CO/8478/2009 
Neutral Citation Number: [2009] EWHC 3562 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 12th November 2009

B e f o r e:
 
LORD JUSTICE MOSES 

MR JUSTICE TOMLINSON
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Between: 
DANIEL JAMES HERON 
Appellant

v 

PLYMOUTH CITY COUNCIL 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr R James (instructed by David Teague) appeared on behalf of the Appellant
Mr D Sadler (Solicitor Advocate) (instructed by Plymouth City Council) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE MOSES:  This is an appeal by way of case stated against the decision of Plymouth District Magistrates' Court, who, on the City Council's application, on 18th May 2009 allowed an application to vary an anti‑social behaviour order (an "ASBO") that had originally been imposed on Mr Heron on 11th May 2004.  
2.	Mr Heron is 34 years of age and it is apparent that the original ASBO was not successful.  He had been convicted of eight offences of theft from shops since the original ASBO; an offence of theft of a car; an offence of affray; one offence of causing harassment, alarm or distress; four offences of breaching the original ASBO; an offence of actual bodily harm; two offences of failing to comply with a football banning order; one offence of possessing heroin; and one offence of driving whilst disqualified.  In addition, there were a number of allegations made against him, which, as Mr James on his behalf points out, had not been proved.  
3.	The ASBO had been imposed at a time, as Mr Sadler, the Solicitor Advocate on behalf of Plymouth City Council points out, in the early yearly of ASBOs.  Since then, there have been many cases from this court and the Court of Appeal explaining the legal restraints which cover the imposition of an ASBO and the terms on which an ASBO should be imposed, particularly that they should be clear, comprehensible and enforceable; otherwise they amount to no more than beating the wind.
4.	The original ASBO, having regard to those principles and the principles of necessity and proportionality, were accepted by the City Council not to have complied with those requirements, and thus variations were sought.  
5.	The first variation that was sought was to impose a condition that the respondent should not enter Plymouth city centre or any part of the area whose boundaries were marked red on the attached Map 1.  The area was clearly shown.  But, submits Mr James, the restriction was far too wide, it was neither necessary nor proportionate.  Effectively, it did no more than punish this appellant in respect of the offences of shoplifting.  
6.	That the purpose of an ASBO is not to punish has been asserted in a number of decisions, particularly in R v Boness [2005] EWCA Crim 2395, paragraphs 29 and 30, which is the locus classicus of the law in relation to ASBOs.
7.	In my judgment, the restriction in this case is both necessary and proportionate.  As the magistrates point out in the case they stated, the restriction does not prevent this appellant from shopping as he needs to, even though he lives close to the city centre, it does not prevent him from visiting the bus station, the railway station, the benefits office, the police station and library.  It was suggested by Mr James that it will prevent him from getting work.  No facts were found to support that proposition, nor is there any evidence that he has ever sought to find work.  The restriction is plainly sensible and necessary because it removes the temptation afforded by a conglomeration of shops in the city.  Mr James suggested it would merely shift the problem elsewhere.  It might certainly shift his shoplifting activities elsewhere, but he is more likely to be spotted and caught were he to attempt such an activity in more local shops.  We agree that the magistrates were right to impose that prohibition.
8.	The second prohibition requires him not to behave in any way causing or likely to cause harassment, alarm or distress to any person.  The origin of that restriction was the habit, which is demonstrated in the evidence of the officer who gave evidence in support of the restriction, of this appellant targeting those who seek to waylay him or stop him, such as security officers or store detectives, when it is suspected that he has been guilty yet again of shoplifting.  However, in my judgment, it imposes a restriction which does no more than repeat offences contained within the Public Order Act 1986.  It is barely better than the restriction criticised in the case of CPS v T [2006] EWHC 728.  In that case the prohibition was no more than not to act in an anti‑social manner without further definition.  This prohibition, in my judgment, is hardly better.  It offends the principle that the prohibition must be precise and must be targetted at the individual and at the type of anti‑social behaviour it is sought to prevent.  It offends that principle set out in paragraph 39 of the decision of this court in CPS v T.  In those circumstances, although Mr Sadler rightly sought to restrict its application and target it, in my view it is still too broad and of no real efficacy.
9.	The guidance as to the terms of ASBOs has been set out in clear terms in the Anti‑social Behaviour Orders Guide for the Judiciary, published by the Judicial Studies Board, that has already received the endorsement of the Court of Appeal, particularly in the judgment of Thomas LJ in R v Charles [2009] EWCA Crim 1570.  The guide for the judiciary, which in my view should be the vade mecum for all magistrates considering whether to impose an ASBO, to vary one or discharge it, includes in Appendix 2 useful examples of valid prohibitions.  It repeats the strictures advanced by Richards LJ in T, particularly requiring restrictions in relation to threatening and abusive behaviour to identify the targets and referring, in addition, to a geographical limitation so as to prevent access to an area where identified individuals might be targetted.  The restriction at number 2 in the ASBO in the instant case is restricted in neither of those respects and should, in my view, therefore be removed.
