CO/5358/2008 
Neutral Citation Number: [2008] EWHC 2703 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 21 October 2008
 
B e f o r e:

LORD JUSTICE DYSON
and
MR JUSTICE PITCHFORD 
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Between: 
THE QUEEN ON THE APPLICATION OF JAMIE COOKE 
Claimant

v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss H Mettam (instructed by McGanns Law, Northampton NN2 6HR) appeared on behalf of the Claimant 
Mr M Brookes‑Baker (instructed by CPS Northampton) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	LORD JUSTICE DYSON:  This is an appeal by case stated against the decision of the Northampton Magistrates' Court on 22 February this year to make an anti‑social behaviour order (ASBO) against the appellant under section 1C of the Crime and Disorder Act 1998, subsection (2) of which provides: 
"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 ..."
2.	The order was made following the appellant's conviction on 21 December 2007 for an offence contrary to section 5 of the Public Order Act 1994, in respect of which a fine of £50 was imposed.  The appellant is 24 years of age.  He has numerous previous convictions, including eight for public order offences.  The ASBO was made after a hearing lasting three days, which ended on 22 February.  It was adjudged by the justices that he had caused, or was likely to cause, harassment, alarm or distress to one or more persons not of the same household as himself, by begging aggressively in Northampton Town Centre, being aggressive to police officers and self‑harming.  By the order he was ordered: 
"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."
3.	It was conceded on behalf of the appellant before the justices that he had acted 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.  What was in issue was whether an ASBO was necessary to protect persons from further anti‑social acts by him and if so whether the court should make an order.  It was submitted to the justices that (i) an ASBO was not necessary because it would not protect persons from further anti‑social acts, since the appellant's mental state was such that he would be unable to comply with the order, and (ii) that it would be unjust to make one.  The only effect of such an order would be to "criminalise the appellant's mental health problems".  
4.	The only witness called on behalf of the defence was Mr Harjit Nijjer, a court psychiatric nurse employed by the Northamptonshire Health Care NHS Trust.  He told the court that the appellant had been diagnosed as suffering from a borderline personality disorder and post traumatic stress disorder.  Mr Nijjer put it this way in his report, dated 22 December 2007: 
"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."
5.	We have been told by counsel that in his evidence Mr Nijjer said that the appellant was not capable of complying with an ASBO.  He could on occasions demonstrate consequential thinking, but in the opinion of Mr Nijjer his behaviour was symptomatic of his mental health disorder and could not be prevented without medical treatment.  The appellant would repeatedly breach an ASBO and such an order would effectively criminalise his mental health problems.
6.	In the case stated the justices said:
"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 [1991] 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".
7.	Following an order made by Collins J, apparently not in response to an application made on behalf of the appellant, the justices were asked to amplify their findings and added to their case stated the following:  
"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." 
8.	On behalf of the appellant, it is submitted by Miss Mettam that the justices erred in law in making an ASBO in this case because he was not capable of complying with it.  Her argument is that an ASBO, with which a person is incapable of complying, is not necessary for the protection of the public from anti‑social behaviour.  If it is impossible for a person to obey an order there is no point in making it.  Such an order will not achieve the avowed purpose of providing protection.  It cannot be said, therefore, to be necessary for the protection of others.  In any event, it is unjust and a wrong exercise of discretion to make an ASBO which the court knows the defendant will breach.  
9.	On behalf of the CPS, Mr Brookes‑Baker submits that the justices considered the issue of necessity, having regard to all the relevant evidence in the case.  They carried out a careful exercise balancing their assessment of whether the appellant was capable of complying with the condition of an ASBO against the need to protect the public.  The evidence before the justices did not require a finding that the appellant would inevitably breach the conditions of the ASBO.  
10.	In my judgment, if the justices had concluded that the appellant's mental state was such that he was truly incapable of complying with the conditions of any ASBO that they were minded to make, they would have been wrong in law to make the order.  If by reason of mental incapacity an offender is incapable of complying with an order, then an order is incapable of protecting the public and cannot therefore be said to be necessary to protect the public.  
