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||Neutral Citation Number:  EWHC 3329 (Admin)
||Case Nos: CO/8879/2009 and CO/11875/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
B e f o r e :
THE HONOURABLE MR JUSTICE MACKAY
THE HONOURABLE MR JUSTICE BEATSON
|| THE QUEEN ON THE APPLICATION OF BIRMINGHAM CITY COUNCIL
||- and -
||BIRMINGHAM CROWN COURT
||- and –
||THE QUEEN ON THE APPLICATION OF SOUTH GLOUCESTERSHIRE DISTRICT COUNCIL
||- and –
||BRISTOL CROWN COURT
||- and –
||(1) AW (BY HIS LITIGATION FRIEND) (2) NW (BY HIS LITIGATION FRIEND)
MR J. MANNING (instructed by Birmingham City Council) for the Claimant
MR D. SMALL (instructed by Lyndallwoods Solicitors) for the Interested Party
MR T. HUGGINS (instructed by South Gloucestershire District Council) for the Claimant
MR J. TUCKER (instructed by Daniel Woodman & Co Solicitors)
for the Interested Parties
Hearing date: 3 December 2009
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Beatson:
- These two applications for judicial review are brought by Birmingham City Council and South Gloucestershire District Council. They raise important issues of practice about the procedure to be used in appeals to the Crown Court against the decision of a Magistrates' Court to make an Anti-Social Behaviour Order (hereafter "ASBO"). They both concern a "stand-alone" ASBO as opposed to a post-conviction ASBO. Both concern applications to appeal out of time, in the Birmingham case by some 10 months, in the South Gloucestershire case by some 6 weeks.
- Section 4 (1) of the Crime and Disorder Act 1998 provides for an appeal to the Crown Court from the decision of a Magistrates' Court to make an Anti-Social Behaviour Order. Stand-alone ASBOs are made by a Magistrates' Court sitting in its civil capacity. The Criminal Procedure Rules (see Courts Act 2003, sections 68 (b)(ii) and 69) only apply to the Crown Court or a Magistrates' Court in dealing with 'criminal cause or matter'. Accordingly, they do not apply to either the hearing of an application to make an ASBO in the Magistrates Court or to an appeal in the Crown Court from the Magistrates Court in such cases. Such appeals are also not governed by the Civil Procedure Rules which (see CPR 2.1) only apply to the County Court, the High Court, and the Civil Division of the Court of Appeal. Appeals against stand-alone ASBOs are governed by the Crown Court Rules 1982 SI (1982) No. 1109 ("the 1982 Rules") . The 1982 Rules apply "to every appeal which by or under any enactment lies to the Crown Court from any court" save for specified exceptions: see Rule 6.
- Rule 7(3) of the 1982 Rules provides that notice of appeal shall be given not later than 21 days after the date on which the decision appealed against is given. Rule 7(5) provides that "the time for giving notice of appeal… may be extended, either before or after it expires, by the Crown Court, on an application made in accordance with paragraph (6)". By paragraph (6), "an application for an extension of time shall be made in writing, specifying the grounds of the application and sent to the appropriate officer of the Crown Court". Rule 7(7) requires the Crown Court to give notice of the extension to the appellant and to the designated officer for the Magistrates' Court or Licensing Justices, and for the appellant to give notice of the extension to any other party to the appeal.
- The 1982 Rules thus do not require that the proposed respondent be served with an application to extend time for an appeal. In this they differ from both the Criminal Procedure Rules and the Civil Procedure Rules: see Criminal Procedure Rules 2005 r. 63.2(3); Civil Procedure Rules 52.4(3).
The Birmingham case:
- In the Birmingham case the City Council applied for an ASBO against Rikardo Reid ("RR"), aged 19. On August 2008 the magistrates made an interim order. RR was personally served with the interim order on 11 August by PC Ellis who informed him of the date of the final hearing and explained the prohibitions in the interim order. On 22 August the magistrates made a 3 year order. The witnesses who gave evidence on behalf of the order were all police officers. RR did not attend the hearing at which the final order was granted. He was served with it on 23 August, again personally.
- Thereafter, on 29 or 30 August, RR was arrested for breach of the interim ASBO. He was also charged with supplying Class A drugs and remanded in custody. On 16 December, at a hearing at which he was represented, he pleaded guilty to breaching the interim ASBO and sentenced to 14 days imprisonment. On 26 March 2009 he was sentenced at Wolverhampton Crown Court to 12 months imprisonment suspended for 2 years for the drug offences. He was in custody between 29 or 30 August 2008 when he was arrested and 26 March 2009 when he was sentenced. On 8 June 2009 he broke the terms of his ASBO and was charged. On 10 June pleaded guilty to the breach and was fined £100.
