England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2015

Lord Justice Beatson:

I. Introduction

1. This is an appeal by the Director of Public Prosecutions ("the appellant") by way of case stated pursuant to section 111 of the Magistrates Court Act 1980 ("the 1980 Act") in respect of the decision made by District Judge Lower on 11 March 2015 at York and Selby Magistrates' Court. The learned District Judge refused to make a Criminal Behaviour Order pursuant to section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act") in respect of the respondent, Karen Bulmer, now aged 48. The order sought by the prosecution was of unlimited duration, and would have prohibited the respondent from entering the area within the York outer ring road as delineated on a map.
2. The appellant sought the order after the respondent was convicted on 1 December 2014 of breaching an Anti-Social Behaviour Order ("ASBO") imposed on her pursuant to section 1C of the Crime and Disorder Act 1998 ("the 1998 Act") at the Leeds Magistrates' Court on 8 August 2012. The appellant did so because the power to make ASBOs was abolished by paragraph 24(a) of Schedule 11 to the 2014 Act and replaced by the power to make a Criminal Behaviour Order. Existing ASBOs remained in force, but section 33 of the 2014 Act prevented them being varied after the 2014 Act came into force.
3. The appellant's notice was lodged on 18 June 2015. On 2 July the Deputy Master granted the appellant's application for expedition on the ground that the respondent is an alcoholic with a substantial history of offending and causing significant disturbance to members of the public in York, and that she has been found to be in further breach of the ASBO on seven occasions between the District Judge's decision and the time at which expedition was sought.
4. It is submitted on behalf of the appellant that the learned District Judge erred in refusing to make the order in a number of respects, in particular that he considered that the second condition for making a Criminal Behaviour Order was not met because the order sought did not include positive requirements to address the underlying causes of the respondent's anti-social behaviour, i.e. her chronic alcoholism. It is also submitted that the District Judge erred in concluding that dissociating the respondent from the defined area would not help prevent behaviour that was likely to cause distress or alarm, but would relocate it to other places. It was also submitted that the District Judge erred in concluding that other powers, in particular the power to require a person to leave a particular locality for a limited period pursuant to section 27 of the Violent Crime Reduction Act 2006, were an adequate alternative to a Criminal Behaviour Order because section 27 had been repealed by the 2014 Act and, in any event, did not have a pre-emptive status and only enabled exclusion for a period of up to 48 hours.
5. The grounds of appeal also contend that the exclusion requirement was a proportionate response and additionally was both easy to comply with and to enforce. Also, it was submitted that although the respondent's case was that the order was disproportionate because it excluded her from the area in which she lived, there was no proper or direct evidence before the District Judge that she was resident within the exclusion zone. Since, in view of his other findings, the District Judge did not (see below) decide whether the order was a proportionate response, I have construed the grounds as contending that he erred in not so deciding. I observe that the document containing the grounds of appeal does not simply identify the respects in which it is said that the District Judge erred, but includes material describing in part, in general terms, the circumstances giving rise to the appeal in a way that the Vice-President of the Court of Appeal Civil Division deprecated in Rasheed and others v Secretary of State for the Home Department [2014] EWCA Civ 1493 at [12].

II. The 2014 Act

6. The material parts of the 2014 Act are:

"22 Power to make orders

(1) This section applies where a person ("the offender") is convicted of an offence.

(2) The court may make a criminal behaviour order against the offender if two conditions are met.

(3) The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.

(4) The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.

...5) A criminal behaviour order is an order which, for the purpose of preventing the offender from engaging in such behaviour—

(a)prohibits the offender from doing anything described in the order;

(b)requires the offender to do anything described in the order.

…

(9) Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid—

(a) any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment;

(b) any conflict with the requirements of any other court order or injunction to which the offender may be subject.

…

24 Requirements included in orders

This sectionnoteType=Explanatory Notes has no associated

(1) A criminal behaviour order that includes a requirement must specify the person who is to be responsible for supervising compliance with the requirement.

The person may be an individual or an organisation.

(2)Before including a requirement, the court must receive evidence about its suitability and enforceability from—

(a) the individual to be specified under subsection (1), if an individual is to be specified;

(b) an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.

…

These obligations have effect as requirements of the order."

III. The factual background and the evidence

7. The material facts, taken from the case stated (paragraph numbers below are references to paragraphs in the case stated), are:

(1) Ms Bulmer is a chronic alcoholic who struggled on a daily basis to avoid drinking alcohol or to behave in a way that did not cause a nuisance to others (paragraphs 8 and 23).

(2) On 8 August 2012, at the Leeds Magistrates' Court, at which Ms Bulmer had been convicted of an offence of disorderly behaviour while drunk, the court, on the application of the local authority, made an ASBO under section 1C of the 1998 Act. "The terms of that ASBO were that Ms Bulmer was prohibited from (a) acting in a manner which is likely to cause harassment, alarm or distress to any members of the public within the area of England and Wales, (b) approaching any person not known to her and request, ask, demand or beg money or other item within the area of England and Wales and (c) be in possession of any open container of alcohol in a public place. The [ASBO] was ordered to expire on 7 August 2017" (paragraph 4).

