England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		4th October 2006

MR JUSTICE KEITH:

Introduction

1. On 25th August 2005 at Witham Magistrates' Court, on the application of the Chief Constable of Essex, an anti-social behaviour order for two years was made against the appellant, Joseph Hills. He was then 12 years old. The magistrates refused to make an order under section 39 of the Children and Young Persons Act 1933 protecting his anonymity. Joseph appealed against the order to the Crown Court. On 21st October 2005 Judge Ball QC and two lay justices sitting at Chelmsford Crown Court dismissed the appeal. Joseph's solicitors requested the Crown Court to state a case for the opinion of the High Court. The Crown Court agreed to do so, and Joseph now appeals against the dismissal of his appeal by way of case stated.

The relevant facts

2. The application for an anti-social behaviour order was first lodged on 23rd May 2005. It contained the following summary of the reasons why such an order was being sought:

"... from September 2004 to date on various occasions the [appellant] has assaulted, abused and insulted members of staff at Thrustable School, Tiptree; assaulted, abused and insulted the driver and staff employed on the school bus, compromising the safety of others; threatened, intimidated and harassed other juveniles (including brandishing a knife), adults and elderly residents in the Tolleshunt D'Arcy area often targeting particular individuals, and interfered with and damaged property. These acts have often been committed in the company of another juvenile, Chantelle Allen."

When the application was heard at the magistrates' court, no oral evidence was given. Although Joseph denied that he had ever brandished a knife, he accepted that he had behaved in all other respects in the manner alleged, and presumably it was thought to be inappropriate to call evidence on the sole issue as to whether Joseph had ever brandished a knife. The consequence was that he had to be treated as having done so, and Miss Carolyn Gardiner for Joseph does not suggest that that was an inappropriate course to take.

3. The upshot was that it was not contended that it was inappropriate for an anti-social behaviour order to be made. The argument focused on what the precise terms of the order should be. The order which the court eventually made required Joseph not to

"(1) act in any way that causes or is likely to cause harassment, alarm or distress to any other person not of the same household as himself. This includes:

(a) not spitting or making any rude sign in any public place;

(b) not hitting, pushing, kicking, threatening, abusing or insulting any person in a public place to which the public have access;

(2) carry any knife or bladed article in any public place;

(3) enter the area known as Harvesters, Tolleshunt D'Arcy as shown and marked on [an] attached map ...;

(4) associate with Chantelle Allen in any public place;

(5) damage, hit, kick or otherwise interfere with any other property not belonging to [him] in a manner that causes or is likely to cause harassment, alarm or distress to any other person;

(6) kick footballs or other balls at any dwelling or property, except in his own home or garden."

4. The Case Stated sets out the findings of fact made by the Crown Court. It found that many complaints about Joseph's behaviour between September 2004 and June 2005 had been proved. Much of this behaviour took place when he was with Chantelle. It included "threatening and intimidating adults and children, including the brandishing of knives in [a] public play area and threatening to injure pets; [and] steal[ing] a pupil's hat and set[ting] fire to it, and then threaten[ing] to stab the pupil when holding a penknife up to him."
5. The facts found by the Crown Court referred to an interim anti-social behaviour order made against Joseph on 19th April 2005, when he had first appeared at the magistrates' court. At that stage, such an order was being sought against Chantelle as well, and she was made the subject of an interim order too. In due course, the Chief Constable was satisfied that the public did not need to be protected from her, and he decided not to proceed with an application for an anti-social behaviour order in her case. I should add that since no application was made in the magistrates' court for anonymity for Chantelle, no application for anonymity can now be made for her: see section 49(10) of the Children and Young Persons Act 1933.
6. As in the magistrates' court, the issue in the Crown Court related to the precise terms of the anti-social behaviour order. There was no opposition to the prohibitions in paragraphs 3 and 6 of the order. Such opposition as there was to the prohibition in paragraph 1 of the order can be ignored because the present appeal does not relate to that prohibition. It relates, or at any rate originally related, to the prohibitions in paragraphs 2, 4 and 5, though in the course of the hearing of this appeal it emerged that the prohibition in paragraph 5 is no longer challenged. That left the prohibitions in paragraphs 2 and 4 of the order.
7. The argument in the Crown Court relating to the prohibition in paragraph 2 was that the prohibition amounted to a prohibition on Joseph doing something which was already prohibited by the criminal law. The argument relating to the prohibition in paragraph 4 was that it went much further than was necessary to protect the public, and could result in Joseph being in breach of the order through unintentional contact with Chantelle which was no fault of his. These arguments were rejected by the Crown Court, and the two questions which it suggested the High Court should be asked to express an opinion on were:

