QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE PITCHFORD
|THE QUEEN ON THE APPLICATION OF JAMIE COOKE||Claimant|
|DIRECTOR OF PUBLIC PROSECUTIONS||Defendant|
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Mr M Brookes-Baker (instructed by CPS Northampton) appeared on behalf of the Defendant
Crown Copyright ©
"If the court considers-
(a) that the offender has acted, at any time 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 an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,
it may make an order which prohibits the offender from doing anything described in the order."
Subsection (4) provides:
"An order under this section shall not be made except ..."
"1. Not to enter Northampton Town Centre.
2. Not to beg for food or money from members of the public in Northampton.
3. Not to act in a manner that causes or is likely to cause harassment, alarm or distress to any person not of the same household in Northampton.
4. Not to be in the possession of a knife or razor blade in a public place in Northampton.
5. Not to use a syringe in a public place in Northampton."
"Mr Cooke has complex mental health problems and the main problems appear to centre on personality issues. In addition to suffering from an Emotionally Unstable Personal Disorder, there is evidence of Post Traumatic Stress Disorder together with a possible diagnosis of Asperger's Syndrome. Together these make Mr Cooke very difficult to engage with, understand and the manner in which he interacts with others, especially those in authority, can be construed as deliberately antagonistic but his behaviour is consequential to his mental health problems.
Unfortunately, I am unable to make any specific comments or recommendations with regards to this matter, however, if you would like to consider these matters in light of what has been said, then this matter would be appropriate for consideration of diversion on mental health grounds. If you were satisfied with my explanation of Mr Cooke's mental health then I would recommend a Police Caution as a suitable disposal for this case."
"2. [Jamie Cooke]
(i)does know right from wrong and has demonstrated that he is capable of choice
(ii)he caused harassment, alarm and distress to members of the general public
(iii) has made threats of physical violence &
(iv) has chosen not to engage in mental health services."
3. It was contended by the Respondent that: an anti-social behaviour order containing five prohibitions was necessary for the protection of the public:-"
The prohibitions were then set out and were reflected in the order that was eventually made:
4. It was contended on behalf of the appellant that:-
(i) none of the witnesses who gave evidence to the court were aware of his personality disorder or mental health issues
(ii) his borderline personality disorder prevented him from fully understanding and complying with an anti-social behaviour order
(iii) the granting of an anti-social behaviour order would be unreasonable and would be criminalising his mental health disorder
(iv) the report of the Community Psychiatric Nurse showed that he was not a danger to the general public and that the possession of knives didn't pose a threat to the general public
(v) there should be further opportunity for him to receive treatment for his mental health disorder.
5. We were referred to the following cases-
(i) Wookey v Wookey  3 All ER 365
6. We were of the opinion that; the Appellant meets the criteria for us to use our power to make an anti-social behaviour order and that an anti-social behaviour order was necessary to prevent future acts of anti-social behaviour by the Appellant and accordingly an anti-social behaviour order was made against the Appellant.
We took account of Mr Harjit's Nijjer's evidence, particularly the point of the Appellant's mental health problems.
We found that he has understanding when he is well but can be irrational when he is unwell. We recognised that the Appellant needs a programme of treatment but we must weigh that up against protection of the public. Making an order won't prevent the Appellant receiving treatment and we actively encourage the agencies to get involved with the Appellant. However, we felt that members of the public and workers should go about their business without being caused harassment, alarm, or distress.
7. The question for the opinion of the High Court is: should an anti-social behaviour order be made against a person whose anti-social behaviour is caused by, or consequently of, a mental health order?"
We feel sure that the phrase "a mental health order" is in error for "a mental health disorder".
"We were not satisfied upon evidence that there was the 'lengthy' involvement described by Mr Nijjer. Mr Cooke was discharged from Prison into the care of St Andrew's hospital. The court specifically asked for any records or information concerning his behaviour and care there but was told none was available. Mr Nijjer himself had been unaware of the court proceedings (despite his office having been advised by the prosecution) and was brought to court on the second day. The Forensic Psychiatrist's interview (upon which the assessment was based) we were told lasted forty minutes and was conducted in ignorance of Mr Cooke's criminal record - which fact we felt cast significant doubt upon the validity of the conclusion that he was not dangerous to the public. On the contrary we were aware of previous convictions for Affray (2001); Possession of an Offensive Weapon in a Public Place (2002); Threats to Kill (2003); Carrying a Firearm and Ammunition in a Public Place and Affray (both 2004); two incidents of Threatening Behaviour (2005); Threatening Behaviour (2006). These we considered ample manifestation of Mr Cooke presenting a danger to the public. In addition to this, his latest incident of begging involved the possession of a Stanley knife which although when removed from him by the police had only been used injuring himself, was clearly frightening and intimidating to those from whom he begged. Furthermore we heard from a series of witness that they were in fact in fear of him and his aggression.
The convictions referred to above, along with many others upon his record, indicate that Mr Cooke has repeatedly demonstrated the requisite mental capacity to offend. We were further of the opinion that Mr Cooke more frequently demonstrated consequential thinking than Mr Nijjer suggested. He chose to live not in the accommodation available to him, but in the Town Centre to further his habits. He was also choosing 'rational' places to beg which might maximise his success (eg alleyways and near cash-points).
For these reasons, notwithstanding Mr Nijjer's opinion, we felt Mr Cooke presented a danger to the public and showed the capacity for consequential thinking and making choices. It being common ground that the conditions necessary for the making of an Anti-Social Behaviour Order were proved we felt it necessary to exercise our discretion to make the Order. We did not consider it 'criminalised' Mr Cooke's behaviour - he already having a significant criminal record and this Order being civil. Furthermore, and perhaps more importantly, we did not consider it inevitable that Mr Cooke would breach the Order. If he chose to access the benefits, accommodation and mental health services on offer there need be no reason to breach. The only issue is likely to be drug additiction - which should be ameliorated by his relocating to the accommodation on offer."
"I shall begin, however, by stating some well-established, general propositions in relation to injunctions before turning to the special problems raised by these two appeals. The grant of an injunction is a discretionary remedy derived from the equitable jurisdiction which acts in personam and only against those who are amenable to its jurisdiction; nor will it act in vain by granting an injunction which is idle and ineffectual. An injunction should not, therefore, be granted to impose an obligation to do something which is impossible or cannot be enforced. The injunction must serve a useful purpose for the person seeking the relief and there must be a real possibility that the order, if made, will be enforceable by the process in personam. However, the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent's likely disobedience to the order."
At page 371F she said:
"In the case of the husband the view of the consultant psychiatrist in charge of his case was that he was incapable within the M'Naghten Rules of understanding what he was doing or that it was wrong. In my judgment, an injunction ought not to be granted against a person found to be in that condition since he would not be capable of complying with it. Such an order cannot have the desired deterrent effect nor operate on his mind so as to regulate his conduct. If the order can have no effect upon the husband, any breach by him cannot be the subject of effective enforcement proceedings since he would have a clear defence to an application for committal to prison for contempt."
"his borderline personality disorder prevented him from fully understanding and complying with an anti-social behaviour order".
They took account of the mental health problems described by Mr Nijjer and found that the appellant has understanding when he is well, but can be irrational when he is unwell. They recognised that he needs a programme of treatment, but they had to weigh this against the protection of the public.
"Furthermore, and perhaps more importantly, we did not consider it inevitable that Mr Cooke would breach the Order."