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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R & Ors (on the application of) v Metroplitan Police Commssioner & Ors [2004] EWHC 2229 (Admin) (07 October 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2229.html Cite as: [2004] EWHC 2229 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 October 2004

Lord Justice Kennedy:

1. The three claimants, Jovan Stanley, William Marshall and Martin Kelly seek judicial review of a decision made by the representatives of the London Borough of Brent and the Metropolitan Police on or about 2^nd October 2003 to distribute leaflets and publicise other material carrying the claimants' images, names and ages, and details of anti-social behaviour orders issued against them. The publicity material also identified four other young men who are not party to these proceedings. The claimants seek a declaration that the publicity complained of was unlawful and in breach of their rights under Article 8 of the European Convention on Human Rights. They also claim damages for violation of their Convention rights. Although these proceedings are not directly concerned with the reasons why the ASBOs were made, the history is relevant when evaluating the propriety of the steps taken by the defendants after the orders were obtained, and I will therefore summarise that history.

History.

2. From August 2000 onwards there were serious complaints of anti-social behaviour being made by, in particular, residents of Brill House, a council-owned block of ten flats on a small estate between Aylesbury Street and Verney Street in the London Borough of Brent. The location can be found on the plan in the leaflet which is annex 1 to this judgment.
3. The anti-social behaviour complained of included youths assembling and loitering in and around the block, throwing stones at each other from balconies, causing damage to windows and motor vehicles, running up and down stairs shouting and screaming, throwing rubbish and spitting from balconies, leaving bicycles in communal areas obstructing residents, playing loud music and having noisy parties until the early hours of the morning, smoking drugs in communal areas, gaining access to communal areas by damaging doors and windows, leaving litter in communal areas, starting fires in the communal stairwell, defacing stairwell walls with graffiti, letting off fireworks in communal areas, playing football in communal areas causing damage to windows, abusing and threatening residents and visitors to the building.
4. In January 2002 the local authority prepared a Crime and Disorder Audit. It showed a complex picture, but amongst other things it was noted that 85% of residents in the five most disadvantaged areas of Brent did not leave their homes at night due to the fear of crime. In July 2002 the local authority published its Crime and Disorder Reduction and Community Safety Strategy, which was agreed with the Metropolitan Police. Together they formed the Brent Crime and Disorder Community Safety Partnership, and at paragraph 10.4 the strategy stated that it included –

"A commitment to publicise and promote the action and success that the Crime and Disorder Reduction and Community Safety Partnership achieves. This will emphasise the importance that each partnership agency places upon crime reduction and community safety and may also serve to reduce the fear of crime by demonstrating to the community that their crime concerns are being effectively addressed."

The publication of the strategy did not of itself have any effect on the problems experienced by the residents of Brill House. There were more disturbing reports in August 2002, including a report that when representatives of a company were assessing where to put covert cameras in Brill House they were threatened by youths and required to leave the site. A representative of Warlite Security had a similar experience at about 3 pm on 6^th September 2002. Inspector Dale had just taken over as the police officer responsible for tackling crime and disorder in the area, and from 23^rd September 2002 to 24^th March 2003 she ran Operation Shrimp, which involved an escalation of police activity, but, partly because the youths were well organised and watched out for police, the problems continued and few arrests were made.