- On 16 June 2009, ten months after the Magistrates made the full ASBO and a week after his conviction for breaching it, RR applied for permission to appeal out of time against the making of the order. He stated the interim and final orders were made in his absence, and he did not have the opportunity to contest the proceedings. He stated he was not aware of the date for the full hearing, and that the solicitors he contacted on his release in March 2009 were too busy to see him until shortly before his application for permission to appeal out of time.
- On 25 June 2009 HHJ Griffiths-Jones granted RR permission to appeal out of time. The claimant was informed of this on 6 July when it received a document entitled "Particulars of Appeal". On 10 July it wrote to the Crown Court referring to the length of the delay between the making of the ASBO and the notice of appeal. At that stage it did not know that an application to extend time had been made and granted. After receiving a copy of that application, on 15 July the claimant wrote again to the Crown Court taking issue with the statement in it that RR had not known of the date of the full hearing. The letter suggested that the application was devoid of merit. The claimant subsequently received notice from the Crown Court stating that there was to be a "fixing" conference about the appeal on 29 July and later that the hearing of the appeal was to be on 27 July. On inquiring about this, the claimant was told by a court officer that an entry from the court file made by HHJ Davis QC stated: "list for directions for BCC to make oral representations on the leave issue".
- At the outset of the hearing on 27 July HHJ Griffith-Jones (Transcript page 2) set out the principles and his practice in such applications. He stated that he usually granted permission to appeal out of time on the papers:
"unless the failure to appeal within the 21 day period is unreasonable or culpable, and a factor that I take heavily into account is if there is a delay which prejudices the respondent".
- The Judge said he was prepared to review his grant of permission if it could be shown by the Council that the court had been misled by the paper application for the extension of time. In response to Mr Manning, who appeared on behalf of the claimant, the judge said he would not take into account the fact that the application for an extension of time was submitted without the assistance of a solicitor: Transcript, page 5. This may suggest that the judge was not willing to take into account submissions on matters other than the question of whether the court had been misled by RR's application but there was later discussion (Transcript, page 7) of whether there was any impediment to a rehearing and about the position of the Council should the matter be re-heard. Mr Manning also referred (Transcript, page 8) to the implications of a further trial on a public authority with limited resources and to a decision of the Court of Appeal on the importance of considering the effect of extensions of time on other cases. At the hearing in these proceedings Mr Manning said the case was Ibrahim Omer-Hassan Transcript No 9/4694/4 4 2 July 1999. He did not hand the transcript up because the judge stated he was aware of this and always took it into account: Transcript, pages 8B and E).
- The judge stated (Transcript, pages 8G-H) that, if he considered the court had been misled he was able to review the decision and, in reviewing the decision, he would "take into account everything all over again". At the hearing in these proceedings Mr Manning said that his expectation was that, if the judge so concluded, he would to be able to develop his submissions on the matters to which I have referred in the last paragraph.
- The judge concluded that the court had indeed been misled because the full order was served on RR on 23 August and the interim order must have been brought to his attention by 30 August when he was arrested for breaching it. The judge did not, however, hear further submissions but went on to consider whether, had he known the true position, he would still have given RR permission to appeal out of time. He said:
"It is important that the principle that someone should appeal within 21 days is not regarded as some sort of unimportant formality. It is something that needs to be complied with and there needs to be some explanation for why it has not been. But in this case, I am bound to say, that I would still have given him permission to appeal. I do so because of his youth, because of what else was going on in his life which would have been a pretty important distraction from this, namely that he had been arrested and was eventually sentenced for a conspiracy to supply class A drugs and because I cannot rule out that he did not instruct his solicitors at a much earlier stage than in reality they act in. There is a conflict there between him and his solicitors but I cannot rule out that he did not at least complain to them about the making of the ASBO. It may be that he did not formalise his complaint with a specific instruction that he should have an appeal launched on his behalf. But he is not a lawyer and he is a teenager and he had got other things on his mind and so had his solicitors because he was in custody as I say for a very serious offence.
I am also bound to, in the exercise of my discretion, take into account that the respondent is not actually prejudiced, in that no information has been lost, indeed the respondent has a duty to be vigilant not to lose information when an order is made for three years, because at any time the applicant could make an order to vary it before the Magistrates and therefore it would be unwise for them as it were to throw the information away. So they are able to deal with this matter if the matter is appealed." (Transcript pp. 24-25).
