England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		20 August 2010

LORD JUSTICE THOMAS:

Introduction

1. Between October and December 2009 police officers in Bristol monitored an undercover operation known as Operation Polar in the St. Paul's area of Bristol. One of the undercover officers was given the appellant's phone number and contacted him. Over a number of days following the appellant supplied the officer with heroin and cocaine.
2. On 2nd February he was arrested and pleaded guilty on 16th April 2010. He was sentenced on 4th May 2010 to four years' imprisonment on each of the many counts representing the course of dealing. Each of the sentences were made concurrent to each other. An anti-social behaviour order ("ASBO") was also made. We shall turn to the terms of that in a moment. The single judge refused leave to appeal against the sentence, but granted leave to appeal in respect of the ASBO. It is not necessary for us therefore to say anything further about the facts of the case than we have done. We turn to the position of the appellant.

The appellant's character and offending

3. He is now 26. He was first convicted in 2005 when he was 20 for an offence of very considerably seriousness, namely robbery, for which he received a sentence of two years' detention and training. There were then other offences largely relating to driving, including driving whilst disqualified - a strong indication of a disregard for the authority of the courts and the rule of law. That is further evidenced by his assault on a police officer.
4. His drug offences commenced in 2008 with possession of cannabis. In June 2009 he was given an 18 month community order at the Crown Court for the supply of skunk cannabis and for the possession of crack cocaine and heroin. He unfortunately - and again this is a strong indication of his character - failed to comply with those orders; they had to be varied and a sentence of three months' imprisonment imposed. He was then again convicted in November 2009 for the possession of cannabis.
5. The pre-sentence report makes clear that the charges of extremely serious street dealing were part of a continuing and escalating pattern of behaviour, that he had a high likelihood of reconviction and a medium likelihood of causing serious harm.
6. The judge was asked to consider imposing an ASBO.

The making of an ASBO

7. It is always desirable when an ASBO is sought post-conviction for a judge to consider the extraordinarily helpful book produced by the Judicial Studies Board under the editorship of Judge John Phillips. On previous occasions this court has commended the JSB book to the courts for use because it contains a succinct summary of the matters of which the court should be aware and of the case law. It has been brought up to date by successive annual supplements. It is available in electronic form on the JSB website, including the public part of the website. It should always be consulted before an ASBO is made post-conviction.
8. The main question that a court has to consider under the legislation, in the light of a finding that there has been some anti-social behaviour, is whether an order is necessary to protect relevant persons from further anti-social acts by him. At paragraph 2.4 of the JSB book some of the considerations are set out, but the more pertinent considerations are set out at paragraph 9.5 where the book deals with the conditions for making a post-conviction ASBO. The JSB book summarises the law in this helpful way:

"The second condition is that an order must be necessary to protect persons in any place in England and Wales from further anti-social acts by the defendant. In chapter 2 it was pointed out that, with orders on conviction, an additional factor has to be considered, namely the impact of the sentence on the necessity for an order, since the one may make the other unnecessary. It is suggested that relevant considerations will be:

(1) the nature and length of the sentence;

(2) its likely effect on the defendant;

(3) the nature, length and effect (if any) of previous sentences;

(4) the duration, conditions and likely effect of any period of licence."

The book then refers to what it rightly characterises as examples of the approach taken by this court. It refers to the well-known case of R v P (Shane Tony) [2004] EWCA Crim 287 and to the case of R v Scott Parkinson [2004] EWCA Crim 2757. There are also further useful illustrative cases in the supplement, including R v Bowker [2007] EWCA Crim 1608. It is important to stress that those are all examples, but the considerations are, in our judgment, those posed in the passage in the JSB book we have set out.

