Mr Justice Andrew Smith:
- The seven appeals and two applications before us in this case challenge anti-social behaviour orders (ASBOs) imposed on the appellants and applicants on 23 January 2015 at the Central Criminal Court. They had come before the Court in respect of two incidents of public disorder, as a result of which they were sentenced to terms of imprisonment on 20 June 2014. Five of the seven appellants received terms of 29 weeks' custody. Mr Mohammed Alamgir was sentenced to ten months' imprisonment. The seventh appellant, Mr Kamran Khan, was sentenced to a total of 55 weeks' custody. One of the applicants, Mr Mohan Uddin, received a total of 21 months and three weeks' imprisonment. And the other applicant, Mr Moshiur Rahman, was sentenced to a term of 21 weeks' imprisonment. These sentences are not challenged before us: an appeal by Mr Kamran Khan against his sentences was dismissed on 7 November 2014.
- On 23 January 2015 the court also imposed on all nine men ASBOs for a period of three years. The court had power to do so because, although ASBOs were replaced by criminal conduct orders on 20 October 2014, transitional provisions preserved ASBOs in cases where criminal proceedings began before that date.
- Although not expressly covered by the extended definition of "sentence" in s.50 of the Criminal Appeal Act, 1968, an ASBO may be the subject of an appeal to this court: R v P (Shane), [2004] EWCA Crim 287. The seven appellants were granted leave to appeal against their ASBOs on paper. The two applicants, whose applications were considered by another judge, were refused leave to appeal. These applications are renewed, albeit after the 14 days' limit for renewing applications refused on paper. It was explained that the applicants renewed them when they learned that the appellants had been given leave. The delay is properly explained, and at the start of the hearing we said that we would grant an extension of time to renew the applications for leave, and in the interests of consistency granted the two applicants leave to appeal. We therefore consider what are now the nine appeals.
- The appellants are all Sunni Muslims from Luton, and are aged between 26 and 36 years. The offences arose from two incidents in London, and there was CCTV coverage of each. The first was on 10 May 2013 when there was a march from the Regent Park Mosque to the Syrian embassy in Belgravia, where the marchers planned to protest, and so it went down the Edgware Road. Police permission had not been obtained for the march: there was an officer at the mosque, but no police presence was organised for the march. The prosecution contended that the rally was sectarian, demonstrating hostility to Shia beliefs: marchers were said to have carried banners such as (to use the example given by the Judge in his sentencing remarks on 20 June 2014) "Shia's are non-believers and enemies of Islam"; and marchers are said to have chanted correspondingly. A Shia Muslim who was on the Edgware Road remonstrated with a marcher and was abused by Mr Uddin and, in the Judge's expression, "doused with water" by Mr Alamgir. A further disturbance broke out when the march organiser, Mr Anjem Choudary, was being interviewed by a journalist and a man referred to as "Urma" was punched to the ground by Mr Alamgir. He was then hit with a flagstaff by a Mr Mirza Ali and a Mr Jordan Horner, both of whom were defendants at the trial but are not appellants before us. Mr Ali absconded before his trial and was tried, convicted and sentenced in his absence. Mr Horner was convicted of violent disorder and sentenced to two years' custody.
- Another victim was also attacked by Mr Uddin with a flag pole and struck twice. He fell to the ground and was kicked by several people. When he went back to retrieve shoes that he had lost during the assault, Mr Kamran Khan approached him aggressively and intimidated him. The violent incident was said in the written advice of Mr Alesdair King, who represented Mr Alamgir, to have lasted a minute and a half.
- Thus, three of the appellants were convicted of offences relating to this Edgware Road incident: Mr Alamgir was found guilty of violent disorder and sentenced to 10 months' custody; Mr Uddin, who was found guilty of violent disorder and sentenced to 15 months' custody; and Mr Kamran Khan was convicted of affray and sentenced to 29 weeks' custody. Four other appellants, Mr Jalal Ahmed, Mr Munim Abdul, Mr Yousaf Bashir and Mr Moshiur Rahman, were present at Edgware Road, but not involved in any violence or other offending. Two appellants, Mr Naseer Mohammed Khan and Mr Qadeer Ahmed, were not there at all.
- The second incident took place on 18 May 2013 in Oxford Street near the corner with Old Queen Street. A group of men were engaged in Da'wah, proselytising for Islam. They were manning a stall and giving leaflets to passers-by. Some had apparently come from demonstrating at the US embassy against the Guantanamo Bay detentions: it is not said that the demonstration was violent or otherwise unlawful.
- There were football supporters in a pub near to the stall. One of them came out into the street, and, as the Judge put it, "may have made an inflammatory gesture towards the stand". When he left the pub half an hour later, men attending the stall set upon him. He was knocked to the ground and punched and kicked repeatedly. The violence against him was started by a Mr Abu Aziz, who was charged in respect of the incident, but absconded before his trial and was convicted of and sentenced for affray in his absence. Then the appellant Mr Qadeer Ahmed threw himself at the victim, knocked him over and struck him with his fist and feet. Mr Kamran Khan, again to use the expression of the Judge in his sentencing remarks of 20 June 2014, made "inflammatory gestures" towards customers in the pub: there is no evidence that he delivered any blows. Another appellant, Mr Mohammed Naseer Khan, ran up, and kicked and stamped on the victim while he was on the ground. Mr Bashir had a crutch with him for proper reasons, but he passed it to Mr Uddin, who brandished it at the victim, holding it above his head: he did not strike with it. Mr Rahman and Mr Abdul went up to the victim and Mr Abdul kicked him three times, the victim still being on the ground. Before the violence had begun, Mr Jalal Ahmed, another appellant, had encouraged women and children to be moved away from the immediate area. The prosecution said that later Mr Ahmed was in the midst of the trouble and was "contributing to the scale and threat of violent disorder". He was said by the Judge to have behaved "threateningly towards people" in the street.