(3) On 1 December 2014, Ms Bulmer appeared before the Justices sitting at York and Selby Magistrates' Court charged pursuant to section 1(10) of the 1998 Act with breaching the terms of the ASBO on 28 November 2014 (paragraph 3).

(4) "The alleged breach of the ASBO … was that the offender had been seen to drink from a can of lager at the entrance to a museum in York. The police were called by a supervisor at the museum and Ms Bulmer was arrested on suspicion of breaching the ASBO. She was interviewed under caution and told the police that she couldn't remember the incident. On appearing in court she pleaded guilty to the offence. She was sentenced to one day's detention in the court cells, which the Justices deemed to have been served, given the time she had spent in police custody from arrest to first appearance" (paragraph 5).

(5) "At the conclusion of the hearing, the prosecution served an application for the Criminal Behaviour Order, which was adjourned and came before [the District Judge] on 11 March 2015" (paragraph 6).

(6) "… [T]he prosecution relied on a number of witness statements, a schedule of 47 instances of Ms Bulmer's behaviour dating from 7 May 2014 until 5 February 2015 and her previous convictions. The defence did not dispute the alleged behaviour described in the application and the application proceeded by way of submissions" (paragraph 7).

(7) Ms Bulmer "had been found in possession of open containers of alcohol in York on a regular basis since the date the [ASBO] was imposed. On a number of occasions she had been abusive to members of staff at hotels, cafes and shops in York. This had taken place in the presence of customers, including children. On one occasion Ms Bulmer had entered a restaurant and urinated in view of customers. On another occasion, following an altercation with a man over a bottle of cider, Ms Bulmer's trousers had fallen below her buttocks and she exposed herself to passing members of the public. Further, Ms Bulmer had helped herself to loose change that members of the public had placed in the collection case of a street performer. She had stolen food and alcohol from a number of shops in York. The last incident upon which the prosecution relied took the form of Ms Bulmer lying on the floor of a taxi office, preventing staff and customers from entering" (paragraph 8).

(8) "Not all, but most of these incidents, had resulted in Ms Bulmer's arrest, prosecution and conviction for breaching the ASBO. In the main, this had resulted in her being sentenced to detention in the court cells for the day of her appearances before the Justices. On 7 March 2015, she had entered a guilty plea to a further breach of the ASBO, and the Justices sitting at York and Selby Magistrates' Court had sentenced her to ten weeks imprisonment. She therefore was produced from custody for the purposes of the application for the order on 11 March 2015" (paragraph 9).

(9) "Between 10 October 1995 and 6 February 2015, Ms Bulmer had been sentenced on 320 occasions for 457 offences. The list of previous convictions that the prosecution relied upon was not up-to-date. Relying on that list, however, it was possible to establish that since the imposition of the ASBO in 2012, Ms Bulmer had been sentenced for breaching it on at least 39 occasions, up to and including 6 February 2015. The majority of the breaches had occurred in York" (paragraph 10).

(10) Before 11 March 2015, Ms Bulmer had appeared before the District Judge in custody on 10 and 24 July, 20 November and 11 December 2014, and that on each of those occasions except 24 July 2014 she gave her address as "no fixed abode". On 24 July she gave an address in Leeds. (paragraph 29).

(11) Since 8 August 2012, when the ASBO was made, Ms Bulmer had appeared at magistrates' courts on 57 occasions. 35 of these appearances had been before the York and Selby Magistrates' Court, of which 34 were between 7 July 2014 and 6 February 2015. She also appeared before Justices at Harrogate and Skipton, Fylde Coast, Calderdale, Leeds, Wakefield and Pontefract, and Bradford and Keighley Magistrates' Court, for breaches of the order. (paragraphs 30, 31 and 36)

(12) "The prosecution sought an order, unlimited in terms of duration, which would prohibit Ms Bulmer from entering the city of York, defined as the area bounded by the A64 and A1237, more commonly known as the York Outer Ring Road. A map delineating this area was attached to the application served by the prosecution" (paragraph 11).

8. The evidence before the District Judge included:

(1) Two statements of Sergeant Skeoch. The first (see paragraph 18) is dated 30 November 2014 stated that police records indicated that Ms Bulmer had been resident in Leeds since at least 2007. The second (see paragraph 25) is dated 14 February 2015 and inter alia recorded that Ms Bulmer had declined or refused hostel accommodation in Leeds and elsewhere in West Yorkshire over a period from October 2013 to November 2014.

(2) A statement of Acting Police Inspector Godfrey dated 29 January 2015. This (paragraph 18) recorded that, after being charged in York on 24 January 2015 with breaching the ASBO, Ms Bulmer had been bailed to reside at an address in York by a custody sergeant who was not aware of the draft terms of the proposed Criminal Behaviour Order. It is recorded in the statement that the custody sergeant must have decided that Ms Bulmer deserved a chance to curb her behaviour by bailing her to that address.

(3) A statement from a neighbourhood safety manager who had visited the bail address and had ascertained from the tenant of the property that he had offered his address to Ms Bulmer because he did not want her to be refused bail and that she had not stayed at the address since being bailed (paragraph 27).

