England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/12/2016

Mr Justice Knowles :

1. On 27 November 2015 in the Crown Court at Swindon Mr Browne-Morgan was sentenced on 3 counts of possession of a controlled drug of Class A with intent to supply. The drugs involved were heroin and crack cocaine. Further supplies were taken into consideration. On each occasion the subject of the 3 counts Mr Browne-Morgan, who lives in London, was found in public areas of Swindon with drugs packaged for supply.
2. On this appeal, brought with the permission of the Single Judge, there is no challenge to the terms of imprisonment imposed. The challenge is to the imposition and to the terms of a Criminal Behaviour Order ("CBO") made under section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 ("the Act").
3. Section 22 of the Act gives the Court power, where a person ("the offender") is convicted of an offence, to make a CBO against the offender and on the application of the prosecution if two conditions are met. A CBO is an order which, for the purpose of preventing the offender from engaging in such behaviour (a) prohibits the offender from doing anything described in the order; (b) requires the offender to do anything described in the order. The present case is concerned only with an order of the first type, i.e. prohibiting the offender from doing anything described in the order.
4. The first of the two conditions for an order is that "the court is satisfied, beyond reasonable doubt that the offender has engaged in behavior that caused or was likely to cause harassment, alarm or distress to any person." The second condition is that "the court considers that making the order will help in preventing the offender from engaging in such behavior."
5. By section 22(9) of the Act:

"Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid—

(a) any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment;

(b) any conflict with the requirements of any other court order or injunction to which the offender may be subject."

6. By section 23 (1) of the Act, for the purpose of deciding whether to make a CBO the court may consider evidence led by the prosecution and evidence led by the offender. Section 23(2) provides that it does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted. In deciding whether to make a CBO a court may take account of conduct occurring up to one year before the commencement day of Part 2 of the Act, which for section 22 was 20 October 2014: see section 33(5) of the Act.
7. The relevant parts of the CBO in the present case are as follows:

" The court found that the defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons

And the court considers that an order is necessary to help in preventing the offender from engaging in such behaviour.

The court ordered on 27/11/2015

that the defendant is prohibited from and/or required to do the following as set out in the Schedule of prohibitions/requirements.

This order remains in force 3 years

Schedule of Prohibition(s):

1 Enter the COUNTY of WILTSHIRE

2 Enter the areas of the LONDON BOROUGH of SOUTHWARK as marked on the attached map.

3 Be together in a public place anywhere in ENGLAND or WALES with:

[The names of 7 associates were then given, with addresses in Peckham, Bermondsey, Greenwich and Dulwich]

Carry a mobile phone which is not registered to his own name

Carry a knife or bladed article in any public place."

