Application for anti-social behaviour against street prostitute - likelihood of harassment, alarm or distress being caused to be proved to criminal standard - order available where prostitute's conduct on its own, or in conjunction with other prostitutes, had caused or been likely to cause harassment, alarm or distress

Chief Constable of Lancashire v Potter: QBD (Lord Justice Auld and Mr Justice Goldring): 13 October 2003

The Chief Constable applied under section 1(1) of the Crime and Disorder Act 1998 (as amended by section 61 of the Police Reform Act 2002), for an anti-social behaviour order in respect of a street prostitute, on the basis that over a three-month period she had acted in an anti-social manner in certain residential areas, that her conduct had caused, or had been likely to cause, harassment, alarm or distress to one or more persons outside her own household and that an anti-social behaviour order was necessary to protect persons in that area from further anti-social acts by her.

The deputy district judge refused the application.

The Chief Constable appealed by way of case stated.

Jason Beer (instructed by solicitor, Lancashire Police Authority) for the Chief Constable; Michael Hayton (instructed by Inghams, Preston) for the respondent.

Held, allowing the appeal, that an applicant for an anti-social behaviour order relying on the likelihood alternative in section 1(1)(a) of the 1998 Act had to prove to the criminal standard of sureness that harassment, alarm or distress was likely to be caused; but that it was not necessary to prove:

- Intent to cause harassment, alarm or distress;

- Where the conduct of a number of persons was involved, that the respondent was acting in concert with them; or

- Where those effects were caused by the conduct of a number of people, including the respondent, that her conduct on its own would have been of a sufficiently aggravated nature to cause those effects, or, if not, that she in some way shared responsibility with the others for their aggravated conduct.

That, accordingly, an anti-social behaviour order could be made in respect of a prostitute where it had been proved to the criminal standard that her conduct, whether considered on its own or in conjunction with that of other street prostitutes, had caused or had been likely to cause harassment, alarm or distress to others.

Defence counsel delaying making submission of no case to answer to obtain tactical advantage - prosecution not to be frustrated unless fair trial for defendant impossible - amendment to indictment rightly permitted where not affecting case against defendant

R v Gleeson: CA (Lord Justice Auld, Mr Justice Grigson and Mr Justice Roderick Evans): 16 September 2003

The defendant was charged in count 1 of an indictment with conspiracy to defraud contrary to common law.

At the close of the prosecution's case, and without warning to prosecuting counsel, defence counsel, relying on Director of Public Prosecutions v Nock [1978] AC 979, submitted that there was no case to answer on the indictment as drawn because there could be no common law conspiracy to defraud where the object of the conspiracy was impossible to achieve.

The judge accepted that submission but allowed the Crown to amend the indictment by adding what became count 2, a charge of statutory conspiracy to obtain money by deception, of which the defendant was subsequently convicted.

He appealed on the ground that the judge had been wrong to allow the prosecution to amend the indictment at such a late stage.

Stephen Spence (assigned by the Registrar of Criminal Appeals) for the defendant; Emma Broadbent (instructed by the special casework unit, Crown Prosecution Service) for the Crown.

Held, dismissing the appeal, that it was contrary to his professional duty for defence counsel to take advantage of procedural errors made by the prosecution by deliberately delaying identifying those errors until the case for the prosecution had been finished; that just as a defendant should not be penalised by errors committed by his legal representative, so also should the prosecution not be frustrated by errors made by the Crown's legal team unless such errors had irremediably rendered a fair trial for the defendant impossible; and that, accordingly, where the case to be met by the defendant was in fact unchanged by the amendment no unfairness resulted.