Stanley, Marshall & Kelly v Metropolitan Police, LB of Brent & SS Home Department (October 7th 2004)

The High Court held that the publication of material identifying persons subject to anti-social behaviour orders (ASBOs) was not unlawful or a breach of their human rights under Article 8 ECHR.

 

From August 2000 onwards complaints were made by residents of Brill Hill council estate, Brent, that a number of youths were engaged in anti-social behaviour in the area.  Pursuant to the Local Authority’s Crime and Disorder Reduction Strategy, the London Borough of Brent (LBB) sought anti-social behaviour orders against eight persons, three of whom were the Claimants in this case.  Interim ASBOs were granted against 7 youths.  Prior to the grant of final orders, consideration was given by the police and LBB as to how the orders might be publicised.  The grant of the orders was widely reported and details of the proceedings were posted on LBB’s website.  Leaflets were distributed by LBB wardens and police community safety officers throughout the greater part of the exclusion area attached to the orders.  LBB also published a report of the proceedings in its newsletter to tenants.

 

The Claimants accepted that the police had the power to publicise the result of their application for orders, but argued that publicity should be no wider than necessary and proportionate to the legitimate aim pursued.   LBB stated that the objective of the publicity leaflets was “to facilitate enforcement of the orders.”  The Claimants argued that this was not specific enough and that the police and LBB failed to approach the issue of publicity in the right way and asserted that the Claimants were responsible for identifiable criminal offences.  In relation to the publication of photographs of the Claimants it was also argued that this breached their Article 8 rights.  In cases such as this the court made it clear that the rights of both those subject to ASBOs and the local community, are engaged.  The community’s rights relate to Article 10 (freedom to receive information), Article 11 (freedom of assemble and association) and Article 17 (prohibition of abuse of rights)

 

The police argued that their use of leaflets was to restore public confidence, assist in enforcing the ASBOs, to deter others and maintain peace in the community.   They also stated that publicity needed to go beyond merely ‘naming and shaming’ the Claimants.  The Secretary of State agreed that the police and LBB did have a power to publicise the grant of an ASBO but that in doing so also had a “positive obligation” to balance the rights of individuals against those of the community as a whole.

 

The court decided that ASBOs needed publicity to operate effectively and it should have been obvious to the Claimants that publicity surrounding them would include the use of photographs.  It also held that publicity was necessary to assist in enforcing the orders and to deter others from similar behaviour.  There was no reason why the details of the alleged criminal behaviour could not be included in the publicity material.  It was agreed that the language used was appropriate and necessary to attract the proper attention.  Neither was there a problem of the publicity not being confined to the exclusion area.   It was acceptable for the publicity to appear on the website since only local residents were likely to read it.  The leaflet drop was properly targeted to the zone in and around the exclusion area and was necessary to inform and enforce the orders.  The community newsletter was also acceptable since some residents may not have had access to the website or seen the leaflet.  The applications for judicial review were therefore dismissed.

 

However it was suggested that in future more thought is given by those seeking post-order publicity, particularly in relation to Convention rights and whether publicity was necessary and proportionate to their legitimate aims.  This could be assisted by the provision of guidance by the Home Office, so that publicity could be confined to what was reasonable and proportionate.

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