10.	The third restriction, not to touch or enter any unattended vehicle in Plymouth as shown on map 2 without the express permission of the owner, is not the subject of challenge.
11.	The final restriction seeks to enable those who question or stop this offender to require him to prove that any item he has with him has been lawfully purchased.  It is a tribute to Mr Sadler's ingenuity.  It reads:
"Not to have with him or carry any packaged, wrapped, bagged new or unused goods or objects not belonging to him, except food in any public place without a valid receipt or the consent of the owner of the packaged, wrapped, bagged, new or unused goods or objects in Plymouth as marked in red on Map 2."
I have sought to explain what it means now that I have had the assistance by way of submission of Mr Sadler.  I have to confess, until I had such assistance I did not know what on earth it meant.  To one who does not claim to be a particularly frequent reader of the terms of ASBOs, it has an unpromising beginning if I cannot understand it.  Whether Mr Heron could understand it or not remains not so much a matter of speculation as certainty.  It offends, in my view, the need to keep the terms of an ASBO, of which, after all, the consequences of a breach could be imprisonment for as long as five years, as simple and as clear as possible.  I do understand what it is getting at: it is all too easy apparently for this appellant to continue to steal without any apparent means of being successfully stopped.  But, as I have said, in my view it offends the principles I have already identified, and I would, for my part, therefore strike it out.
12.	I cannot leave this case without referring to certain questions posed in the case stated which, in my view, hardly arise out of the issues with which we have been faced.  The second question asks whether the magistrates were entitled to rely upon evidence of potential offences to be taken into consideration which were not and allegations where no further action was taken.  Of course it is right, as Mr Sadler points out by way of submission, that in relation to the question whether an ASBO should be imposed or not, hearsay evidence is admissible, and indeed may be of great value.  However, magistrates must be careful not to rely upon mere allegation where the subject matter of that allegation is denied.  If there is an allegation of an offence, then it must be proved.  However, the question hardly arises out of the application for variation where the imposition of an ASBO was not challenged and where there was clear evidence of repeated offences which I have already identified.  So whilst I would answer that second question "no", it does not fall for decision in this case.
13.	Further, a question is asked in relation to the reasons that were given by the magistrates at the time.  The question asked is whether the reasons given by the court were sufficient.  The reasons given at the time were as follows.  The magistrates said they would address the more recent pattern of offending in the case law.  They had read the case law.  Referring to each of the numbered conditions proposed by the counsel, they decided and then they set out which conditions would or would not be imposed.
14.	Plainly reasons need only be short and simple, but magistrates now are trained and do in any case of conviction, or in cases such as these, give short reasons so that the offender or the person placed subject to an ASBO should know the reasons why it was imposed and what it is getting at.  I am afraid to say I do not think that these reasons satisfy that requirement.  The reasons in the case stated plainly do, but reasons need to be given at the time.  So I would answer the final question, if it refers to the reasons given at the time, with the answer "no".
15.	So far as the other questions as to whether the first prohibition was proportionate, that is (a) at paragraph 7, the answer is "yes".  So far as (c) is concerned, the imposition of the condition at 4, the answer is "no".  So far as the other question asked at (d), it does not seem to me now, for reasons I have given, to arise.
16.	Before I leave this case I would like to pay tribute to Mr Sadler, the Solicitor Advocate from Plymouth City Council.  By coming up to London and arguing this case on behalf of the Council he has considerably assisted this court in understanding the conscientious processes which Plymouth City Council follow before they seek to impose an ASBO through the court.  A number of people form the group that make the decision as to whether a particular person is a suitable target for an ASBO and as to whether there is any point in imposing it.  It should not be forgotten that, in seeking to impose an ASBO, the City Council is not merely trying to protect its own citizens, but also trying to prevent a particular offender committing further crimes.  The fact that it has been of no assistance in this case is something that they will no doubt bear in mind in the future.  If this appellant goes on behaving in this way he is likely to end up not back merely before a court seeking to impose a variation, but imprisoned for a very long time.  Plymouth City Council's patience and attempts to avoid that result can only be commended. 
17.	MR JUSTICE TOMLINSON:  I agree.
18.	LORD JUSTICE MOSES:  Thank you both very much.  What is the position about costs?  You are legally aided, are you?
19.	MR JAMES:  I am legally aided.  I should make an application for costs. 
20.	LORD JUSTICE MOSES:  You have lost part of it and won the other part.  I am going to say no order for costs.  You can have your taxation, if you need it.
21.	MR JAMES:  Thank you.