- According to the advice of Mr Ben Gordon written in support of Mr Qadeer Ahmed's application, the violence lasted 30-35 seconds. Eight of the appellants, all other than Mr Alamgir, were charged with violent disorder in relation to it, but their pleas to affray were accepted. Seven of them were sentenced to 29 weeks' custody and Mr Rahman was imprisoned for 21 weeks. According to the respondent's notice, Mr Amalgir was present in Oxford Street, but was not charged with any offence.
- The Crime and Disorder Act 1998 stipulated four conditions for making an ASBO under section 1C, the relevant section for present purposes:
i) The offender has been convicted of an offence committed after 2 December 2002.
ii) The offender was sentenced or given a conditional discharge for the offence.
iii) The court considers that the offender has acted after 1 April 1999 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.
iv) An order under the section is necessary to protect persons somewhere in England and Wales from further anti-social acts by him.
If these conditions are met, the section allows, but does not require, the court to make a prohibitory order against the offender. There is no dispute that the first two conditions were met in the case of each appellant. The issues are whether the other two conditions are satisfied and whether, if so, these were appropriate cases for ASBOs.
- The Judge explained his decision to impose ASBOs against the nine appellants and three other defendants (including Mr Aziz) in a ruling given on 23 January 2015. He had conducted the trial of the charges arising from the Edgware Road incident, and sentenced the appellants and others in relation to both incidents on 20 June 2014. Having referred briefly to the two incidents, he observed that ASBOs are not punitive and that established principles govern the decision whether to make them, including these five:
- The statutory requirement of necessity must be demonstrably satisfied.
- There must be a link between the offender's anti-social behaviour and the prohibitions imposed by the ASBO.
- Each prohibition in the ASBO must be considered as if a distinct order, and the necessity for it demonstrated accordingly.
- The order must be in precise terms so that the offender knows exactly what is prohibited.
- The order must be reasonable and proportionate, realistic and practical in that it must be "easy to determine and to prosecute any subsequent breach".
- We accept the Judge's statement of these principles, subject only to the observation that the requirements of proportionality and practicality are not dictated by a need easily to prosecute for breach so much as by justice for the offender and respect for his freedom: indeed, in cases such as this, the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention") requires that ASBOs be proportionate.
- The Judge recognised that the ASBOs impinge on the appellants' freedoms and he referred in particular to those identified in articles 9, 10 and 11 of the Convention. He observed that the appellants and others before him were mature men, and that many of them were of good character and in employment and "in every other way demonstrated that they are responsible citizens"; and he recorded the submission that ASBOs were not necessary and should not be triggered by the offences in one or both of the two incidents. However the Judge concluded that, because of these incidents in May 2013, an ASBO should be made against each defendant before him, including the appellants, and went on to consider the geographical scope of the orders, their duration, whether distinctions should be made between defendants and the terms of the orders.
- The orders that the Judge made comprised in the case of each defendant what we shall call the "association prohibition", which is in these terms: "The defendant must not be together or in company with, in any public place while attending any demonstration, protest, or rally, any of the following persons". There are then listed 13 names, those of the other eight appellants and of Mr Choudary, Mr Ali, Mr Aziz, Mr Horner and a Mr Rajib Khan, who had pleaded guilty to affray in respect of the Oxford Street incident.
- The Judge also imposed what we shall refer to as the "Da'wah prohibition" on all the appellants other than Mr Mohammed Alamgir. It was in these terms:
"The defendant must not … do the following when performing Da'wah (defined for the purposes of this Order as proselytising in a public place (not a mosque)]:
- be in company of more than four other persons [also performing Da'wah]
- set up a stall without first having informed the local authority and where necessary, having obtained written permission
- be within 200 metres of any other group performing Da'wah
- be in a group displaying any banner or flag (save for a single notice measuring no more than 1m x 2m containing information as to the identity of the group)
- be in a group where any items are being burned (save for smoking materials and braziers)
- be in a group where a flag pole is present"
We have put the words "also performing Da'wah" in parenthesis for reasons to which we shall return.
- The Judge ordered what we call the "demonstration prohibition" in the cases of Mr Alamgir, Mr Kamran Khan and Mr Uddin. It provided that:
"The defendant must not … do the following when attending a demonstration, protest or rally:
- Participate in any such event where:
i) Notification has not been given to, and permission granted by, the local authority and/or police where required
ii) Any items are being burned (save for smoking materials and braziers)
- Approach members of the public."
- All the prohibitions lasted for three years and applied throughout England and Wales.
- We can group the appellants' various arguments under four heads:
i) Complaints about the procedure in the Central Criminal Court.
ii) Complains that the ASBOs were unnecessary, disproportionate and inconsistent with the appellants' rights under the Convention, and so it was wrong in principle to make them.
iii) Complaints about the specific wording of the ASBOs.
iv) Complaints that the individual circumstances of each defendant were not considered, or not given proper weight.
- The appellants complain about the course that the hearing took on 23 January 2015. But before coming to the hearing, we should set out the procedural background, which goes some way to explain what happened at it. The starting place is the Criminal Procedure Rules 2014 rule 50.3, which makes special rules about applications for behaviour orders, including ASBOs other than interim ASBOs. It provides that, when (as here) the prosecution wants the court to make an ASBO, then, as soon as practicable and without waiting for the verdict, it "must serve a notice of intention to apply for such an order on — (a) the court officer; (b) the defendant against whom the prosecutor wants the court to make the order; and (c) any person on whom the order would be likely to have a significant adverse effect". Rule 50.3(3) provides that the notice must "(a) summarise the relevant facts; (b) identify the evidence on which the prosecutor relies in support; (c) attach any written statement that the prosecutor has not already served; and (d) specify the order that the prosecutor wants the court to make". When a defendant is served with a notice, (s)he must, as soon as practicable and without waiting for the verdict, serve on the court officer and the prosecutor "written notice of any evidence on which the defendant relies", identifying the evidence and attaching any written statement not already served: rule 50.3(4). Although, curiously, the rule specifies that a defendant's notice must be written but does not expressly stipulate this for a prosecutor's notice, we would interpret the Rules as requiring both types of notice to be written.