IV. The decision below

9. The findings of fact: The District Judge found (at paragraph 24) that, although Ms Bulmer could not provide a long-established stable address, she was habitually resident in York and had ties to the city. He stated that Sergeant Skeoch's first statement may have reflected the position as far as the police were concerned as at 30 November 2014, but did not set out how the police knew that Ms Bulmer was resident in Leeds until that date. He also stated at paragraph 25 that Sergeant Skeoch's second statement (see [8(1)] above) recording that Ms Bulmer had declined or refused hostel accommodation in Leeds and elsewhere in West Yorkshire over a period from October 2013 to November 2014, suggested to him that her ties to Leeds were not strong.
10. With regard to the evidence concerning bailing Ms Bulmer to an address in York in January 2015 summarised at [8(2)] and [8(3)] above, the District Judge observed (paragraph 26) that the way the custody sergeant had reached the conclusion that doing so would curb her behaviour was not explained to him in evidence or in submissions. He found (paragraph 28) that, despite the evidence about that address, the police seemed to accept that Ms Bulmer had some ties to York if she could offer an address in the city to which the police were content to bail her.
11. The District Judge stated (paragraph 29) that, in view of the number of occasions Ms Bulmer had appeared before him at York Magistrates' Court, he took judicial notice of the fact that she appeared to have additional ties to York, as opposed to West Yorkshire. He considered that entitled him to find she was resident in York. He also took into account (paragraph 30) of the fact (see [7(11)] above) that of Ms Bulmer' 57 appearances at magistrates' courts since the ASBO was made, 35 had been before the York and Selby Magistrates' Court. He concluded (paragraph 31) that, whether Ms Bulmer was homeless or housed in hostel accommodation, she was sufficiently connected to York to justify a conclusion that she was resident within it for such a period and on such a regular basis that she could be described as a resident of the city.
12. The findings of law: The District Judge's key finding is contained in paragraph 32 of the case stated. This states:

"I found that Parliament, in enacting the [2014 Act] had decided that the conditions to be satisfied before a Criminal Behaviour Order was imposed were different to the conditions to be satisfied before its predecessor, the Anti-Social Behaviour Order, was imposed. The latter required, pursuant to section 1C(2)(b) of the [1998 Act] that the court considered that an order under that section was necessary to protect persons in any place in England and Wales from further anti-social acts by him. The former removed reference to necessity or protection and specifically required the court to consider that making the Criminal Behaviour Order would help prevent the offender from engaging in behaviour that caused or was likely to cause harassment, alarm or distress to any person (my emphasis)."

He considered (paragraph 33) that the fact that Parliament had made provision for a Criminal Behaviour Order to contain positive requirements, unlike an Anti-Social Behaviour Order, which could only contain prohibitions on behaviour supported his conclusion that Parliament had changed the "emphasis from necessity and protection to help and prevention". He also noted that section 24 of the 2014 Act required the court to specify the person who was "designed" by which he must have meant "be responsible for" supervising the offender's compliance with the requirements.

13. The first condition necessary for a court to make a Criminal Behaviour Order, section 22(3) of the 2014 Act: The District Judge stated that he was satisfied to the criminal standard that this condition was satisfied. The case states (at paragraphs 8, 10, and 21 – 22, see [7(7)], [7(9)] and 7(11)] above) that there had been 39 breaches of the ASBO over a period of less than three years established that Ms Bulmer had engaged in anti-social behaviour that caused or was likely to cause harassment, alarm or distress. The number of breaches since the ASBO was imposed showed that it had acted as no brake on her behaviour.
14. The second condition necessary for a court to make a Criminal Behaviour Order, section 22(4) of the 2014 Act: In considering whether the second condition was met in Ms Bulmer's case, the District Judge referred to the matters listed below and reached the conclusions summarised:

(1) The proposed order sought only to exclude Ms Bulmer from the city centre. There was no positive requirement suggested that would seek to tackle her longstanding difficulty with alcohol and thus help prevent her from engaging in further anti-social behaviour by addressing the route cause of it. (paragraph 34)

(2) Ms Bulmer's non-compliance with the ASBO and the fact that she had appeared in courts in other parts of Yorkshire for breaches of it. This, he stated, meant that there was no basis to conclude that making the Criminal Behaviour Order in the terms sought would help prevent her from engaging in anti-social behaviour: paragraphs 35 - 36. Even if she was excluded from the city centre of York and complied with that exclusion, in the light of her deep-seated difficulty with alcohol and past behaviour, there was every reason to believe that the effect of the order would be to displace her drink-related offending elsewhere, and this would not help prevent her from engaging in anti-social behaviour. He concluded that to exclude her from York city centre would "simply serve to transplant her anti-social behaviour elsewhere and not help prevent her from engaging in such behaviour". For that reason, he found (at paragraph 37) that disassociating Ms Bulmer from her ties in York would not help prevent her from engaging in further anti-social behaviour.

(3) The powers in section 24(1) of the Police and Criminal Evidence Act 1984 to arrest a person who there were reasonable grounds to suspect was about to commit an offence and in section 27 of the Violent Crime Reduction Act 2006 ("the 2006 Act") requiring a person to leave a particular area and not to return for a period of up to 48 hours. The District Judge stated (paragraph 38) that if the police had reasonable grounds to suspect that Ms Bulmer was about to breach the ASBO or commit another offence in York, they were already able to take action to prevent this. She had previously been issued with a direction by the police in York pursuant to section 27 of the 2006 Act requiring her to leave a particular area and not to return for a period of up to 48 hours, and had complied with that direction, so that (see paragraph 40) this was therefore a power that remained open to the police to use in future to prevent Ms Bulmer from engaging in alcohol-related disorder.

