QUEEN'S BENCH DIVISION
SITTING AT THE COUNTY COURT AT CARDIFF
2 Park Street
B e f o r e :
B E T W E E N:
291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
MR JONES appeared on behalf of the Respondent
Crown Copyright ©
MR JUSTICE STUART-SMITH:
'The defendant must not:
(1) use or encourage others to use foul, abusive, insulting, offensive, threatening, disorderly, or intimidating language or behaviour in any public place in England and Wales or towards any person including such conduct carried out via social media applications or other means of communication.
(2) be intoxicated through drink or drugs in any public place in England and Wales.
(3) enter any licensed premises in the County of Gwynedd at any time.
(4) congregate in a public place in the county of Gwynedd in a group of three or more persons in a manner causing, or likely to cause any person to fear for their safety.
(5) drive any mechanically propelled vehicle on a public road in England and Wales without being a holder of a valid driving licence and certificate of insurance'.
'(1) On 30 November 2018 an application was made by the respondent for the appellant to be made the subject of a criminal behaviour order in accordance with Section 22 of the Antisocial Behaviour Crime and Policing Act 2014. The application having been made during criminal proceedings that were concluded on 6 August 2018 with the appellant being sentenced to a term of imprisonment in respect of four offences of violence.
(2) we heard the said application on 30 November 2018 and found the following facts:
a. On 6 August 2018 the appellant was sentenced to a total of 23 weeks' imprisonment in respect of four offences of violence, comprising assault occasioning actual bodily harm, assaulting a police officer in the execution of their duty, and two offences of assault by beating.
b. The appellant had entered guilty pleas to all of those offences on the day of trial.
c. On 18 September 2018 the appellant pleaded guilty to a further offence of assault by beating.
d. On 18 September 2018 the appellant had also pleaded guilty to offences of theft, assaulting a police officer in the execution of their duty and two public order offences contrary to Sections 4A and Section 5 of the Public Order Act 1986.
e. The appellant had initially pleaded not guilty to these offences on the basis that he lacked the mens rea to commit those offences. The Court had been informed by the appellant's solicitor prior to the trial date that this argument was not being pursued and the appellant wished to change his plea to guilty to these offences.
f. On 18 September 2018 the appellant was sentenced to 24 weeks' imprisonment in total to be served consecutively to the sentence imposed on 6 August 2018.
g. The appellant had a substantial antecedent record for numerous offences including a number of offences of violence and public disorder. In addition, the record shows offences involving possession of drugs and we noted that one episode of psychosis was drug induced.
h. The appellant has engaged in behaviour that caused and was likely to cause harassment, alarm or distress to many individuals over a long period of time both in regard to the offences before the Court and his previous record of offending.
i. The appellant understands, has insight into, and is responsible for his actions.
j. The appellant is capable of complying with the terms of the criminal behaviour order notwithstanding his ADHD diagnosis.
(3) It was contended by the appellant:
a. The appellant accepts that his behaviour has caused or was likely to cause harassment, alarm or distress to other persons and did not challenge PC3054 Llinos Lake's evidence in this regard.
b. The appellant would not be able to comply with the terms of a criminal behaviour order because of his mental health, particularly during episodes of psychosis when he loses insight and fails to differentiate between right and wrong and difficulty controlling his behaviour.
c. If the appellant's ADHD is not treated properly the making of a criminal behaviour order will inevitably lead to the order being breached by the appellant.
d. Emphasis should be placed on making the appellant engage with an appropriate ADHD service and complying with his medications rather than making him the subject of a criminal behaviour order.
(4) It was contended by the respondent:
a. That the appellant has engaged in behaviour that has caused harassment, alarm or distress to members of the public and the police.
b. Making a criminal behaviour order in the terms sought will help in preventing the appellant from engaging in such behaviour.
d. The psychiatric report when read as a whole did not support the conclusion that the appellant lacked capacity to understand or comply with a criminal behaviour order.
e. The appellant had previously been offered the opportunity to engage with mental health and substance misuse services and not taken those opportunities.
f. That the dissatisfaction expressed by the appellant with regard to the proposed terms of the criminal behaviour order was indicative that the appellant possessed insight and understanding of the proposed terms and effect of a criminal behaviour order.
(6) We were of the opinion that:
a. Having considered the demeanour of the appellant while present in court, the evidence produced by the respondent and, in particular, the report of Dr Moosa, we were of the opinion that:
i. The appellant is capable of both understanding and complying with a criminal behaviour order.
ii. The psychiatric report confirmed the appellant has ADHD and has had two brief episodes of psychosis. One is recorded as being drug induced psychosis in 2010. The second undated psychotic episode is described as being caused by sleep deprivation.
iii. The appellant's psychotic episodes are rare and when he is not psychotic, which is most of the time, he is fully able to comprehend boundaries and what he should and should not be doing (reference, paragraph 12.8 of Dr Moosa's report).
iv. The fact that the appellant is diagnosed as having ADHD is not a reason in itself for not making a criminal behaviour order. Dr Moosa states (paragraph 12.9) that in the absence of treatment for his ADHD it is 'highly likely' that the appellant would breach the terms of the order. This is attributed to impulsivity and being easily provoked, not through lack of understanding of the terms of the order.
v. Dr Moosa also reports (paragraph 12.12) that should the appellant engage in ADHD services having structure and boundaries in place would be beneficial to him.
vi. The opinion of the psychiatrist, taking his report as a whole, is not that the appellant is incapable of understanding or complying with the terms of a criminal behaviour order.
vii. A criminal behaviour order for a period of five years in the terms sought by the respondent would help to prevent further antisocial behaviour by the appellant.