- On 7 May 2014, at the end of the trial of charges arising from the Edgware Road incident, Mr Amalgir and Mr Uddin were found guilty of violent disorder, and Mr Kamran Khan was acquitted of violent disorder but found guilty of affray. As we have said, on 14 June 2014 all the appellants other than Mr Amalgir pleaded guilty to charges of affray relating to the Oxford Street incident, and the prosecution did not pursue charges of violent disorder.
- The prosecution drafted notices of an intention to seek an ASBO in respect of each appellant, and others. They set out the terms of the ASBOs sought, and they identified facts and evidence on which the prosecution sought to rely. They were drafted, we were told, by the CPS and dated 18, 19 or 20 June 2014. We can only infer that the prosecution did not apply for ASBOs as soon as possible, but awaited the outcome of the prosecutions before doing so. (It is an irony that they nevertheless served notices of an intention to apply for an ASBO "if the defendant is convicted".) This partly explains why the ASBOs were eventually made some 20 months after the incidents that gave rise to them and that were said to demonstrate the risk that justified them.
- The orders sought in the original notices were the association prohibition, and these:
i) An order not to "distribute unsolicited material or footage to any member of the public in order to promote Shariah law, thereby causing harassment, alarm and distress"; and
ii) An order not to "make any unsolicited approach to any member of the public in order to discuss and/or promote Shariah Law thereby causing harassment alarm or distress".
- We do not need to refer in full to the evidence and matters identified in the notices on which the prosecution said it would rely. We can use two typical examples to illustrate their flavour:
i) The notice in respect of Mr Abdul referred to his involvement in the Oxford Street incident and four demonstrations: an "Evil Olympics" protest outside the Stratford Olympic Park on 12 August 2012, where flyers were handed out and banners displayed such slogans as "Punish Teams of Terror"; involvement on 30 July 2011 in what was described as a "Muslims against Crusades Sharia Law" march from Leyton to Walthamstow, where it was said that the police had to intervene to stop any public disorder; a protest on 18 September 2010 with, inter alios, Mr Choudary against the visit of the Pope; and a "Muslims against Crusades" protest in Luton on 10 March 2009 against the homecoming parade of the Royal Anglian Regiment after deployment in Iraq. Mr Abdul was given a conditional discharge and a fine for a public order offence arising from the last protest. The notice said that the evidence relied on in support of the application was a statement of PC Jason Beysenberger, which was attached to the notice, and a photograph of Mr Abdul protesting at the Olympic Park.
ii) The notice in respect of Mr Mohammed Naseer Khan referred to his involvement in the Oxford Street incident, and stated that he was "present in the area following [his] attendance at an 'Al Mujirahoun' rally at the US Embassy in Grosvenor Square". The notice said that the evidence on which the prosecution would rely was a statement of PC Rick Warrington and "Images of Khan demonstrating in Luton, at the Sri Lankan Embassy and at the American Embassy". Thus the evidence included photographs of demonstrations which were not identified in the notice as incidents on which the prosecution relied. Similarly, PC Warrington's statement dealt with matters which had not been identified in the notice: it said that Mr Khan had since 2012 been "a regular attender at rallies and demonstrations organised by a group using the names 'Muslims against Crusades', 'Al Mujirahoun' or advertised on the 'need 4 Khalifa' website". The demonstrations were said usually to have been organised by Mr Choudary, and often resulted in offence being caused "due to the extremist nature of the comments and attempt to force 'Shariah law' on the general public".
- We were told by Mr Mark Weekes, who represented the prosecution before us but not in the Central Criminal Court, that the notices were served on the defendants, or at least each of the appellants, on 20 June 2014 at the sentencing hearing that day. On the other hand, according to Mr King's written advice in support of Mr Alamgir's appeal, no notice was served on him until 9 October 2014, and this is not challenged in the Respondents' Notice, but there is no explanation for the delay. No comparable complaint is made by other appellants. Mr King complains that the Judge did not deal with the delay in his rulings, and we have seen nothing to suggest that he did so.
- In November 2014 the prosecution prepared and served amended notices dated 20 November 2014, now over 18 months after the two incidents. The amended notices kept only the association prohibition from the original notices, but added what became, with relatively minor changes, (i) the Da'wah prohibition for all the appellants except Mr Alamgir and (ii) the demonstration prohibition for Mr Alamgir, Mr Kamaran Khan and Mr Uddin. Not all the original and amended notices are before us, but from those that we have it seems that the amended notices identified the same behaviour as the June notices, but in some cases the prosecution relied on different evidence, either by curtailing the original evidence (for example, in Mr Mohammed Naseer Khan's case) or expanding it (for example, in Mr Abdul's case).
- As we understand it, none of the appellants served notices or evidence under rule 50.3(4) in response to either the original or the amended notices. There was, however, put before the court on 23 January 2015 a report by an Iman, Mr Ajmalal Masroor, explaining articles of Islamic faith, including the meaning of Da'wah and fundamental elements of its practice: his report was not disputed and, although he attended court on 23 Janaury 2015, he did not give oral evidence. The Judge expressed his gratitude for the report and said that he had "taken on board" what it said.
- On 5 December 2014, there was a procedural hearing before the Judge. According to Mr King's advice, and this was not disputed, the Judge made clear that he thought that ASBOs should be made but their terms required consideration. At this hearing Interim ASBOs were made against each defendant, largely but not wholly in the terms of the amended notices. We were told that at this hearing the Judge questioned whether there was any need for the prosecution to rely in support of the applications on anything other than "the convictions themselves". The prosecution understood that this approach would mean that the decisions about whether to make ASBOs and their terms would be taken on the basis of convictions and the prosecution's evidence about the background and circumstances of the offences. The Judge had already voiced some conclusions about the incidents and the parts in them of the different defendants when passing sentences on 20 June 2014.