5. On 2^nd October 2002 Inspector Dale met Brent Housing Partnership Neighbour Relations Team, which had been established to deal, amongst other things, with persistent anti-social behaviour. She also met Mr Daniel Jones of the Neasden Residents Association, the only resident who was at that time prepared to speak to the police on a regular basis and to make a statement, who was subjected to violence, abuse and intimidation for doing so. For his protection it was considered necessary to install a panic alarm and camera at his home.
6. On 6^th October 2002 graffiti discovered at Brill House depicted a tombstone with the words "rest in pieces" and named six Brent police officers.
7. On 14^th October 2002 it was decided to seek anti-social behaviour orders. The matter was referred to the Brent ASB group, consisting of representatives of the local authority and the police, with the police as the lead agency and Inspector Dale as the lead officer.
8. On 16^th October 2002 a leaflet was distributed to occupiers in which Inspector Dale, on behalf of the police, asked for information to be provided in confidence to enable action to be taken to deal with the anti-social behaviour. That prompted a mini-riot, involving a large number of youths. An unmarked police car was stoned, a firework and rocks were thrown at the police, other missiles were thrown at other police cars and so forth. The claimant Marshall was identified as one of the youths actively involved in that disturbance which resulted in one public order arrest, and eight arrests to prevent breaches of the peace.
9. On 22^nd October 2002 Brent ASB group formally decided to seek anti-social behaviour orders against eight individuals, including the three present claimants.
10. On 24^th October 2002 a male Local Authority cleaner who had been working at Brill House for about 9 years reported that the scale of anti-social behaviour had been such that for three weeks he had to be accompanied by a security guard. Thereafter he re-arranged his working day so that he went to Brill House very early in the morning when the youths were normally not to be seen, but if they were there he did not do his work.
11. On 27^th October 2002 a carpenter who attended at Brill House to repair the electricity cupboard was surrounded by youths and threatened. Lighting on the estate was smashed on the night it was repaired.
12. Because the Local Authority and Inspector Dale had no previous experience of anti-social behaviour orders Inspector Dale went in November 2002 to visit the Greater Manchester Police, and learnt, amongst other things, of the follow-up publicity by leaflet which that police force had used when an anti-social behaviour order had been obtained.
13. At the end of November 2002 Inspector Dale made personal contact with the residents of Brill House and the adjacent Chalfont House. They all described on-going misery and intimidation, so she called them to a meeting at Wembley Police Station on 2^nd December 2002 which eight of them attended, together with a representative of the Local Authority. The Inspector hoped to give some reassurance and to seek assistance, but she encountered hopelessness, and an over-riding feeling that to report incidents would put the residents and their families at risk with no likely gain.
14. On 17^th December 2002 Mr Jones was about to enter his house at 4 Verney Street when he was hit on the head by a half-brick thrown by one of the group of youths.
15. On 17^th April 2003 at Brent Magistrates' Court interim anti-social behaviour orders were made against seven youths. An eighth youth was in custody so no interim order was sought against him. There were breaches of those interim orders, but they were said to have had a good effect.
16. The hearing of the full application for anti-social behaviour orders was fixed for September 2003, and in preparation for that hearing consideration was given to the way in which the Local Authority and the police might publicise the orders if granted. Inspector Dale obtained approval from her senior officers and the Local Authority also granted its approval to the draft of the leaflet which is at annex 1, final approval being granted by both the police and the Local Authority at the end of September 2003, after the orders had been made. The orders were made on 19^th September 2003 by District Judge Marshall after a hearing lasting 15 days. Her careful judgment sets out the material facts, which include the background of convictions of each of the claimants, Stanley, Marshall and Kelly, then aged 15, 16 and 18. The proceedings were widely reported particularly in the local press, but also to some extent in the national press in September and October 2003. On 25^th September 2003 the Local Authority posted details of the proceedings on its Brain Community Website, in a form now to be found at annex 2.
17. On 2^nd October 2003 the leaflets (annex 1) which had been planned and approved were distributed by wardens of Brent Housing Partnership (the council-owned company which managed the bulk of the council's housing stock) and by police community safety officers. They were distributed throughout the greater part of the exclusion area marked by District Judge Marshall on the map attached to the orders.
18. In the same month the Local Authority published a report of the proceedings in its newsletter to tenants, Partnership News. A copy of that report is at annex 3 of this judgment.
19. Six of those against whom orders were made, including the present claimants, appealed to the Crown Court, and their appeals were heard over five weeks between 26^th April and 28^th May 2004, judgment being delivered on 11^th June 2004. The appeals were dismissed, but there was some slight variation to the terms of the orders.
20. Meanwhile these proceedings had been commenced on 31^st December 2003, and the Secretary of State was served as an interested party.

The Claimants' case.

