England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		8th June 2005

Wednesday, 8th June 2005

1. LORD JUSTICE BROOKE: This is an appeal by the defendant W by way of case stated from a decision of District Judge Ward, sitting in the Preston Youth Court on 2nd September 2004 whereby he convicted W of an offence of breaching an anti-social behaviour order, contrary to section 1(10) of the Crime and Disorder Act 1998. On the same occasion, he also convicted him of stealing sweets and a bottle of Lucozade to the value of £5.69, belonging to Sainsbury's. Because the defendant admitted the theft and was not present in court, the District Judge then adjourned the matter for sentence. On 12th October 2004 lay justices directed a conditional discharge for 12 months for the theft offence and an absolute discharge for breach of the anti-social behaviour order.
2. The only reason the matter has come to this court is because the relevant clause of the anti-social behaviour order, made by Chorley Youth Court on 18th November 2003, prohibited the defendant from committing any criminal offence, and the validity of a provision of this kind is in issue on this appeal.
3. In paragraph 6 of the Case Stated, the District Judge indicated his approach in the following terms:

"I was of the opinion that the prohibition against committing any criminal offence was far too wide and unnecessary for the purpose of protecting others from the appellant's behaviour and was not a prohibition that I would have included had I been making the original order. It was, however, unambiguous. There had been no appeal against the making of the order in those terms and there had been no application to vary the order. The appellant must be taken to know that if he committed any criminal offence he was liable to be prosecuted for the specific offence committed and also for the offence of breach of the order. Anti-social behaviour orders may, and frequently do, prohibit behaviour that would also amount to the commission of a criminal offence. Indeed it may be difficult or impossible to draft the wording of some necessary prohibitions without the prohibition constituting some other offence as well as the offence of breach of the order. It was my view that where a defendant admitted a specific offence but not the breach the issues of autrefois convict and double jeopardy did not arise provided that the defendant was only punished once."

4. Although the anti-social behaviour order in question was not annexed to the Case Stated, we have been shown a copy of it. The defendant, who was at the relevant time aged 14, was convicted of offences of criminal damage, unauthorised taking of a motor vehicle, assault and theft. A two-year supervision order and a three-month curfew order was imposed on him. The order then shows that the court found he had acted in the antisocial manner evidenced by a schedule showing 14 alleged incidents of antisocial behaviour in the previous six months, "which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself", and that an order was necessary to protect persons in England and Wales from further antisocial acts by him.
5. The schedule contains reference to unauthorised takings of motor vehicles, theft, assaults of police officers, breach of bail, causing grievous bodily harm, aggravated vehicle taking, and carrying a bladed instrument. The anti-social behaviour order, which was of two years' duration, restrained W from:

"1. Entering [an area defined on an attached map].

2. Causing physical harm to or intimidating anyone.

3. Damaging or attempting to damage property not belonging to himself.

4. Sitting in the driver's position of any motor vehicle save on private land with owner's permission.

5. Remaining in any public place when he is considered to be causing a nuisance and has been requested to leave by a Police Officer or any person in authority.

6. Committing any criminal offence."

6. The order states that:

"If without reasonable excuse the defendant does anything which he is prohibited from doing by this order, he shall be liable on conviction to a detention and training order not exceeding two years or to a fine or to both."

7. As to the observation by the learned District Judge in the fifth and sixth sentences in the passage I here quoted from the Case Stated, in R v P (Shane Tony) [2004] EWCA Crim 287, [2004] 2 Cr App R (S) 63, Henriques J, giving the judgment of a court which included Lord Woolf CJ, said at paragraph 30:

"Next it is submitted that the prohibitions imposed by paras 2 and 7 are redundant as they prohibit conduct which is already subject to a general prohibition by the Public Order Act 1986 and the Prevention of Crime Act 1953 respectively. In that regard we are by no means persuaded that the inclusion of such matters is to be actively discouraged. So far as more minor offences are concerned, we take the view that there is no harm in reminding offenders that certain matters do constitute criminal conduct, although we would only encourage the inclusion of comparatively minor criminal offences in the terms of such orders."

