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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Boness v R [2005] EWCA Crim 2395 (19 August 2005) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2005/2395.html Cite as: [2006] 1 Cr App R (S) 120, [2006] 1 Cr App Rep (S) 120, [2005] EWCA Crim 2395 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
HIS HONOUR JUDGE HOOTON
S2004/0171/0188
ON APPEAL FROM THE CROWN COURT AT CHESTER
HIS HONOUR JUDGE WOODWARD
T20040437
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE RODERICK EVANS
and
MR JUSTICE PITCHERS
____________________
Dean Boness |
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and |
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Shaun Anthony Bebbington Mark Graham Bateman Lee William Schofield Ian Jeremy Stuart Bruce Dale Anthony Cooper Howard John Stocking Thomas Philip Sheridan Russell Keeley Thomas Turner John O'Hanlon |
Appellants |
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- and - |
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THE CROWN |
Respondent |
____________________
MR M SULLIVAN AND MR J REES for the RESPONDENT IN THE APPEAL OF DEAN BONESS
MR G P HENNELL FOR ALL APPELLANTS OTHER THAN DEAN BONESS
Hearing dates : 07/04/2005 , 5/07/2005
Judgment
____________________
Crown Copyright ©
LORD JUSTICE HOOPER:
Boness
"I. This 18 year old appellant pleaded guilty to one count of dwelling house burglary and one of the handing stolen goods in the Basingstoke Magistrates' Court and was committed to the Crown Court for sentence. On 17th December 2004 at the Crown Court at Winchester he was sentenced to a total of three years' custody and made subject to an Anti-Social Behaviour Order for a period of five years to run from the date of his release.
2. The events of burglary were committed during the morning of 23rd October 2004 at an unoccupied house in Basingstoke. The appellant and another entered through a kitchen window and carried out an untidy search, stealing items to the value of £4,800, some of which were of great sentimental value to the owner. When the appellant was arrested a watch which had been taken during the burglary was recovered from him.
3. There was another burglary the next day from a house in Basingstoke. When the appellant was arrested, his home was searched and property from that burglary was recovered. He admitted buying these items knowing they were stolen.
4. The appellant has a number of previous convictions. He was before the courts on six occasions during 2002, 2003 and 2004 for offences involving vehicle crime, attempted burglary, an offence of violence, handling stolen goods and using threatening behaviour. He received a series of community orders and in respect of two of them he was in breach by reason of these offences.
5. The judge heard evidence in addition to that which he found sufficient to make the ASBO as we have indicated. That, as we have also indicated, will be considered in detail and in principle on a later occasion.
6. For the purposes of today's hearing we deal simply with the custodial sentence. It is argued by counsel that the sentence of three years was too long following a very early plea of guilty. Applying the principles contained in the well-known case of McInerney we are satisfied that this sentence for offences in respect of which early pleas had been entered is too long. Bearing in mind the clear refusal of the appellant to comply with community orders, a sentence of custody was inevitable.
7. However, the dwelling house burglary, although of quite high value and causing considerable distress, fell into the category of an offence committed by a first time burglar, albeit with those two aggravating features. There was also the receiving of stolen goods which the appellant must have known had come from a dwelling house burglary. The total sentence appropriate for that offending, in our judgment, would be one of 18 months.
8. We therefore allow the appeal to the extent of reducing the sentences to 18 months and six months concurrently. To that extent, as we say, the appeal in relation to the custodial term is allowed .... "
"The court found that
(i) The defendant had acted in an anti-social manner which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself as shown by:
(a) The present conviction;
(b) His previous convictions; and
(c) The summary of anti-social behaviour acts set out in the request form attached .
And that
(ii) an order was necessary to protect persons in England and Wales from further anti-social acts by him.
It is ordered that the defendant, Dean Boness is prohibited from:
In England and Wales:
Entering any public car park within the Basingstoke and Deane Borough Council area, except in the course of lawful employment.
Entering any land or building on the land which forms a part of educational premises except as an enrolled pupil with the agreement of the head of the establishment or in the course of lawful employment.
In any public place, wearing, or having with you anything which covers, or could be used to cover, the face or part of the face. This will include hooded clothing, balaclavas, masks or anything else which could be used to hide identity, except that a motorcycle helmet may be worn only when lawfully riding a motorcycle.
Having any item with you in public which could be used in the commission of a burglary, or theft of or from vehicles except that you may carry one door key for your house and one motor vehicle or bicycle lock key. A motor vehicle key can only be carried if you are able to inform a checking officer of the registration number of the vehicle and that it can be ascertained that the vehicle is insured for you to drive it.
Having possession of any article in public or carried in any vehicle, that could be used as a weapon. This will include glass bottles, drinking glasses and tools.