The South Gloucestershire case:
- South Gloucestershire District Council applied for ASBOs to be made against AW and NW, now aged 14 and 15. On 12 May 2009 North Avon Magistrates' Court made interim ASBOs against them and on 30 June the same court made full ASBOs against them. AW and NW were represented by solicitors at the final hearing. Two neighbours gave evidence of anti-social behaviour by AW and NW. The other witnesses were two council employees and two police officers.
- Proforma appeal notices against the ASBOs were filed by NW on 7 September and AW on 8 September, some six weeks out of time. The grounds of appeal of both are that "the evidence given in support of the application was and is not sufficient in law to justify the order". In a space on the form used by NW for the insertion of grounds for the extension of time, it is stated that he was applying for an extension of time for giving notice of appeal because he "did not decide to appeal before the time limit expired". The form containing AW's notice of appeal does not contain space for the insertion of grounds for an extension of time. No grounds are given on the form and there was no covering letter with the notice of appeal. On 14 September a further application form for leave to appeal out of time was filed by or on behalf of NW. The ground of appeal is stated to be that "the making of the order was not necessary in all the circumstances". No further particularity has been given in response to these proceedings. The reason for not appealing in time is stated to be:
"Initially I was not going to appeal. However, now I wish to appeal having had the benefit of further advice, but I am now outside the initial 21 days time limit. My brother [AW] has been given leave to appeal the same ASBO out of time."
- Shortly after the filing of the appeal notices the Recorder of Bristol, HHJ Crowther QC granted permission to both to appeal out of time.
- The reference in NW's second application to the outcome of AW's application and the fact that NW's solicitors were informed of the outcome of his application on 17 September suggests they were not considered together and that the judge considered NW's second application. Whatever the position, the claimant received notice of both appeals on or about 17 September. That day it wrote to the Bristol Crown Court objecting to the appeals because they had been lodged over six weeks after the expiry of the time limit. These letters did not ask for the reasons the extension was granted. There were further communications between the claimant and the Crown Court and its listing office and, on 6 October, the claimant was informed in a telephone conversation with the Crown Court's listing officer, that the judge was "not prepared to revisit these decisions" and that the court "doesn't have to show how it made its decision".
The procedural history of these applications:
- The procedural history of the two applications is as follows. In the Birmingham case an application for permission to apply for judicial review and for urgent interim relief was made on 11 August. The claimant filed a statement by an ASBO officer, Paul Parrish, with its application. On 14 August Dobbs J ordered a stay of the appeal hearing listed for 16 October at the Birmingham Crown Court, and, on 24 September, Pitchford J granted permission. He directed it was to be heard by a Divisional Court and the Interested Party to lodge any evidence in response within 21 days. No evidence has been filed.
- In the South Gloucestershire case an application for permission to apply for judicial review and for urgent interim relief was made on 12 October. In the South Gloucestershire case the claimant has not filed any evidence apart from a statement of facts attached to the claim form. On 14 October I made an order staying the appeal (listed for 16 October) pending the judicial review. On 26 October I granted permission stating that the case was to be listed before a Divisional Court together with the Birmingham City case. During the hearing Mr Tucker informed the court that a litigation friend had not been appointed for the interested parties in the South Gloucestershire case. This was clearly the result of an administrative error. AW has since agreed to act as a litigation friend in accordance with CPR 21.5 and the court herewith makes an order under CPR 21.3(4) that all steps taken since AW and NW were served with notice of these proceedings as interested parties are to have effect.
- In the Birmingham case the challenge is both to the judge's initial decision on 25 June and his later decision on 27 July. At the hearing Mr Manning focussed on the later decision. He was right to do so. The issues that arise in relation to both decisions overlap substantially. The judge said that, if he found the court had been misled by RR's application, he would take into account everything all over again. He did so find.
- The first issue is whether the judge failed properly to consider the principal factors which, in the light of the authorities, he was obliged to take into account. Mr Manning submitted that the main reason RR gave for failing to give notice of appeal in time was shown to be incorrect and the matters relied on by the judge did not explain a delay of some 10 months. He submitted that the judge's approach to prejudice failed to take into account a number of relevant considerations. These included: (a) the prejudice to a public authority with limited resources having to re-litigate a matter over 12 months after it obtained the order, (b) the deterioration of the recollections of witnesses, including police witnesses, over time, an important factor since the hearing in the Crown Court is de novo and the claimant would be required to prove its case again, and (c) the interest of both the claimant and the local community for whose benefit the applications are brought in the finality of ostensible "final" decisions. He also submitted the judge erred in taking account of RR's age and the other allegations that he faced.