8. A map was attached, as referred to at prohibition 2 of the CBO. This showed Peckham and shaded three areas bordering, and extending to the north of, Peckham Road and Peckham High Street.
9. The first point taken on behalf of Mr Browne-Morgan by Mr Tim Bass of Counsel is that the first of the two conditions for a CBO is not met because, on the evidence, the Court could not be satisfied to the requisite standard ("beyond reasonable doubt") that the offender had engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person". Mr Bass directed his argument to the quality of police intelligence.
10. The short answer to the point is that the repeated drug supplies for which Mr Browne-Morgan was sentenced, and their circumstances, were sufficient to allow the Court to be satisfied to the requisite standard in the present case (see in particular R v Sharon Briggs [2009] EWCA Crim 1477).
11. The second point taken on behalf of Mr Browne-Morgan is that, as regards the second of the two conditions for a CBO, the Court was wrong to consider that prohibitions 2, 3 and 5 of the CBO made "will help in preventing the offender from engaging in such behaviour."
12. There is no challenge to the prohibition on entry to Wiltshire, or to carrying a mobile phone not registered to his own name. But as regards prohibitions 2, 3 and 5 among the points emphasised are that Mr Browne-Morgan lives (at least at times) close to the proscribed area in Southwark, has no conviction for supply of drugs in Southwark or for carrying knives or for offending with the 7 named individuals.
13. As part of the second point, Mr Bass submitted that the reference to "such behaviour" in the second of the two conditions had the effect that the behaviour to which the order was directed had to be behaviour in the same location as the behaviour in the first condition, and for this reason prohibition 2 should not stand. We do not consider this point is sound. The location is not part of the definition of the behaviour.
14. That particular submission was not however the full extent of the second point, and we turn to consider the point as a whole.
15. The second of the two conditions for a CBO does not, in contrast to the first condition, require the Court to be "satisfied, beyond reasonable doubt". Instead the Court, acting judicially, must "consider" that making the order will "help" in preventing the offender from engaging in "behaviour that caused or was likely to cause harassment, alarm or distress to any person". It is not for this appellate court to ask itself whether it would have reached the same view; the question is whether the Judge was entitled to reach the view he did.
16. There was material before the Judge to indicate that the proscribed area in Southwark may be a source of drugs which Mr Browne-Morgan then supplied. There was material to show that Mr Browne-Morgan was in the company of one of the named individuals when stopped in late 2014 and found to have been in possession of Class B drugs. There was material going to the association of that named individual with the other named individuals, and (as the Judge put it) that "all of you are associated together as members of a particular gang."
17. Moreover there was material to show that that gang was violent, and that one of its members had been found in possession of a 10 inch knife when stopped by police, and these were reasons for prohibition 5 of the CBO. A Pre-Sentence Report of November 2011 assessed Mr Browne-Morgan as posing a high risk of harm to members of the general public. The Report expressed the view that Mr Browne-Morgan would need to make a conscious effort to distance himself from the area of London Borough of Southwark and his lifestyle and associates.
18. There was further material, and the Judge considered all of it. Almost inevitably the material was of varying precision and quality, but taken together it cannot be said that the Judge was not entitled to consider that restricting Mr Browne-Morgan's movements in a particular area of London and his association with particular individuals for a period would help in preventing the behaviour to which the CBO was directed. It is not in issue that prohibitions 1 and 4 have a sufficient nexus to future behaviour. In our judgment so do prohibitions 2, 3 and 5.
19. More significant questions did however arise in relation to the compass and definition of the second prohibition. At the hearing of this appeal we acceded to a suggestion that we hear oral evidence in this connection from a police officer attached to the anti-social behaviour unit at Southwark police station, and allowed cross examination of that officer. This evidence, and argument on the appeal, centered on proportionality of the area described and ambiguity in its description by marking on the map. This Court observed that the latter could be very important if it was to be alleged in due course that there had been a breach of the CBO.
20. We allowed the parties the opportunity to file sequential written submissions following the hearing. The written submissions that followed from the Crown, by Mr Iain Wicks of Counsel, indicated that the Crown had reflected on the matter and as a result of that reflection invited the court:

"… to amend the existing order by deletion of the geographical exclusions as set out on the face of the order and the appended map and the substitution of a prohibition in the following terms, namely that the appellant "[must not] … congregate in a public place in a group of two or more persons in a manner causing or likely to cause any person to fear for their safety."

21. In response, Mr Bass, for Mr Browne-Morgan, submits that a prohibition in these amended terms is not appropriate. His central submission is that the anti-social behaviour being targeted by this part of the CBO has moved from drug dealing to violence or threats. On the material available in the present case, including the Pre-Sentence Report, the answer is that the latter is linked to the former.
22. As a separate matter, at first sight it might be suggested that the formulation of the proposed amendment might itself give rise to practical challenges and uncertainties. If Mr Browne-Morgan is with as few as one other person in a public place then an assessment will be required of whether the "manner" of their "congregating" causes a third person to fear for their safety (and arguably whether that fear is intended or not, or whether it is or is not foreseeable) or whether it is "likely" to cause a person to fear for their safety. However this is not the basis of the criticism that Mr Bass makes. Moreover, similar wording was considered and accepted by the Court of Appeal Criminal Division in R v Bowness and Others [2005] EWCA Crim 2395 at [79]-[80] and by the Divisional Court in N v DPP [2007] EWHC 883 (Admin) at [9]-[10].
23. In the result, we amend prohibition 2 to substitute "Congregate in a public place in a group of two or more persons in a manner causing or likely to cause any person to fear for their safety". To that extent only the appeal is allowed.