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ASBO appeals out of time

Published: 22nd January 2010

The High Court has provided guidance on applications to appeal out of time against ASBOs, and has ruled that the judge's discretion in considering reasons for delay is broad. The court is entitled to take into account factors including the applicant's age.

In R (Birmingham City Council) v Birmingham Crown Court ("the Birmingham case") and R (South Gloucestershire District Council) v Bristol Crown Court ("the Gloucestershire case") the High Court considered two appeals from local authorities against the decisions of the Birmingham and South Gloucestershire Crown Courts to allow permission to appeal against ASBOs where notice of appeal had not been brought within the relevant time period.

Background

When a magistrates' court grants an anti-social behaviour order, the defendant has a right of appeal to the Crown Court. A notice of appeal must be given no later than 21 days after the date on which the decision being appealed was given. The Crown Court Rules 1982 provide that the time for giving notice of appeal may be extended by the Crown Court either before or after it expires.

Facts

In the Birmingham case the defendant was 19 years old when he became the subject of an ASBO. The interim order was made on 11 August 2008 and the order was made final on 22 August 2008. The defendant did not attend the final hearing. On 29 August 2008 the defendant was arrested for breach of the order and also charged with supplying class A drugs. In December 2008 he pleaded guilty to breach of the ASBO and in March 2009 was given a suspended sentence for the drugs offence. In June 2009 he breached the terms of the ASBO and was fined.

On 16 June 2009, 10 months after the ASBO was granted, he applied for permission to appeal the order out of time. The reasons he gave for the delay were that he had been unaware of the date of the final hearing and he complained that his solicitors had been too busy to help him with his appeal. He was granted permission to appeal by the Crown Court despite the Local Authority referring the court to the excessive delay.

The hearing went ahead in July 2009 and the judge held that it was appropriate to grant permission to appeal in this case because of the defendant's youth, the distraction caused by his drugs offence charge, his complaint about the lack of assistance from his solicitors and the fact that the authority had not been prejudiced by the delay. The local authority appealed to the High Court.

In the Gloucestershire case the two defendants were aged 14 and 15 at the time the ASBOs were granted. The defendants appealed against the orders 6 weeks out of time, without providing reasons for the delay. Permission to appeal was granted but the court did not give reasons for its decision. The local authority appealed.

The appeals

Both local authorities unsuccessfully appealed against the decisions. Whilst the High Court recognised the importance of complying with time limits in appeals, to provide finality and allow the order to be relied upon by those for whose benefit it was made, the court must consider the reasons for any delay and the merits of the appeal. The age of the appellants was a relevant factor. The court must also consider the prejudice to the respondents which granting permission to appeal out of time would cause. The High Court considered that whilst it was preferable for a judge to give reasons for granting an extension of time, the failure to give reasons in the Gloucestershire case did not invalidate the court's decision.

If this raises any issues for your organisation please contact Sheila Whitton, Head of Social Housing on 0161 214 0500.