Remaining on any shop, commercial or hospital premises if asked to leave by staff. Entering any premises from which . barred.
Entering upon any private land adjoining any dwelling premises or commercial premises outside of opening hours of that premises without the express permission of a person in charge of that premises. This includes front gardens, driveways and paths. Except in the course of lawful employment.
Touching or entering any unattended vehicle without the express permission of the owner.
Acting or inciting others to act in an anti-social manner, that is to say, a manner that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household.
Congregating in groups of people in a manner causing or likely to cause any person to fear for their safety or congregating in groups of more than SIX persons in an outdoor public place.
Doing anything which may cause damage.
Not being anywhere but your home address as listed on this order between 2330 hours and 0700 hours or at an alternative address as agreed in advance with the prolific and priority offender officer or anti-social behaviour co-ordinator at Basingstoke Police Station.
Being carried on any vehicle other than a vehicle in lawful use.
Being in the company of Jason Arnold, Richard Ashman, Corrine Barlow, Mark Bicknell, Joseph (Joe) Burford, Sean Condon, Alan Dawkins, Simon Lee, Daniel (Danny) Malcolm, Michael March or Nathan Threshie.
This order to run for 5 years after release from custody."
Bebbington and others
Bebbington
Threatening behaviour - Community Punishment Order for 160 hours; anti-social behaviour order for 4 years.
Bateman
Affray - 5 months detention in a young offender institution; anti-social behaviour order for 8 years
Schofield
Affray - 2 years imprisonment; anti-social behaviour order for 10 years
Bruce
Affray - 8 months imprisonment (E.D.R. 7/5/2005); anti-social behaviour order for 10 years
Cooper
Threatening behaviour - Community Punishment Order for 160 hours; anti-social behaviour order for 4 years.
Stocking
Affray - 5 months detention in a young offender institution; anti-social behaviour order for 8 years
Sheridan
Affray - 4 months detention and training order; anti-social behaviour order for 6 years
Keeley
Affray - 5 months detention in a young offender institution; anti-social behaviour order for 8 years
Turner
Affray - 4 months detention and training order; anti-social behaviour order for 6 years
O'Hanlon
Affray - 4 months detention and training order; 6 year antisocial behaviour order.
Carl Graham Wood (d.o.b. 9/10/70) pleaded guilty to affray and was sentenced to 16 months imprisonment and a 10 year anti-social behaviour order.
Graham Jones (d.o.b. 7/12/71) pleaded guilty to affray and was sentenced to 8 months imprisonment and a 10 year anti-social behaviour order.
Adam Paul Futcher (d.o.b. n/k) pleaded guilty to affray and was sentenced to a 4 month detention and training order and a 6 year anti-social behaviour order.
The defendant must not for the duration of the order,
1. Enter any premises for the purpose of attending any football matches in England and Wales that are regulated for the purposes of the Football Spectators Act 1989.
2. On any day that Chester City AFC play at a regulated football match at the Deva Stadium during the period commencing three hours prior to kick off and ending six hours after kick-off, enter any area inside the shaded boundary as defined in the two attached maps.
3. Attend within a 10 mile radius of any premises outside Chester at which football matches are played by Chester AFC on the day of any away match.
4. On any day that England or Wales playa regulated football match in England or Wales, during the period commencing three hours prior to kick-off and ending six hours after lick-off, go within a 3 mile radius of the relevant stadium where the match is being played.
"At about 7pm on 10 January 2004, there was a confrontation between supporters of Wrexham football club and Chester City football club in the centre of Chester. The applicants were all supporters of Chester City and some members of the two rival groups associated themselves with the hard core of the hooligan element attached to both football clubs. The two rival gangs came together through a mutual interest in football and they had stayed together because of a mutual interest in hooliganism and there had been a long-standing and deep antipathy between the two groups.
The supporters of Wrexham had travelled back from a game at Chesterfield and had alighted at the station in Chester. The applicants were drinking in a public house and had been warned by the police not to leave the public house when the police became aware that the Wrexham group were at the station. However, the group did leave the public house and went across the road to the station with the intention of fighting with the group from Wrexham. There was an element of premeditation about the incident because the group left the public house as the group of Wrexham supporters arrived at the station and attempted to leave the station. The group from Chester did not enter the station because the groups were kept apart by police officers.
The actions of the Chester group were caught on CCTV. They were heard responding to the taunts of the Wrexham group and began singing loud and abusive songs. Members of the public, employees at the station and the police officers felt threatened by their actions.
The applicants all played different roles in the incident, some having substantially more involvement than others and, on the prosecution's case, some of the defendants, particularly Wood and Schofield, were the ringleaders and orchestrated the threats of violence. The CCTV evidence was the basis of the prosecution case against the applicants."
