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England and Wales Court of Appeal (Criminal Division) Decisions


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: http://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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Neutral Citation Number: [2005] EWCA Crim 2395
Case No: 200500/A8, 0500522A9 0500542A9 0500583A9 0500619A9 0500627A9 0500628A9 0500630A9 0502901A9 0502903A9 0502905A9

IN THE SUPREME COURT OF JUDICATURE
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

Royal Courts of Justice
Strand, London, WC2A 2LL
19/08/2005

B e f o r e :

LORD JUSTICE HOOPER
MR JUSTICE RODERICK EVANS
and
MR JUSTICE PITCHERS

____________________

Between:
Dean Boness

and

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
- and -

THE CROWN
Respondent

____________________

MR J.J.G SHARP for the APPELLANT DEAN BONESS
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE HOOPER:

  1. On 7 April 2005 we reduced the sentence of imprisonment passed on the appellant Dean Boness and adjourned the appeal against the making of an anti-social behaviour order ("ASBO") to enable the CPS to instruct counsel who would be able to give us both general assistance about ASBOs and specific assistance about the ASBO in this case. We resumed the hearing on 5 July 2005 and announced, at the conclusion, that the ASBO was quashed for reasons which we would give later. Mr Rees had prepared a comprehensive skeleton argument and we are particularly grateful to him for his help and to those in the Home Office who have assisted him. We have incorporated much of what he wrote into the judgment.
  2. On 5 July we also heard the appeals of Shaun Anthony Bebbington and others. We granted leave to appeal and any necessary extensions of time. At the conclusion of the hearing we announced our decision to reduce the sentence of 2 years imprisonment passed on Lee William Schofield and substitute for it a sentence of 18 months imprisonment. We took the view that a sentence of that length was sufficient. That was the only sentence of imprisonment which we were asked to consider (the other appellants had served their sentences). We quashed all the ASBOs other than those in respect of Schofield and Ian Jeremy Stuart Bruce. In these two cases we announced that we would alter the terms of the orders substantially but, given that we needed further material, we said that the precise detail of the amended orders would be announced with our reserved judgment. We have now received that detail.
  3. Boness

  4. On 7 April Mr Justice Pitchers gave the following reasons for reducing the sentence of imprisonment passed on Boness:
  5. "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 .... "
  6. The ASBO was in the following form:
  7. "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
  8. The appellants are: Regina v Shaun Anthony Bebbington (21), Mark Graham Bateman (19); Lee William Schofield (37); Ian Jeremy Stuart Bruce (now 36); Dale Anthony Cooper (19); Howard John Stocking (19); Thomas Philip Sheridan (17); Russell Keeley (now 20); Thomas Turner (now 18) and John O'Hanlon (17)
  9. On 13 September 2004 at the Crown Court at Chester Bateman, Bruce, Cooper, Stocking, Sheridan, Keeley, Turner and O'Hanlon pleaded guilty. On 17 November 2004 Bebbington pleaded guilty on re-arraignment. On 5 January 2005 Schofield was convicted. On 7 January 2005 (H.H. Judge Woodward) they were sentenced as follows:
  10. 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.
  11. There were three convicted co-defendants:
  12. 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.
  13. The ASBOs were in the terms of a football banning order, the court having no jurisdiction to pass an actual football banning order.
  14. 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.
  15. We take the facts from the CACD summary:
  16. "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."
  17. We have watched the CCTV evidence.
  18. All of the appellants were of good character other than Schofield and Bruce. Schofield had a previous conviction for affray as well as other offences. Bruce had one relevant previous conviction in 2004 for being drunk and disorderly. The authors of the various pre-sentence reports recommended non-custodial sentences given the low risk of re-offending. As the judge said in passing sentence all of the defendants other than Schofield had expressed remorse. Some of the appellants had good character references, including Bruce.
  19. In passing sentence the judge said that the defendants had deliberately left the public house with the intention of fighting the group from Wrexham. There could be no other sensible explanation as to what happened that day and it was clearly shown on the video. He said that the people of Chester and visitors to the city had to know that the Courts would take a firm stand against this type of criminal behaviour. In addition, the evidence at Schofield's trial indicated that the numbers of the younger element in the football hooligans in Chester had grown significantly over the last two years and that was an issue that could not be ignored. The courts would not tolerate such behaviour and a message had to be sent out to people like them that such behaviour would not be tolerated. All bar Schofield had pleaded guilty and they would receive credit for those pleas. Wood was the most prominent of the protagonists. He threw a bottle at the police and he had a bad record for offences of violence, including one for an offence very similar to this. Schofield was not only the oldest of the defendants but he also directed others. He was not shown outwardly playing an active role, but by his mere presence he made sure that others were there. He was seen shouting and on a number of occasions had clearly instructed others to do things and they had followed his lead and instructions. He was the controlling mind behind what was going on. He also had a previous conviction for a very similar offence. The others had all expressed their remorse and had acted out of character.
  20. ASBOs

