Anti-Social Behaviour Orders

ANTI-SOCIAL BEHAVIOUR ORDERS FIRST SUPPLEMENT TO THE THIRD EDITION

Introduction In January 2007 the Judicial Studies Board published the third edition of its guidance on anti-social behaviour orders. This is the first supplement to the third edition and brings the guidance up to date to 30 November 2007.1

A reference to a section number in the left hand margin is a reference to the relevant section of the third edition.

1: Procedure for applying for a civil anti-social behaviour order in a magistrates’ court

1.2 The Local Authorities (Contracting out of Anti-Social Behaviour Order Functions) (England) Order 2007 (SI 1441 of 2007) came into force on 11 May 2007. It confers powers on a local authority to enter into an arrangement with a housing manager (with whom it has already entered into an agreement for that person to manage houses or land on its behalf) whereby that person and his employees will exercise the local authority’s powers relating to anti- social behaviour orders; and applies section 223 of the Local Government Act 1972 (appearance of local authorities in legal proceedings) for that purpose so that such a person and his employees may prosecute or defend proceedings in a magistrates’ court.

2: Conditions for making an order

2.3 Deciding whether the defendant has acted in an anti-social manner

R –v- Gowan [2007] EWCA Crim 1360 The court made an ASBO against the defendant’s wife. The order was quashed because, the defendant’s wife being of the same household as him, there was no power to make it. ASBOs are properly made for the protection of the general public.

4: Ancillary orders

4.4 Parenting orders

Section 24 of the Police and Justice Act 2006 This section was brought into force on 29 June 2007 by The Police and Justice Act 2006 (Commencement No.3) Order 2007 (SI 1614 of 2007). Section 24 inserts in Part 3 of the Anti-social Behaviour Act 2003 two new sections (26A and 26B) so as to enable a local authority or a registered social

1 The JSB is very grateful to Graham Hooper, the Justices’ Clerk for Nottinghamshire, for the preparation of this supplement.

1 landlord to apply to a magistrates’ court for a parenting order against a parent in respect of anti-social behaviour by his or her children, and a new section (26C) so as to enable a local authority or a RSL to apply for such an order as an adjunct to certain proceedings in the county court.

Section 25 of the Police and Justice Act 2006 This section was also brought into force on 29 June 2007 by the above commencement order. Section 25 inserts in Part 3 of the Anti-social Behaviour Act 2003 a new section (28A) so as to make it possible for the Secretary of State to make an order enabling a local authority to contract out to a person specified in the order the functions of applying for parenting orders.

The Magistrates’ Courts (Parenting Orders) (Amendment) Rules 2007 (SI 2222 of 2007) govern the making of applications for parenting orders by local authorities and RSLs under the new sections 26A and 26B of the 2003 Act. The rules came into force on 1 September 2007.

CPR 65.37 – 65.41 govern the procedure in the county court.

5: Evidence

5.4 Hearsay evidence

M –v- DPP [2007] EWHC 1032 See 9.5.

6: Breach and sentencing for breach

6.8 Sentencing for breach: practice (see also Appendix 4 of the main text)

Note that in August 2007 the Sentencing Advisory Panel published a consultation paper on sentencing for breach of an ASBO, the closing date for responses being 9 November 2007. The paper contains extremely useful background reading for anyone concerned with the making or breach of an ASBO but it is not, of course, a definitive sentencing guideline and should not be treated as such. It is available at www.sentencing-guidelines.gov.uk.

Meanwhile the following recent cases on sentencing for breach are arranged according to the severity of the sentence, starting with the lowest.

R –v- Dorothy Evans [2007] EWCA Crim 1158 An 82 year old woman had a history of disputes with her neighbours. These culminated in an ASBO which prohibited her from acting in a manner which caused or was likely to cause alarm, harassment of distress to any neighbour or other person in Park Crescent, Abergavenny. The defendant was prosecuted for six separate breaches of the order. 6 months’ imprisonment was imposed by the court. On appeal the sentence was reduced to 4 months, apparently solely on the grounds of the age of the offender. The court stated that, whilst the impact of the sentence on an elderly person was a

2 relevant factor in determining the term, old age was not a licence to disregard the law.

R –v- Pennington [2007] EWCA Crim 507 The defendant had an unwelcome obsession with the male complainant. Her irrational behaviour led to the making of an ASBO which prohibited her from making contact with the complainant and employees of his company. In due course she breached the order by sending repeated text messages to an employee of the complainant’s firm. She was arrested for breach of the order. The offence came to trial after a substantial delay of nearly 2 years. She was convicted. The sentence of 12 months’ imprisonment was explained by reference to the impact of the offences on the complainant and the long period over which he had had to endure her harassment.