For those reasons, the judge concluded (paragraph 41) that he was not satisfied that the second condition, that section 22(4) of the 2014 Act, was satisfied.

15. Proportionality: In view of the District Judge's conclusion that the condition in section 22(4) of the 2014 Act that is necessary to make a Criminal Behaviour Order was not met, he did not (see paragraph 42) decide whether the proposed terms of the order amounted to a necessary, proportionate or reasonable interference with Ms Bulmer's human rights.

V. The questions of law for the opinion of this Court

16. The District Judge invited this Court to provide an opinion on six questions of law. They are:

(1) Is it correct that section 22(4) of the [2014 Act] does not impose any burden of proof upon the prosecution, nor any standard of proof, as to whether the court hearing the application considers that making the order will help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person.

(2) Was [the District Judge] correct to conclude by the use of the word 'consider' within that section Parliament required only that, if the Court was satisfied that the first condition for making the order was satisfied, that is, that pursuant to section 22(3) of the [2014 Act], that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, then it was a matter within that court's discretion, on consideration of the facts of the individual application and upon taking into account any information that is available in respect of the offender, whether making the order will help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm, or distress to any person

(3) As, pursuant to s.22(5)(b) of the [2014 Act], the order can include positive requirements , as well as negative requirements or prohibitions, pursuant to s.22(5)(a), was it permissible, in refusing to make the order in the terms sought by the prosecution because the court did not consider that making the order would help prevent the offender from engaging in anti-social behaviour, for the court to take into account that the prosecution sought an order that prohibited Ms Bulmer from entering a geographical area rather than an order that positively required her to do any particular thing?

(4) Was it correct in law for the court, in refusing the application for the order, to take into account past failures of the offender to comply with court orders and therefore to conclude that making the order with a negative requirement would not help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person?

(5) Was it correct, in making the decision to refuse the order, to take into account that the offender was already subject to an Anti-Social Behaviour Order that would enable the police to arrest her if they had reasonable grounds to suspect that she had committed the offence, or was about to commit the offence of breaching that order?

(6) Was the court entitled to consider the provisions of section 27 of the Violent Crime Reduction Act 2006, in making that decision?

