England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		21st May 2004

Friday, 21st May 2004
1. MR JUSTICE LEVESON: On 24th October 2003 this applicant appeared before His Honour Judge McCreath in the Crown Court at Birmingham, having been committed for sentence by the Birmingham City Magistrates following his conviction for two offences of breaching an antisocial behaviour order and one offence of assaulting a constable in the execution of his duty. He was sentenced to terms of three and a half years' imprisonment on each of the breaches and three months' imprisonment consecutive for the assault, making three years nine months in all. He now renews his application for leave to appeal against that sentence following refusal by the single judge.
2. The background is important. On 31st October 2001, upon the complaint of the Housing Department of Birmingham City Council, an antisocial behaviour order was made by Birmingham Magistrates under section 1 of the Crime and Disorder Act 1998. This order prohibited the applicant for a period of five years from entering Birmingham City Centre, using or engaging in any threatening, abusive, offensive, intimidating, insulting language or behaviour or threatening or engaging in violence or damage against any person or property within the city centre.
3. It is undeniable that this represents a serious infringement upon the liberty of the applicant, not only because it represents a restriction on his right of free movement, but also because breach constitutes a criminal offence punishable with a term of up to five years' imprisonment, which is greater than the maximum penalty which could be imposed for offences which might otherwise be reflected within the terms of the order. It is, however, a response by Parliament to the increasing concern about the impact on the public of antisocial behaviour in its many constituent forms. It follows that this concern must be reflected in the sentences which the court imposes for breach of the order.
4. I go back to the history. Within two months of the order being made, the applicant twice breached its terms. He was prosecuted and, in June 2002, tried in the Crown Court at Birmingham before His Honour Judge Stanley and a jury. He represented himself, as he was entitled to do, but during the course of the prosecution case he fell out with the judge and was not in fact present thereafter. He was convicted and sentenced to terms of four years' imprisonment on each counted concurrent.
5. His appeal against conviction was dismissed, but in relation to sentence, Keith J, giving the judgment of the court (Tuckey LJ, Keith J and Sir Brian Smedley) said:

"9. We have every sympathy with the judge's determination to protect the public for as long as possible from a man who he regarded as posing a danger to the public. But, as the judge himself recognised, the sentence which he passed was close to the maximum for a single offence of acting in breach of an antisocial behaviour order and it made the applicant a long term prisoner. We think that a sentence close to the maximum should really be reserved for cases in which the antisocial behaviour order had itself been the subject of persistent and prolonged breaches, or where the breaches of the antisocial behaviour order had consisted of conduct more serious than abusive, offensive and insulting language or conduct, in other words, in which the behaviour was truly intimidating.

10. It is possible that what the judge was doing in the present case was sentencing the applicant for the behaviour which had caused the antisocial behaviour order to be sought in the first place, rather than for the subsequent breaches of the antisocial behaviour order, though we recognise, of course, that the applicant's behaviour following the antisocial behaviour order had to be seen in the context of everything which had gone before. In our judgment, it was not appropriate for sentences as long as these to be passed for the first breaches of an antisocial behaviour order, especially where the behaviour which constituted the breaches was not of the worst kind. In our opinion, sentences totalling two years' imprisonment would have been appropriate."