(1) Is it lawful for a court to include the following prohibitions in an anti-social behaviour order:

(a) not to carry any knife or bladed article in any public place,

(b) not to damage, hit, kick or otherwise interfere with any property not belonging to [the Appellant] in a manner that causes or is likely to cause harassment, alarm or distress to any person?

(2) Is it lawful for a court to include in an anti-social behaviour order a term which prohibits the individual subject to the order from associating with a named individual if that named individual is not also subject to an anti-social behaviour order with a reciprocal term of non-association?

8. The parties have agreed that the questions on which the High Court should be asked to express an opinion should be more case-specific. In any event, now that the challenge to the prohibition in paragraph 5 of the order is no longer being pursued, the first of these two questions can be modified without affecting the issue of principle which the appeal raises. Accordingly, with the parties' agreement, I propose to express an opinion on the following two questions:

(1) Was it lawful for the court to include in the anti-social behaviour order a term which prohibited the appellant from carrying any knife or bladed article in any public place?

(2) Was it lawful for the court to include in the anti-social behaviour order a term which prohibited the appellant from associating with Chantelle Allen, when she was not also subject to an anti-social behaviour order with a reciprocal term of non-association?

The nature of anti-social behaviour orders

9. Anti-social behaviour orders were introduced by the Crime and Disorder Act 1998. Section 1 of the Act provides, so far as is material:

"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely -

-

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him.

...

(4) If, [on an application for such an order], it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an 'anti-social behaviour order') which prohibits the defendant from doing anything described in the order.

...

(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons ... in England and Wales ... from further anti-social acts by the defendant."

A person commits a criminal offence if "without reasonable excuse" he does anything which he is prohibited from doing by an anti-social behaviour order: see section 1(10).

10. The terms of an anti-social behaviour order have been considered on a number of occasions by the Court of Appeal, following challenges to orders made under section 1C of the Act following the offender's conviction of a criminal offence. The following three uncontroversial principles can be distilled from the relevant authorities:

(1) The terms of an order must be precise and capable of being understood by the person who is the subject of the order. Prior to making an order, the court should ask itself whether the terms of the order are sufficiently clear to enable the person to whom it relates to know precisely what it is that he is prohibited from doing.

(2) The conditions in the order must be enforceable in the sense that the conditions should allow a breach to be readily identified and capable of being proved. That means that the conditions should not impose generic prohibitions, but should identify and prohibit the particular type of anti-social behaviour which gives rise to the necessity for such an order.

(3) Because the test for making an anti-social behaviour order and prohibiting someone from doing something is one of necessity, each separate order prohibiting a person from doing a specified act must be necessary to protect persons from anti-social behaviour by the person to whom it relates. The effect of that is that each order must be specifically fashioned to deal with the person who is the subject of the order. The court should ask whether the order it proposes to make is really necessary to protect people from further anti-social acts by that person.

The prohibition in paragraph 2

11. Paragraph 2 of the order prohibited Joseph from carrying any knife or bladed article in a public place. That raises the question of the extent to which people can be prohibited from doing specified acts which would amount to the commission of a criminal offence. It should be noted that section 1(6) of the Act does not contain any limitation of that kind, and that was the context in which the issue was considered in R v Boness [2006] 1 Cr App R (S) 120. At [30] and [31] Hooper LJ said:

"30. It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent. If following conviction for the offence the offender would be liable to imprisonment then an ASBO would add nothing other than to increase the sentence if the sentence for the offence is less than five years' imprisonment. But if the offender is not going to be deterred from committing the offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be thought) further to deter and is therefore not necessary. In P [[2004] 2 Cr App R (S) 63], Henriques J said at [30]:

'Next, it is submitted that [two of] the prohibitions … 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.'