ASBOs
"In recent years this phenomenon became a serious problem. There appeared to be a gap in the law. The criminal law offered insufficient protection to communities. Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law failed them."
"If the court considers -
(a) that the offender has acted, at any time since the commencement date [1st April 1999] in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, . alarm or distress to one or more persons not of the same household as himself; and
(b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,
it may make an order which prohibits the offender from doing anything described in the order." (Underlining added)
"The actual and potential consequences for the subject of an ASBO make it ... particularly important that procedural fairness is scrupulously observed."
"In our judgment the following principles clearly emerge:
(1) ...
(2) The terms of the order must be precise and capable of being understood by offender.
(3) The findings of fact giving rise to the making of the order must be recorded.
(4) The order must be explained to the offender.
(5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced."
be reasonable and proportionate;
be realistic and practical;
be in terms which make it easy to determine and prosecute a breach.
identifies elements of best practice adopted within the courts when dealing with the terms of an ASBO. Included amongst these elements are:
the prohibition should be capable of being easily understood by the defendant;
the condition should be enforceable in the sense that it should allow a breach to be readily identified and capable of being proved;
exclusion zones should be clearly delineated with the use of clearly marked maps;
individuals whom the defendant is prohibited from contacting or associating with should be clearly identified;
in the case of a foreign national, consideration should be given to the need for the order to be translated.
living anywhere other than a specified address without the permission of a nominated person;
entering an area edged in red on the attached map including both footways of any road which forms the boundary area;
visiting a named individual unless accompanied by a parent or legal guardian;
associating with a named individual in a public place;
leaving his home between certain hours except in the case of emergency etc.
"Next, it is submitted that [two of] the prohibitions ... are redundant as they prohibit conduct which is already subject to a general prohibition by the Public Order Act 1986 and the Prevention of Crime Act 1953 respectively. In that regard we are by no means persuaded that the inclusion of such matters is to be actively discouraged. So far as more minor offences are concerned, we take the view that there is no harm in reminding offenders that certain matters do constitute criminal conduct, although we would only encourage the inclusion of comparatively minor criminal offences in the terms of such orders."
"In our judgment this decision of the court [in R v. P] and the earlier case of C [C v Sunderland Youth Court [2004] 1 Cr. App. R. (S) 76] serve to demonstrate that to make an anti-social behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised."
"2. Entering any other car park whether on payment or otherwise within the counties of Hertfordshire, Bedfordshire or Buckinghamshire.
3. Trespassing on any land belonging to any person whether legal or natural within those counties.
4. Having in his possession in any public place any window hammer, screwdriver, torch or any tool or implement which could be used for the purpose of breaking into motor vehicles."
"It will be readily observed from a consideration of the Home Office 'Guide to anti-social behaviour orders' that the conduct primarily envisaged as triggering these orders was for a less grave offence than street robbery, namely graffiti, abusive and intimidating language, excessive noise, fouling the street with litter, drunken behaviour and drug dealing. Doubtless in drafting that report the Home Office had in mind that courts have considerable powers to restrain robbers. We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present."
The Dean Boness ASBO
Entering any public car park within the Basingstoke and Deane Borough Council area, except in the course of lawful employment.
"The antecedent information does not state whether any of the vehicle crimes committed by the appellant took place in a public car park. However, it is submitted that it could sensibly be argued that a person intent on committing vehicle crime is likely to be attracted to car parks. The prohibition as drafted does not appear to allow the offender to park his own vehicle In a public car park or, for example, to be a passenger in a vehicle driven into a public car park in the course of a shopping trip. Thus, in the absence of evidence showing that the appellant committed vehicle crime in car parks, there would appear to be a question mark over whether the prohibition is proportional, particularly as prohibition (3) seems to be drafted with a view to allowing the appellant to ride a motorcycle. If the court contemplated the lawful use of a motorbike as an activity which the appellant could pursue, then this prohibition would significantly limit the places he might be able to park it. It is of note that in McGrath the Court of Appeal held a similar prohibition to be too wide, although it covered a much larger geographical area."
Entering any land or building on the land which forms a part of educational premises except as an enrolled pupil with the agreement of the head of the establishment or in the course of lawful employment.
"It is not clear what information provided the basis for making this prohibition. There is nothing in the appellant's previous offending history which suggests that he engages in anti-social behaviour in educational premises. It is submitted that the term 'educational premises' arguably lacks clarity; for example, does it include teaching hospitals or premises where night classes are held? There also appears to be a danger that the appellant might unwittingly breach the terms of the order were he, for example, to play sport on playing fields associated with educational premises."
In any public place, wearing, or having with you anything which covers, or could be used to cover, the face or part of the face. This will include hooded clothing, balaclavas, masks or anything else which could be used to hide identity, except that a motorcycle helmet may be worn only when lawfully riding a motorcycle.