VI. Analysis

17. This appeal is concerned with the second condition that has to be satisfied before a court is empowered to impose a Criminal Behaviour Order, that in section 22(4) of the 2014 Act. The District Judge was absolutely correct in concluding that the first condition, that in section 22(3) of the 2014 Act, was met. The respondent had been sentenced on 320 occasions for 457 offences between October 1995 and February 2015 and had been sentenced for breaching the ASBO on at least 39 occasions since it was imposed. The vast majority of the breaches of the order had occurred in York. The respondent had clearly engaged in behaviour that had caused, or was likely to cause, harassment, alarm or distress to any person.
18. At the heart of the appellant's case is the submission that the judge erred in finding (see [11] above) that the 2014 Act had changed the emphasis when making such Orders from "necessity and protection" to "help and prevention". Mr Atkinson submitted that the focus of the power remained the protection of victims from harassment, alarm or distress. The reason for the change from the requirement in section 1C of the 1998 Act that an Order be "necessary to protect" persons from further anti-social acts to the requirement in the 2014 Act that the Order "will help in preventing the offender from engaging in such behaviour" was, he submitted, to reduce the hurdle that had to be overcome. He submitted that making the order would help in preventing Ms Bulmer from engaging in such behaviour, as it would enable the police to arrest her on sight should she be within the York city centre, rather than the police having to wait until she had engaged in behaviour which amounted to a breach of the ASBO. This, he maintained, would have the effect of alleviating harassment, alarm and distress that could otherwise be caused to residents of York as a result of her behaviour (paragraph 13).
19. While accepting that statutory guidance cannot determine or alter the meaning of legislation, Mr Atkinson submitted that the statutory guidance, Anti-Social Behaviour, Crime and Policing Act 2014: Reform of Anti-Social Behaviour Powers, issued by the Home Office in July 2014 was of assistance. The Guidance makes it clear that the protection of the wider public from what he described as the blight of this respondent's behaviour is a legitimate objective of a Criminal Behaviour Order. He relied, in particular, on references at pages 1 and 30 of the document to the reforms design "to put victims at the heart of the response to anti-social behaviour" and the fact that the potential impact on victims "will be at the heart of the considerations of the terms of the Order". The guidance also refers (at page 30) to positive requirements which can be included in the Order if the court believes that they will help stop further anti-social behaviour. It states that such requirements should aim to tackle the underlying cause of the behaviour and be tailored to the specific needs of each offender, and gives the examples of attendance at anger management courses for offenders who find it difficult to respond without violence, youth mentoring, substance misuse awareness sessions, and job readiness courses.
20. Although it has been stated (see, for example, R v Thameside MBC, ex p. J [2000] 1 FLR 942 at 951 and Yemshaw v Hounslow LBC [2011] UKSC 3, reported at [2011] 1 WLR 433 at [56]) that statutory guidance can be a helpful aid to the way the legislation is intended to be implemented and be persuasive of the meaning to be given to legislative provisions, it has no special legal status. Accordingly, in construing section 22 of the 2014 Act, I have not taken into account the terms of the guidance.
21. The move from a power which is purely prohibitory to one which can include positive requirements, and the fact that the second condition is that the court considers that "making the Order will help in preventing the offender from engaging in such behaviour" means that the legislative language is a shade less clear than it was under the purely prohibitory regime of the 1998 Act. But I have concluded that the addition of a power to impose positive requirements has not changed the emphasis from "necessity and protection" to "help and prevention" in the way the District Judge considered it had. Parliament was replacing one regime designed to prevent anti-social behaviour with another, more flexible, one.
22. There are two sources of additional flexibility. The first comes from the removal of the requirement that the order be "necessary". I accept Mr Atkinson's submission that the removal of the requirement of necessity was designed to reduce the hurdle required before an Order can be made.
23. The second source of flexibility is the possibility of having positive requirements as well as prohibitions. It was this which influenced the District Judge. Section 22(5) of the 2014 Act does not, however, oblige an order to contain a positive requirement. It simply enables it. That is seen from section 24 which deals with "requirements" and provides for a procedure, evidence about the suitability and enforceability of the requirement (section 24(2)), and (section 24(1)) requires the court making an order including a requirement to specify the person who is to be responsible for supervising compliance with the requirement. Because the obligation under section 24(1) to specify the person who is to be responsible only arises where the order "includes a requirement", it is clear that it is not necessary for there to be a "requirement", that is that there be a positive element to the order.
24. The reference in section 22(4) to "such behaviour" is a reference to the behaviour specified in section 22(3); that is behaviour that caused or was likely to cause harassment, alarm or distress to any person. ASBOs were designed to stop persistent and relatively low-level offending which does considerable damage to the community: see Stevens [2007] EWCA Crim 1128 at [7] and [9]. The wording of section 22(4) of the 2014 Act does not, in my judgment, mean that, where an offender's problem, whether it is a disease, alcoholism or drug addiction, means that he or she is totally unresponsive to an Order and where it is not possible for the underlying cause of the behaviour to be tackled by a positive requirement, the condition in section 22(4) of the 2014 Act is not met. Such an interpretation would fundamentally narrow the scope of the protection given by the 2014 Act when compared to that given by the 1998 Act.
25. I have summarised paragraphs 33 – 36 of the case stated at [14(2)] above. The District Judge did not explicitly state in those paragraphs that a prohibition without a positive requirement could never meet the condition in section 22(4). But those paragraphs focus on the fact that the Order proposed in this case did not contain a positive requirement that would seek to tackle the respondent's longstanding difficulty with alcohol, and that its effect, if imposed, would be to displace or transplant her drink-related offending and anti-social behaviour elsewhere rather than help prevent her from engaging in the proscribed behaviour. I consider that the District Judge erred by focusing on these elements in the way that he did. They may be relevant in particular circumstances, but the way they are presented in the case suggests that the District Judge in substance regarded them as dispositive. I do not consider that they are.
26. In the light of my conclusion as to the proper interpretation of the condition in section 22(4) of the 2014 Act, I consider that, subject to a qualification, the guidance given in decisions of this court and those of the Court of Appeal Criminal Division on ASBOs is of relevance when considering whether to make a Criminal Behaviour Order. The qualification is that the principles derived from the authorities on ASBOs require modification to reflect (a) the fact that the requirement of "necessity", which caused a certain amount of difficulty, is no longer part of the statutory scheme, and (b) it is now possible to impose positive requirements. The procedural safeguards in section 24 of the 2014 Act must also be taken into account.
27. The next question is whether, as Mr Atkinson submitted, there was no evidence upon which the District Judge could find that the respondent was resident within the exclusion zone. He relied on the Leeds address the respondent gave when the ASBO was imposed in 2012 and Sergeant Skeoch's first statement (see [7(10)] and [8(1)] above). I reject this submission. In the case of a person such as this respondent who is either "street homeless" or generally resides in hostels, it is likely that the evidence as to residence will be tenuous. In this case the District Judge had a number of witness statements in support of the prosecution's case (summarised at [8] above), and a schedule of 47 instances of the respondent's behaviour and her previous convictions. The defence did not dispute the alleged behaviour described in the application and it proceeded by way of submissions. On the evidence before him, the District Judge was, in my judgment, entitled to conclude, for the reasons I have summarised at [11] above, that the respondent could fairly be described as a resident of the city of York.
28. An appellate or reviewing court is generally reluctant to interfere with findings of fact and evaluative judgments made by the primary decision-maker. This is particularly so where the decision-maker has heard oral evidence and has had an opportunity to assess witnesses. A degree of circumspection on the part of an appellate or reviewing court will also be appropriate where, as in this case, the primary decision-maker makes findings on the basis of witness statements and the other material before the court, here the schedule of convictions, and evaluates the evidence in those statements and that material. In this appeal by way of case stated, the appellant did not put those witness statements before this court. Generally speaking, this is not done and there is no need to do so. But the consequence is that this court is not in as good a position as the primary decision-maker to make the evaluation. Moreover, this court is primarily concerned with questions of law.
29. I now turn to the guidance derived from the authorities on ASBOs that is particularly relevant in the circumstances of the facts found by the District Judge in this case, and to the six questions posed by him. It is convenient to consider the first four questions in two pairs, questions 1 and 2, and questions 3 and 4.