  21. The power to make an ASBO was introduced by s.1 of the Crime and Disorder Act 1998 (CDA 1998) which came into force on 1st April 1999. In R (McCann and others) v Crown Court at Manchester [2002] UKHL 39; [2003] 1 AC 787 Lord Steyn described the social problem that section 1 of the 1998 Act was designed to address. He referred to the fear, misery and distress that might be caused by outrageous anti-social behaviour, usually in urban areas, often by young persons and groups of young persons. He said:
  22. "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."
  23. There are various procedures which can lead to the making of an ASBO, in particular, that which involves an application by a relevant authority (e.g. a local authority) to a magistrates' court. We are concerned with the power to make an ASBO following conviction for a relevant offence, a power granted to avoid the need to invoke the procedure in the magistrates' court and thus a further hearing. The power was granted by section 1C of the Crime and Disorder Act 1988 ("CDA 1988)", as inserted by section 64 of the Police Reform Act 2002 and amended by section 86 of the Anti-Social Behaviour Act 2003. However the principles are the same irrespective of the procedural route.
  24. Section 1C(2) of CD A 1988 provides:
  25. "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)
  26. An ASBO is an order prohibiting a person from doing the "thing" described in the order.
  27. We deal first with some procedural points. In McCann the House of Lords held that the proceedings on complaint by a relevant authority under section 1 of CDA 1988 were civil in nature, that hearsay evidence was admissible, that the magistrates' court had to be satisfied to the criminal standard that the defendant had acted in an antisocial manner. The test for whether the order was necessary required an exercise of judgment or evaluation and did not require proof beyond a reasonable doubt. In W v Acton Youth Court CO/4026/2004 26/04/2005 the Divisional Court (Sedley LJ and Pitchers J) confirmed that proceedings under section 1 (C) are civil proceedings.
  28. In that case Pitchers J that:
  29. "The actual and potential consequences for the subject of an ASBO make it ... particularly important that procedural fairness is scrupulously observed."
  30. P (Shane Tony) [2004] EWCA Crim 287; [2004] 2 Cr App R (S) 63 Henriques J giving the judgment of the Court (presided over by Lord Woolf CJ) said (paragraph 34):
  31. "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."
  32. Because an ASBO must obviously be precise and capable of being understood by the offender, a court should ask itself before making an order: "Are the terms of this order clear so that the offender will know precisely what it is that he is prohibited from doing?"
  33. The Home Office in a 2002 publication entitled 'A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts' gave examples of the types of anti-social behaviour which the Home Office considered could be tackled by ASBOs. The list (which does not purport to be exhaustive) comprises: harassment of residents or passers-by, verbal abuse, criminal damage, vandalism, noise nuisance, writing graffiti, engaging in threatening behaviour in large groups, racial abuse, smoking or drinking alcohol while under age, substance misuse, joyriding, begging, prostitution, kerb-crawling, throwing missiles, assault and vehicle crime.
  34. Home Office guidance suggests that prohibitions, should amongst other things:
  35. be reasonable and proportionate;

    be realistic and practical;

    be in terms which make it easy to determine and prosecute a breach.

