CO/2447/2005
Neutral Citation Number: [2005] EWHC 1485 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 13 June 2005
 
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE FIELD
 
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COHEN PARKER
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
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MR J LOFTHOUSE (instructed by Rowe Sparkes Partnership) appeared on behalf of the CLAIMANT
MR R WITHEY (instructed by CPS, Southampton) appeared on behalf of the DEFENDANT
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J U D G M E N T 
1.	LORD JUSTICE ROSE:  This is an appeal by way of case stated from a decision of the Portsmouth Crown Court.  Mr Recorder Stuart Jones QC and two justices, on 13 August 2004, dismissed the appellant's appeal against sentence by the South East Hants Juvenile Youth Court on 29 June 2004.  The sentence passed was that there should be a six-month detention and training order, concurrently in relation to each of three matters and concurrently also with a four-month similar sentence for taking without consent, but that total six-month period to run consecutively to a return to custody order under the Powers of Criminal Courts (Sentencing) Act 2000, for breach of licence.  The three concurrent six-month detention and training orders were imposed for breaches of interim anti-social behaviour orders ("ASBOs") made on 5 and 9 February 2004, those breaches having occurred on 8, 11 and 12 February 2004.
2.	The point at the heart of this appeal is a short one.  What was said by way of submission to the Crown Court on behalf of the appellant was that the fact that the condition in the interim order which was breached did not appear in the final order (made an 14 May 2004), (in relation to the appellant associating with another youth), meant that the breach of the interim order was less serious than it would have been had the condition appeared also in the final order.
3.	The court in the case stated concluded, as appears from paragraph 3 of the case, that there was no difference in law between breach of an interim condition not replicated in the final order and breach of a condition which was so replicated; and the question posed by the case for consideration by this court is: 
"Was the Crown Court correct to find that breach of a condition in an Interim ASBO which was not replicated in the final order, was as serious as a breach of term which was [the case wrongly says not] repeated in the final order?"   
It seems to me that the question might perhaps more happily been phrased: "Was it capable of being as serious as a breach of a term not replicated in the final order?"  
4.	The condition which appeared in the first interim ASBO which is presently material was that the appellant should not associate with five people, who included two with the same first name, namely Lee.  In the second interim ASBO made on 9 February the two Lees and one other are identified as persons with whom the appellant should not associate.  In the final order there is no condition prohibiting association with anyone else.  
5.	It is common ground that the breaches committed by the appellant on three separate occasions consisted of him walking in the street with and talking to one of those identified as Lee.  The submission made by Mr Lofthouse on behalf of the appellant, is that the omission of the prohibition on association condition from the final order was of itself material to the sentencing process for breach of the condition in the interim ASBO.  Mr Lofthouse does not suggest that a six-month detention and training order would necessarily have been inappropriate had the Crown Court taken into consideration the point which he submits they should have taken into consideration.  Mr Lofthouse accepts that the interim order was properly made but, as is inevitable with interim orders, the extent of the risk posed at the time of the interim order might be different when the final order came to be made.  
6.	It is common ground that no explanation was given in the Crown Court as to why the condition for non-association in the interim order was not included in the final order.  It is apparent, to my mind, that there may be a whole variety of reasons why a condition thought appropriate at the time when an interim order is made will no longer be thought appropriate when the final order is made.
7.	In order to consider the validity of Mr Lofthouse's submission, it is necessary to have regard to the statutory provisions which, for present purposes, are contained in the Crime and Disorder Act 1998, as subsequently amended. Section 1D as inserted in that Act by section 65 of the Police Reform Act 2002 provides, in relation to interim orders, as follows: 
"(2) If, before determining an application to which this section applies, the court considers that it is just to make an order under this section pending the determination of that application ('the main application'), it may make such an order."  
Subsection (5) provides: 
"Subsections (6), (8) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders under this section as they apply for the purposes of the making and effect of anti-social behaviour orders."  
Section 1 subsection (10), which is the subsection presently material, provides: 
"If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable - 
 (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or 
 (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or both." 
8.	By reference to those provisions the submission made by Mr Withey on behalf of the Director of Public Prosecutions is that the scheme provided by the statute applies equally to interim orders as to final orders.  Section 1 subsection (6) provides, by way of amendment: 
"The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons from further anti-social acts by the defendant" 
- persons in the relevant area.
9.	Mr Withey submits that when making an interim or final order it is only possible to impose conditions which are necessary to afford the protection which the Act contemplates.  It is of course apparent that the material which is before a court invited to make an interim order may well not amount to such proof as is necessary in relation to the making of a final order.  But it is equally apparent that, at both the interim and final stages of the process, the court has to make its decision by reference to the material which, on the relevant occasion, is before it; and in order to decide, in relation to an interim order, whether it is just to make such an order the court must conclude on the material which is before it that the conditions imposed are necessary for the protection of the public.  
10.	In my judgment, however, it by no means follows that the absence from the final ASBO of a condition inserted at the interim stage itself affects the gravity or otherwise of the breach of that condition.  The gravity of the breach of the interim condition depends on all the circumstances of the case by reference, for example without purporting to be exhaustive, to the nature of the conduct giving rise to the breach and the flagrancy of the breach having regard, for example, to the relevant time scale - that is to say, a breach which occurs very soon after an order has been made may very well be a good deal more serious than a breach occurring some time later.  Equally, the repetition of the same breach may well result in the sentencing court taking a graver view of the quality of the breach for which sentence is to be passed.  