The appeal was allowed. 12 months’ imprisonment was reduced to 5 months. The court found that insufficient account was taken of the fact that no contact had occurred after the defendant’s arrest. The principal aim of the sentence was to prevent further anti-social behaviour. 12 months’ imprisonment was disproportionate to this aim.

R –v- Angol [2006] EWCA Crim 2227 A was subject to an ASBO preventing him from entering certain areas of London. He breached the order on two occasions. He was also convicted of dangerous driving, an offence which was committed some months before the breaches of the ASBO. This was a serious offence involving a high-speed crash in which injuries were caused to two pedestrians. The sentence imposed by the Recorder was 2 years’ imprisonment for dangerous driving and 9 months’ for each breach of the ASBO, both to run consecutively to the first sentence.

The appeal was primarily concerned with the length of the sentence for dangerous driving but the court also addressed the terms for the breaches of the ASBO. These were found to be excessive on the grounds that no criminal offence was committed on the occasion of each breach. 9 months was reduced to 6 months for each. The court made it clear that, despite the fact that these were flagrant breaches, they were not aggravated by the presence of accompanying criminal conduct and therefore shorter terms of imprisonment were justified.

R –v- Noke [2007] EWCA Crim 2043 The defendant was convicted of breach of an ASBO where the conduct complained of amounted to verbal abuse of staff at the offices of the Department of Social Security in Southampton. He was sentenced to 12 months’ imprisonment. On appeal the sentence was found to be disproportionate to the facts of the breach and was reduced to 7 months.

R –v- Cyril John Stevens [2007] EWCA Crim 1128 An ASBO prohibited S from entering the bus station at High Wycombe and being drunk and abusive in a public place. He breached the order by being drunk and abusive in the bus station two days after it was made. The defendant was already subject to another ASBO in similar terms. He was convicted of breach of the two orders and received 8 months’ imprisonment concurrent for each of the two offences.

His appeal relied on three grounds:-

3 1) That the sentence was disproportionate to the seriousness of the breach and the nature of the harm caused; 2) The sentence amounted to inhuman and degrading treatment because imprisonment was inappropriate for someone suffering with alcoholism; and 3) Inadequate credit was given for the guilty pleas.

The appeal was dismissed. The gravamen of the offence related to the continuing suffering of the public from nuisance caused by someone like this man. Even when offences were relatively minor, sentences of this length were justified to prevent further anti-social behaviour. Arguments regarding the human rights of the defendant carried no weight in addressing these issues.

R –v- Donnelly [2007] EWCA Crim 907 An ASBO was imposed which prohibited D from being drunk in a public place in St Ives, Cambridgeshire. It was breached when the defendant was found drunk about 11 months later. The defendant had a bad record of offending and of non-compliance with community orders. He had a conviction for one previous breach of an ASBO. The defendant was sentenced to 10 months’ imprisonment.

The defendant’s appeal focused on the fact that the breach of the order involved no separate offence and no aggravating factors such as abuse of members of the public, violence or other anti-social behaviour. The appeal was allowed to the extent that 10 months was reduced to 9 months. Critical was the fact that the offence was the second breach and was committed whilst the defendant was on bail for other criminal proceedings. Despite the fact that there were no aggravating factors in the breach this offence clearly merited a custodial sentence and no community sentence could be imposed in the alternative due to his previous record.

R –v- Harris [2006] EWCA Crim 1864 The defendant had a long history of committing offences of indecent exposure. He was made subject to an ASBO which prohibited him from approaching females under the age of 16. In breach of the order the appellant approached two girls, aged 12 and 13, at a bus stop. He masturbated in front of them. He was convicted of three offences; breach of the ASBO and two offences contrary to section 11 of the Sexual Offences Act 2003 (sexual activity in the presence of a child). He was sentenced at the Crown Court to 4 years’ imprisonment for breach of the ASBO and 18 months’ imprisonment concurrent for each of the substantive offences.

The defendant appealed on two grounds:-

1) 4 years’ imprisonment was excessive and disproportionate, particularly bearing in mind the short terms found to be appropriate for the substantive offences; and 2) The court failed to give credit for the defendant’s timely guilty plea.

The Court of Appeal applied the reasoning of Judge LJ in R –v- H, Stevens and Lovegrove (see section 6.7 of the main text) and found that the breach was a distinct offence. Accordingly it could not be argued that the sentence was excessive bearing in mind the criminality engaged in on this occasion. However, the court found there was no justification for withholding credit for

4 the early guilty plea and the appeal was allowed in that the sentence was reduced from 4 years to 3 years 4 months.