"It is presumed that this prohibition was based upon the assertion that the appellant is forensically aware and will use items to attempt to prevent detection. It is submitted that the terms of the prohibition are too wide, resulting in a lack of clarity and consequences which are not commensurate with the risk which the prohibition seeks to address. The phrase "having with you anything which ... could be used to cover the face or part of the face" covers a huge number of items. For example, it is not unknown for those seeking to conceal their identity to pull up a jumper to conceal part of the face, but surely the prohibition can not have been intended to limit so radically the choice of clothing that the appellant can wear? It seems that the appellant would potentially be in breach of the order were he to wear a scarf or carry a newspaper in public."
Having any item with you in public which could be used in the commission of a burglary, or theft of or from vehicles except that you may carry one door key for your house and one motor vehicle or bicycle lock key. A motor vehicle key can only be carried if you are able to inform a checking officer of the registration number of the vehicle and that it can be ascertained that the vehicle is insured for you to drive it.
" ... the first part of this prohibition has been drafted too widely and lacks clarity."
Having possession of any article in public or carried in any vehicle, that could be used as a weapon. This will include glass bottles, drinking glasses and tools.
67. The respondent submits and we agree:
''that the necessity for such a prohibition is not supported by the material put forward in support of the application. There is very little in the appellant's antecedent history which indicates a disposition to use a weapon. Furthermore, it is submitted that the wording of the prohibition is obviously too wide, resulting in lack of clarity and consequences which are not commensurate with the risk. Many otherwise innocent items have the capacity to be used as weapons, including anything hard or with an edge or point. This prohibition has draconian consequences. The appellant would be prohibited from doing a huge range of things including having a drink in a public bar."
Remaining on any shop, commercial or hospital premises if asked to leave by staff. Entering any premises from which barred.
"The appellant has convictions for offences of dishonesty, including an attempted burglary of shop premises and he has been reprimanded for shoplifting. Thus, there appears to be a foundation for such a prohibition. It is submitted that this term is capable of being understood by the appellant and is proportionate given that it hinges upon being refused permission to enter/remain on particular premises by those who have control of them."
Entering upon any private land adjoining any dwelling premises or commercial premises outside of opening hours of that premises without the express permission of a person in charge of that premises. This includes front gardens, driveways and paths. Except in the course of lawful employment.
Touching or entering any unattended vehicle without the express permission of the owner.
"The appellant has previous convictions for aggravated vehicle taking and interfering with a motor vehicle, and has been reprimanded for theft of a motorcycle. It is submitted that the prohibition is sufficiently clear and precise, and is commensurate with the risk it seeks to meet."
Acting or inciting others to act in an anti-social manner, that is to say, a manner that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household.
Congregating in groups of people in a manner causing or likely to cause any person to fear for their safety or congregating in groups of more than SIX persons in an outdoor public place.
Doing anything which may cause damage.
Not being anywhere but your home address as listed on this order between 2330 hours and 0700 hours or at an alternative address as agreed in advance with the prolific and priority offender officer or anti-social behaviour co-ordinator at Basingstoke Police Station.
Being carried on any vehicle other than a vehicle in lawful use.
Being in the company of Jason Arnold, Richard Ashman, Corrine Barlow, Mark Bicknell, Joseph (Joe) Burford, Sean Condon, Alan Dawkins, Simon Lee, Daniel (Danny) Malcolm, Michael March or Nathan Threshie.
"This prohibition seems to be based on the assertion in PC Woods' document that the appellant is associating with other criminals who were also nominated as persistent prolific offenders. The appellant admitted that the offending spree which recently brought him before the court was the result of being contacted by an old friend. It is submitted that care has been taken to identify the individuals with whom the appellant is not to associate."
Bebbington and others - the ASBOs
On any day that Chester City AFC play at a regulated football match at the Deva Stadium during the period commencing three hours prior to kick off and ending six hours after kick-off, enter any area inside the shaded boundary as defined in the attached map.
On any day that Chester City AFC play at a regulated football match at the Deva Stadium during the period commencing three hours prior to kick off and ending six hours after kick-off, enter any area which is within 100 yards of the main entrance to Chester Station except for the purposes of his work with the Royal Mail.
On any day that Wrexham Town AFC playa regulated football match away from their home stadium during the period commencing three hours prior to kick off and ending six hours after kick off, enter any area inside the shaded boundary as defined in the attached map.
On any day that Wrexham Town AFC playa regulated football match away from their home stadium during the period commencing three hours prior to kick off and ending six hours after kick off, enter any area which is within 100 yards of the main entrance to Chester railway station except for the purposes of his work with the Royal Mail..