  36. In the report of the working group set up under Thomas LJ there is a section which
  37. 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.
  38. The report of the working group also provides ,examples of general prohibitions imposed by the courts which in their view were specific and enforceable, and could be incorporated in ASBOs in order to protect persons from a wide range of anti-social behaviour. These include conditions prohibiting the offender from:
  39. 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.
  40. An order made under section 1C takes effect on the day on which it was made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody (section 1C(5)). In P the Court observed that where custodial sentences in excess of a few months were passed and offenders were liable to be released on licence (and therefore subject to recall) the circumstances in which there would be a demonstrable necessity to make a suspended anti-social behaviour order, to take effect on release, would be limited, although there would be cases in which geographical restraints could properly supplement licence conditions.
  41. Anthony Malcolm Vittles [2005] 1 Cr. App. R. (S.) 8 is an example of a case in which the Court of Appeal decided that there was a demonstrable necessity to make a 'suspended' ASBO, despite the fact that the appellant was sentenced to a total of three years and ten months' imprisonment. The appellant, who was a heavy drug user, admitted breaking into between 10 and 30 vehicles belonging to American servicemen who lived off airbases used by American forces. The offences involved theft of items from the motor cars to a value of 3,500. In upholding the making of the order, although reducing the term, the Court of Appeal referred to P and said that they took the view that the transient, vulnerable, nature of the American population, specifically targeted by the appellant, made it appropriate that, exceptionally, an antisocial behaviour order should be made, notwithstanding the imposition of a substantial prison sentence.
  42. An order shall have effect for a period (not less than two years) specified in the order or until further order (sections lC(9) and section lC(7)). In Lonergan (Ashley) v (1) Lewes Crown Court (2) Brighton & Hove City Council & Secretary of State for the Home Department (Interested Party) [2005] EWHC 457 (Admin) Maurice Kay L.J. said in the course of delivering the judgment that just because an ASBO must run for a minimum of two years, it does not follow that each and every prohibition within a particular order must endure for the life of the order. Although doubt was expressed about this in the report of the working group set up by Thomas LJ, in our view Maurice Kay LJ is right. It may be necessary to include a prohibition which would need to be amended or removed after a period of time for example when the offender starts work (provided that at least one prohibition is ordered to have effect for at least two years). Maurice Kay LJ also said (paragraph 7) that the statute requires the order to be "substantially and not just formally prohibitory."
  43. There are provisions for applications to vary or discharge an order (see section lC(6) and section 140 of the Serious Organised Crime and Police Act 2005 which inserts section 1 CA into the CDA 1988).
  44. We turn to the requirement that an order can only be made if it is necessary to protect persons in any place in England and Wales from further anti-social acts by the offender. Following a finding that the offender has acted in an anti-social manner (whether or not the act constitutes a criminal offence), the test for making an order prohibiting the offender from doing something is one of necessity. Each separate order prohibiting a person from doing a specified thing must be necessary to protect persons from further anti-social acts by him. Any order should therefore be tailor-made for the individual offender, not designed on a word processor for use in every case. The court must ask itself when considering any specific order prohibiting the offender from doing something, "Is this order necessary to protect persons in any place in England and Wales from further anti-social acts by him?"
  45. The purpose of an ASBO is not to punish an offender (see Lonergan. paragraph 10). This principle follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him. The use of an ASBO to punish an offender is thus unlawful. We were told during the course of argument that the imposition of an ASBO is sometimes sought by the defendant's advocate at the sentencing stage, hoping that the court might make an ASBO order as an alternative to prison or other sanction. A court must not allow itself to be diverted in this way indeed it may be better to decide the appropriate sentence and then move on to consider whether an ASBO should be made or not after sentence has been passed, albeit at the same hearing.
  46. It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent. If following conviction for the offence the offender would be liable to imprisonment then an ASBO would add nothing other than to increase the sentence if the sentence for the offence is less than 5 years' imprisonment. But if the offender is not going to be deterred from committing the offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be thought) further to deter and is therefore not necessary. In P, Henriques J said (paragraph 30):
  47. "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."
  48. We would only make one comment on this passage. The test for making an order is not whether the offender needs reminding that certain matters do constitute criminal conduct, but whether it is necessary.