31. We would only make one comment on this passage. The test for making an order is not whether the offender needs reminding that certain matters do constitute criminal conduct, but whether it is necessary."

12. Having then gone on to hold that an anti-social behaviour order should not be used merely to increase the sentence of imprisonment which someone would be likely to receive for the criminal offence which the prohibition in the order mirrors, Hooper LJ continued at [35]:

"35. There is another reason why a court should be reluctant to impose an order which prohibits an offender from, or merely from, committing a specified criminal offence. The aim of an ASBO is to prevent anti-social behaviour. To prevent it the police or other authorities need to be able to take action before the anti-social behaviour it is designed to prevent takes place. If, for example, a court is faced by an offender who causes criminal damage by spraying graffiti then the order should be aimed at facilitating action to be taken to prevent graffiti spraying by him and/or his associates before it takes place. An order in clear and simple terms preventing the offender from being in possession of a can of spray paint in a public place gives the police or others responsible for protecting the property an opportunity to take action in advance of the actual spraying and makes it clear to the offender that he has lost the right to carry such a can for the duration of the order."

In other words, the court should aim, if it can, to prohibit acts which are preparatory to the commission of a criminal offence, rather than to prohibit the acts which constitute the criminal offence.

13. The effect of these observations is that there is no absolute bar on anti-social behaviour orders containing terms which prohibit specific acts which would have amounted to a criminal offence. It all depends on whether the particular prohibition is really necessary to protect members of the public from anti-social behaviour by the person who is the subject of the order. Indeed, R v Stevens [2006] 2 Cr App R (S) 68 is an example of that. The order prohibited the appellant from being drunk in a public place and using abusive and insulting language, acts which amounted to criminal offences. The court did not doubt that an anti-social behaviour order could contain prohibitions of that kind.
14. So when would a prohibition on doing acts which amount to a criminal offence be necessary to protect members of the public from anti-social behaviour by the person who is the subject of the order? Miss Briony Ballard for the Chief Constable argued that one example would be if the sanction which the law provides for breach of the commission of the criminal offence would not in the particular circumstances of the case deter the individual concerned from breaking the law. A prohibition on him doing the acts which constitute the criminal offence may be a more effective way of ensuring that he does not resort to anti-social behaviour. Hooper LJ expressed some scepticism about how frequently that was likely to happen. But if the court was satisfied that such a prohibition would be more effective in securing acceptable behaviour, there ought, said Miss Ballard, to be no principled objection to a term which prohibits the doing of acts which constitute a criminal offence. That was more likely to happen (as Henriques J noted in P) in relation to minor offences than serious ones. But that does not undermine the principle that there may be some cases involving acts which amount to quite serious offences, but which the individual concerned is less likely to repeat if the sanction is the punishment imposed for breach of an anti-social behaviour order, rather than the punishment imposed for the commission of the offence.
15. Miss Ballard submitted that this approach is not inconsistent with the view expressed in Boness, that an anti-social behaviour order should not be used merely to increase the sentence of imprisonment which someone is likely to receive for the criminal offence which the prohibition in the order mirrors. The prohibition may well have that effect, but provided that it is imposed only because it is believed to be more likely to secure behaviour which is not anti-social behaviour on the part of the individual concerned than to enable the court to pass a heavier sentence than would otherwise be the case for conduct of the kind complained of, the approach was perfectly permissible.
16. These are powerful arguments, but they do not arise for determination in this case. That is because the Crown Court did not address the question whether, and therefore did not base its decision on the belief that, Joseph would be more likely to behave in an acceptable way if he had the threat of the more serious punishment for breach of the anti-social behaviour order hanging over him, than the threat of punishment for the offence of having a knife or bladed article in a public place. The basis of the Crown Court's decision was that:

"... whilst the terms of the prohibition in paragraph 2 ... could capture substantive offences, [it was] correctly drawn so as to include the wider range of behaviour which fell short of full offending, but which was causing distress to local inhabitants."