8. The problem in this case is that the order, on the face of it, prohibited the defendant from committing any criminal offence. In my judgment, this clause is very plainly too wide, as the District Judge appreciated. The defendant had already been placed under five carefully tailored restrictions, which were appropriate to combat the kind of antisocial nuisance he had become, and I am not surprised Chorley Magistrates considered that they were necessary as well. If it were also thought necessary and desirable to restrain him also from stealing in the light of the three scheduled acts of theft, then, in my judgment, inclusion of a provision of that kind might not have been inappropriate. But a general prohibition on committing criminal offences was far too widely drawn. At his age, he might well not know what was a criminal offence and what was not.
9. During the course of argument, Mr Addison, who appears for him, said by way of example that committing offences in breach of byelaws could be a criminal offence, and we had a discussion with counsel as to whether or not certain administrative offences, such as parking offences or using a television without a licence, were or were not criminal offences.
10. It is well established that a restraining order must be drawn in terms which enable the person restrained to understand what he may or may not do. In B v Chief Constable of Avon and Somerset [2001] 1 WLR 340, Lord Bingham CJ, speaking of a similar statutory provision, said this at paragraph 33:

"If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed."

As I have said, I am of the clear view that this order was plainly too wide.

11. The next question we have to decide is whether it was appropriate or necessary for the Magistrates to take into account a submission that the order was plainly too wide. Both counsel have accepted in their submissions that an order like the anti-social behaviour order in this case is to be treated as a valid order unless and until it is varied, and that it is only if an order is invalid, as opposed to an order which might have been made in some other form, that any question arises as to whether the court considering an allegation of breach of the order can take into account submissions relating to its validity. It is accepted by Mr Gelbart, who appears for the Crown, that the case of Boddington v British Transport Police [1999] 2 AC 143 gives authority for the proposition that if an order of this type is plainly invalid, then the Magistrates can consider submissions to that effect in the same way as they can consider submissions that a byelaw was ultra vires without the necessity of prior proceedings or concurrent proceedings in the High Court for the purpose of identifying and declaring the invalidity.
12. I would stress that anything I say in this case must be understood as referring only to an order as plainly invalid as one which contains a restraint preventing a defendant from committing any criminal offence. There is great force, in my judgment, in the submission that we have received from Mr Gelbart to the effect that there will be a danger of opening floodgates if challenges to anti-social behaviour orders could be made in breach proceedings, but in all these cases there are exceptions which are as plain as the exception in this case. I am satisfied that clause 6 of this order was unenforceable.
13. Therefore, in answer to the first question asked by the District Judge, namely:

"Was I correct in law in holding that, although the prohibition in the anti-social behaviour order was in my opinion far too wide and unnecessary for the purposes of protecting others from the appellant's behaviour, it was unambiguous and a valid order unless appealed against or varied?"

I would answer, "No, it was open to him to hold that it was not a valid order."

14. In those circumstances, it is not necessary for us to consider the alternative question, which was in these terms:

"Was I correct in law in holding that an anti-social behaviour order may prohibit behaviour which would amount to a criminal offence apart from the offence of breach of the order and that a defendant who admits the specific offence cannot plead autrefois convict or double jeopardy in respect of the breach of the order?"

It is not necessary to answer that question and, in the light of the unambiguous answer "No" that I would give to the first question, although Mr Gelbart asked us to express a view on the second question also, it would be, in my judgment, wrong for us to do so in the absence of much wider citation of authority than was available to us in the present case. I would, therefore, direct that an answer be given to that question that it is not necessary to answer this question in the light of the answer given to the first question. In the light of this opinion, the matter must be remitted to the Magistrates, who will no doubt set aside the absolute discharge in the light of the opinion of the High Court.

15. MR JUSTICE FIELD: I agree.
16. MR ADDISON: My Lord, I was informed, unhappily, by my instructing solicitor by nine o'clock this morning that he was not certain whether legal aid had been granted in this case. It is not the sort of thing one wants to hear when one is already in London. I do not know whether that is clear from the learned associate's record, but I wonder whether it would be appropriate in those circumstances to ask for those instructing me to have their costs paid out of central funds. Unfortunately, I was not prepared for that. (Pause).
17. LORD JUSTICE BROOKE: You may have your costs out of central funds.