- The second issue is whether the judge erred in reaching a decision without providing the claimant with an opportunity to make submissions on the merits of the application or to explain or provide evidence of prejudice. In relation to prejudice, this arises in relation to both decisions, albeit in different ways, because the first decision was made on the papers and on an ex parte basis but the claimant was present at the hearing on 27 July. The question is whether on 27 July the judge limited the claimant to making submissions as to whether he had been misled by the application. If so, was it procedurally unfair of the judge not to allow submissions on the merits of the application for an extension of time, including the merits of the proposed appeal and the prejudice to the claimant of a rehearing after he ruled that the application misled the court?
- Two issues arise in the South Gloucestershire case. The first is whether it is open to a judge to extend time for an appeal where (as AW did) the applicant gives no reason for not applying in time or where the reason is as that given by NW. In his first application, NW stated he did not decide to appeal before the time limit expired. In his second application he stated that initially he was not going to appeal but reconsidered in the light of further advice. The second issue is whether the learned judge erred in not giving succinct reasons as to why he granted an extension of time.
- As Judge Griffiths-Jones stated in his ruling in the Birmingham case (see  above), it is important that the requirement that a person should appeal within 21 days is not regarded as some form of unimportant formality. He said the time limit needs to be complied with, and there needs to be some explanation for why it has not been. I respectfully agree. Time limits are imposed because of the public interest in finality. This public interest has a number of aspects. They include enabling the court to manage its business in a proper manner (see Burley (David) The Times 9 November 1994, CACD) and to have available the full range of options for a just disposal (see Ibrahim Omer-Hassan Transcript No 9/4694/Y4 2 July 1999). They also include the need for those for whose benefit or protection proceedings have been instituted (in this context the victims of anti-social behaviour) to be able to rely on the decision. In the case of a rehearing they include the risk that the memories of witnesses will have faded, and that witnesses who were reluctant to give evidence at the first hearing will refuse to do so when the case comes on again. The cost in time and money to the public authority that will have to reinvestigate the matter, possibly, given the resource implications, at the expense of other important activities, is also a factor relevant to the public interest in finality.
- The structure of the 1982 Rules shows that applications for permission to appeal out of time are made and considered without notice to the proposed respondent, and normally on the papers. It appears from rule 7(7) that notice to the proposed respondent is only required once time has been extended. Rule 7(7)(b) does not require either an applicant or the court to give notice of the application to the prospective respondent. The ex parte nature of such applications was recognised in R (HM Customs and Excise) v Maidstone Crown Court  EWHC 1459 (Admin), which is the starting point for the consideration of these applications.
- In the Maidstone Crown Court case Newman J considered the process that should be followed by a Crown Court judge considering an application made without notice to extend the time for appealing against a decision of the magistrates' court. He stated (at ) that a Crown Court judge hearing an application for an extension of time "acts so as to achieve justice for the parties in the case" and "that will not simply be achieved by granting relief to the party making the application". It was for that reason inter alia that he considered the judge considering an application for permission to appeal out of time must take into account the reasons for the delay and the merits of the proposed appeal: see  and . He also stated that as a general rule it is desirable for a judge to give succinct reasons why an extension of time has either been granted or refused: see  and .
- I first consider the Birmingham case. The first ground upon which the decision of the judge is challenged is that he erred in his consideration of the reason for the delay in applying for permission to appeal out of time because the factors he took into account, RR's youth, that he may have been distracted from appealing because of what else was going on in his life, and the judge's inability to rule out that he had complained to the solicitors at a much earlier stage were either not relevant or not supported by evidence.