21. Mr Fordham, for the claimants, accepts that the local authority and the police had power to publicise the results of their applications for orders. He says that the relevant power is only to be found by implication in the Crime and Disorder Act 1998, whereas Mr Carter, for the local authority, submitted that there was also power, so far as his clients were concerned, to be found in section 2(1) of the Local Government Act 2000. I agree with Mr Carter, but nothing turns on that. What is important is that although, as Mr Fordham emphasises, anti-social behaviour orders are civil and not criminal orders (see R (McCann) v Manchester Crown Court [2003] 1 AC 787), they need publicity in order to operate. As Lord Bingham CJ pointed out in B v Avon and Somerset Constabulary [2001] 1 WLR 430 in relation to Sex Offender Orders, they should be drawn no wider than is necessary, and if they restrict rights the restriction should be necessary and proportionate to the legitimate aim pursued. Although we are not concerned with the actual terms of the orders Mr Fordham submits that the same restrictive approach should be adopted in relation to the publicity which the statute by implication authorises (see also R v Governor of Frankland Prison ex parte Russell [2000] 1 WLR 2027 at paragraph 11).
22. As to the need for publicity Mr Fordham invited our attention to the judgment of Elias J in R (T) v St Albans Crown Court [2002] EWHC 1129 (Admin), a case concerned with a restriction on publicity imposed under section 39 of the Children and Young Persons Act 1933 in relation to an application for an anti-social behaviour order. No restriction order was ever sought in the present case, but at paragraph 22 Elias J said –

"In my judgment, where an anti-social behaviour order has been imposed, that is a factor which reinforces, and in some cases may strongly reinforce, the general public interest in the public disclosure of court proceedings. There are two reasons for this. First, disclosure of the identity of the individuals may well assist in making an order efficacious. If persons in the community are aware that the order has been made against specified individuals, then it must improve the prospect of that order being effectively enforced. Any subsequent breach is more likely to be reported back to the authorities. Second, the very purpose of these orders is to protect the public from individuals who have committed conduct or behaviour which is wholly unacceptable and of an anti-social nature. The public has a particular interest in knowing who in its midst has been responsible for the outrageous behaviour. In my judgment, this latter factor does not constitute simply 'naming and shaming' which Lord Bingham in McKerry thought it would be difficult to justify. This is not simply publicity to satisfy a prurient public: the local community has a proper interest in knowing who has been seriously and persistently damaging its fabric. Moreover, as far as shaming may, and often will, have a legitimate deterrent effect, it is a relevant factor to weigh against its potential adverse effect …… "

Mr Fordham does not challenge those observations, but he submits that because any publicity following the making of an anti-social behaviour order should be limited to what is necessary and proportionate it is important for those contemplating initiating publicity to identify the legitimate end or ends which they seek to achieve. Only when that has been done can they reach a sustainable conclusion as to the necessary and proportionate nature and extent of the publicity. So, for example, the object of the publicity may be –

"(1) To assist the authorities to enforce the ASBO by encouraging the reporting of apparent breaches, or –

(2) To advise victims and potential victims of anti-social behaviour, and even the wider public, that the order has been obtained, so as to provide re-assurance."

If it be the latter then, Mr Fordham submits, there is no obvious need to provide photographs or personal details of those against whom orders have been made, and Mr Fordham points out that in its letter of 16^th November 2003 the local authority said no more than that "the purpose of the leaflets was to facilitate enforcement of the orders".

23. In the present case Mr Fordham contends that the local authority and police failed to approach the issue of publicity in the right way, and that as a result they approved a leaflet which was worded in the language of crime. It spoke of "keeping crime off the streets", and asserted that the claimants were part of a group which had committed identified offences. It made use of photographs obtained by the police under the provisions of the Police and Criminal Evidence Act 1984, and when the leaflet was distributed its distribution area was wider than the area identified in the individual orders.
24. As to what was published on the website, Mr Fordham questions why further widely accessible publicity was necessary after the leaflet drop, but in fact, as already indicated, the website posting preceded the leaflet drop by a week, although it was maintained thereafter. Our attention was also invited to the wording of the website material, the youths being described as thugs and bully boys engaging in animalistic behaviour. On behalf of the defendants it is said that the descriptions, even if colourful, were entirely apposite, and colourful wording helps to engage the attention of the reader, as every journalist knows.
25. Turning to the Partnership News, Mr Fordham points to the extent of its distribution, and to the fact that although it provided photographs, names and partial addresses it did not spell out the terms of the orders. It could therefore, he submits, do little to assist enforcement, and if it was only intended to inform then it said too much.
26. In November 2002, following amendments made to the Crime and Disorder Act 1998 by the Police Reform Act 2002 the Home Office issued " a Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts" which included a section on promoting awareness of orders. The last paragraph of that section reads –