Question 1: Is it correct that section 22(4) of the [2014 Act] does not impose any burden of proof upon the prosecution, nor any standard of proof, as to whether the court hearing the application considers that making the order will help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person?

Question 2: Was [the District Judge] correct to conclude by the use of the word 'consider' within that section Parliament required only that, if the Court was satisfied that the first condition for making the order was satisfied, that is, that pursuant to section 22(3) of the [2014 Act], that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, then it was a matter within that court's discretion, on consideration of the facts of the individual application and upon taking into account any information that is available in respect of the offender, whether making the order will help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm, or distress to any person?

30. Unlike section 22(3) of the 2014 Act, which requires the court to be satisfied "beyond reasonable doubt", that is to the criminal standard, that the offender has engaged in the proscribed behaviour, section 22(4) makes no reference to the burden or standard of proof. It is concerned whether, once the gateway in section 22(3) has been passed, the court "considers" that making the order will "help in preventing" anti-social behaviour which caused or was likely to cause harassment, alarm or distress to any person. My starting point is to note that had Parliament wished the criminal standard to apply, it could have used the appropriate language. Moreover, it is of significance that the inquiry under section 22(3) is a factual one whereas that under section 22(4) is one of judgment and evaluation.
31. Because the nature of the exercise under section 22(4) is evaluative, what the Criminal Division of the Court of Appeal stated in Boness [2005] EWCA Crim 2395; [2006] 1 Cr App R (S) 120 about the burden of proof when considering whether to impose an ASBO under the 1998 Act is of assistance. Delivering the judgment of the Court, Hooper LJ stated (at [16]) that the test for deciding whether an ASBO was "necessary" to prevent the proscribed conduct "required an exercise of judgment or evaluation and did not require proof beyond reasonable doubt". He also approved of the statement of the court in McGrath [2005] EWCA Crim 353; [2005] 2 Cr App R (S) 85 at [12] that ASBOs should be treated with a proper degree of caution and circumspection and are not lightly to be imposed.
32. I concluded at [22] above that the fact that the 2014 Act, unlike the 1998 Act, is concerned with whether the order will "help" to prevent the proscribed behaviour rather than whether it is "necessary" to do so, has lowered the hurdle that has to be overcome. The lowering of the hurdle has not changed the nature of the exercise. It remains one of judgment and evaluation so that what is said in the decisions on ASBOs about such a process remains relevant. Although I do not accept Mr Atkinson's submission that the move from "necessary" to "help" is inconsistent with raising the standard of proof required, it does point against doing so.
33. I turn to question 2, whether the word "consider" in section 22(4) means that, once the requirement in section 23(3) is met, it is a matter for the court's discretion, whether the facts of the individual case mean that making the order will help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm, or distress to any person. The nature of the exercise is also relevant here. So is the fact that, even if the requirement in section 22(4) is met, the statute does not expressly require the order to be made. Section 22(2) provides that the court "may" make the order, not that it "must" do so.
34. Since what the judge has to consider is an evaluative and judgmental exercise, although, as Rix LJ stated in Leeds City Council v Fawcett [2008] EWCA Civ 597 at [19] "not a matter of pure discretion" the trial judge's conclusion arises out of the findings of fact made by him and his "evaluation of all the matters before him". The consequence is, as Rix LJ stated at [20], that the limits which curtail the interference by an appellate court in such an evaluation and disposition:

"… make it extremely difficult for [an appellate] court to interfere in the judge's evaluation unless the court can see that the judge has plainly erred in some way, either in his assessment of the facts or in applying the wrong test or leaving out of account matters which he was required to take into account."

At [27] his Lordship stated that:

"[Q]uite apart from general principles which discourage [an appellate] court from interfering with a judge who has heard and evaluated the witnesses on both sides of the argument before him before coming to his conclusions, and has had to make an evaluative judgment such as is involved in the questions of necessity and proportionality, it would be very undesirable if [the Court of appeal] were, save in a plain case, to be asked to second-guess a judge dealing with an ASBO on the detailed prohibitions of his order."

35. To conclude, on question 1, section 22(4) of the 2014 Act does not expressly impose any burden of proof upon the prosecution. While the court hearing an application for a Criminal Behaviour Order should proceed with a proper degree of caution and circumspection because such orders are not lightly to be imposed, satisfaction to the criminal standard is not required in what is an evaluative exercise.
36. On question 2, the matter is not one of "pure discretion". Unless, however, the court hearing an appeal concludes that the judge has plainly erred in some way, either in his assessment of the facts or in applying the wrong test or leaving out of account matters which he was required to take into account, it should not interfere with his conclusion. I add one qualification to what Rix LJ stated about not interfering with the detailed provisions of an order, and second-guessing the judge's evaluation. The decisions on ASBOs show that an appellate court will, while giving due weight to the evaluation of the judge be particularly concerned about the proportionality of an order. This is seen from the cases in which an appellate court has narrowed the area of an exclusion zone, as in Barclay [2011] EWCA Crim 32; [2011] 2 Cr App R (S) 67 where the court reduced the area from which the appellants were excluded to a smaller one bounded by specified roads. It is also seen where a particular restriction is removed or refined to ensure that the order is better tailored to the anti-social behaviour of the particular offender, as in Boness where the court targeted the order of two of the offenders more closely to football matches.