- The prosecution sought full ASBOs in the terms of the interim orders, and the case was listed for mention on 23 January 2015. Prosecuting counsel prepared a skeleton argument for the hearing, and it largely reflected the approach suggested by the Judge on 5 December 2014. It thus departed from the positions stated in the original and amended notices, abandoning reliance on previous conduct of the individual defendants which had been identified in them and on the police statements and other evidence served in support of them, notwithstanding that no defence evidence challenged them. However, the prosecution referred in the skeleton argument to matters other than the convictions themselves and the conclusions expressed in the sentencing observations. For example, the prosecution set out any previous convictions that the defendants had, and also:
i) They relied on the presence at the Edgware Road march of defendants who were guilty of offences in Oxford Street but faced no charges arising from Edgware Road incident. (The prosecution continue to do so in their respondent's notice on these appeals.)
ii) They said that, following the attack in Oxford Street "the Asian males" abused the Queen in response to the "football supporters" singing the National Anthem.
iii) They said that Mr Jalal Ahmed had been involved in "planning" the violence in Oxford Street because he told "women and children associated with the defendants to move to safety before the attack". In his sentencing observations the Judge had referred to him doing so, but had not interpreted it as part of a plan to cause trouble. We cannot understand why Mr Ahmed is said to be planning violence rather than anticipating trouble and trying to avoid the women and children being caught up in it.
- Mr Weekes understood that the skeleton argument had been served on the court and the defendants' representatives before the hearing on 23 January 2015. But it is not referred to in the Judge's ruling on the applications for ASBOs, and Mr David Carter, who represented Mr Jalal Ahmed at the Central Criminal Court and represented Mr Jalal Ahmed, Mr Qadeer Ahmed and Mr Abdul before us, and other counsel told us that they did not think that any of the defendants' lawyers received it. We cannot say what happened to the skeleton argument: certainly it is not suggested that anything improper was intended but this sort of confusion illustrates the need for procedural discipline on applications of this kind. After all, the skeleton represented a marked change of approach from that in the notices.
- Mr Lindsay Johnson, who represented Mr Kamran Khan in the Central Criminal Court and also represented Mr Mohammed Naseer Khan and Mr Bashir before us, described the hearing on 23 January 2015 as follows in his advice supporting Mr Kamran Khan's challenge to his ASBO:
"The procedure followed at the hearing for the ASBO was peculiar. A small bundle had been prepared by the Crown, containing a generic statement in relation to each of the co-defendants. That bundle included statements which raised issues other than the index offence. A draft order was prepared which was identical for every defendant (save that two [sic] charged with an offence at a rally had an additional clause inserted). At the hearing, the Crown denounced any reliance on any evidence other than the fact of conviction. They were not called on to justify the order sought. The judge heard from each of the defendants' counsel in turn as to why the order and its terms should not be imposed on that particular defendant".
This description was accepted as by others representing appellants before us and by Mr Weekes. We have not seen the draft orders (unless this be a reference to the amended notices). Whatever precisely was in the "small bundle", it apparently included material that went beyond the case presented on the skeleton argument.
- The complaints about the course of the hearing are put in different ways by different appellants. We shall come back to them. But first we complete the procedural history. After the hearing on 23 January 2015 an order against each appellant was drawn up by the Central Criminal Court, using the form prescribed by the Crown Court (Amendment) Rules 2002, with the "Notice to defendants" warning of the consequences of doing any of "the things given opposite", that is of breaching any of the prohibitions as stated on the form. However,
i) Although each form provides for orders to state the facts found by the court on the basis of which it concluded that the defendant to whom it was addressed had acted in an anti-social manner which had caused or was likely to have caused harassment, alarm or distress to one or more relevant persons, this section of the form was left incomplete on all those that we have seen. This court has previously emphasised that a judge making an ASBO should state his findings of fact, and that they should be recorded in the written order: see, for example, R v W, [2006] EWCA Crim 686 at para 45. We simply repeat that.
ii) Our papers include two versions of the completed forms. (We do not have a complete collection of duplicate forms for every appellant, but we have enough to infer that two were prepared for them all.) One version includes in the Da'wah prohibition the words "also practising Da'wah" that we put in parenthesis at para 20 above. This reflects what the Judge said in his ruling: "[the prohibition] will be that they are not entitled when performing Da'wah … to be in the company of more than four persons also performing Da'wah". However, the other version omits them, and that is the only version that was signed by the court officer.
- The reasons that there are two versions and that the signed version does not reflect the Judge's ruling baffle us. Those applications for leave to appeal that referred to the specific wording of the Da'wah prohibition cited the signed version, and the respondent's notice does not take issue with them treating that version as authoritative. However, at the hearing Mr Weekes submitted that the signed version is wrong, but the authoritative orders were those made in court, the written orders being merely evidence of them. He cited the judgment of this court in R v English, [2005] EWCA Crim 2690, where on an appeal against conviction it was argued that the prosecution had not established a valid ASBO had ever been made. Latham LJ said (at para 9) that "the order, which is the basis for any subsequent proceedings, is the order made by the court itself", and (at para 10) that "the form provided admissible evidence … of the order that was made". We have difficulty in applying these observations in this case: in civil proceedings (and proceedings for an ASBO are civil rather than criminal: R (McCann and others) v Crown Court at Manchester, [2002] UKHL 39 esp at para 18, a case under the unamended Crime and Disorder Act 1998, but applicable here) generally "no evidence is admissible to contradict the record": Halsbury's Law of England (5th Ed, 2009) vol 12 para 1155. Moreover, the observations of Latham LJ on which Mr Weekes relied follow his citation of Henriques J in R v P, [2004] EWCA Crim 287, including the principle that "The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced". In this case the Judge gave detailed reasons for his ruling, from which it can be discerned what order he intended to make, but the order was not, as far as we can ascertain, distinctly pronounced.