- Initially Mr Manning submitted that the judge was not entitled to take into account RR's youth. Mr Huggins made a similar submission in the South Gloucestershire case. They, however, later accepted that it was legitimate to consider age, but did so only in so far as age shed light on the delay. Here they submitted it did not do so because RR, aged 19, had not given his youth as a reason for the delay. Neither had AW and NW, aged 14 and 15. I consider the judge was entitled to take into account the age of the person applying for an extension of time, and to do so whether or not this was given as a reason for delay. Courts regularly take account of the age and experience of those before them. Those familiar with even unproblematic teenagers know that they are not always able to appreciate what they should do or it is in their interests to do so as soon as they should. In the case of NW the notice refers to the further advice he received, but it would be unduly formalistic to say that age cannot be taken into account in this context save where express reliance is placed on it. I do not consider, moreover, that the only impact of age is on the reasons for delay. Though a civil order, an ASBO exposes the defendant to the risk of criminal sanctions of some significance. It cannot therefore be an unreasonable response for a judge asked to extend time to have regard to the age of the proposed appellant, especially if he is of the age of AW and NW, given the potential consequences of this particular order.
- Secondly, it is said that the judge erred in his approach to the reasons for the delay. The principal reason given in RR's application for seeking the extension, no notice of the hearing, if true, clearly sufficed to justify extending time. But when the matter was before the judge on 27 July, that reason was shown to be false. What was left was the statement that RR had complained to his solicitors at a much earlier stage. This was a matter on which there was a conflict between him and his solicitors. As to this, and whether RR had been distracted from appealing because of what was going on in his life, the judge's discretion in considering the application was a broad one and he was entitled to take account of what he knew of the circumstances of the case.
- RR had been arrested for serious drugs offences and was suspected of involvement in an attempted murder. It would not have been surprising if his attention was focussed on those matters rather than on the ASBO. On the particular facts of this case as Mr Manning pointed out, at the hearing the judge was told by RR's barrister that RR said he told his solicitors at a much earlier stage that he wished to appeal. This is not inconsistent with the judge's view that RR may have been distracted because he may have complained to his solicitors about the ASBO but neither he nor they did anything because both they were concentrating on the more serious matters. But it does not sit altogether comfortably with it. The conflict between what RR and his solicitors said on this matter meant that the factual basis for this as a reason for the delay was fragile. Although, for reasons I shall give, I believe the general approach of the judge may have downgraded the importance of the reason for the delay in considering whether to extend time and thus the protection of the interests of the proposed respondent at the without notice stage, I do not consider that in this case this factor in itself vitiated the judge's exercise of his discretion and made it unlawful.
- The next matter for consideration is the merits of the proposed appeal. The judge had no information about the grounds of or the merits of RR's appeal. RR's application was entirely based on his lack of an opportunity to contest the proceedings. At the hearing on 27 July no information was given by those representing him as to the merits. The first part of the hearing was almost entirely concerned with whether the court had been misled. The judge accepted that the application was misleading and he had been misled. After deciding to extend time the judge commented (transcript page 25) that his grant of permission in no way suggested that the appeal had any merit and that "it may have no merit at all, I do not know".
- I have referred to the statement by Newman J in the Maidstone Crown Court case following Taylor J in R v Croydon Crown Court, ex p Smith (1983) 77 Cr App R 277 that a judge considering whether to give permission to appeal out of time must take into account the merits of the proposed appeal. Taylor J stated that the application should include the proposed grounds of appeal and the reasons for delay to enable the court to take into account the merits of the case. Newman J stated that consideration of the merits of the appeal is part of achieving justice for both parties in the case. In a procedure in which a matter is determined without notice to or participation by the proposed respondent he stated that "justice to the successful party in the proceedings below requires that if there are scant merits in an appeal that is an essential matter which has to be considered" in deciding whether to extend time: see  EWHC 1459 (Admin) at .
- Newman J was also concerned with an appeal by way of rehearing where an appeal lay as of right, as it does under section 4(1) of the Crime and Disorder Act but he does not specifically refer to this. It may be more difficult to assess the merits where the appeal will be by a rehearing and the grounds of appeal are in the proforma versions seen in the forms used in both the Birmingham and the Bristol cases. In such a case, consideration of the merits may also be less significant than in a case where there is no appeal as of right and it has to be shown that there are arguable grounds, particularly where the delay is short. Nevertheless, even in the case of an appeal by way of a rehearing as of right, once the time allowed to bring an appeal has passed, the merits of the case are not irrelevant. If time is extended, the matter will have to be re-litigated, with the associated costs in money and time to the respondent and possibly to witnesses who will have to give evidence again. Although (as Newman J recognised) the merits may not be of importance if there is only a short delay, where the delay has been substantial, the need to achieve justice for both parties that Newman J referred to means that consideration of the merits is more important.