6. So it was that on 3rd April 2003 the applicant was released from prison on licence, which lasted until 2nd December. Unfortunately, very quickly he was arrested for breaching the antisocial behaviour order in these circumstances.
7. On 8th July 2003 a police officer was working as a CCTV operator, watching cameras trained on Broad Street in the City of Birmingham. At around 10 o'clock the applicant was seen to approach people. He was trying to stop them, bar their way, and he appeared to be begging. His behaviour was described by the operator as aggressive and he looked as if he was asking for money. As soon as people refused he acted in an aggressive manner and then simply went about his way and started blocking other people, again asking for money and again being aggressive in manner.
8. The following day, also in Broad Street, the applicant was again seen by the operator of the CCTV. On this occasion a young lady was seen to refuse the applicant's advances for money, and as she walked past him he slapped her on the bottom. The police arrived and the applicant was arrested.
9. Upon his arrest he was totally compliant. He was cuffed and placed in a police car and taken to the police station. When walking down a corridor from one custody suite to another, however, the applicant happened to cross a police officer whom he knew. He said "Fuck you, Stuart" and then spat in the constable's face. The officer described the spit going into his eyes and mouth. He recoiled and tried to wipe the spittle from his face. When arrested for that offence, the applicant replied in a nonsensical manner.
10. The applicant appeared before Birmingham City Magistrates on 9th July. The court's memorandum of conviction records that on that day, in relation to two allegations of breach of the antisocial behaviour order, he intimated before venue pleas of not guilty. The matter was considered suitable for summary trial, and it is also recorded that he consented to summary trial and pleaded not guilty. He also pleaded not guilty to the allegation of assaulting the police officer. He was remanded in custody for trial on 15th August, on which occasion he was convicted of each and committed for sentence.
11. We have recorded that history because one of the complaints which the applicant now makes is that he had dispensed with the services of his legal adviser and that his right of summary trial was waived in his absence without his consent, or alternatively not offered. The difficulty with that assertion is that, as we understand his lengthy grounds of appeal, he only dispensed with the services of his solicitor after he was refused bail, that is at the end of the process.
12. In any event, this complaint goes to the conviction recorded by the magistrates on 15th August 2003. Even if made out, it could only be the subject of challenge either in the Crown Court or, in some circumstances, by way of judicial review. Each of these routes is now well out of time and, if the services of the solicitor were dispensed with only following the remand in custody, appear to be devoid of merit. It could not, in any event, be the subject of a ground of appeal to the Court of Appeal Criminal Division.
13. When a lawyer within the Criminal Appeal Office sought to assist the applicant by pointing out that he could not appeal his conviction in this court, the applicant made a formal complaint about the lawyer to the effect that his private papers should not have been considered by such a person but only by the judges of the Court of Appeal. That complaint is entirely misconceived. This court is only concerned with convictions imposed following trial in the Crown Court or sentences imposed by the Crown Court, and the attempts by the Criminal Appeal Office to assist the applicant in that regard were both entirely appropriate and proper. We have explained the position only so that the applicant can understand what has happened and why. Whatever other complaints he might have, he has no legitimate grievance with the Criminal Appeal Office.
14. We turn now to the appeal against sentence and summarise, first, the position of the applicant himself. Now 39 years of age, he has appeared before the courts on 37 previous occasions. On no fewer than nine occasions in the eight years prior to his release from prison in April 2003 he had been convicted of using threatening, abusive, insulting words or behaviour contrary to sections 4(1)(a) or 5(1)(a) of the Public Order Act 1986. On nine occasions he had also been convicted of an offence of violence, albeit usually assault or battery. While in custody for these matters he sent a letter to the husband of a prison officer, saying that he intended to kill her. This led to a term of four months' imprisonment, and although obviously not relevant to the appropriate sentence in this case, provides an indication of the applicant's volatility, which is also reflected in comparatively old psychiatric and pre-sentence reports which raise question marks over his psychological health. There was also a pre-sentence report dated 20th October 2003, but it was compiled after the applicant had refused to see the probation officer. The report concluded:

"Mr Braxton can present not only as an intelligent man, but also as someone who has a variety of social difficulties. His ability to engage with a range of agencies to resolve such difficulties is questionable and I have grave doubts whether his full co-operation will ever be forthcoming. Because of this he will continue to pose problems for anyone involved in the management or monitoring of his chosen lifestyle."

15. This case thus posed a difficult sentencing decision. Judge McCreath noted the observations of the Court of Appeal on the previous occasion, observing in particular that he had regard to the extent to which behaviour of the kind in which the applicant indulged was menacing to members of the public, disquieting and disturbing. He took the view that he would not re-impose the sentence originally passed by Judge Stanley; neither would he specifically impose the unexpired portion of his previous sentence, amounting to just short of three months. Rather, he had regard to the total sentence commensurate with the gravity of his offending, including the fact that he was in breach of his licence and the fact that this was his second appearance for breach of the antisocial behaviour order, and in that regard to the need to protect the public.
16. In his very lengthy grounds of appeal, the applicant challenges the basis on which he was convicted, but takes the more general point that his behaviour must be considered at the lower end of nuisance activity. He observes that begging, if that is what he was doing, is not an imprisonable offence and that for an officer to say that what he was doing was obviously intimidating, aggressive or likely to cause alarm and distress is no more than the expression of his opinion, at best subjective and wholly devoid of objective deduction. As for slapping the bottom of the woman, this was no more than good natured, boisterous exuberance, and again led to no complaint. Turning to the offence of common assault, he argued that this was committed only in response to nine years of physical and psychological abuse from this officer.
17. Unfortunately, the applicant still does not appear to understand the nature or effect of the order made against him. The antisocial behaviour order is specifically designed to protect the public from frequent and distressing repeated misbehaviour of the type which is the subject of this order, and the applicant was indeed committing a serious criminal offence, even entering the City of Birmingham within the confines set out within the map served upon him when the order was made. He acted in deliberate breach of that order not once but twice (which led to the four year term reduced to two years) and yet again twice more within weeks of his release from that prison sentence. He must understand that what he might consider as trivial in his case, because of the persistence of his conduct, is now treated seriously, specifically to protect the public. It is thus vital that he address this issue and his behaviour in public if he is to avoid further conflict with the law.
18. When refusing leave to appeal, Silber J observed that when reducing the first sentence, the Court of Appeal had considered the applicant "a menace ... and a serious danger to members of the public", and went on to say that the judge was entitled to impose the sentence which he did. We agree that the public are entitled to be protected from this applicant. We have endeavoured to explain why the courts have approached his behaviour in the way in which they have so that he might understand the consequences of what he does and seek some help to deal with his difficulties. For that reason, we direct that a copy of the transcript of this judgment should be sent to him. Having said that, however, this application is refused.