rights; test for making ASBOs.	Confirmed that full ASBOs determine civil rights; distinguished interim orders as not determinative if safeguards exist.
Ansah v Ansah [1977] Fam 138	Ex parte orders are anomalies and must be used with caution and be time-limited.	Supported the principle that orders without notice should be rare and strictly limited.
Southwark LBC v St Brice [2002] 1 WLR 1537	Burden of initiating review proceedings on defendant not decisive for fairness.	Referenced to argue that requiring defendant to apply for review is not inherently unfair.
Schuler-Zgraggen v Switzerland [1993] 16 EHRR 405	Waiver of right to public hearing if not requested; fairness assessed in context.	Used to illustrate that procedural fairness can include expectation of party's actions.
Le Compte and others v Belgium [1981] 4 EHRR 1	Interim decisions may engage Article 6 if they determine civil rights irreversibly.	Distinguished as final decision case; interim ASBOs here do not cause irreversible prejudice.
Markass Car Hire v Cyprus (ECHR, 6 Nov 2002)	Interim orders partially determining civil rights engage Article 6(1).	Applied to argue that interim ASBOs can engage Article 6(1) if they cause irreversible prejudice; court found no such prejudice here.
R (Alconbury) v Secretary of State for the Environment [2001] 2 AC 295	Distinction between administrative and judicial decisions for Article 6.	Used to categorize interim ASBOs as civil procedure with some latitude for the state.
Calvin v Carr [1980] AC 574	Quasi-judicial decisions and natural justice requirements.	Referenced regarding fairness at different procedural levels.
Albert and Le Compte v Belgium [1983] 5 EHRR 533	Disciplinary proceedings must comply with Article 6(1) or have judicial oversight.	Used to support need for fairness at judicial stages.
R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110	Procedural irregularities in Magistrates' Court do not bar judicial review.	Supported that judicial review is available despite appeal rights.
Findlay v UK [1997] 24 EHRR 221	Criminal proceedings require fairness at every stage under Article 6.	Distinguished as criminal case with procedural flaws at all levels.
R v Lord Chancellor ex parte Witham [1998] QB 575	Access to courts is a constitutional right not to be removed except by primary legislation.	Referenced in argument about necessity of primary legislation for procedural safeguards.
R (DPP) v Camberwell Green Youth Court [2003] EWHC 3217 (Admin)	Magistrates' Court inherent jurisdiction to protect from abuse of process.	Supported that Magistrates' Court can reconsider interim ASBOs if necessary.
Dick v UK (Application No. 26249/95, 23 Oct 1997)	Interim draconian measures do not necessarily breach fairness if overall procedure is fair.	Used to illustrate that interim orders without notice do not breach Article 6 if subsequent hearings are fair.

Court's Reasoning and Analysis

The court began by acknowledging the unusual nature of making orders without notice but recognized that such measures are permissible when necessary and subject to adequate safeguards. It emphasized that the power to grant interim ASBOs without notice is contingent on the justices' clerk being satisfied of necessity and the Magistrates' Court considering it just to make the order.

The court reviewed the statutory framework, noting that interim ASBOs are ancillary to full ASBO applications, limited in duration, ineffective until served, and subject to variation or discharge at any time. The court found that the procedural rules provide for parties to attend court shortly after the interim order, enabling timely reconsideration.

Regarding the engagement of Article 6(1) ECHR, the court held that interim ASBOs do not determine civil rights in a final or irreversible manner. While such orders restrict freedoms and carry sanctions, their limited duration, conditionality on service, and availability of review and appeal mitigate against a finding that Article 6 is engaged at the interim stage.

The court analyzed the competing submissions on the test for making interim orders without notice, concluding that the statutory test of whether it is "just" to make the order is appropriate. There is no requirement for an extremely strong prima facie case at the interim stage. The court found that the District Judge properly applied this test, considering the urgency, the protection of the community (including children), the serious nature of the behaviour, and proportionality.

In relation to the Appellant’s case, the court found that the evidence before the District Judge was ample to justify the interim order without notice, including concerns about witness intimidation and the ongoing nature of drug-related anti-social behaviour in the area. The absence of identified vulnerable witnesses was not determinative.

The court rejected the argument that the procedural rules were unlawful or incompatible with the ECHR, noting that procedural fairness is maintained through the availability of review, variation, discharge, appeal, and judicial review. It also found no unfairness in placing the burden on the defendant to initiate review proceedings given the safeguards and the nature of the civil procedure.

Holding and Implications

The court DISMISSED THE APPEAL.

This decision confirms the lawfulness of the procedure allowing interim ASBOs to be made without notice, subject to the statutory safeguards and judicial oversight described. It clarifies that such interim orders do not engage Article 6(1) of the European Convention on Human Rights, provided they are limited in duration, ineffective until served, and accompanied by procedural protections including the right to apply for variation or discharge and appeal rights. The ruling upholds the balance between protecting the community from anti-social behaviour and safeguarding the procedural rights of defendants. No new precedent was set beyond affirming the existing statutory and common law framework as applied to the facts of this case.