11.	Reference was made in the Magistrates' Court to the decision of the Court of Appeal in Wookey v Wookey Re S(a minor) [1991] 3 All ER 365.  That case concerned two appeals.  The issue that arose was whether it was appropriate to grant an injunction against a person who was suffering under a disability such that he could not understand the meaning of the order, or the order could not be effectively enforced by the court.  In one of the cases the evidence of the psychiatrist was that the person concerned would be incapable of pleading if charged with a criminal offence, and incapable of understanding the nature of an injunction.  Butler‑Sloss LJ said at page 370 C:  
"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."
12.	An ASBO is, of course, not an injunction, but there are obvious similarities, even though an ASBO is a creature of statute.  So far as I am aware, there is no previous authority on the question whether an ASBO can, or should, be made against a defendant whose mental health is such that he is incapable of complying with the terms of an order.  In my judgment an ASBO should not be granted if the defendant is truly incapable of complying with it.  That is because, for the reasons that I have given, an ASBO is not necessary for the protection of the public in such circumstances, and it would, in any event, be a wrong exercise of the court's discretion under subsection (2) to make an order in circumstances where the court knows that the defendant is not capable of complying with it.  The justices should not refuse to make an ASBO on such grounds unless the defendant does not have the mental capacity to understand the meaning of the order, or to comply with it.  Such an incapacity being a medical matter, evidence should normally be given by a psychiatrist and not by a psychologist or a psychiatric nurse.  
13.	A defendant who suffers from a personality disorder may on that account be liable to disobey an ASBO.  In my judgment, however, that is not a sufficient reason for holding that an order, which is otherwise necessary to protect the public from a defendant's anti‑social behaviour, is not necessary for that purpose, or that the court should not exercise its discretion to make an order.
14.	That being the law, what of the present case?  We have been given information as to what happened after the making of the ASBO.  It seems that the appellant did not comply with it and proceedings for breach were instituted.  There is also a report in the papers by a Mr Fraser Cooke, a psychologist, dated 9 July 2008, but in my view none of this can have any relevance to this appeal.  
15.	In the original case stated it seems to me that the justices did not make a clear finding as to whether the appellant was capable of complying with an ASBO.  They recited the contention on behalf of the appellant that:  
"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.  
16.	Is the position made any clearer by the addendum to the case stated?  Part of this document is directed to the question whether the appellant was a danger to the public.  However, it was never in issue that the condition stated in section 1C(2)(a) of the 1998 Act was satisfied in this case.  The issue was not one of dangerousness, but whether the appellant had acted, and was likely to act, in an anti‑social manner.  In the addendum to the case stated the justices say that the appellant had demonstrated "consequential thinking" and they gave their reasons for so saying.  By this I understand them to have been saying that the appellant had the mental capacity to understand what an ASBO meant and what it prevented him from doing.  
17.	In my judgment they were entitled to come to this conclusion, indeed there was no evidence to the contrary.  
18.	The real point that was being made on the appellant's behalf, however, was not that he did not have the mental capacity to understand the terms of the ASBO, or what behaviour it prohibited.  Rather it was that by reason of his impulsiveness, said by Mr Nijjer to be a feature of his borderline personality disorder, he did not have the capacity to comply with the terms of such an order.  The critical part of the addendum is in the last seven lines and, in particular, the sentence:  
"Furthermore, and perhaps more importantly, we did not consider it inevitable that Mr Cooke would breach the Order." 
19.	In my view this is a finding of fact which goes to the heart of the matter.  The justices were finding that they were not satisfied that the appellant was bound to breach the order.  In my judgment that was a conclusion that they were entitled to reach.  Indeed in the light of the law as I have explained it above, they were bound to come to this conclusion.  The appellant had the mental capacity to understand the meaning of the order and to know what behaviour would constitute a breach of it.  There was no evidence to the contrary effect.  No argument has been advanced as to the scope or other terms of the order.  The only issue is whether in principle an ASBO should have been made.  In these circumstances the justices were entitled to make the ASBO that they did.  
20.	The question for the opinion of the court is whether an ASBO should be made against a person whose anti‑social behaviour "is caused by, or consequently of, a mental health [dis]order?" For the reasons that I have given it would be wrong to make an ASBO against a person who by reason of mental ill health would not have the capacity to understand or comply with the order.  The fact that a person would be likely to breach an order because he suffers from a personality disorder is not, of itself, a good reason for not making the order.  
21.	For the reasons that I have given, however, I would dismiss this appeal.  
22.	MR JUSTICE PITCHFORD:  I agree.