  49. It has been held, rightly in our view, that an ASBO should not be used merely to increase the sentence of imprisonment which an offender is liable to receive. In Kirby 12005] EWCA Crim 1228 an ASBO had been made prohibiting the offender from driving, attempting to drive or allowing himself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and driving or attempting to drive a motor vehicle until after the expiration of his period of disqualification. As the Court (presided over by Maurice Kay LJ) found, the judge's purpose in making this order was to secure the result that if the appellant committed such offences again the court would not be limited to the maximum penalty for the offences themselves but would be able to impose up to five years' imprisonment for breach of the anti-social behaviour order. David Clarke J giving the judgment of the Court said:
  50. "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."
  51. That decision was in conflict with an earlier decision R. Hall [2004] EWCA Crim 2671 (Hunt and Tugenhat JJ), the correctness of which was doubted by Dr Thomas ([2005] Crim. L. R. 153). In Williams [2005] EWCA Crim 1796 the Court (Mance LJ, Elias J and Sir Charles Mantell) preferred Kirby to Hall. We also agree with the decision in Kirby.
  52. Different considerations may apply if the maximum sentence is only a fine, but the court must still go through all the steps to make sure that an ASBO is necessary.
  53. There is another reason why a court should be reluctant to impose an order which prohibits an offender from, or merely from, committing a specified criminal offence. The aim of an ASBO is to prevent anti-social behaviour. To prevent it the police or other authorities need to be able to take action before the anti-social behaviour it is designed to prevent takes place. If, for example, a court is faced by an offender who causes criminal damage by spraying graffiti then the order should be aimed at facilitating action to be taken to prevent graffiti spraying by him and/or his associates before it takes place. An order in clear and simple terms preventing the offender from being in possession of a can of spray paint in a public place gives the police or others responsible for protecting the property an opportunity to take action in advance of the actual spraying and makes it clear to the offender that he has lost the right to carry such a can for the duration of the order.
  54. If a court wishes to make an order prohibiting a group of youngsters from racing cats or motor bikes on an estate or driving at excessive speed (anti-social behaviour for those living on the estate), then the order should not (normally) prohibit driving whilst disqualified. It should prohibit, for example, the offender whilst on the estate from taking part in, or encouraging, racing or driving at excessive speed. It might also prevent the group from congregating with named others in a particular area of the estate. Such an order gives those responsible for enforcing order on the estate the opportunity to take action to prevent the anti-social conduct, it is to be hoped, before it takes place. Neighbours can alert the police who will not have to wait for the commission of a particular criminal offence. The ASBO will be breached not just by the offender driving but by his giving encouragement by being a passenger or a spectator. It matters not for the purposes of enforcing the ASBO whether he has or has not a driving licence entitling him to drive.
  55. Not only must the court before imposing an order prohibiting the offender from doing something consider that such an order is necessary to protect persons from further anti-social acts by him, the terms of the order must be proportionate in the sense that they must be commensurate with the risk to be guarded against. This is particularly important where an order may interfere with an ECHR right protected by the Human Rights Act 1998, e.g. articles 8, 10 and 11.
  56. We think that bail conditions provide a useful analogy. A defendant may be prohibited from contacting directly or indirectly a prosecution witness or entering a particular area near the alleged victim's home. The aim is to prevent the defendant trying to tamper with witnesses or committing a further offence. But the police do not have to wait until he has tampered or committed a further offence and thus committed a very serious offence. If he breaks the conditions even without intending to tamper, he is in breach of his bail conditions and liable to be remanded in custody. The victim has the comfort of knowing that if the defendant enters the prescribed area, the police can be called to take action. The victim does not have to wait for the offence to happen again.
  57. We look at some examples of how the Divisional Court and this Court have approached ASBOs.
  58. In McGrath [2005] EWCA Crim 353 S the Court of Appeal considered the terms of an ASBO made under section 1C in respect of an appellant, aged 25, with an appalling record who pleaded guilty to a count of theft which involved breaking into a car in a station car park and stealing various compacts discs. The ASBO contained (amongst others) the following prohibitions:
  59. "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."
  60. In respect of term 2, the Court of Appeal held that it was unjustifiably draconian and too wide; it would, for example, prevent the appellant from entering, even as a passenger, any car park in a supermarket. Similar considerations applied to term 3. If the appellant took a wrong turn on a walk and entered someone's property, he would be at risk of a five year prison sentence. The Court of Appeal took the view that term 4 was unacceptably wide. The meaning of the words "tool or implement" was impossible to ascertain. Insofar as the wording of term 4 was sufficiently qualified by the final wording "which could be used for the purpose of breaking into motor vehicles", the Court of Appeal observed that, effectively, the term overlaps with the offence of going equipped.
