QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MRS JUSTICE GLOSTER
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|DIRECTOR OF PUBLIC PROSECUTIONS
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Mr A Chalk (instructed by CPS) appeared on behalf of the Defendant
Crown Copyright ©
"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."
"28. (...) Struggling to get access to sufficient amount of cigarettes to satisfy his craving and addiction leading to concerns about begging behaviours in particular."
"Nicotine addiction cannot be underestimated in its severity and the controlling (...) overcoming nicotine addiction (...) persons with learning disabilities and chronic psychiatric (...) such as paranoid schizophrenia is inevitably far more difficult because the former mitigates against (...) ability to deploy willpower and the latter diagnosis is also very much associated with nicotine addiction."
"The imperative to gain nicotine grows and takes over his behaviour subrogating all other needs until satisfied."
"57. Mr Pender has a profound physiological need leading to an imperative need and drive to acquire it at levels that sustain him without going into withdrawals(...)
"59. His begging behaviour is directly driven by his addiction and the imperative to stave off withdrawal symptoms by acquiring nicotine when his supply of cigarettes by legitimate sources is exhausted. The only way he can achieve this is to acquire more cigarettes or financial means to do so by begging. He does not have the capacity to acquire or earn money in any other legitimate way because he is incapable of working due to his mental retardation.
60. The begging therefore can be seen by extension to be a behavioural manifestation of his addiction to nicotine. Begging in this case is a behavioural response determined and obligated by his very limited repertoire of resources due to his mental retardation rather than simply a lifestyle choice."
"(...) lacks the capacity to understand the prohibition properly and in turn lacks the capacity to appreciate the consequences of breaching those prohibitions. Furthermore, because of his essentially untreatable condition and the aggravating effect of his mental retardation he is compelled to seek nicotine by the only means available to him: begging. He will inevitably breach the ASBO and face the consequences."