ASBO 'victim'

A person will not behave in an antisocial manner in the absence of a potential victim according to R (Gosport Borough Council) v Fareham Magistrates' Court [2006] EWHC 3047 (Admin). Amongst other requirements, to obtain an anti-social behaviourial order (ASBO), the person must have acted in a manner 'that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself'.

The defendant to the ASBO application was a man of good character employed in the defence industry. Despite this, he received remarks of censure for his irresponsible behaviour in riding his jet-ski in Stokes Bay, Gosport, from both the district judge at first instance and in the Administrative Court's judgment. In determining whether the first instance judge had been arguably wrong to dismiss the ASBO application, the appeal court considered evidence relating to a number of separate incidents.

Of the four dates originally complained of, one was conceded by the Council to be irrelevant. A further one, the first incident on the 17 August 2005, was not able to identify the jet-ski rider on that occasion as this defendant. In considering the second incident of the 17 August 2005, the evidence did 'not state that any identified person was caused harassment, alarm or distress, or that there were any swimmers in the water', although it was accepted to be conceivable that swimmers were in the water. The court examined the evidence that 'on the 2 and 3 September the interested party was riding his jet-ski again circling buoys, showing off and riding at a significantly excessive speed, well beyond the ten-mile an hour limit prescribed by the harbour by-laws, and simply ignoring indications from the harbourmaster's patrol craft that he should behave more responsibly. Once again there is no evidence of swimmers in the water or of any individual actually being harassed, alarmed or distressed'.

The district judge had seen a video of the first incident. In conclusion, he was not satisfied that the activities had been sufficient to be characterised as having caused, or having been likely to cause, harassment, alarm or distress; and was not satisfied that the grounds were made out for an ASBO. He warned the defendant about his conduct, about trespassing and about the possibility of an injunction being obtained against him. The judge said he 'was shown a video of a local news report in which a local resident complained about persons using jet-skis, yet the defendant was not identified as being part of the activities stated by the resident. It seemed, to me, to be no more than conjecture that the behaviour was likely to cause harassment, alarm or distress, and certainly not a matter proved to the requisite standard'.

The Administrative Court accepted that the appropriate grounds for an ASBO had two limbs: 'In order to show that the behaviour 'caused' harassment, alarm or distress, it would probably be necessary to have evidence from one of the harassed, alarmed or distressed victims; whereas the alternative formulation 'or was likely to cause' enables police witnesses to demonstrate that there were potential victims present who it was likely were caused harassment, alarm or distress.' In dismissing the claim by the authority, however, the court was clear that repeated behaviour may be revisited by an ASBO application (presumably with evidence of persons being present nearby, who may be caused harassment, alarm or distress).

It may be that prosecutors will argue that the facts of this case are peculiar and the principle established does not extend beyond any given scenario where the behaviour does not support the finding of antisocial behaviour. In some cases, prosecutors may seek to argue that the evidence of location enables a sure inference that there would have been persons able to see the behaviour.

Norwood v Director of Public Prosecutions [2003] EWHC 1564 (Admin), The Times, 30 July 2003, concerned a prosecution under s 5(1)(b) of the Public Order Act 1986 (racially aggravated). The defendant had placed a British National Party poster in the first-floor window of his flat. It was held (at para 34 of the judgment) that the inference from placing the poster in the window to the street would enable the court to be sure persons seeing it would be likely to be harassed, etc. However, in that case, there was also, it can be noted, direct evidence from witnesses including an offended member of the public who reported the matter to the police (see para 9) so that the decision was arguably obiter dicta on this point.

However the Administrative Court's decision in Gosport does establish a point of principle consistent with the objectives of the legislation, and is consistent with the requirement that a person be present and potentially caused harassment, etc, in the similarly expressed offence contrary to s 5 of the Public Order Act 1986. This requires the proscribed behaviour to be 'within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby' (s 5(1), Public Order Act 1986), and provides a specific defence if the accused can prove that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or duress (s 5(3)).

The distinction may arguably be whether the conduct complained of as being antisocial is a fixed poster or written representation permanently displayed irrespective of viewers in a location where the safe inference is that innocent others would have seen it; or alternately a transient act which might not have been engaged in if another person had been present.

The Gosport decision confirms that, to find anti-social behaviour, the court must have evidence (or be able to safely infer to the required standard) that the defendant's behaviour was visible or audible to at least one person in the vicinity at the time who was likely to be caused harassment, alarm or distress.

Of course once an ASBO prohibition is in place (found necessary by the court on an earlier occasion to protect persons from further antisocial acts) it seems the absence of any person to witness an act would not prevent conviction for breach of the order, though it must surely be important mitigation.