That is a little opaque, but in view of the submissions advanced to it one can see what the Crown Court had in mind. The prohibition in paragraph 2 was in fact intended to cover behaviour on the part of Joseph which was not caught by the criminal law. Carrying a knife or bladed article in a public place is a criminal offence by virtue of section 139 of the Criminal Justice Act 1988, but it only applies to a penknife if the blade is longer than 3 inches. Joseph was found by the Crown Court to have used a penknife to threaten people with, and in view of his age the type of knives to which he was likely to have ready access could well be knives whose blades were less than 3 inches long. Since it was necessary to protect the public from Joseph's use of knives, and since prohibiting him from carrying a knife in public could not be said to be a disproportionate response to that need, the prohibition in paragraph 2 was necessary because section 139 would not criminalise this particular aspect of Joseph's anti-social behaviour, namely his practice of carrying a knife whose blade could well be less than 3 inches long.

17. The Crown Court could, I suppose, have modified the prohibition in paragraph 2 by limiting it to a knife whose blade was longer than 3 inches. But that could have encouraged Joseph only to carry a knife whose blade was less than 3 inches, and that would have been anti-social behaviour which the Crown Court would have wanted to prohibit as well. Moreover, it would not be right to say that the prohibition in paragraph 2 meant that Joseph did not have the protection which section 139 would otherwise have given him, namely the statutory defence in section 139(4), i.e. that it would be a defence for a person charged with an offence under section 139 to prove that he had good reason or lawful authority for having the article with him in a public place. Joseph could only be convicted of breach of the anti-social behaviour order if he had no reasonable excuse for doing what he was prohibited from doing. In the circumstances, it was lawful for the Crown Court to confirm the decision of the magistrates' court that the prohibition in paragraph 2 should remain in place.

The prohibition in paragraph 4

18. Paragraph 4 prohibited Joseph from associating with Chantelle in any public place. The question is whether that was a lawful prohibition, in view of the fact that Chantelle was not prohibited from associating with Joseph in any public place. In my opinion, it was. A report by a working group chaired by Thomas LJ on anti-social behaviour orders included a prohibition on association with a named individual in a public place as an example of a general prohibition which was specific and enforceable, and which could be incorporated into an anti-social behaviour order. No doubt such a prohibition is appropriate when the person who is the subject of the order behaves in a particularly anti-social manner when in the company of that individual. That would be so despite the named individual not being subject to an anti-social behaviour order themselves with a reciprocal term of non-association. What if an anti-social behaviour order could not lawfully be made against that individual, because, for example, they are under the age of ten, or because they have not themselves acted in an anti-social manner, or because an anti-social behaviour order in their case is not needed to curb their anti-social behaviour?
19. Miss Gardiner argued that there was a real risk of unfairness if Joseph was subject to this prohibition without Chantelle being subject to an anti-social behaviour order with a reciprocal term of non-association. What if Chantelle came up to him in the street and insisted on walking with him? Joseph would be in breach of the order through no fault of his own, his contact with Chantelle being entirely unintentional on his part. In my view, there is no real risk of unfairness arising in that way. Joseph would not be in breach of the order in any of the circumstances advanced by Miss Gardiner because he would have had a reasonable excuse for being in her company.
20. Finally, Miss Gardiner argued that the prohibition in paragraph 4 was not necessary to protect the public from anti-social behaviour on Joseph's part, but that even if the courts wanted to ensure that he and Chantelle did not get up to mischief while in each other's company, so that some form of prohibition on association in a public place was necessary, it would have been sufficient to let them be in each other's company so long as they were supervised by one or other of their parents. That argument does not arise on the question posed for the opinion of the High Court, and in any event these were very much questions of fact for the Crown Court. The Crown Court found as a fact that "[m]uch of Joseph's anti-social conduct was in [Chantelle's] presence and bore signs of being motivated by a desire to 'show off' in front of her", and had expressed itself as satisfied that "part of Joseph's motivation to offensive conduct was exhibitionism in her presence". So some form of non-association prohibition was necessary. The Crown Court presumably found that association subject to parental supervision was not a practical option in this case. There is no basis for saying that it was not open to the Crown Court to take that view.