9. The Court has therefore to consider whether an ASBO is necessary taking into account the nature and length of the sentence, its likely effect, the nature, length and effect of previous sentences and the duration and conditions and likely effect of any period of licence. That assessment is one for the trial judge. In our view it might have been more helpful in this case if the judge had been referred to the JSB book and had then specifically addressed those four questions at greater length. No doubt no one drew to his attention the helpful guidance.
10. The judge formed the view that an ASBO was necessary. He has experience of Bristol, which this court does not. This court is however able also to look at this appellant's record, to consider the sentence that he is serving and the likely terms of any licence. We are quite satisfied that the judge did not err in the judgment that was open to him that the conditions for making an ASBO post-conviction were met and that an ASBO was necessary.

The conditions imposed

11. We therefore next turn to examine the conditions that were imposed. They were three in number. First, that he was prohibited for the relevant period of five years from entering what is described as the Ashley Ward, an area of Bristol encompassing St. Paul's, Montpelier, Baptist Mills and St. Andrews as shown on the attached map.
12. It is submitted to us on the appellant's behalf that there was no evidence of any drug dealing by this person or by anyone else in the areas of Montpelier, St. Andrews and Baptist Mills and that the drug dealing within the St. Paul's area was confined to a narrow part of that area.
13. We are placed in a very considerable difficulty. The Crown Prosecution Service, who sought this ASBO, were notified of this hearing but no-one is present on its behalf. We have considered whether we should adjourn this matter at great cost to the public purse in this time of austerity, or whether we should try and deal with the matter as best we can in the absence of the Crown Prosecution Service. In the circumstances we are prepared to accept that the ASBO as made was too widely made and it should not extend to the area of Montpelier, Baptist Mills and St. Andrews. But we do consider that it should be confined to the area of St. Paul's, bounded by the Ashley Road and Lower Ashley Road as shown on the map. This order will have to be re-drawn with a different map. That condition we consider necessary. We do not consider it should be narrowed any further, our view being that that is the area where what was described to us by the appellant's advocate as a "drugs dealing supermarket" exists.
14. The second condition related to a prohibition of associating with various named persons. It is submitted on the appellant's behalf that he does not know any of these people and they happen to be people who were arrested as part of the same operation. We consider that the prohibition should be in force. The overwhelming likelihood is that drug dealers of this kind are known to each other, although maybe not by the name set out here but otherwise. Providing that sufficient identification is provided to this appellant so he knows who these people are, we consider that condition was necessary.
15. The third condition contains two requirements: carrying a mobile phone which is not registered to his own name and that the registered mobile phone must be registered with Intelligence Officers at Trinity Road Police Station. As regards the first, although it has been rather unrealistically submitted to us that there is little evidence of use of a mobile phone by the appellant, it is absurd to suggest that drug dealers do not use mobile phones. There is also plain evidence in this case that the initial contact was made by a mobile phone. It is well-known that drug dealers do use mobile phones. The problem that occurs is that mobile phones are sometimes "pay as you go" and not registered. It seems to us clear that if the appellant is to be prevented from drug dealing in the future and this evil trade stopped as far as he is concerned, it is necessary that any mobile phone be registered in his name if he is to have one.
16. We have considered whether it is right that such a mobile phone should be registered with Intelligence Officers. However, as the CPS have not seen fit to come along to this court to justify that further requirement, we cannot see that we can uphold that. This has been rightly objected to as an intrusion into his liberty; unless there was some justification for it that is shown to us, we strike that part of the ASBO out.
17. We must make clear, however, that our decision in respect of the grant of the ASBO, is fact-specific to each individual. The fact that we have decided that the ASBO is appropriate for him does not mean that it may be appropriate for others, although in the context of drug dealers in this area of Bristol it may well be that those who have been given ASBOs have a similar record and a similar background to this appellant.
18. As regards the conditions, we have only struck down those conditions on the basis of the argument put before us. As the CPS did not appear we have acceded in part to those arguments. Our decision on those matters can therefore form no precedent at all, as the matter has proceeded by default on the facts of this case and our desire to conserve public money by not incurring the substantial costs of an adjournment.
19. For those reasons, therefore, and in the terms we have set out, the ASBO will be varied accordingly. A draft will be provided to the advocate who has appeared on behalf of the appellant for him to be satisfied that the map has been drawn correctly. We would be grateful if he could assist the Associate in ensuring that the map is right.