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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lonergan v Lewes Crown Court & Ors [2005] EWHC 457 (Admin) (23 March 2005) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2005/457.html Cite as: [2005] 2 All ER 362, [2005] EWHC 457 (Admin), [2005] 1 WLR 2570 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE MOSES
____________________
ASHLEY LONERGAN |
Claimant |
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- and - |
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(1) LEWES CROWN COURT (2) BRIGHTON & HOVE CITY COUNCIL THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendants Interested Party |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Timothy Otty (instructed by Treasury Solicitor) for the Interested Party
____________________
Crown Copyright ©
Lord Justice Maurice Kay :
"Being in any place other than 30 Stephens Road, or 16 Brentwood Road or 41 Brentwood Road or 35 Hodshrove Road, Brighton (or any other address as directed by the Youth Offending Team), or moving between those addresses, between the hours of 11.30 p.m. and 6.00 a.m.."
In reality, that provision imposes a curfew, not as a sentence upon conviction as can now be done pursuant to section 37 of the Powers of the Criminal Courts (Sentencing) Act 2000, but as part of a civil order which is intended to be preventative rather than penal, but breach of which is punishable as a criminal offence.
"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely –
(a) that the person has acted…..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 such an order is necessary to protect relevant persons from further anti-social acts by him.
(1A) In this section…. 'relevant authority' means –
(a) the council for a local government area….
(3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the local government area…..concerned.
(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an 'anti-social behaviour order') which prohibits the defendant from doing anything described by the order…
(6) The prohibitions that may be imposed ….are those necessary for the purpose of protecting persons….from further anti-social acts by the defendant.
(7) An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.
(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.
(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order."
I now turn to the grounds of challenge.
Ground 1: a curfew is mandatory rather than prohibitory
"Orders should contain prohibitions directed to the anti-social behaviour. Care should be taken not to include by negative prohibitions what in truth amount to mandatory orders to do something specific. In this instance, a condition of residence was imposed by prohibiting M from living other than at one address. It is unnecessary in this case to decide whether the order as granted was outside the Act…."
I find nothing in that passage which is inconsistent with the conclusion I have reached in the present case. In M it was unnecessary to decide the point and it was not decided. In the present case it is necessary to decide it and I have done so. I do not disagree in any way with the first sentence in the citation from the judgment of Newman J.
Ground 2: a curfew is a penalty
"the court by or before which he is convicted may….make an order requiring him to remain, for periods specified in the order, at a place so specified."
Section 37 prescribed a maximum duration of six months for such curfew orders, or three months if the offender is under 16. (Amendments to section 37 by the Criminal Justice Act 2003 have not yet been brought into force). So, it is submitted, if a sentence in the form of a curfew order is penal and cannot exceed six months' duration, by parity of reasoning an order which imposes a curfew for two years, or for longer if the magistrates see fit, must also be penal.
"…..when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequences and to consider its purpose."
Lord Hope of Craighead added (at paras 75-76):
"The defendants say that prohibitions which banish the defendant from an area of the city where he lives, or which expose him to harsher penalties than he would normally face if he commits an offence, have all the characteristics of a penalty for the anti-social acts which he is found to have committed. An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases. But these restrictions are imposed for preventative reasons, not as punishment. The test that has to be applied under section 1(6) is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendant. The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct."
And later (at para 80):
"Section 1(6)…..sets no limits to the prohibitions that may be imposed, except that they must be necessary for the protection of people in the local government area against further anti-social acts by the defendant."
Mr Justice Moses:
LORD JUSTICE MAURICE KAY: In this matter there will be an order reflecting the order that has been drawn up, consequent upon the handing down of the judgment which is now effected. The claim is dismissed and the order makes provision for the legal aid assessment of costs.