England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/01/2012

President of the Queen's Bench Division:

1. The principal issue in this appeal by way of case stated from the Youth Court in Birmingham is the nature of the mental element that a prosecutor must prove when a defendant is prosecuted for breach of an Anti-Social Behaviour Order made under s.1(10) of the Crime and Disorder Act 1998. It provides:

"If without reasonable excuse, a person does anything which he is prohibited from doing by an anti-social behaviour order, he is guilty of an offence..."

The facts as found by the District Judge in the Youth Court

2. On 5 May 2010 JB, then 15 years old, was made the subject of an Anti-Social Behaviour Order (ASBO) following conviction at the Birmingham Youth Court for an offence of attempted robbery. The ASBO contained three prohibitions:

i) Not to associate with certain named individuals.

ii) Not to enter a defined area, unless accompanied by an adult.

iii) Not to cause harassment, alarm and distress in the public domain to members of the public.

3. On 30 December 2010, when JB was on the fourth floor of a multi-storey car park in the city centre of Birmingham, he pushed or dropped a sandbag from a ledge or rail causing it to fall. It landed on the skylight of a single-decker public transport bus parked immediately below, causing the skylight to shatter. Passengers inside the bus were alarmed and distressed, although no-one was injured.
4. As a result, JB was prosecuted for the offence under s.1(10) of the Crime and Disorder Act 1998 for breach of the ASBO and for an offence of criminal damage. JB pleaded not guilty to the offence of breaching the ASBO, but he pleaded guilty to the offence of criminal damage to the bus on the basis he had been reckless. The trial was heard before District Judge Zara in the Birmingham Youth Court on 13 June 2011.
5. Although JB did not give evidence, he had in his police interview accepted that he had pushed the bag; his intention was to let some sand out. He admitted having smoked cannabis shortly before he did so. He denied knowing what was underneath or having any intention to push the bag off the ledge. His explanation was that it had just slipped.
6. It was submitted on behalf of JB that the Crown had to prove an intention to do the specific act constituting a breach of the ASBO; the judge could not automatically assume that JB intended or foresaw that the bag would fall. In the absence of proof of intent, the offence could not be proved.
7. District Judge Zara ruled that the offence under s.1(10) was a strict liability offence and proof of intent to do the act was not required. In so ruling, the judge took into account the fact that s.1(10) provided a defence of reasonable excuse on which JB had not sought to rely. He held that, should he be mistaken in his view that strict liability applied to the defence, he would take into account the plea on a reckless basis to the offence of criminal damage. Drawing an inference from that and B's decision not to give evidence, the judge concluded the risk of the bag falling must have been obvious and he had foreseen it. He concluded that there was evidence of intent on which the Crown could rely. JB was sentenced to a DTTO of 4 months on 15 August 2011.
8. The judge stated three questions for the opinion of the court:

"1. Was I correct to rule that breach of an ASBO is an offence of strict liability?

2. If I was wrong so to rule, was I entitled to rule that his plea to the criminal damage charge was admissible evidence of his intent to the substantive charge?

3. Was I entitled to draw an adverse inference from his refusal to give evidence?"

The question for the court

9. It was submitted by Mr Jonas on behalf of the appellant that the judge was incorrect in characterising the offence as one of strict liability; we were referred to the well known passages in Sweet v Parsley [1970] AC 132, Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong [1985] AC 1 and B v DPP [2000] ULHL 13, [2000] 2 AC 428. The provision in s.1(10) providing for a defence of reasonable excuse was of no relevance; this referred to the deliberate or accidental breach of an ASBO without a reasonable excuse for doing so.
10. The Crown referred us to the decision of the Court of Appeal Criminal Division in R v Nicholson [2006] 1 WLR 285. An animal rights protestor had been made subject to an ASBO prohibiting her from going within 500 metres of various places. She was present at a demonstration within 500 metres of one of the places. She raised the defence under s.1(10) that she had not realised that she was demonstrating at such a place. The trial judge at the Crown Court ruled that the offence was one of strict liability and that the words "reasonable excuse" should be construed to exclude ignorance, forgetfulness or misunderstanding of an order. In allowing the appeal, the Court of Appeal Criminal Division held that the ruling was wrong and that ignorance as to the application of the terms of the order was, taken with a lack of appreciation of where the person was at the time capable of amounting to a defence of reasonable excise. The court observed:

"Whether or not an offence of strict liability is an appropriate description of an offence where the prosecution does not have to prove any sort of mens rea but where there is a statutory provision for a defence or an evidential issue to be raised based on the presence or absence of some state of mind on the part of the defendant, it is of no help in considering whether and how such a defence may be deployed in an individual case".

11. Miss Whitehouse therefore rightly submitted that the real question is not whether the offence is one of strict liability, but, as indicated at the outset, what is the nature of the mental element that has to be established in order for a defendant to be convicted of an offence under s.1(10). That question is the question to be considered, taking into account the questions raised as to the effect of the plea to criminal damage entered on the basis of recklessness and the inference to be drawn from the appellant not giving evidence.

The matters that must be proved for the offence under s.10(1)

(a) Breach of the ASBO

12. S.10(1) first requires proof of a breach of the ASBO. The judge found on the facts that the appellant's action had caused harassment alarm and distress in public to members of the public by his action in pushing or dropping the sandbag causing it to fall onto the skylight of the bus.