"Local agencies and Crime and Disorder Reduction Partnerships should, within the context of their overall strategies for combating anti-social behaviour, devise a strategy for promoting awareness of orders. A designated officer should have responsibility for its delivery. This might, most naturally be the CDRP ASB Co-ordinator. Disclosure of information should be necessary and proportionate to the aim it seeks to achieve."

Mr Fordham submits that in reality in the present case there was no strategy for promoting awareness of orders, and that the requirements of necessity and proportionality were over-looked.

27. Underlying all of Mr Fordham's submissions is Article 8 of the European Convention which reads –

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic-well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Mr Fordham submits that publicity, and especially the use of the photographs, infringed each claimant's right to respect for his private life. That is not conceded by either the police or the local authority, but on behalf of the Secretary of State it is accepted that when considering publicity the Convention rights of both those subject to ASBOs and of the community (particularly those who have been victims of anti-social behaviour) are engaged. The community's rights relate, not only to Article 8, but also to Article 10 (Freedom to receive information), Article 11 (Freedom of assembly and association) and Article 17 (Prohibition of abuse of rights).

28. The defendants point out that by 25^th September 2003 (the date of the first publicity now complained of), the entire content of the publicity which followed (other than the photographs) was in the public domain, and recently in the public domain, as a result of the hearing at the Magistrates' Court, and the photographs were essential if the publicity was to have any value, particularly in assisting in enforcing the orders, so, it is said, there was no "private life" which the defendants had to respect. In an attempt to meet that argument Mr Fordham invited our attention to four decisions of the European Court, Murray v UK [1994] ECHR 1410/88, a case concerning the use of a covert photograph where the application of Article 8 was conceded, Rotaru v Romania [2000] 8 BHRC 449 which concerned the retention of information by an intelligence service over many years, PG and JH v UK [2001] application 44787/98 which concerned the use of voice recordings secretly obtained, where again the applicability of Article 8 was conceded, and Peck v UK [2003] application 44647/98 which concerned the insufficiently anonymised use of CCTV footage of an attempted suicide. In that case the government contended that the right to private life had not been engaged because the applicant's actions were already in the public domain, and the court observed, in paragraph 57, that "private life is a broad term not susceptible to exhaustive definition". The applicant argued that albeit what he did was done in public and within range of the CCTV camera "it was the disclosure of that record of his movements to the public in a manner which he could never have foreseen which gave rise to (the objectionable interference with his private life)" (paragraph 6). The court accepted that argument, but the defendants say that in the present case there is no parallel. The claimants knew, or ought to have known, that if an ASBO was made it would be publicised, and that the publicity would almost inevitably include photographs.
29. As the defendants accept, Article 8 does remain relevant when considering post ASBO publicity. I did not understand Mr Johnston for the police or Mr Carter for the local authority seriously to dispute the proposition that Article 8 could be involved if the publicity was found to be unnecessary or disproportionate, so it may be that in the end, as Mr Fordham contends, it is that test, reflecting the content of Article 8.2 which is at the heart of this case. He submits, as I have indicated, that it cannot be satisfied because the defendants did not properly identify their objective, and invites our attention to Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 where a limited distribution of a police photograph was held to be not even an arguable breach of confidence, Thorpe v Chief Constable of North Wales Police [1999] QB 396 which also concerned limited disclosure by the police of confidential information, and R (Ellis) v Essex Police [2003] 2 FLR 566, which concerned the Offender Naming Scheme. As to the proportionality of procedural issues our attention was invited to paragraphs 20, 21, 23 and 24 of the judgment of Maurice Kay J in R (D) v Secretary of State for the Home Department [2003] 1 FLR 979. Mr Fordham even went so far as to submit that the claimants should have had an opportunity to vet the material before it was published, and sought to derive support for that submission from the first instance decision in R (X) v Chief Constable of West Midlands Police [2004] EWCA Civ 1068 which was reversed by the Court of Appeal in a judgment delivered on 30^th July 2004, after submissions had been concluded in the present case. In my judgment it was never realistic in the circumstances of this case to suggest that the claimants or their advisers should have been given an opportunity to vet the intended publicity, and Mr Fordham sensibly adopted a fall back position of submitting that having regard to the ages of the claimants, the defendants should at least have considered whether to notify the claimants or their advisers of the intended publicity. Given that the publicity did not go beyond what had been canvassed in the Magistrates' Court I see no force in that submission in the case.
30. Overall Mr Fordham's complaint is that because there was no proper strategy as to publication and no identification of aim the publicity which did take place was unnecessary and disproportionate. To seek assistance in enforcing the orders it was unnecessary to drop leaflets outside the areas defined by the orders, to reassure residents it was unnecessary to use photographs and give personal details, and for neither purpose was it necessary to offer graphic accounts of alleged criminality.

