QUEEN'S BENCH DIVISION
B e f o r e :
|JOSEPH DANIEL HILLS||Appellant|
|CHIEF CONSTABLE OF ESSEX||Respondent|
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MISS BRIONY BALLARD (instructed by the Solicitor to Essex Police) appeared on behalf of the Respondent
(MISS SARAH SIMCOCK appeared on behalf of the Respondent for the purposes of the judgment only on 4th October 2006)
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MR JUSTICE KEITH:
The relevant facts
"... 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.
"(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."
(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?
(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
"(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).
(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
"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 [ 2 Cr App R (S) 63], Henriques J said at :
'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."
"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.
"... 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.
The prohibition in paragraph 4