(b) There was no reasonable excuse: taking account of the mental element

13. As the breach was proved, then the question arose as to whether there was a reasonable excuse. In my view, where the defendant raises an issue as to his state of mind in relation to the breach of an ASBO and satisfies the evidential burden that rests upon him in this respect, then his state of mind must be taken into account in determining whether the Crown has proved there was no reasonable excuse: the burden of so proving lies on the Crown: see R v Charles [2009] EWCA Crim 1570, [2010] 1 Cr App R 2.
14. The defence of "reasonable excuse" is found in a large number of statutory provisions. We were helpfully provided by Miss Whitehouse and Mr Jonas, at our request, with other instances of the defence arising and the view expressed by the Courts upon the ambit of the defence. These included, in addition to statutes specifically referred to below, s.7(6) of the Road Traffic Act 1988 (R v Lennard (1973) 57 Cr App R 542), s 9 (1) of the Prevention of Terrorism Act 2005, s. 113 of the Sexual Offences Act 2003 (McMillan v HM Advocate [2010] HCJAC 103), s.5(5) of the Protection from Harassment Act 1997 (R v Evans [2005] 1 Cr App R 546), s.42A (1) of the Domestic Violence, Crime and Victims Act 2004, s80(4), (6) of the Environmental Protection Act 1990 (Polychronakis v Richards & Jerrom Ltd [1997] EWHC Admin 885), s.6(1) of the Bail Act 1976, s.14J of the Football Spectators Act 1989, and s.139 (1)-(3) of the Criminal Justice Act 1988 (R v Jolie [2004] 1 Cr App R 3).
15. It is clear from the decision of the Supreme Court in R v G [2009] UKHL 13, [2009] 1 AC 43 (in the context of s.58(3) the Terrorism Act 2000) and the Court of Appeal Criminal Division in R v AY [2010] 2 Cr App R 15 (in the same context) that what constitutes a reasonable excuse is essentially a question which is dependent on the circumstances of each case in the context of the offence to which it relates – see in particular the judgment of Lord Rodger at paragraph 81 in G and paragraph 25 of the judgment of Hughes LJ in AY. As Miss Whitehouse submitted, it may not be helpful to draw analogies with cases where it has been decided a reasonable excuse arose: see the observation of Elias LJ in R v Unah [2011] 2 Cr App R 32 at paragraph 8 (in the context of s.25 (5) of the Identity Cards Act 2006).
16. We were referred by Mr Jonas to R v Cugullere (1961) 45 Cr App R 108 where the Court of Criminal Appeal held that the offence under s 1(1) of the Prevention of Crimes Act 1953 of having an offensive weapon in a public place without lawful authority should be read as requiring the Crown to prove that the defendant knowingly had the weapon with him. However, this is of no assistance, as the court was concerned with proof of knowledge for the purpose of proving possession: see Nicholson at paragraphs 11 and 12. The same observation applies to R v McNamara (1988) 87 Cr App 246, possession of dangerous drugs and to the requirement under s.58 of the Terrorism Act where the Crown has to prove that the defendant is aware of the nature of the information contained in the relevant document (see paragraphs 46-7 of G).
17. In my judgment section 1(10) does not require the Crown to prove a specific mental element on the part of a defendant at the time he committed the acts which constitute the breach of an ASBO. However, if the issue of reasonable excuse arises in any given case a defendant can raise his state of mind at the time of the alleged breach since the state of mind will usually be relevant to the issue of reasonable excuse. As the effect of s.1(10) is to criminalise conduct that would otherwise not be criminal (cf paragraphs 10 and 11 of the judgment in Charles), it would not be right, on principle, to exclude matters that go to a defendant's state of mind (such as forgetfulness or a misapprehension about the meaning of the order or an accidental breach). In any event, the decision in Nicholson makes clear that the defendant's state of mind may, if the circumstances warrant, be taken into account.

(c) Lack of reasonable excuse on the part of the appellant

18. By putting forward the explanation that the bag had slipped, the appellant was in effect saying that he had a reasonable excuse as the alarm he had caused had been accidental. In our view given the facts of the case and the age of the appellant, the judge was right in concluding that the issue arose (even though his advocate had not put it forward). The appellant, for the same reasons, had satisfied the evidential burden. The Crown therefore had to prove lack of reasonable excuse.
19. In considering whether the Crown had proved that there was no reasonable excuse in that the bag had not slipped accidentally causing the alarm to the passengers, the judge was entitled to take into account all the circumstances, including the plea to the offence of criminal damage where the appellant had admitted he had acted recklessly. As recklessness in the offence of criminal damage requires a subjective realisation of the risk, the judge was entitled to rely on that plea as an admission that the appellant was aware of the risk of causing criminal damage when he was handling the bag.
20. It was submitted that the judge was not entitled to take into account the fact that the appellant had not given evidence; the submission was that the judge did not have any discretion to take the fact into account as the appellant was 15 and had given an account in the police interview. It is difficult to understand how either of these matters could give rise to circumstances which deprived the judge of his discretion to take the fact the appellant did not give evidence into account. The judge was plainly entitled to do so, though it is not clear from the judgment of the judge the extent (if any) to which he did. In his interview, the appellant did not claim ignorance of the ASBO.
21. As the appellant did not give evidence, there was no suggestion that he had forgotten about the order or misunderstood its terms; nothing was raised in his interview in relation to that; the sole matter put forward in relation to his state of mind was that he did not mean to drop the bag. It is therefore not necessary on the facts of this case to consider whether the Crown would have to show that the appellant knew that it was a breach of the order. There is no evidential basis for the submission made to that effect by Mr Jonas.
22. The judge was therefore entitled, on the basis of the evidence before him and the other matters to which I have referred, to conclude that there was no reasonable excuse as the risk was obvious and the appellant had actually foreseen it. The alarm and distress had not been an accident but was caused by his reckless conduct in breaching the ASBO.

Conclusion

23. It follows therefore, in my view, that the appeal should be dismissed.

Mr Justice Wyn Williams:

24. I agree.