- The judge's comment that the appeal "may have no merit at all, I do not know" may suggest he did not consider the merits of the appeal at all. He also stated he made the comment because he did not want RR "to derive any misplaced hope from [the grant] of permission" and so it is conceivable that he did in fact have the merits of the appeal in mind. However, given the information before him, in particular the absence at that stage of what RR's case was, it is difficult to see how he could have formed a view about them. It was only after he made his decision that he asked RR's barrister "what is the appellant's case that he did not behave as the police officers describe" (Transcript, pages 25H-26A) and agreed that there should be a notice of appeal setting out the grounds of appeal.
- In my judgment, the approach of the judge to the merits and to the reason for the delay downgrades the importance of these factors in considering whether to extend time and thus the protection of the interests of the proposed respondent at the without notice stage. As Mr Manning submitted, the approach of the judge of usually granting permission to appeal out of time unless the failure to appeal in time is unreasonable or culpable effectively removes the burden on the applicant of demonstrating that time should be extended and establishing valid reasons for the delay. It also means that the merits of the appeal may not be taken into account to the extent that it is possible to do so.
- In the majority of these cases the matter is decided without notice to or participation by the proposed respondent. If there is not some consideration of the merits then the proposed respondent's interest in finality and not having to incur the cost (in money and time) of relitigating a case where in Newman J's words "there are scant merits" in the appeal will not be taken into account in deciding whether to extend time.
- I turn to the judge's consideration of the prejudice to the proposed respondent. I have referred to his statement that he took prejudice to the respondent "heavily into account". Had the matter proceeded purely as a paper application with no input from the proposed respondent, save in respect of those issues which are obvious from the nature of the case or the applicant's papers the judge would have had no information about the prejudice to that respondent. At that stage he did not know which witnesses the proposed respondent would have to call or whether there would be difficulties with those witnesses. That, however, is the nature of a without notice procedure and is not a matter for criticism. But it does underpin the importance of the need to protect the proposed respondent's interests by considering the reasons for the delay and, to the extent that this is possible, the merits of the proposed appeal.
- The question is whether, once the court directed a hearing at which both parties were present the position changed. Was the claimant prevented from making adequate submissions on the prejudice to it? If so, did this mean that there was procedural unfairness?
- The judge's ruling does not expressly consider whether the delay of over 12 months from the time of the magistrates' decision to the time the rehearing would have come on would have posed difficulties to the witnesses. But this was against a background in which, immediately before giving his ruling, he had been told that all the witnesses were police officers, this was not a case where there are lay witnesses who will have to suffer the trauma of attending, that the information and documents were available, and that there was no real impediment to a rehearing: Transcript page 7. The judge's reference to prejudice in terms of the council's duty to be vigilant not to lose information when an order is made for three years because at any time the applicant could make an order to vary it before the magistrates, and the absence of any reference to deterioration over witnesses recollections must be seen in this context. Where all or significant parts of the facts are in issue, delay may potentially be more prejudicial than where the appeal is concerned with the length of the order or its area. This is because the witnesses or some of them may not be available, but this was not so in this case. Moreover, although Mr Manning may not had made as full submissions on prejudice as he wished to, he did refer (see ) to the impact of extending time on other cases, and to the prejudice of a further trial on a public authority with limited resources.
- Accordingly, the main difficulty with the judge's approach is that he gave no consideration to the merits of the case. The authorities since R v Croydon Crown Court, ex p. Smith in 1983 have stated consideration should be given to the merits. The question is whether, given the fact that it was accepted by the proposed respondent that there was no impediment to a rehearing or difficulties with any of the witnesses, this is not a case in which the judge's decision to extend time should be set aside.
- Had RR's application simply said that the order was made "against the weight of the evidence" or that "the evidence was insufficient to justify the making of the order" or words to that effect, the requirement in the authorities that the grounds be stated to enable consideration to be given to the merits would, given the interlocutory nature of the application, have been met. It would have been legitimate for the judge to say something to indicate he did not wish RR to derive any misplaced hope from the grant of permission. He might have said exactly what he did say. Given this and the information given to the judge that this was not a case where there are difficulties with witnesses or lay witnesses who would have to suffer the trauma of attending, and the judge's view of the reason for the delay in making the application the decision to extend time is not one which can be called irrational or unreasonable. The hearing lasted for an hour and a quarter. Looking at all that was said at the hearing, the judge had considerably more information than a judge would normally have on considering a paper application to extend time. In the particular circumstances of this case I do not consider it to be a case in which the judge's decision to extend time should be set aside.