Conclusion

21. For these reasons, the answers to the two questions posed for the opinion of the High Court are "yes", and this appeal must be dismissed.
22. Thank you both.
23. MISS SIMCOCK: My Lord, there is just the matter of costs. I understand that the appellant was legally aided. In those circumstances, I merely ask --
24. MR JUSTICE KEITH: Was he? In the appellant's notice, against the question, "Is the appellant in receipt of a legal aid certificate or a Community Legal Service Fund certificate?", the box marked "no" is ticked.
25. MISS GARDINER: It was my understanding, my Lord, that Joseph was receiving legal aid throughout.
26. MR JUSTICE KEITH: Why was the box marked "no" ticked?
27. MISS GARDINER: I can only suggest it has been a mistake by those instructing me, my Lord.
28. MR JUSTICE KEITH: There is a box next to it marked "yes". It is a surprising mistake to make.
29. MISS GARDINER: Yes.
30. MR JUSTICE KEITH: This was a multiple choice question, which most solicitors should be able to understand.
31. MISS GARDINER: Yes.
32. MR JUSTICE KEITH: I will ask whether the appropriate funding certificate has been filed with the court. (Pause)
33. Yes, all right then. Although the box was marked "no", the reason why he does have funding is because Collins J on 24th January ordered that a representation order be granted.
34. MISS GARDINER: Thank you.
35. MISS SIMCOCK: My Lord, in those circumstances I merely ask for the usual order when an appellant of this nature is legally aided, that should he later come into funds that costs be assessed, not to be enforced other than that.
36. MR JUSTICE KEITH: So you are asking for an order that the appellant or the appellant's litigation friend pays the costs of the Chief Constable, to be assessed if not agreed --
37. MISS SIMCOCK: Yes.
38. MR JUSTICE KEITH: -- but not to be enforced without the leave of the court; is that the order that you are asking for?
39. MISS SIMCOCK: That is it, my Lord.
40. MR JUSTICE KEITH: What do you wish to say in response to that?
41. MISS GARDINER: I would ask that that order was not made, that --
42. MR JUSTICE KEITH: On what basis?
43. MISS GARDINER: On the basis that it was the understanding of Joseph's litigation friend that he be receiving legal aid for this case.
44. MR JUSTICE KEITH: Yes, that is right. Legal aid means that he does not have to pay his own costs, his own costs are paid. We are not talking about his costs, we are talking about the costs incurred by the Chief Constable in resisting this appeal.
45. MISS GARDINER: Yes.
46. MR JUSTICE KEITH: So what do you wish to say about that?
47. MISS GARDINER: My Lord, I do not think it was ever explained that that would be a potential penalty for Joseph's litigation friend.
48. MR JUSTICE KEITH: You mean that Joseph's solicitors did not explain to his mother that that was a possibility in the event of the appeal being dismissed?
49. MISS GARDINER: I do not believe that they did.
50. MR JUSTICE KEITH: Do you have express instructions on that, or are you just making that assumption?
51. MISS GARDINER: No, I am making that assumption.
52. MR JUSTICE KEITH: That is not a sufficient basis for me to say that there should not be costs. You knew if you lost there would be an application for costs.
53. MISS GARDINER: My Lord, yes.
54. MR JUSTICE KEITH: So you should have tried to find out beforehand. It is pretty academic. The circumstances are unlikely to arise where such an order would be enforced. No doubt if it ever were the case that the family came into significant funds, it would not be a burden upon them to pay the costs.
55. MISS GARDINER: No.
56. MR JUSTICE KEITH: I propose to make the order for costs that Miss Simcock asks for.
57. MISS GARDINER: I am grateful.
58. MR JUSTICE KEITH: Miss Simcock, this is the bundle that was handed to me yesterday, so it should be returned to you.
59. MISS SIMCOCK: Thank you, my Lord, I will take it.
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