The case for the first defendant: The Police.

31. Mr Johnston disavowed any intention to name and shame the claimants as a punishment or to victimise them, but he emphasised the gravity of the problem which I have outlined, and which is spelt out in great detail in the judgments delivered in the Magistrates' Court and in the Crown Court. As to publicity the police were only involved with the leaflets, and they, Mr Johnston submitted, were needed –

"(1) To restore public confidence,

(2) To assist in enforcing the ASBOs, and

(3) To deter others and maintain peace in the community."

As Mr Johnston pointed out, the ASBOs, even after amendment in the Crown Court, were not simply limited to geographical exclusion orders. That is paragraph 1 of the 5-year order in each case, but each order has at least 7 other paragraphs which, mostly without geographical restrictions, require the claimant not to behave in an anti-social way and not to associate with other named individuals. They are each forbidden to associate with a man named Madekwe at any time anywhere, and with more than one on a list of individuals (including each other) in any place to which the public have access in the London Borough of Brent. So it is clear that it is not only within the area defined in paragraph 1 of each order that an order can be breached, and that is important when considering the need for assistance in enforcement. In fact all of those against whom orders were made lived outside the exclusion areas, but five of the seven lived within the area covered by the leaflet drop. Stanley and Kelly lived in Alderton Close, just to the north of the exclusion zone, and Marshall lived further away, in Cambridge Road, Kilburn.

32. Mr Johnston pointed out that until the interim ASBOs were obtained reported crimes were rising in the exclusion area, contrary to the trend for the borough as a whole, and when deciding how to follow up the orders with appropriate publicity the police did have regard to the experience of the Greater Manchester Police and to the content of the Home Office Guidance. Because this was the first application for an anti-social behaviour order in Brent there was no publication strategy in place, but there was liaison between police forces and between the Metropolitan Police and the local authority. In future decisions can be better targeted and recorded, but Mr Johnston submits that in the event no error was made.
33. Mr Johnston rightly pointed out that when alleging a contravention of Article 8.1 it is necessary for a claimant to identify what aspect of his private life he is entitled to protect. The decisions of the European Court on which the claimants rely are distinguishable because here no image or information had been secretly obtained or stored, and all that the defendants did was to publish a faithful if abbreviated report of recent proceedings in open court, publication being necessary for the three reasons identified above. That publication by leaflet was neither unnecessary or disproportionate because if the orders were to be effective they needed more and better-targeted publicity than the media would provide, as indicated by Elias J in the St Albans case above. The identity of those subject to the orders was critical both in relation to enforcement and in relation to the other objectives because the impact of the orders on real people needed to be demonstrated, and, having regard to the terms of the orders and the fact that the claimants could easily transfer their anti-social activities to a different area, it was in no way disproportionate for the leaflet dropping not to be confined to the exclusion area. As Elias J said in the St Albans case at paragraph 24 –

"the fact that the conduct is not such as to give rise to criminal proceedings is not a matter of particular significance. In reality it is often more serious."

