England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

		Royal Courts of Justice The Strand , London WC2A 2LL
		17  April  2007

MR JUSTICE BURTON:  I will ask the Recorder of Birmingham to give the judgment of the court.

THE RECORDER OF BIRMINGHAM:

1.   On 19 October 2006, at the Wycombe and Beaconsfield Magistrates' Court, the appellant pleaded guilty to two breaches of Anti-Social Behaviour Orders.  One of the orders had been imposed by magistrates as long ago as 27 February 2004 and was for a period of five years.  It included, amongst others, prohibitions against him being drunk in a public place and using abusive or insulting language.  He had breached this order on a number of previous occasions.  The second Anti-Social Behaviour Order was made on 16 October 2006 by His Honour Judge Cripps for breach of the original order.  Judge Cripps made a new Anti-Social Behaviour Order with a requirement that the appellant should not enter the centre of High Wycombe.  Following his plea of guilty before the magistrates, the appellant was committed to the Crown Court for sentence.  On 17 January 2007, in the Crown Court at Aylesbury, the matter came back before His Honour Judge Cripps.  He passed concurrent sentences of eight months' imprisonment and directed that 90 days spent on remand should count towards the sentence.  The effect of that was that by the time the appellant appeared before Judge Cripps he had served all but 28 days of the sentence.  He appeals against sentence by leave of the single judge.
2.   The appellant is 57 years of age.  He is an alcoholic.  His alcoholism affects his behaviour and causes him to be a considerable nuisance.  It is clear from the pre-sentence report which was before Judge Cripps that the appellant is either unable or unwilling to do anything to resolve his addiction to alcohol.  That addiction leads him persistently to steal and to shoplift and also when drunk to make a nuisance of himself.  The scale of that is reflected by the fact that he has 143 convictions for 225 offences.  There have been previous breaches of the Anti-Social Behaviour Order  imposed by the magistrates.  One of those came before this court presided over by the President of the Queen's Bench Division in R v Stevens and Lovegrove [2006] EWCA Crim 255.  A number of arguments were dealt with in the judgment in that case, to which we shall return in due course.
3.   The breach for which Judge Cripps had to sentence the appellant had occurred two days after a new Anti-Social Behaviour Order had been imposed on 16 October.  That was made despite the breach of the existing magistrates' court order.  That sentence had been merciful because Judge Cripps only sentenced him to one day's imprisonment for the breach in addition to making the further Anti-Social Behaviour Order.   
4.   Two days after that order had been made, the appellant was at High Wycombe bus station during the hours of daylight.  It is inevitable that there were members of the pubic around.  Judge Cripps had specifically made an order that the appellant was not to go in the area covered by High Wycombe bus station.  He was drunk in a public place.  It appears that he was causing some sort of problem because the security staff called the police.  When the police arrived he was abusive to them.  He was impossible to deal with because he was drunk and he was arrested.
5.   Judge Cripps sentenced him as a persistent offender who regularly caused trouble for the public and the authorities.  The judge bore in mind that the appellant was in breach of the order that had been imposed only two days previously.  It was accepted before Judge Cripps that he had no alternative but to pass a sentence of imprisonment.  It is regrettable that a person whose offending is due to alcoholism cannot be dealt with in such a way as to address the underlying disease from which he suffers.  However, it was accepted on all sides on this occasion that the court was not in a position to deal with the underlying disease from which the appellant suffered.
6.   Mr Rule argues on his behalf that the length of sentence is disproportionate to the nature of the offence and the level of the harm which was caused, and/or inadequate reduction had been given to reflect the plea of guilty, and/or this was cruel and inhuman treatment in breach of the European Convention on Human Right because a man who was an alcoholic was being sentenced to imprisonment without sufficient regard being given to the disease from which he suffered.  Mr Rule pursued a number of other arguments revolving around the European Convention on Human Rights read in his written submissions and have heard further developed orally before us.  However, whether the matter is considered in terms of sentencing practice or in terms of the European Convention on Human Rights issue which the court must consider is whether the sentence of eight months' imprisonment was disproportionate for these offences.
7.   The flaw in the argument put forward by Mr Rule is that by its very nature a breach of an Anti-Social Behaviour Order may well be for a matter which in itself is relatively trivial.  But the Anti-Social Behaviour Order was made in order to stop persistent, relatively low-level offending.  Mr Rule undervalues the damage done to the community by this sort of persistent Anti-social behaviour.  It is by no means trivial.  It is a considerable interference with the liberty of other members of the public when this sort of behaviour is allowed to go on unchecked.  The gravamen of this offence is not simply what the appellant did on this occasion, but his flagrant breaches of court orders, which are always regarded as serious.
8.   In the previous Stevens appeal, Mr Rule argued that the powers of the court are limited to reflect the underlying criminal behaviour, which constituted the breach of the Anti-Social Behaviour Order.  That argument was rejected by the Court of Appeal.  The President of the Queen's Bench Division said this:

                        "It cannot be right that the court's power is limited to the six months' maximum imprisonment for the distinct criminal offence.  That would treat the breach as if it were a stand-alone offence, which at the time when it was committed did not amount to a breach of the court order.  In reality, the breach is a distinct offence in its own right, created by stature and punishable by up to five years' imprisonment.  We therefore reject the submission that it was wrong in principle for the judge to have imposed a custodial sentence where for the instant offence of drunkenness a maximum sentence would have been a fine."

At paragraph 29 of the judgment he went on to say:

                        "In the present case there was a plain breach of the Anti-Social Behaviour Order: being drunk and urinating in a public place.  The judge was merciful.  He deferred sentence.  He gave a solemn warning.  The solemn warning was that the judge said that he would have passed a sentence of nine months' imprisonment for that offence.  The appellant left court and within a short time returned, throwing away the chance that the judge had given him.  The judge had no alternative but to do what he said he would do.  Given the appellant's prolonged history of offending, it would not be right for this court to interfere with his decision.  Accordingly, this appeal is dismissed."

The sentences imposed on that occasion totalled twelve months' imprisonment, namely nine months for the original matter on which the sentence was deferred and three months consecutive for an offence of theft.  This court posed this question to Mr Rule: If the court on that occasion was of the view (as it clearly was) that the sentence of twelve months' imprisonment was not manifestly excessive, how could it possibly be argued by him on this occasion that eight months' imprisonment was manifestly excessive for yet another breach?  Judge Cripps had been merciful to the appellant to start with; he had given him a further chance.  But the appellant had been either unwilling or unable to accept that chance.  Mr Rule's answer was that there were arguments which he could have put forward on the last occasion, but did not, but which he has put forward on this occasion. 

9.   We are wholly unconvinced by those further arguments.  This was a breach which took place two days after a further Anti-Social Behaviour Order had been imposed after many, many breaches.  Parliament has decided that, even where the offences are relatively minor, courts should take action to prevent the public having to suffer continually the nuisance of someone like this appellant being drunk in public places, causing a disturbance, and causing problems for the authorities when they seek to prevent that happening.  In those circumstances we are firmly of the view that this sentence was not manifestly excessive; nor does it breach any requirement of the European Convention on Human Rights.  In those circumstances the appeal is dismissed.