- Before we come to the appellants' complaints about the hearing on 23 January 2015, fairness demands that, having criticised procedural failings in the Crown Court, we add three points:
i) First, we have already said that Mr Weekes did not appear below. None of our criticisms reflect on him in the slightest: on the contrary, we are grateful for his helpful and attractive responses to the court's questions, and for his assistance more generally. In saying this, we do not imply criticism of counsel who appeared in the Crown Court: we simply do not know enough to say how many of the problems came about.
ii) Nor does it seem to us that the police are responsible for these difficulties. They made statements dealing discretely with the background of each defendant against whom an ASBO was sought, and the material relied on in support of the application against him. In the event, their evidence was not used, but a good deal of work had gone into their preparation. We are also grateful to the two officers who attended the hearing before us and provided their assistance on the appeals.
iii) Thirdly, we acknowledge that we enjoy the benefit of hindsight in reviewing the history of the proceedings, and are only too conscious of this advantage over those dealing with applications as they develop.
- It is said that on 23 January 2015 the Judge's approach effectively reversed the burden of proof. We reject this formulation of the complaint. Certainly it is for the applicant for an order under the Crime and Disorder Act 1998 to prove any allegations about the defendant's behaviour on which he relies, and to do so to the criminal standard or a civil standard tantamount thereto: the McCann case (cit sup) esp at paras 37, 81, 114. However, here the Judge's decision was based on offences arising from the two incidents that had been proved against the appellants or admitted by them, or on findings about the offences that were or could properly have been made in his sentencing observations. The Judge made no findings about, and did not rely on, other matters alleged in the notices. In any case, as Lord Steyn said in the McCann case at para 18, the inquiry as to whether an ASBO is necessary in order to protect persons from further anti-social acts does not involve a standard of proof, or, we would add, a burden of proof, but it is an exercise in judgment or evaluation.
- Secondly, it was said by Mr Carter in his written advice in support of Mr Jalal Ahmed's application that the procedure adopted on 23 January 2015 created an appearance that the Judge was biased: we emphasise that the complaint was of apparent, and not actual, bias. He cited the classic explanation of when a tribunal is tainted with apparent bias given by Lord Hope in Porter v Magill, [2001] UKHL 67 at paras 101-103. He said that the apparent bias resulted from the Judge not requiring the prosecution to make submissions about why ASBOs were necessary, thereby giving an impression that he assumed a prima facie case for the defendants to answer, and because, whenever defendants challenged the terms of the proposed orders, counsel for the prosecution was invited to offer an alternative formulation. However, Mr Carter rightly accepted at the hearing before us that he could not pursue the allegation of apparent bias without a transcript of the hearing in the Crown Court. In fairness to the Judge, we should say that it does not seem from the material available to us that a fair-minded and informed observer could possibly conclude that there was a risk of bias. It is often sensible for a judge to hear first from a respondent to an application: this can reflect his provisional thinking, but it would be unreal to suppose that, when judges read into a case, they do not form any provisional views about it. This is the position a fortiori when, as here, a judge has conducted previous hearings in the case, and the prosecution has served a skeleton argument. This is perhaps more common in civil than in criminal proceedings, but these were civil proceedings. Moreover, the court may make an order under section 1C of the 1998 Act without an application: this might similarly reflect the court's provisional views, but it does not mean that the court shows apparent bias. As for the exchanges whereby the terms of the order were refined, this is commonly dealt with, and best dealt with, through the dialectic of the courtroom.
- Then it was said that the notices whereby the prosecution sought the ASBOs relied on matters to which the Judge did not refer and about which he made no findings, in particular, the police officers' statements served with the notices. As we have said, after the hearing on 5 December 2014 the prosecution decided not to rely on those matters, and the Judge ignored them. However, one appellant, Mr Jalal Ahmed, himself relied on the police statement about him made by TDC Bull, but, as far as we can tell from his ruling and counsel's submissions, the Judge still disregarded it. No other appellant made a complaint of this kind, and this point was not developed in argument before us. In view of our other conclusions, we do not deal specifically with this complaint.
- However, there was another more significant consequence of the prosecution informally changing the basis of their applications so fundamentally. Mr Carter told us and we accept, that he and, as we infer, other representatives of the defendants never knew quite what allegations they faced on the ASBO applications. The individual appellants were never given proper notice before the hearing on 23 January 2015 of the allegations pursued specifically against them and the evidence relied on in support of the allegations. In W v Acton Youth Court, 2005] EWHC 954 (Admin), Pitchers J said that (at para 30) "The actual and potential consequences for the subject of an ASBO make it … particularly important that procedural fairness is scrupulously observed", and we agree. After all, a defendant facing an application for an ASBO is exposed to hearsay evidence which would be inadmissible in criminal proceedings, but the case against him is not pleaded as it would be in civil proceedings for an injunction. The defendant's protection is the notice, together with the requirement that the prosecution attach to it any material on which the application is based (and specifically give notice of any hearsay evidence relied on). It follows that if the prosecution significantly departs from the intention stated in the notice, the defendant must have clear and specific notice of the change. Whatever the exact position about service of the prosecution's skeleton argument, we are satisfied that in this case the defendants were left unsure about what case they had to meet. Given the importance to them of the prohibitions imposed by the orders, we would allow the appeals on this ground alone.
- There is no dispute that the test for making an ASBO is necessity, nor that, particularly where the defendants' rights or freedoms under the Convention are engaged, the terms of the prohibition must be proportionate "in the sense that they must be commensurate to the risk to be guarded against": R v Boness, [2005] EWCA Crim 2395 at para 37. The appellants invoke articles 9, 10 and 11 of the Convention.
- Article 9 protects the right of everyone to "freedom of thought, conscience and religion", including the freedom to manifest his religion in teaching alone or in community with others. This freedom is subject only to limitations prescribed by law and necessary in a democratic society in specified ways, including for the protection of public order and for the protection of the rights and freedoms of others but, in contrast with articles 10 and 11 to which we shortly come, not including the prevention of crime per se.
- Article 10 protects that right of everyone to freedom of expression, including the freedom to impart information and ideas without interference from public authority. The article recognises restrictions on the exercise of freedom of expression provided they are prescribed by law and necessary in a democratic society in specified ways, including the prevention of disorder and crime and the protection of the rights of others.