In the same case at paragraph 40 the judge made the point that disclosure of names has a potential deterrent effect not only on those against whom the order is made but also "in that it may dissuade others from going down a similar path".

34. As to the text of the leaflets Mr Johnston pointed out that on any view crimes had been committed, even if largely because of intimidation it had not been possible to secure convictions, so what was said was accurate, and was designed to have an impact.

The case for the second defendant: The local authority.

35. Mr Carter, for the local authority, adopted a similar stance. He submitted that the council by its crime reduction strategy had adopted a responsible attitude, and invited our attention to the judgment of Laws LJ in R (Mahmood) v Home Secretary [2001] 1 WLR 840 which considered the proper attitude of courts called upon to consider alleged lack of respect for a fundamental right. At paragraph 19 he said –

"There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required."

In the present case on any view the impact of the publication on the individuals cannot have been great, having regard to what had already transpired in court and been reported in the media. The claimants had been shown to be members of a gang responsible for serious and anti-social behaviour over an extended period. They had all previously been convicted of serious criminal offences, as identified by the District Judge. In part because of the increase in police activity they had all been stopped, searched, arrested and brought before criminal courts, but they continued with anti-social behaviour and defiance of authority, eschewing any attempt at conciliation, so, it is submitted, even if their Convention rights were infringed the court is not here dealing with the sort of impact on individuals which calls for anxious scrutiny.

36. In fact, Mr Carter submits, the claimants can have had no realistic expectation that their conduct, as revealed in court, would not be publicised, and it is important to bear in mind their violation of the Article 8 rights of those living in and around Brill House. In this case there was, Mr Carter submits, no interference with the claimants' rights under Article 8.1 and, by reference if necessary to Article 8.2, what was done was necessary and proportionate. Those reading about what had happened needed to see photographs, with names and ages, so that they could be assured that the orders had been made against real people. The language of the website was colourful, but fair comment, and positively invited assistance in implementation of the orders. The newsletter was an accurate report. It did not invite assistance in enforcement, but that was not its purpose, and its circulation was restricted to the council's tenants. Overall the council was entitled to meet the requirements of publicity with the means at their disposal. No doubt in future there will be a better record of decision-making in relation to publicity, but in fact all relevant matters were considered, and nothing was done that should now be regarded as in need of redress.

The position of the Secretary of State.

37. Mrs Outhwaite for the Secretary of State submitted that the police and the local authority did have power to publicise by necessary implication under the terms of the 1998 Act, and she underlined the submission made on behalf of the defendants that the Article 8 rights of the claimants were not the only rights to be considered. There were also the rights of the past and potential victims of anti-social behaviour under Article 8, 10, 11 and 17, and of the wider public under Article 10. As she pointed out, the state can be found to be under a positive obligation to protect such rights (see Anufrijeva v Southwark LBC [2004] 2 WLR 603 and Ozgur Gundem v Turkey [2000] application 23144/93), so it is necessary to balance the rights of individuals against those of the community as a whole, as pointed out by the European Court in Von Hannover v Germany [2004] application 59320/00.
38. In the present case the claimants knew that if full ASBOs were to be granted there was likely to be publicity, so there is an obvious difference between the present case and Peck. The use of photographs was necessary and proportionate for a specific public purpose, and in so far as that invaded the privacy rights of the claimants that invasion had to be balanced against the rights of the public to have the orders enforced and to know what had gone on.
39. As is clear from the Home Office Guidance, the Secretary of State has always taken the view that when an ASBO is made there will normally be follow-up publicity involving publication of photographs, and disclosure of names and addresses. The publicity should be geographically targeted, but not necessarily confined to any exclusion area which the orders may contain, and if the proper balance is struck the publicity should be found to be necessary and proportionate for all the reasons given by others, including the potential deterrent effect upon those against whom orders have been made. Cases may arise in which consultation as to publicity is a realistic possibility, and that should be considered, especially for example in the case of those who are very young. A simple desire to name and shame would never be an appropriate justification for publicity, and it is important to recognise that the reasons for publicity will never be quite the same as the reasons for seeking the initial order. But in any given case where the matter has been carefully considered the court should always recognise that some deference must be accorded to those entrusted with the responsibility of making decisions.

