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 court will require proof that it is necessary that it should be made, and made in the particular form sought, but there is nothing intrinsically objectionable about the power to grant an interim ASBO without notice.’ The test to be adopted by a Magistrates’ Court, when deciding whether or not to make an interim order, must be the statutory test, whether it is just to make the order. That itself involves consideration of all relevant circumstances including the fact that the application has been made without notice. The court must consider whether the application for the final order has been properly made, but there is no justification for requiring the Magistrates’ Court, when considering whether to make an interim order, to decide whether the evidence in support of the full order discloses an extremely strong prima facie case.
Judges:
Lord Justice Kennedy Lord Phillips Of Worth Matravers, Mr Lord Justice Neuberger
Citations:
[2004] EWCA Civ 312, Times 31-Mar-2004, [2004] 1 WLR 2298
Links:
Statutes:
Crime and Disorder Act 1998 1D
Jurisdiction:
England and Wales
Cited by:
Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Cited – Manchester City Council, Regina (on the Application Of) v Manchester Magistrates’ Court Admn 8-Feb-2005
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. . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice
Updated: 10 June 2022; Ref: scu.194572