- In the South Gloucestershire case a reason for delay was only given by one of the applicants, NW. What was said by him in the first application was, in the light of the fact that he had been represented at the hearing when the full ASBO was imposed, not much of a reason for the delay, let alone a good reason. The second application states that it was only after he received further advice that he decided to appeal. Given his youth this was a better reason although, since he had been represented by solicitors at the hearing when the Magistrates made the ASBO, it is not a strong reason.
- Both applications gave brief, in the case of AW's application and NW's first application, pro forma grounds for appeal. I do not consider that brief grounds are insufficient provided they inform the judge considering the application. Here, the judge knew that the grounds of appeal were that the evidence given in support of the application was not sufficient in law to justify the order and, in the case of NW, that the making of the order was not necessary in all the circumstances. Although the judge considering the application would only be able to form a limited view of the merits of the appeal from the grounds themselves, to furnish him with the means of reaching a clear and full view would require a much more elaborate process than that currently in place in Crown Courts for interlocutory matters such as applications to extend time.
- Notwithstanding the absence of a reason for delay by AW and the limitations of NW's reasons, in the light of the width of the discretion in a judge considering whether to extend time for an appeal, the facts suggest that the judge was entitled to extend time. The period of the delay, 6 weeks, was longer than the 7 days of which Newman J said in the Maidstone Crown Court case (at ) a judge might not be "too anxious about any consequential prejudice" or "demanding in requiring a specific explanation as to why 7 days has passed", and the interested party accepted the delay was substantial. But it was much shorter than the 10 months in the Birmingham case or the 16 months in the Maidstone Crown Court case. Moreover, AW and NW are aged 14 and 15, and are children. The ASBO will have a significant impact on them, and their applications both stated that they were appealing on the ground that the evidence against them was insufficient in law to justify the orders being made.
- The difficulty in their cases is that, in the absence of reasons by the judge for his decision, either when making it, or when enquiries were made by the claimant, it is not possible to discern whether his reason to extend time was made on these grounds or whether he considered the matters referred to by Newman J in the Maidstone Crown Court case, that is the reasons given for the delay and the merits of the proposed appeal. Newman J also stated that, as a general rule, it is desirable for the judge "to give succinct reasons why an extension of time has either been granted or refused": see  and . I respectfully agree that this is desirable, although I consider that it is important to recognise the nature of decisions on interlocutory matters. In Eagil Trust Co Ltd v Pigott-Brown  3 All ER 119, 122 Griffiths LJ stated "a professional judge should, as a rule, give reasons for his decision. I say 'as a general rule' because in the field of discretion there are well-established exceptions". The reason for the general rule, both in respect of professional judges and other decision makers is, as has been stated in many cases, so that those affected by a decision will know why it has been made and whether they have any grounds to challenge it: see for example R v Higher Education Funding Council, ex p Institute of Dental Surgery  1 WLR 242 at 256, 258. As to the exceptions to the general rule, in the Eagil Trust case Griffiths LJ referred to the exercise of a judge's discretion on costs and to applications to appeal from the decision of an arbitrator (see below). In R v Harrow Crown Court, ex p. Dave  1 WLR 98, at 105 reference is made to procedural and interlocutory decisions as examples of situations in which no reasons are required despite the tendency for appellate courts to expect a judge to give reasons.
- Is the absence of reasons in this case a ground for setting aside the judge's decision? The decision in this case was on an interlocutory matter. In 2004 in the Maidstone Crown Court case, Newman J recognised (see  and ) that the giving of reasons in the context of decisions about an application to extend time is not mandatory. He stated that his view as to the desirable course was not prescriptive in a situation where the rules and regulations are not prescriptive. His comment (at ) that he considered the Crown Court should see it as its function to inform the affected party of the decision and the reasons, and that would not be a great burden on Crown Courts (see ) must be seen in the light of this statement. In relation to informing the affected party of the decision, moreover, the suggestion does not reflect the 1982 Rules, which, by rule 7(7) provide that it is the appellant who is to inform the respondent of the grant of permission.
- Although English law may be inching towards a general duty to give reasons, as was recognised in the Institute of Dentists case, it has not yet got to the stage where there is such a duty. Sedley J, as he then was, giving the judgment of the Divisional Court, stated that at that time, 1993, the court "cannot go beyond the proposition that, there being no general obligation to give reasons, there will be decisions for which fairness does not demand reasons". His analysis of the decision in R v Home Secretary, ex p Doody  1 AC 531 concluded ( 1 WLR 242 at 256), that reasons are not called for wherever it is desired to know whether grounds for challenge exist, because this would be to create a general duty that Lord Mustill in Doody's case was careful to exclude. Sedley J stated (at 258) that:
"The absence of reasons always makes it difficult to know whether there has been an error of approach. The question of justification for withholding reasons logically comes after the establishment of a prima facie duty to give them."