Question 3: As, pursuant to s.22(5)(b) of the [2014 Act], the order can include positive requirements, as well as negative requirements or prohibitions, pursuant to s.22(5)(a), was it permissible, in refusing to make the order in the terms sought by the prosecution because the court did not consider that making the order would help prevent the offender from engaging in anti-social behaviour, for the court to take into account that the prosecution sought an order that prohibited Ms Bulmer from entering a geographical area rather than an order that positively required her to do any particular thing?

Question 4: Was it correct in law for the court, in refusing the application for the order, to take into account past failures of the offender to comply with court orders and therefore to conclude that making the order with a negative requirement would not help prevent the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person?

37. As far as question 3 is concerned, in circumstances in which the evidence shows that a positive requirement would help prevent a person from engaging in anti-social conduct, the absence of such a requirement is a factor that can be taken into account in deciding whether to refuse to make an order. But, for the reasons I have given at [21] – [26] above, since there has been no change in the emphasis of the legislation from "necessity and protection" to "help and prevention" it is impermissible to regard the absence of such a requirement as dispositive.
38. The District Judge was clearly influenced by his conclusion (see [14(2)] above) that to exclude the respondent from York city centre would "simply serve to transplant her anti-social behaviour elsewhere and not help prevent her from engaging in such behaviour". While, as Mr Atkinson accepted, this is a factor the judge is entitled to take into account, this will always be a question when dealing with the question of an exclusion area which is not imposed to protect a particular target of the offender's anti-social behaviour.
39. It has to be recalled that the vast majority of the respondent's anti-social behaviour and breaches of the order took place in the centre of York. If the fact that she would simply move her anti-social activities to another location is seen as an important factor against making the order that was sought, the court would in effect be deciding not to protect those in her primary area of activity.
40. One of the factors the courts have emphasised when considering exclusion areas in ASBOs is the clarity they provide as compared with prohibitions of certain sorts of behaviour. Such prohibitions are difficult to police and those subjected to them may find it difficult to assess whether they are breaching the order because of their disabilities or other problems, whether alcoholism, drug addiction or something else: see Boness at [18], [38] and [46] and Leeds City Council v Fawcett at [14] (quoting paragraph 7 of the judge in that case's decision), [24] and [27]. In Barclay Cranston J, delivering the judgment of the Court of Appeal Criminal Division, stated at [19] stated that the order "must be precise and capable of being understood by the person subject to it".
41. With regard to question 4, I accept Mr Atkinson's submission that the fact that a person has not responded to orders and other disposals in the past is not in itself a reason for deciding not to make an order. In Barclay it was stated at [33] of the appellant Campbell that "the judge could well have concluded that that the ASBO was necessary because the custodial sentence would not have the desired effect given Mr Campbell's failure to respond to previous sentences of detention and community punishment but that an ASBO "might be a useful tool to thwart any future attempts on his behalf to embark on the path to further offending". Failure to respond to an order may indeed be a reason for varying the order or imposing a new one with different prohibitions and, if applicable, requirements.
42. As to the respondent's failure to respond to the order, Mr Atkinson referred to the fact that it appears that, with one exception in July 2014 and a number of remands in custody for a few days pending sentence, the York and Selby Magistrates' Court generally sentenced the respondent to one day's detention in the court house. He submitted that this appeared not to reflect the Sentencing Guidelines Council's Definitive Guideline on Breach of an Anti-Social Behaviour Order. At page 8 it is stated that the starting point where there is a lesser degree of harassment, alarm or distress is six weeks custody and that a history of disobedience to court orders, the fact the breach was committed shortly after the order was made and that it was committed subsequently to earlier breach proceedings from the same order are aggravating factors. It does not appear from the case stated that, when making the application for the imposition of a Criminal Behaviour Order on the respondent, this point was relied on as a justification for making the order. In those circumstances, while Mr Atkinson may be correct in considering that it appears that the practice did not reflect the approach in the Guideline, this does not assist him.
43. In my judgment, the considerations that were canvassed in relation to these two questions are ones that are of significance not only in considering whether the condition in section 22(4) has been met, but also in the assessment of the proportionality of an order. As I have said, notwithstanding the evaluative nature of the process and what Rix LJ stated about not second-guessing the details of an order, the courts have scrutinised orders in order to assess their proportionality. Despite such scrutiny, there are examples of orders with wide exclusion zones, for instance the centre of High Wycombe in Stevens. There are also examples of exclusion from the area in which the offender or his family lives. For example, Campbell, one of the appellants in Barclay lived in the exclusion zone (see [36]) but the court did not regard his exclusion from the area as disproportionate. It must, however, be emphasised that the order must be tailored to the specific circumstances of the person on whom it is to be imposed, and that assessments of proportionality are intensively fact sensitive.