  61. In W v Director of Public Prosecutions [2005] EWCA Civ 1333 the Divisional Court held that a clause in an ASBO made in respect of a young offender which prohibited him from committing any criminal offence was plainly too wide and unenforceable. There was a danger that W would not know what a criminal offence was and what was not. It was well established that an order had to be clear and in terms that would enable an individual to know what he could and could not do. A general restriction was not necessary where specific behaviour restrictions were in place. Brooke LJ said (paragraph 8) that, given the offender's previous convictions for theft, a prohibition against committing theft "might not have been inappropriate". We have already expressed our reservations about such a prohibition.
  62. In P the Court expressed doubt about whether an ASBO is appropriate if the antisocial conduct is itself a serious offence, such as robbery. The Court reviewed the propriety of making an anti-social behaviour in respect of an appellant, aged 15 at the time of the offences, who pleaded guilty to assault with intent to rob, robbery, theft, false imprisonment and attempted robbery. He was involved in a number of incidents in which he approached younger boys, threatened them and in one case struck a boy with a stick, and stole their mobile phones. The appellant was made the subject of an order under section 1 C of CDA 1998. The effect of the order was to prevent the appellant from acting in various ways, principally excluding him from two parks and an airport. In the course of the judgment, Henriques J giving the judgment observed:
  63. "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."
  64. We see no reason why, in appropriate circumstances, an order should not be made of the kind in P, excluding an offender from two parks and an airport, if that is where he is committing robberies (or committing other anti-social behaviour). Such an order enables those responsible for the safety of the prescribed areas an opportunity to act before a robbery is committed by the offender.
  65. In Werner [2004] EWCA Crim 2931 the female appellant had committed a number of offences over a relatively short period of time which involved stealing credit cards, a cheque book and other items from hotel rooms while the occupants were out and using the cards to obtain services and goods. In addition to passing a sentence of imprisonment, the judge made the appellant the subject of an ASBO under s. lC of CDA 1998, prohibiting her from entering any hotel, guesthouse, or similar premises anywhere within the Greater London Area. It was submitted on the appellant's behalf that this was an inappropriate and improper use of the power because the behaviour it sought to protect the public from was only anti-social in the sense that all criminal offences were anti-social and it was not the sort of behaviour that ASBOs were meant to target. The Court of Appeal declined to express a definitive view on this issue and quashed the order on a different ground, but they did make the following observations. The forms of conduct listed on page 8 of the 2002 Home Office guide have a direct or indirect impact on the quality of life of people living in the community. They are different in character from offences of dishonesty committed in private against individual victims, distressing though such offences are to the victims. The Court said that it would not like to be taken to say that in no case could offences of this sort attract such an order.
  66. It seems to us that there is another problem with the kind of order in Werner. In the absence of a system to warn all hotels, guesthouses or similar premises anywhere within the Greater London Area, there is no practical way of policing the order. The breach of the ASBO will occur at the same time as the commission of any further offence in a hotel, guesthouse or similar premises. The ASBO achieves nothing- if she is not to be deterred by the prospect of imprisonment for committing the offence, she is unlikely to be deterred by the prospect of being sentenced for breach of the ASBO. By committing the substantive offence she will have committed the further offence of being in breach of her ASBO, but to what avail? The criminal statistics will show two offences rather than one. If on the other hand she "worked" a limited number of establishments, it would be practical to supervise compliance with the order. The establishments could be put on notice about her and should she enter the premises the police could be called, whether her motive in entering the premises was honest or not.
  67. In Rush [2005] EWCA Crim 1316 the appellant appealed against a sentence of 30 months' imprisonment and an ASBO of ten years duration following a plea to burglary. The burglary involved pushing into his parents' house (where he no longer lived) and stealing cigarettes from a cupboard. The appellant had a history of previous offending that was almost entirely targeted at his parents. The Court of Appeal reduced the sentence for the burglary to 12 months imprisonment and the duration of the ASBO to five years. In so doing, they said that the making of an ASBO should not be a normal part of the sentencing process especially if the case did not involve harassment or intimidation. Imposing an ASBO was a course to be taken in particular circumstances.
  68. In McGrath the Court of Appeal observed that ASBOs should be treated with a proper degree of caution and circumspection. They were not cure-alls and were not lightly to be imposed (paragraph 12).
  69. In Lonergan the Divisional Court held that it was lawful for a prohibition in the nature of a curfew to be included in an ASBO made under s. lCDA 1998 if its imposition was necessary to provide protection for others.
  70. With these general observations in mind, we turn to the appeals against the ASBOs.
  71. The Dean Boness ASBO