- In R v Secretary of State for Trade and Industry, ex p Lonrho Plc  1 WLR 525, at 540 Lord Keith stated that "the only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reasons for his decision". The implication of that statement is that in such circumstances an explanation is called for. R v Civil Service Appeal Board, ex p Cunningham  ICR 816 recognised that one of the categories of case in which there is a duty to give reasons is a decision that appears aberrant without reasons. In that case the court considered there was a duty to give reasons for the award of abnormally low compensation to an unfairly dismissed prison officer.
- Mr Huggins submitted that the decision in this case was such a case. He submitted that it is aberrant to grant leave to appeal in circumstances where a time limit for appealing has not been complied with, no adequate reasons for non-compliance and no information as to the merits of the proposed appeal have been provided (skeleton argument paragraph 5). The circumstances of the case which I have set out do not, in my judgment, mean that this is an apparently aberrant decision in the absence of reasons.
- Moreover, although Newman J in the Maidstone Crown Court case favoured the giving of succinct reasons, he recognised that where permission to appeal out of time is granted the judge granting permission may well not elaborate on his reasons: see . In the, albeit different, context of arbitration appeals Lord Diplock and Lord Roskill have stated that as a general rule no reasons should be given by a judge when granting permission to appeal against a decision of arbitrators: The Antaios  3 All ER 229 at 237 and 239. They referred inter alia to the fact that the person granting permission is not deciding the question that arises in the appeal, the undesirability of protracted and costly arguments on applications for permission, and the need for applications for permission to appeal to be dealt with as simply and as informally as possible. Notwithstanding the different context, the desirability for keeping the process as simple and informal as possible applies here.
- Accordingly, both because the decision is not apparently aberrant and because of the nature of the decision, an interlocutory decision akin to a case management decision, while agreeing with Newman J that as a general rule it is very desirable for a judge to give succinct reasons why an extension of time has either been granted or refused, I do not consider that the judge's failure to do so in this case means that the decision must be quashed.
- In the particular circumstances of these two cases, for the reasons I have given, the applications by Birmingham City Council and South Gloucestershire District Council are dismissed.
- This should not be regarded as encouragement to those applying for permission out of time to appeal against the Magistrates' Court decision to an Anti-Social Behaviour Order to provide insufficient information or to judges deciding such cases to consider them without regard to the factors set out in R v Croydon Crown Court, ex p Smith (1983) 77 Cr App R 277 by Taylor J and in R (HM Customs and Excise) v Maidstone Crown Court  EWHC 1459 (Admin) by Newman J or without giving succinct reasons. Those making such applications should provide the following information. First, they should indicate their proposed grounds of appeal briefly and, where possible, indicate the merits of the appeal, also briefly. In doing so they should bear in mind the need not to say so much at an interlocutory stage that the tribunal of fact considering the appeal if permission is granted might be prejudiced. This may be particularly material in small court centres. Secondly, they should say why time should be extended, giving the reasons for delay and, if they are able to, why the proposed respondent would not be prejudiced by an extension of time.
- I have referred to the difference between the 1982 Rules and the more recent procedural provisions in the Criminal Procedure Rules 2005 and the Civil Procedure Rules. Those provisions, unlike the 1982 Rules, make provision for notice of an application to extend time for an appeal to be given to the proposed respondent. Had the claimants in these two cases been given notice of the applications for leave out of time they would have had an opportunity of making submissions before the judges made their decisions. It is important that applications for permission to appeal out of time be dealt with as simply and informally as possible. But that is also desirable in the contexts in which such notice is required. It is for consideration whether the rules governing applications to appeal out of time against the imposition of a "stand alone" ASBO and other appeals subject to the 1982 Rules should be amended to make provision for such notice. This would enable proposed respondents who consider an application to extend time is incomplete or misleading, or that they would suffer particular prejudice if time is extended to bring such matters to the attention of the judge considering it before a decision is made.
- The variety of forms we have seen in this case suggests that it may also be desirable for consideration to be given for a uniform form to be used when giving notice of appeal against the making of an ASBO and when applying for permission to extend time to make an appeal to the Crown Court.
Mr Justice Mackay:
- I agree.
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