The council appealed the refusal of the magistrates to grant an interim Anti-Social Behaviour Order (ASBO) without notice. The magistrates clerk had said that there had been no violence, and no further incident after the police had given a warning.
Held: The clerk had not properly considered all the allegations, and that the behaviour complained of fell within the range of behaviour for which an order was proper. ‘a justices’ clerk, when deciding if he is satisfied that it is necessary for the application to be made without notice pursuant to Rule 5(2), would be well advised to have regard, inter alia, to the following factors (this list not being exhaustive), namely: (1) the likely response of the defendant upon receiving notice of such application; (2) whether such response is liable to prejudice the complainant having regard to the complainant’s vulnerability; (3) the gravity of the conduct complained of within the scope of conduct tackled by ASBOs in general as opposed to the particular locality; (4) the urgency of the matter; (5) the nature of the prohibitions sought in the interim ASBO; (6) the right of the defendant to know about proceedings against him; (7) the counterbalancing protections for the rights of the defendant, namely: (a) the ineffectiveness of the order until served; (b) the limited period of time the order is effective; (c) the defendant’s right of application to vary or discharge.’
Henriques J
[2005] EWHC 253 (Admin)
Bailii
The Magistrates’ Courts (Anti-Social Behaviour Orders) Rules 2002 5(2), Crime and Disorder Act 1998 1(1)
England and Wales
Citing:
Cited – Kenny, Regina (on the Application of) v Leeds Magistrates Court, Leeds City Council Admn 5-Dec-2003
In cases involving children, Article 3 provides that the best interests of the child are a primary consideration, not the primary consideration.
The court looked at the test for making an interim ASBO: ‘Consideration of whether it is just to . .
Cited – Regina (M) v Secretary of State for Constitutional Affairs and Lord Chancellor CA 18-Mar-2004
The making of an interim Anti-Social Behaviour Order not on notice was not an infringement of the subject’s human rights, since the order was limited in time and subject to review by the courts. However, ‘The more intrusive the order the more the . .
These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.225266
