||All England Reporter
|| All ER (D) 41 (Apr)
|| EWHC 728 (Admin)
||Queen's Bench Division (Divisional Court)
Richards LJ and David Clarke J
||Charles Garside QC (instructed by the Crown Prosecution Service, Manchester) for the prosecution.
||Adam Fullwood (instructed by Kaufman and Co, Manchester) for the respondent.
||5 April 2006
Magistrates - Proceedings - Anti-social behaviour order - Order containing provision 'not to act in an anti-social manner' - Respondent committing criminal offence - Prosecution submitting commission of offence constituting breach of ASBO - Judge determining ASBO invalid and unenforceable - Whether order valid on its face - Whether challenge to ASBO to be by way of appeal - Crime and Disorder Act 1998.
In so far as any question arose as to the validity of an order of the court, there was no obvious reason why the person against whom the order was made should be allowed to raise that issue as a defence in subsequent breach proceedings rather than by way of an appeal against the original order, or possibly by an application for judicial review, if that were an appropriate remedy despite the existence of an avenue of appeal. Furthermore, where it was alleged that the relevant provision of an ASBO was unduly wide and uncertain and unnecessary for the purpose of protecting against further anti-social acts, it was very doubtful whether that could go to the validity of the order. If the magistrates' court was in error in including such a provision that did not have the consequence of taking the order outside the court's jurisdiction; and if the order was within the court's jurisdiction, it would remain valid even if there were errors in it that were open to correction on appeal.
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