High Court go 'Back to the Future' in admitting evidence of ASB

Article

19 March, 2009

The High Court ruling in the case of Birmingham City Council v Dixon on 18 March 2009 has, for the present time, paved the way for courts to take into account the behaviour of a person subject to an Anti Social Behaviour Order (ASBO) after any such application has been made.

The Council had appealed, by way of case stated, against the preliminary decision of a magistrates' court that evidence of alleged anti social behaviour by Dixon (D) after the making of an application for an ASBO by the Council was inadmissible.

The Facts

An ASBO was sought by the Council on the grounds of D's alleged membership of a notorious gang and that as a consequence of this association, D was likely to cause alarm, harassment or distress to others and that D had, during the relevant period, been involved in acts of anti social behaviour. The application was adjourned and when the matter next was heard by the court, the Council sought to rely on additional instances of anti social behaviour for the period since the adjourned hearing.

The magistrates' court held as a preliminary matter that this evidence was inadmissible as it was irrelevant. They ruled that there would be procedural difficulties if the evidence was admitted as the post-complaint behaviour might have been the subject of outstanding criminal behaviour and that evidence after the original date of the complaint by the Council was not relevant to the issue of whether D had behaved in an anti social manner before the application date.

As a consequence, the court did not make D subject to an ASBO. In the appeal hearing, the High Court was asked to determine whether the magistrates' court had been correct in law to hold the acts of D after the date of the ASBO application as inadmissible. In doing so, the court was asked to consider whether D had acted in an anti social manner for the purposes of the Crime and Disorder Act 1998 and whether it was necessary for the magistrates' court to make an ASBO against D.

The High Court's Decision

The High Court held, in allowing the Council's appeal, that the magistrates' court had erred in holding that the additional evidence of D's alleged anti social conduct was irrelevant. Evidence of an individual's post-complaint behaviour could be relevant as to whether their behaviour during the period that caused the complaint to be lodged was anti social in nature. It was also stressed that in order to make good a complaint, it was still necessary to prove the allegations and so whilst additional evidence might assist in doing so, it could not enlarge the complaint itself.

In addition, the High Court stated that the admission of post-complaint behaviour was also relevant as to whether an ASBO was necessary to protect the general public in a particular local authority area, particularly in situations where the individual had 'turned over a new leaf', become ill, or suffered an injury which meant that the ASBO was no longer needed. Without such information, a court could not make such a ruling. Accordingly, the High Court ruled all of the questions asked of it in the negative.

Summary

This case highlights the need and importance for landlords to keep full and accurate records of the behaviour of the tenants if subject to ASBOs as post-application behaviour may be of relevance to a court in determining whether the individual has acted in such a manner and in any future assessments of whether such a charge remains necessary.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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