Conclusion.

40. I accept that when the question of publicity arose it should have been recognised that publicity might infringe the rights of the claimants under Article 8.1, especially if use was made of photographs taken under the powers of the Police and Criminal Evidence Act, and that does not seem to have been recognised in this case. If there had been that recognition the police and the local authority should then have gone on to consider whether the publicity which they envisaged was necessary and proportionate to their legitimate aims. I accept that in fact that they did not deal with the matter in that way. However in this case it made no difference. Although Mr Fordham submitted that it is necessary to identify the aim of intended publicity in fact the identified aims normally overlap. The resident of Brent who was informed, in an attempt to restore confidence, that several ASBOs had been obtained might turn out to be invaluable in enforcing one of those orders, particularly having regard to the relatively wide terms of the orders under consideration in this case. It is clear to me that whether publicity is intended to inform, to reassure, to assist in enforcing the existing orders by policing, to inhibit the behaviour of those against whom the orders have been made, or to deter others, it is unlikely to be effective unless it includes photographs, names and at least partial addresses. Not only do the readers need to know against whom orders have been made, but those responsible for publicity must leave no room for mis-identification. As to the remainder of the content of any publicity, that must depend upon the facts of the case. If, as here, residents have been exposed to significant criminal behaviour for years, and orders have been obtained by reference to that behaviour and to bring it to an end, I see no reason why publicity material should not say so. It cannot, of course, assert that those against whom orders have been made have been convicted of any crime, but none of the material that we have had to consider made that assertion. The language used in some of the publicity was colourful, but having regard to the known facts already in the public arena it was entirely appropriate, and the colour was needed in order to attract the attention of the readership.
41. As to the spread of publicity there is simply no case for contending that it should have been confined to the exclusion area set out in paragraph 1 of each order. Chronologically the first publication was on the website. It was informative and it also specifically invited assistance in enforcement. Technically it could have been read by almost anyone anywhere, but in reality only local residents would be at all likely to access the website. It was maintained in position until January 2004, but these were five year orders. Then the leaflets were dropped in and around the defined exclusion area. That was clearly a properly targeted area having regard to the need both to inform and to enforce, and it could not be assumed that those who received leaflets would have seen the website. Finally there was the report in Partnership News, plainly intended to provide information and reassurance to all of the local authority's tenants, as is clear from its final paragraph. Many may not have seen either the website or the leaflet, so the use of the third medium for publicity cannot be criticised.
42. I would therefore dismiss these applications for judicial review, but emphasise the need for those considering post-order publicity in future to have in mind the Convention rights of those against whom orders are made, and of the wider public (including past and potential victims of anti-social behaviour). If that is done and recorded, perhaps with the assistance of further guidance from the Home Office, it should be clear that the publicity is confined to what is reasonable and proportionate, and the possibility of further proceedings for judicial review should be eliminated.
43. Finally I express a sense of dismay not only at the conduct recorded in the earlier part of this judgment but also at the length of the proceedings in the Magistrates' Court and in the Crown Court. The patience of the District Judge and of the judges in the Crown Court is commendable, but perhaps it is now necessary in the public interest to consider imposing time limits on such proceedings, and requiring that leave be granted before there can be an appeal to the Crown Court, if only to prevent those who have engaged in anti-social behaviour from engaging in another form of abuse.
44. There will be a CLS funding assessment of the claimants' costs

Mr Justice Treacy:

45. I agree.
--------------

LORD JUSTICE KENNEDY: This case concerned the publicity which it is permissible to give to the making of antisocial behaviour orders.

For the reasons set out in the judgment, which is the judgment of the court consisting of Treacy J and myself, the application is dismissed.

The Council applies for costs and by agreement it is ordered that that application for costs should be dealt with by myself on paper, written submissions in respect of which are to be lodged by 4pm on 14th October 2004. Further, by agreement, there will be a detailed assessment of the claimants' costs which are payable out of the Community Legal Service Fund.