The defendant was charged with breach of a community protection notice issued pursuant to section 43 of the Anti-social Behaviour, Crime and Policing Act 2014, contrary to section 48 of the Act. At his trial before the district judge (magistrates’ court), the defendant submitted that there was no case for him to answer, inter alia, because the notice was invalid and thus could not be lawfully enforced against him, being unreasonable and disproportionate by reason of its indefinite duration and a term preventing him from being in a group of three or more individuals wherever he might be. The district judge ruled against the submission, concluding that the challenge to the validity of the notice should have been by way of appeal against the notice under section 46 of the Act and could not be raised as a defence to prosecution for breach. The case having proceeded, the defendant was convicted.
On the defendant’s appeal by case stated against his conviction—
Held, appeal dismissed. When faced with a submission that there was a public law defence to a criminal charge, the court had to determine whether, on the true construction of the legislative provisions in context, they denied the criminal court jurisdiction to adjudicate the validity of legislation or any administrative act pursuant to it. On analysis, section 43 of the Anti-social Behaviour, Crime and Policing Act 2014 conferred on the authorised person not only the power to issue a community protection notice but also, by implication, the power to do all acts consequential upon issue, including in appropriate circumstances variation or discharge, outside the appeal process. The combination of the right of statutory appeal under section 46, coupled with the availability of judicial review of decisions made under section 43, provided an effective means by which to challenge a community protection notice throughout its term. It followed that a challenge to the validity of such a notice was not open to a person at trial by way of defence to a charge of breach. Accordingly, the district judge had been right to conclude that the community protection notice was binding on the defendant unless and until it was varied or discharged by a person authorised to issue, vary or discharge such a notice (paras 34, 36, 39–42, 45, 47, 48, 49).
Per curiam. If a person is made subject to a community protection notice, and sends written representations to a person authorised to issue, vary and discharge such notices, with a reasoned case that the notice is inappropriate, on ordinary public law principles, the authorised person will have to consider those representations when considering the exercise of his discretion whether to retain or revoke or vary the notice. If he fails to do so, then, again on general public law principles, the individual will be able to seek a judicial review of that failure on usual public law grounds (para 45).
Rupert Wheeler (instructed by Hennessy and Hammudi Solicitors, Reading) for the claimant.
Paul Jarvis (instructed by Crown Prosecution Service Appeals Unit) for the CPS.