- Article 11 is concerned with everyone's right to freedom of peaceful assembly and freedom to association with others. Again the article recognises restrictions prescribed by law and necessary in a democratic society in specified ways, including the prevention of disorder and crime and the protection of the rights and freedoms of others.
- All these articles are relevant to each of the prohibitions, but perhaps the Da'wah prohibition requires us in particular to consider article 9, the association prohibition most obviously engages questions of freedom of association and so article 11, and the demonstration prohibition requires particular consideration of article 10. In each case, of course, the restrictions on the freedom can properly be imposed by the state authority, but only if the restriction, here the ASBO, is proportionate to the legitimate aim that it seeks to achieve: Handyside v UK, (1979-80) 1 EHRR 737.
- With that introduction, we come to the Da'wah prohibition. We come later to its specific terms, but we take it that the prohibition is designed to prevent the appellants from proselytising for Islam in a public place in any of the six stated circumstances. The report of Mr Masroor states that Da'wah, literally meaning "invitation", refers to the obligation of every Muslim to proselytise, inviting others to Islam. He explains that the Qu'ran requires that a Muslim engaging is Da'wah "use wisdom and good manners". He also explains:
"Anyone inviting people to Islam would be inviting them to the whole of Islam and not just a part of it … The subject of Da'har cannot be confined to specific topics since human interests and curiosity differ from person to person. One person may be interested in knowing what does Islam say about women and another person may be interested in knowing what Islam says about economy or evolution or Islamic law on punishment for sex outside marriage. It would be impossible to talk about Islam without referring to Islamic law – shari'ah and all its subjects".
- Thus, there can be no doubt that the restrictions in the ASBO on the appellants' performance of Da'wah prima facie restrict their article 9 Convention rights. In particular, they prohibit the appellants from performing Da'wah together with more than four others and from setting up a stall for this purpose without first informing the local authority. This leads to the question whether this is a necessary and proportionate response to anything done by the appellants who are subject to this prohibition (that is to say, all except Mr Amalgir). The Judge said that he was entirely satisfied that it was "necessary for the protection of the public and to ensure that crime is not committed that ASBOs are made in respect of each defendant". We cannot agree.
- The Oxford Street stall has been running for 6 or 7 years: the police had examined the leaflets on 18 May 2013 before the violence and made no complaint about it, and we understand that similar material has long been used. Some of the appellants had been proselytising for many years: for example, Mr Qadeer Ahmed has performed Da'wah from stalls of this kind for over ten years. There is no suggestion that before or after 18 May 2013 any of the appellants had been engaged in proselytising that caused offence or disorder, let alone proselytising that was associated with violence or was unlawful. This was recognised by the Judge when he passed sentence on 20 June 2014: for example, he said of Mr Bashir that he had "been practising Da'wah since 2002 on a weekly basis without causing any trouble to anyone", and he described Mr Mohammed Nasser Khan's offence as "totally out of character".
- The Judge considered the Da'wah prohibition to be justified by the Oxford Street incident: it was said to be necessary because all the appellants other than Mr Alamgir committed offences during that incident, and to be proportionate to the risk from their performing Da'wah that the Oxford Street incident evidences. We do not agree: we cite two of the advices in support of applications for leave to appeal. Mr Nigel May, representing Mr Mohammed Naseer Khan, submitted:
"[The Da'wah prohibition] is designed to prevent the sort of intimidating and aggressive proselytising that might be considered anti-social but the Da'wah stall was being run peacefully and [Mr Khan's] involvement in the Affray is not attributable to his Muslim beliefs and practices that the victim's involvement was attributable to his love of football. [Mr Khan] was there because of his religion and the victim was there because of football but that is the only connection and it does not provide a basis for saying the ASBO is necessary or that [Mr Khan] is prone to anti-social behaviour."
More simply, as it was put in Mr Ben Gordon's advice in support of Mr Qadeer Ahmed's application, the violence "occurred not as a result of [Da'wah] or evangelism, activities in which the defendant had been peacefully involved for over 10 years, but as a result of personal confrontation between the [appellants] and a group of football supporters".
- We accept those arguments. We add that, although the prosecution submitted that the "violence was not spontaneous, but was preceded with an element of planning", the Judge did not put his decision about ASBOs on that basis, and made no findings about which appellants were involved in any planning. (We do not overlook that in his sentencing observation on 20 June 2014 he said that before the violence Mr Jalal Ahmed indicated to a boy that some nearby women and children should move away, but he did not find that Mr Ahmed was planning violence.) As we see it, the operation of the Da'wah stall was part of the background to the violent episode but it was not its cause. This point is perhaps particularly telling because the appellants became involved in the affray only after the violence had started: in his sentencing remarks the Judge identified Mr Aziz and Mr Kahdir Ahmed, neither of whom brings an appeal, as initiating the violence. The appellants might be thought to have become involved in order to protect colleagues. There is no reason to think that they would have behaved differently if colleagues had been involved in violence in a different context.
- The association prohibition prohibits the appellants from being "together and in the company with" named persons while attending a demonstration, protest or rally. The Judge gave no reasoning to explain why the association prohibition is necessary or a proportionate restriction on the appellants' article 11 rights. It was made against all the appellants, although
i) The prosecution did not rely on any evidence that Mr Naseer Mohammed Khan and Mr Qadeer Ahmed had ever attended a demonstration, protest or rally; and
ii) Although it was said that Mr Jalal Ahmed, Mr Munin Abdul, Mr Yousaf Bashir and Mr Moshiur Rahman were present at Edgware Road on 10 May 2013, there is no evidence that they offended or behaved in an objectionable matter.
Thus only three of the appellants was convicted of an offence arising out of or associated with a gathering of this kind. We can see no proper basis for imposing the prohibition on any others. It might be that the Judge had regard to others matters in the notices and evidenced by the police statements, but without findings of fact we do not know.