7: Variation and discharge

7.1 The main provisions

Leeds City Council –v- RG [2007] EWHC 1612 (Admin) In 2004 an order was made by the magistrates’ court in Leeds following a stand-alone civil application. The defendant was then 13 years of age. In 2006, one month before the order was due to expire, the Council sought a variation of the order by an extension of the term to allow the application of the prohibitions for a further 3 years. Despite arguments that the power to vary the order did not include the power to extend the term of the order, the court found that a variation might include an extension of the terms as sought. Such an order could only be made if the party seeking the extension of the order could put material before the court which clearly established that the need for an order continued to exist.

9: Orders on conviction in the Crown Court, a magistrates’ court or a youth court

9.5 Conditions for making an order

Bowker –v- R [2007] EWCA Crim 1608 The defendant was sentenced to 28 months’ detention in a young offender institution for serious gang violence outside a nightclub in Wigan. He was also made the subject of an ASBO which prevented him from entering Wigan between 9.00 pm and 7.00 am, the order being for an unlimited term. The prohibitions were found reasonable. The court expressed some concern over the lack of a fixed term but left the order unaltered on the basis that the order could be modified on the application of the defendant. The court said “…… we do not consider that it would be right to interfere with an order the judge clearly considered to be necessary in the context of the problem of violence in Wigan town centre….”.

R –v- Ward [2007] EWCA Crim 1436 W pleaded guilty to attempted theft. He was sentenced by the Crown Court to a custodial term of three and half years and made subject to an ASBO containing two prohibitions:-

1) Not to enter the Royal Borough of Kensington and Chelsea; and 2) Not to have in his possession or instruct or encourage any person to carry articles for use in connection with the removal of motor vehicle wheels or alloys.

The order was to run indefinitely. The terms were upheld. The indefinite order was amended to one of 10 years’ duration. An indefinite order was found to be disproportionately long.

5 R –v- Frost [2006] EWCA 2705 Offences of violence at a taxi firm in Dawlish resulted in two and half years’ imprisonment plus a five year ASBO which prohibited the defendant from making contact with the taxi firm.

The court held that it was important to examine the impact of a long sentence of imprisonment and assess whether there still remained a necessity to make an order. The circumstances in which such a necessity existed would be limited. The court must have regard to the deterrent effect of the sentence imposed in determining whether the necessity for an order would exist on the release of the defendant (applying R –v- P [2004] Cr App R(S) 63).

M –v- DPP [2007] EWHC 1032 (Admin) The appellant had been made the subject of an ASBO by the Acton Youth Court following conviction for possession of cannabis. The order contained two clauses:-

1) Not to enter an estate as marked on a map appended to the order; and 2) Not knowingly to associate with a person or persons whilst such person or persons were engaged in attempting or conspiring to commit any criminal offence in England and Wales.

The first prohibition was uncontroversial. The second prohibition was the subject of the appeal. There were two grounds of appeal:-

1) That the court made findings having admitted hearsay evidence without compliance with notice requirements; and 2) The term breached the principle that the order should be capable of being understood and complied with by the defendant.

In allowing the appeal the court determined that, whilst notice requirements for adducing hearsay evidence should be complied with in all cases, there was no error in law in proceeding to consider the evidence. The court held that the defendant could have suffered no prejudice through the admission of evidence in this case. However, the court also held that the prohibition was poorly drafted and therefore offended the requirement to be precise, clear and certain. Even if the prohibition was drafted more carefully it would put the defendant in the position of having to make a value judgment whenever he was associating with any person.

N –v- DPP [2007] EWHC 883 (Admin) An ASBO was made following conviction of a youth for disorderly conduct under section 5 of the Public Order Act 1986. The order included a term which prohibited the appellant from “congregating in a group of 3 or more in a public place other than when with adults over the age of 21 years”.

The court was required to consider whether the prohibition was sufficiently clear and proportionate to the risk of further anti-social behaviour found by the court. Although such a term was found to be disproportionate in R –v- Boness and others the prohibition could be amended so as to be justified having regard to the history of the appellant’s behaviour when in the company of others. The prohibition was amended so as to prohibit the defendant from “congregating in a public place in a group of two or more persons in a manner causing or likely to cause any person to fear for their safety”.

6 9.6 Prohibitions in and duration of the order

Bowker –v- R [2007] EWCA Crim 1608 See 9.5 in relation to the issue of duration.

R –v- Ward [2007] EWCA Crim 1436. See 9.5 in relation to the issue of duration.

10: Orders in the county court

10.7 Ancillary orders

See 4.4 in so far as it relates to section 26C of the Anti-social Behaviour Act 2003.

Judicial Studies Board London January 2008