(7) Question for the opinion of the High Court:
a. Were we wrong in law on the information before us to find that the appellant was capable of understanding both what criminal behaviour order meant and what behaviour would breach such order made in the terms sought?'
Dr Moosa's Evidence
'The defendant told me he has had three admissions to a psychiatric hospital. He told me that in 2010 he had a brief drug-induced psychotic episode which resolved fairly quickly. He had a further admission some time later, but he was unable to remember the exact date. He recalls being psychotic, and he believed that this was induced by sleep depravation rather than any illicit drug use.
His third admission to hospital was more recently in 2018 when he was taken on a Section 136 to the local A&E department, as he had attempted to stab himself. He was subsequently discharged from the Section 136 and not admitted to a psychiatric unit'.
'… four offences against a person; two offences against property; 10 theft and kindred offences; four public disorder offences; 11 offences related to the police/courts/prisons; two drug offences; two firearms/shotguns/offences weapons offences; 17 miscellaneous offences; and two non-recordable offences'.
'[ADHD] is a disorder characterised by "hyperactivity, impulsivity and inattention". It starts from an early age and there is lack of persistence in activities that require cognitive involvement, and a tendency to move from one activity to another without completing any one, together with this disorganised, ill-regulated and excessive activity.
Several other abnormalities may be associated. ADHD patients are often reckless and impulsive, prone to accidents and find themselves in disciplinary trouble, because of unthinking breaches of rules, rather than deliberate defiance. Their relationships with adults are often socially disinhibited with a lack of normal caution and reserve. They can be unpopular with others, and they are isolated resulting in self-esteem problems.
Impairment of cognitive functions are common and specific delays in motor and language development are disproportionately frequent. Secondary complications include antisocial behaviour and low self-esteem.
12.4. The [appellant] has had this condition since childhood. Unfortunately, he has not had successful treatment with the couple of medications he has tried …
The [appellant] has not had the benefit of input from a specialist adult ADHD specialist. I would strongly recommend that the defendant has the opportunity to have an assessment followed by treatment in an ADHD clinic. If he was able to do this appropriate treatment such as Elvanse and other ADHD medication may be tried. …
12.5. There is a lot of research showing that untreated ADHD symptoms can cause all sorts of complications, including coming into conflict with the criminal justice system. I note that the defendant has had numerous convictions in the past and has breached various bail conditions and court requirements.
I am in no doubt that his untreated ADHD has contributed significantly to this. Over the years, secondary difficulties, such as antisocial behaviour, low self-esteem, loss of confidence and anxiety symptoms can become co-morbid issues. In addition, some patients can start self-medicating with substances, such as psycho stimulants (cocaine and amphetamines), to make them feel calmer and sometimes cannabis can also help with insomnia. I note that the [appellant] has used all of this in the past'.
'12.6. The [appellant] has previously suffered from brief episodes of psychosis. From the medical records I did note that in 2010 he induced a drug-induced psychosis. However, I was not able to get further information in relation to the other psychotic episode that he described, which was caused by sleep deprivation. However, I do note that he is somewhat vulnerable to developing these psychotic episodes.
12.7 During these episodes of psychosis it is most likely that the defendant would lose insight and would fail to differentiate between what is right and wrong, as he was clearly suffering from delusional ideas at the time of his previous episode. It would be very difficult for him to have insight and to control his behaviour as a result of the psychosis. In these circumstances, it would be unreasonable for him to adhere to the rules set out by the CBO.
12.8 On other occasions when he is not psychotic, i.e., most of the time, the defendant it able to differentiate between what is right and wrong, has insight into his actions, and should be held responsible for his actions. Also, in my opinion, having boundaries can be therapeutic in both antisocial personality traits and in ADHD. In the absence of any treatment for the defendant's ADHD it is highly likely that the defendant, if he is placed on the CBO, would be likely to breach his conditions on a regular and frequent basis. This is due to the fact that he can be very impulsive and easily provoked in situations where others would normally be able to retain calmness and a good degree of control. However, with appropriate treatment and support in place for his ADHD, having such boundaries would be therapeutic in my opinion in the future'.
'12.10 As I mentioned earlier, having the CBO in place without properly treating his ADHD symptoms is just setting the defendant up for failure again in the future. It is highly likely that he will breach the order on numerous occasions, which may result in lengthy custodial sentences. This will, clearly, in my opinion, not address the underlying mental health condition that needs treatment and support.
12.11. Having reviewed the medical reports and assessed the defendant, it is not my opinion that he suffers from a personality disorder. The defendant's antisocial behaviours are, in my opinion, attributed to his untreated ADHD'.
'As I mentioned earlier, once the defendant engages with an ADHD service and benefits from the treatment having structure and boundaries in place in the future would be beneficial to him. However, without the above treatment and control of his symptoms it is my opinion that it is unlikely to work in a patient suffering from moderate to severe ADHD, as in the case of the defendant'.
The Legal Framework
'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'.
'1. A person who without reasonable excuse -
a) does anything he or she is prohibited from doing by a criminal behaviour order, or
b) fails to do anything he or she is required to do by a criminal behaviour order commits an offence'.
'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'.
'In the case of the husband the view of the consultant psychiatrist in charge of his case was that he was incapable within the McNaughton 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 on 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'.
'makes [the appellant] 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, that his behaviour is consequential to his mental health problems': see .
Apparently, in his oral evidence the medical expert had said that the appellant was not capable of complying with the terms of the ASBO and that he would repeatedly breach it.
'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.
'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 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 two 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 antisocial behaviour is not necessary for that purpose, or that the Court should not exercise its discretion to make an order'.
This distinction was subsequently adopted and endorsed by the Divisional Court in Fairweather v Commissioner of Police for the Metropolis  EWHC 3073 (Admin) at -.
Applying the Principles to the Facts of This Case