- Nor do we consider this restriction justified in the case of the other three appellants, Mr Alamgir, Mr Kamran Khan and Mr Uddin, notwithstanding their offending at the Edgware Road incident. We see no connection between their offences and the prohibition: why should Mr Alamgir, for example, be the more likely to behave in an anti-social manner at a demonstration, protest or rally because, say, Mr Bashir is also there? There is no rational or sufficient basis in the evidence on which the prosecution relied to conclude that the presence of any of the other named persons would aggravate the risk of these appellants offending or behaving anti-socially.
- That leaves the demonstration prohibition made against Mr Amalgir, Mr Kamran Khan and Mr Uddin, who committed offences in the context of the Edgware Road incident. It does not prohibit them from attending a demonstration, protest or rally, but it was not disputed that it engages the appellants' article 10 rights, most obviously perhaps in that their freedom of expression is restricted by the prohibition on approaching members of the public. The Judge's reasoning does not explain how the prohibition reduces the risk of anti-social behaviour on the part of these three appellants so that it can be said to be necessary and proportionate to the risk of anti-social behaviour that would otherwise result from them attending a demonstration, rally or protest.
- The first limb of the prohibition is against participating in an event where notification has not been given and permission granted by the local authority and the police "where required". It was not disputed by anyone, and it was expressly accepted by Mr Amalgir, that permission had not been obtained for the Edgware Road march. According to Mr Amalgir, however, he was not aware that notice of the march had not been given to the authorities, and believed that it had been: there was no finding about that. More importantly, the police, knowing that the march was not authorised, asked Mr Amalgir for his help in keeping the march moving: they did not complain that it was an unauthorised march, and agreed that Mr Amalgir was polite and co-operative. It seems to us immaterial to the later disorder that the march was not authorised, just as the violence and disorder would not have been excused or the offenders' conduct mitigated if it had been.
- We do not understand the thinking behind the prohibition about items being burned: this was not, as far as we know, a feature of the Edgware Road march or the violence associated with it.
- We would suppose that the provision prohibiting the appellants from carrying a flag-pole was introduced because Mr Uddin and Mr Ali used a the flag-pole to strike a victim during of the Edgware Road incident, but nothing suggests that Mr Amalgir or Mr Kamran Khan did so or ever had a flag or a flag-pole. We do not consider that there is a sufficient basis for this restriction even on Mr Uddin, still less on the other two appellants. As the Judge observed when considering whether to prohibit the defendants from carrying a crutch, "It seems … that the legislation in place is sufficient to enable the police to prosecute anyone who uses a crutch as a weapon": he accordingly declined so to prohibit this. As we see it, this reasoning equally applies to carrying a flag-pole.
- Finally, these three appellants are prohibited from "approaching members of the public" when attending a demonstration, protest or rally. We assume that this restriction is intended to prohibit them from approaching people who are not themselves demonstrating (although it is not immediately obvious that a person ceases to be a member of the public when he joins a demonstration). We consider this unjustifiably restrictive: it is an ordinary part of any demonstration to hand the public leaflets, and a major restriction on freedom of expression to prohibit it. And the prohibition would cover such innocent conduct as asking about the nearest underground station to go home.
- We conclude that all the prohibitions are unjustified in principle: they were not shown to be necessary and represent a disproportionate restriction on the appellants' rights and freedoms.
- The appellants also object to the wording of the orders, complaining that (i) their terms are objectionably obscure or ambiguous, and (ii) the wording is too broad and applies where there is no possible justification for a prohibition.
- Perhaps the most important complaint under this head is about the expression "performing Da'wah", and uncertainty about what it covers despite the definition in the order. Ms Susan Meek, whose advice supported Mr Abdul's application, argued that "performing Da'wah" is an inappropriate prohibition because Dawa involves many, if not all, aspect of the Muslim religion, and, she submitted, would include attendance at a wedding or funeral. Given the orders' definition of performing Da'wah, we are not persuaded of this specific criticism, but the complaint is more general: as it was put by Mr Richard Doman, who represented Mr Uddin and Mr Rahman, even with the definition the concept is "still imprecise and capable of misinterpretation". We agree: certainly the performance of Da'wah would cover persuading others to accept the Muslim religion, but, as we would understand the term "proselytising", it would also cover persuading others to a particular view of Islam or persuading others to particular tenets of a religion: for example, the importance of giving alms or of undertaking a Hajj or an Umrah pilgrimage. Discussion of such questions is an intrinsic part of communal religion. Such discussion might take place in a mosque, but it might also take place in other settings that would normally be considered public places. (Since activities in a Mosque are exempt from the Da'wah prohibition, the order might reasonably be understood to cover activities in any other place open to the public.) Equally, an appellant might wish to participate in inter-faith discussions, where a contribution might well be regarded as proselytising. We find it difficult to see how the offences in the public highway in the course of the Oxford Street incident could justify a prohibition of this breadth.
- We deal with other complaints about the wording of the orders relatively shortly, notwithstanding we see force in many of them, and although we readily accept the importance of prohibitions of this kind being easily understood by defendants and others. Some of the complaints might properly have been resolved relatively easily by revisions to the wording, but others present more major difficulties.
- First, the complaints about the wording of the Da'wah prohibition include these:
i) The prohibition on setting up a stall without informing the local authority or obtaining written permission: we do not know the nature of the permission contemplated or what powers local authorities have to give any relevant permission, nor do we know what function local authorities have to receive such information. Mr Weekes understood that a stall in Oxford Street might require permission under a bye-law, but the prohibition applies throughout England and Wales. While these questions remain unanswered, this provision would seem to us objectionable.
ii) Being within 200 metres of any other group performing Da'wah: we do not know to what mischief this is directed. The respondent's notice suggests that it is justified by the risk of two groups converging, but we have seen no evidence that this ever happened or is likely to happen. The appellants are, as we understand it, Sunni Muslims: the order apparently forbids them from having a stall within 200 metres of a group of Shia Muslims who are proselytising, but not within 200 metres of a group of evangelical Christians. (We would suppose this because the Christians would not be performing Da'wah, although a literal interpretation of the definition of "performing Da'wah" would include proselytising of any kind.) This provision seems to us unnecessary.