11.	For my part, in spite of Mr Lofthouse's elegant submissions, I am wholly unpersuaded that omission of a condition from the final order of itself is a matter to which the court should properly have regard when sentencing for the breach of a condition in an interim order.  in my judgment, the conclusion of the Crown Court in this case was correct.  I would answer the question posed for this court's opinion in the affirmative.  
12.	MR JUSTICE FIELD:  I agree.  
13.	MR WITHEY:  I am grateful.  My Lords, I have thought about the judicial review question.  
14.	LORD JUSTICE ROSE:  Yes. 
15.	MR WITHEY:  My Lord, first, what occurred to me is whether anybody else will need to be joined or ought to be joined.  I would hope not, since there will be any proceedings -- any other party.  The reason is this.  It may be the form of any leave I sought will have to be a declaration of the enforcement of the risk a sentence would be unlawful in the light of the delay by the court in having the case stated, rather than them interfering with the sentence itself, which seems something of a difficulty jurisdictionally in this court.  
16.	LORD JUSTICE ROSE:  It is because of the jurisdictional difficulties of this court that we have attempted to deal with it.  We think the only way it can be dealt with is that that we have indicated.   
17.	MR WITHEY:  Would your Lordship be prepared to deal with the matter today?   
18.	LORD JUSTICE ROSE:  The answer is no, we are not going to (inaudible).  But there is going to be, even if we abridge time there has to be some documentation, and, if I may say so, thought given on all the evidence to what the impact of sections 6 and 7 are in the context of the judicial review proceedings which we contemplate.  Clearly in the meantime we will continue bail.   
19.	MR WITHEY:  I am grateful.   
20.	LORD JUSTICE ROSE:  And we would certainly order expedition of the judicial review proceedings.  Perhaps in order to regularise the position we give these directions.  Having dismissed this appeal by way of case stated we grant leave to the appellant to challenge by way of judicial review the delay in stating a case by the Crown Court.  We give leave to argue that that delay may give rise to some reduction in the appellant's sentence, having regard to the provisions of sections 6 and 7 of the Human Rights Act 1998.  We abridge time for service of the relevant paperwork on the respondent so that the appropriate judicial review papers can be served within seven days, with seven days thereafter for the respondent to respond.  If, which we doubt, any further directions are required, they can be sought from me in writing.  We direct that the consequential judicial review proceedings be heard as soon as is practicable by a Divisional Court.  Unless anyone has any other proposals, that is where we propose to stop. 
21.	MR LOFTHOUSE:  My Lord, about bail --- 
22.	LORD JUSTICE ROSE:  We continue the appellant's bail on the existing terms. 
23.	MR LOFTHOUSE:  My Lord, I return to ---   
24.	LORD JUSTICE ROSE:  Whatever they are --- 
25.	MR LOFTHOUSE:  Would you vary it until --- 
26.	LORD JUSTICE ROSE:  It will continue on the same terms as before until further order by the Divisional Court. 
27.	MR WITHEY:  Would your Lordships consider whether you ought to serve the papers on an interested party such as the Home Office?  I will not ask you to do so, but I just ask whether your Lordships think it appropriate.   
28.	LORD JUSTICE ROSE:  What I had in mind by saying that if, when people have had time to think about it, any further directions are required, they can be given in writing on application to me.  That application to be made within 14 days of today, if anybody wants any further directions. 
29.	MR LOFTHOUSE:  My Lord, the final matter is costs of the appeal. 
30.	LORD JUSTICE ROSE:  You are publicly-funded. 
31.	MR LOFTHOUSE:  I am publicly-funded.  
32.	MR LOFTHOUSE:  We have a Form B. 
33.	LORD JUSTICE ROSE:  Enlighten me, Mr Lofthouse, what is a Form B?   
34.	MR LOFTHOUSE:  A Form B is a form that a legally funded person is obliged to lodge with the court stating his means.   
35.	LORD JUSTICE ROSE:  So far, unless you provoke him further, Mr Withey had not asked for an order for costs against you.  I do not know if he is minded to or not.  The only order if you need it is one for assessment. 
36.	MR LOFTHOUSE:  My Lord, I am grateful.  
37.	MR WITHEY:  I think (inaudible) make a recovery of defence costs order.  I do not ask for them, but I feel I am obliged to mention --- 
38.	LORD JUSTICE ROSE:  I am sorry, what are you asking for? 
39.	I am asking your Lordships not to do it, but I feel I ought --- 
40.	LORD JUSTICE ROSE:  Not to do what? 
41.	MR WITHEY:  Make a recovery of defence costs order.  There is a requirement under an Act, I think.   
42.	LORD JUSTICE ROSE:  Yes, my practice at any rate is that unless there is a reason for making a recovery of defence costs order - and none seems to occur in the present case - the less said about it the better. 
43.	MR WITHEY:  My Lord I shall leave it.  
44.	LORD JUSTICE ROSE:  (After a pause) Apparently you do not need a legal aid assessment order because you already have a representation order.