Question 5: Was it correct, in making the decision to refuse the order, to take into account that the offender was already subject to an Anti-Social Behaviour Order that would enable the police to arrest her if they had reasonable grounds to suspect that she had committed the offence, or was about to commit the offence of breaching that order?

44. I consider that this is a matter that the judge considering whether to make an order is entitled to take into account as part of his evaluative exercise. I make two observations. The first is that the guidance from the cases is that the orders need to empower the police to take action before the anti-social behaviour they are designed to prevent takes place. The discussion in Boness is instructive. Hooper LJ, delivering the judgment of the Criminal Division, stated at [35] that an order imposed on a person who causes criminal damage by spraying graffiti preventing him or her from being in possession of spray paint in a public place gives the police the opportunity to take action in advance of the actual spraying or acts of preparation. The court also considered the analogy with bail conditions useful, stating at [38] that prohibiting a person from contacting prosecution witnesses or entering an area near the alleged victim's home enables the police to act before the person on bail has tampered with a witness or committed a further offence. My second observation is that the considerations of clarity and certainty to which I have referred suggest that relying on the ordinary power of the police to arrest on reasonable suspicion may be insufficient to provide pre-emptive protection from a person with a history of anti-social behaviour to those who are or are likely to be affected by the behaviour.

Question 6: Was the court entitled to consider the provisions of section 27 of the Violent Crime Reduction Act 2006, in making that decision?

45. I consider that the court was entitled to consider that the respondent had responded to and complied with a direction under section 27. However, in stating (as he did in paragraph 39 of the case) that "this was a power that remained open to the police to use in future" the District Judge erred because on 20 October 2014 that provision was repealed by paragraph 45 of Schedule 11(1) to the 2014 Act.

Proportionality

46. Finally, there is the question of proportionality I have stated that I construed the grounds of appeal as contending that the District Judge erred in not considering and deciding whether the order sought was a proportionate restriction on the respondent. Mr Atkinson's written submissions were that the proposed interference with Ms Bulmer's right to respect for her private life under Article 8 of the European Convention on Human Rights ("ECHR") and her right to freedom of movement (Article 2 of Protocol 4 of the ECHR) by excluding her from York city centre was necessary, proportionate and reasonable. The distress caused to the people of York, he argued, outweighed the rights of Ms Bulmer to access the city, especially when it was not clear why she needed to access the city (paragraph 17).
47. In view of my conclusion that the District Judge erred in his approach to the statute, and the fact that he did not conduct an assessment of the proportionality of the order, it is not necessary for me to deal with this. Had the District Judge concluded that the condition in section 22(4) of the 2014 Act was met, he would have had to consider its proportionality. I have briefly referred to the approach to the proportionality of ASBOs in the decided cases. It is not necessary to go further.

VII. Conclusion

48. For the reasons I have given, the answers to the questions posed are:

Question 1 (see [30] – [35] above): Section 22(4) of the 2014 Act does not expressly impose any burden of proof upon the prosecution. While the court hearing an application for a Criminal Behaviour Order should proceed with a proper degree of caution and circumspection because such orders are not lightly to be imposed, satisfaction to the criminal standard is not required in what is an evaluative exercise.

Question 2 (see [36] above): Whether the condition in section 22(4) of the 2014 Act has been met is not a matter of "pure discretion". Unless, however, the court hearing an appeal concludes that the judge has plainly erred in some way, either in his assessment of the facts or in applying the wrong test or leaving out of account matters which he was required to take into account, it should not interfere with his conclusion.

49. Question 3 (see [37] – [40] and [43] above): In circumstances in which the evidence shows that a positive requirement would help prevent a person from engaging in anti-social conduct, the absence of such a requirement is a factor that can be taken into account in deciding whether to refuse to make an order. But, for the reasons I have given at [21] – [26] above, since there has been no change in the emphasis of the legislation from "necessity and protection" to "help and prevention" it is impermissible to regard the absence of such a requirement as dispositive.

Question 4 (see [41] – [43] above): The fact that a person has not responded to orders and other disposals in the past is a relevant factor but is not in itself a reason for deciding not to make an order. It may indeed be a reason for varying the order or imposing a new one with different prohibitions and, if applicable, requirements.

Question 5 (see [44] above): Where a person is subject to an ASBO or a Criminal Behaviour Order, the judge considering whether to vary the order or to make a new order is entitled to take into account as part of his evaluative exercise the power of the police to arrest the person subject to the order where they have reasonable grounds to suspect that the person had committed the offence of breaching the order, or is about to commit the offence. The judge should, however, also take into account that the orders need to empower the police to take action before the anti-social behaviour they are designed to prevent takes place, and the need for orders to be clear and certain for the reasons I have given at [40] and [44] above. The ordinary power of the police to arrest on reasonable suspicion may be insufficient to provide pre-emptive protection from a person with a history of anti-social behaviour to those who are or are likely to be affected by the behaviour.

Question 6 (see [45] above): The District Judge erred in stating that the power under section 27 of the Violent Crime Reduction Act 2006 was one that remained open to the police to use in future because by 11 March 2015, when he was considering the prosecution's application that a Criminal Behaviour Order be made section 27 had been repealed.

Mrs Justice Nicola Davies:

50. I agree.