iii) Being in a group displaying a flag or banner, except for one notice as specified: we can only suppose that a concern about flags or banners has been imported from the Edgware Road incident or other demonstrations unassociated with performing Da'wah, carrying with it the suggestion that they would make the activity more anti-social. We do not find that thinking cogent, and do not see any justification for this provision.
iv) The prohibitions about items being burned and a flag-pole being present also seem to be imported from the demonstration prohibition, although the demonstration prohibition is concerned only about a flag-pole that is carried, but the Da'wah prohibition seems also to cover stationary poles: it escapes us how a stationary flag-pole might make Da'wah more anti-social. We see no justification for introducing these provisions into the Da'wah prohibition,
- We confine ourselves to two points about the association prohibition. First, it is concerned not only with demonstrations and protests but also rallies. Whereas it seems to us inherent in the purpose of a demonstration or protest that it is directed to influence others who disagree with the views of the demonstrators or protesters, to our mind, a rally might well be a gathering of like-minded people. On its face, the association prohibition would cover, for example, such a gathering in a mosque: we would regard a mosque which is open to the public as a "public place" within the meaning of the order. We do not understand the reason that the association prohibitions covers rallies at all, and consider this unjustified.
- Secondly, the meaning of the expression, "be together with and in the company with" is unclear in this context: is everyone who is on a march "with and in the company with" all others on the march? If not, what falls within the expression? If so, practical difficulties arise: given the size of some marching demonstrations, sometimes converging from different starting points, it is unrealistic to suppose that a marcher knows all the others.
- We have already indicated why it seems to us that the wording of the demonstration prohibition is wider than could be justified.
- Two other issues about the scope of the order remain. Mr Doman pointed out that the Judge did not explain his decision to impose an ASBO for three years, beyond stating that the five years' period that the prosecution sought was "too draconian" and that three years was the "appropriate length". Had we otherwise upheld the orders (or parts of them) we would have seen no good reason to interfere with their length.
- The Judge also ordered that the orders have force throughout England and Wales. His reasons were that "Transport is easy these days" and "There may be mosques and strong feelings in various parts of the country and it would be unrealistic to limit the order to one particular area". We do not find in these reasons a compelling case for such wide prohibitions: undoubtedly there are mosques in most parts of England and Wales, but the prohibitions are not, at least primarily, directed to activities in mosques, and there was no evidence that the appellants had travelled long distances to perform Da'wah or to demonstrate. But we did not hear argument about the geographical limits of the prohibitions, and we shall say no more about them.
- It remains to say something about the complaint that the Judge did not consider the individual position of each defendant when making the ASBOs. It is said that the course adopted by the prosecution and the court on 23 January 2015 resulted in ASBOs being made by "lumping together" the appellants (and other defendants), making identical orders against each, subject only to the "rule" that an offence in the Edgware Road incident was visited with the demonstration prohibition and an Oxford Street offence with the Da'wah prohibition. This is indeed how the Judge made his decision, as he explained clearly: he concluded that the very fact that the appellants had committed offences in the context of one or both of the incidents, justified ASBOs in the terms that he made them. He said that he was "entirely satisfied that an order to limit the conduct of these defendants is appropriate in each case", and that he took the view that "it is necessary for the protection of the public and to ensure that crime is not committed that antisocial behaviour orders are made in respect of each defendant"; and he declined to distinguish between defendants by reference either to their role in the incidents or their background. As for the offending of individual defendants, the Judge said this:
"… it is suggested that there should be a distinction made between individuals as to their particular part played in a particular offence. Whilst it is right to say that there are different considerations in respect of different individuals where two offences have been committed by an individual, and that applies in the case of Mohan Uddin and Kanram Khan, I take the view that the prosecution are entitled to seek the three conditions in the order which they have proposed but not in precisely the terms which the prosecution advance. So far as other defendants who were convicted of or pleaded guilty to one incident I take the view that it is not proportionate or appropriate for those three considerations to be applied and indeed the prosecution, it is fair to say, do not seek for all three conditions to be made subject to the order".
As for the defendant's backgrounds, the Judge said only:
"I do not make a distinction between those who have committed an offence in the past because none of these are, if I may put it this way, serial offenders. All in many respects, as I have said, are perfectly responsible, decent citizens but they have demonstrated by their conduct in May of 2013 that they are prepared to behave in a way which is wholly unacceptable and which involved violence or the threat of violence to members of the public who were going about their day to day activities in busy London streets such as Edgware Road and Oxford Street".
- Accordingly, the decisions to impose the ASBOs were taken without the prosecution presenting evidence about the appellants' past conduct, including in some but not all cases their past convictions, and, as we infer from the Judge's ruling, without consideration of the personal circumstances of each appellant. Usually a defendant's personal circumstances and previous behaviour would be highly relevant considerations when making an ASBO. It will rarely have been right for a court to disregard such information in deciding to make an ASBO, and rarer still for it to be irrelevant when determining the terms of an ASBO: as this court explained in the Boness case (cit sup) at para 28, ASBOs "should be tailor-made for the individual offender". The prosecution had, as we have explained, served detailed evidence by way of statements of police officers about each defendant, but those were not relied on and in those circumstances it is not right for us to comment on it. But, for example, as we have said, it was not disputed that some appellants had performed Da'wah for many years without causing offence before the Oxford Street incident: we do not think that it was right to ignore that when ordering the Da'wah prohibition against them.
- Further, we see nothing about the Edgware Road incident or the Oxford Street incident that justified making the ASBOs without making findings about the part that each defendant played in them: in particular, perhaps, he was involved in planning trouble or reacted when he saw a companion involved in a melee. (As we have said, neither of the two men who start the violence in Oxford Street are appellants before us.) If otherwise we were minded to uphold the ASBOs (wholly or in part), we would have considered the position of each appellant to decide what, if any, prohibition was justified by the risk that he presents. But other conclusions mean that we need not do so.
- We conclude that the ASBOs against all the appellants should be quashed, and the appeals allowed accordingly.
