England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 25th October 2004

1. Mr Justice Hunt: On 22nd June 2004 at the Central Sussex Magistrates' Court the appellant pleaded guilty and was committed to the Crown Court for sentence. On 30th June at the Crown Court he was sentenced as follows: on the first offence of driving whilst disqualified five months' imprisonment concurrent to 12 months' imprisonment for dangerous driving, offence 3; no separate penalty for using a vehicle without insurance and no separate penalty for failing to stop on the signal of a constable. The total sentence was 12 months' imprisonment. That is not a matter which has been contested in this Court. What has been contested is the Anti Social Behaviour Order which was also made prohibiting the appellant from driving any mechanically propelled vehicle on a public road in the United Kingdom without being the holder of a valid driving licence and certificate of insurance. That ASBO, as they are known, was ordered to run indefinitely. Indeed, indefinitely was the word used by the judge in sentencing.
2. Today before us Mr Selby argues, and argues powerfully, that the ASBO was unnecessary for this offending. As we have observed, an Anti Social Behaviour Order is not made just for this offending and Mr Selby has that point well in mind. But this appellant is 30 and he has the most appalling history of driving convictions, as well as other serious offending. Indeed, he began offending at the age of ten. He has ten previous convictions for driving whilst disqualified and without insurance, three of taking vehicles without consent, one of attempting, one of dangerous driving, one of reckless driving, one of failing to provide a specimen, one of failing to stop, one of failing to report, one of having no test certificate. It is, bearing in mind all of that offending and the regularity of it, that the judge made the Anti Social Behaviour Order, saying that the appellant had repeatedly demonstrated a total disregard for the law.
3. We have had our attention drawn to other cases, including, particularly, the case of P heard in February of this year by the Lord Chief Justice, Richards J and Henriques J, where the orders are considered and the following principles emerged. The test for making an order is one of the necessity to protect the public from further anti social acts by the offender. There is nothing wrong in principle in making such an order when they are driving offences of such a regularity and type and in such an area that they do constitute anti social behaviour. It is said that the terms of the order must be precise and capable of being understood by the offender. The findings of fact giving rise to the making of the order must be recorded and the order must be explained to the offender. The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced. It was noted that the making of such an order is strictly not part of the sentencing process.
4. The point that is made before us is that it is said that the judge only made this order in order that, in the event of this appellant's offending again, he would not just be liable to six months' imprisonment for driving whilst disqualified, but he would be liable to imprisonment for up to five years for breach of the Anti Social Behaviour Order.
5. In fact, when we look at it, this is what the judge said in sentencing, in spelling out to this appellant what the practical effect of the order was. He said:

"The practical effect of this is as follows: the two years' disqualification [which was passed] runs from today, but it continues until you pass a driving test. If you drive a motor car in this country on a public road without getting through a test and getting a licence after your period of disqualification, you will be in breach of this order and you will not then be liable merely to six months' imprisonment for driving whilst disqualified, you will liable to imprisonment of up to five years. Do you understand?"

6. The appellant said that he did understand. Of course, the judge is obliged to spell out the consequences of the order. As was said in the case of P, the terms of the order must be precise and capable of being understood by the offender. The practical effect was, and is, as the judge set it out. In our view, as we say, it was not wrong in principle for the judge to make this order and the order followed the principles set out in P, save for one particular which we are going to come to in a moment.
7. We should, perhaps, add that this offending, though the details are not crucial, occurred in May 2004. The appellant was in the driver's seat of a Ford Granada Scorpio motor car parked in a lay-by at 11 o'clock in the morning on the A27. He was recognised as a disqualified driver. He drove on to the A27. The police, having seen him, followed him. He turned off. He became aware that he was being followed, but when police lights were activated he accelerated away, driving at speed through a junction with a giveway sign. There were various other features of driving, speeds in excess of 80 miles an hour, even when he had gone off into a very limited speed limit area. He was weaving in and out of traffic with black smoke from the exhaust. He came to a stop when he collided with some traffic lights and street furniture. People working at that point had to leap out of their way, having come, as they described it, close to death. He was trapped inside the vehicle, but managed to get out and then was caught by the police. He made no comment in interview.
8. The matter which has concerned us, and which we have discussed today with Mr Selby, is the indefinite nature of this order. Just as it is not advisable to make long periods of disqualification, because it only makes it much more difficult for somebody to comply, in our view the specific terms of the Anti Social Behaviour Order should have been set out, rather than an indefinite order. We agree with Mr Selby's submissions on this part of the appeal and we shall specify the length of the Anti Social Behaviour Order as two years. That is two years from July when the order was made. To that limited extent, and that extent only, this appeal is allowed.