  72. In favour of making an ASBO was the fact that the appellant had consistently engaged in anti-social behaviour over a period of approximately three years. He was a persistent prolific offender and had admitted to drug misuse in the community. There were three main aspects to his anti-social behaviour: threatening behaviour (two incidents), vehicle crime (three incidents) and other offences of dishonesty such as burglary and theft (three incidents and other incidents of handling stolen goods). On the other hand he was being sentenced to a custodial sentence of three years detention in a young offender institution and was thus subject to a period on licence and subject to recall or return to custody.
  73. The respondent accepts, on the authorities and in particular having regard to (paragraph 25 above) that it is far from clear that it was necessary to make an ASBO in respect of the appellant. We agree.
  74. We turn to the various orders. The first order prohibited the appellant from:
  75. Entering any public car park within the Basingstoke and Deane Borough Council area, except in the course of lawful employment.

  76. The respondent submits:
  77. "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."
  78. We agree. Even if the order was necessary to prevent anti-social behaviour by the appellant, it was not proportionate.
  79. The second order prohibited the appellant from:
  80. 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.

  81. As to this the respondent submits:
  82. "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."
  83. We agree with this analysis. The order was not necessary and is, in any event, unclear .
  84. The third order prohibit7d the appellant from:
  85. 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.
  86. The respondent submits:
  87. "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."
  88. We agree.
  89. The fourth order prohibited the appellant from:
  90. 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.
  91. We agree with the respondent's submission that:
  92. " ... the first part of this prohibition has been drafted too widely and lacks clarity."
  93. The respondent points out that there are many items that might be used in the commission of a burglary, such as a credit card, a mobile phone or a pair of gloves. Was the appellant being prohibited from carrying such items? If so, the order is neither clear nor proportionate.
  94. The fifth order prohibited the appellant from:
  95. 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."
  96. We have already noted judicial criticism of the use of the word "tool" (see paragraph 42 above).
  97. The sixth order prohibited the appellant from:
  98. Remaining on any shop, commercial or hospital premises if asked to leave by staff. Entering any premises from which barred.

  99. The respondent submits:
  100. "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."
  101. We agree, although we wonder whether the appellant would understand the staccato sentence: "Entering any premises from which barred."
  102. The seventh order prohibited the appellant from:
  103. 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.
  104. The respondent points out that in McGrath the Court of Appeal held that a term which prohibited the appellant from "trespassing on any land belonging to any person whether legal or natural within those counties" was too wide and harsh. If the appellant took a wrong turn on a walk and entered someone's property, he would be at risk of a five year prison sentence. In our view this prohibition, albeit less open to criticism than the one in McGrath is also too wide and harsh. Although certain pieces of land might easily be identified as being caught by the prohibition (such as a front garden, driveway or path) it might be harder to recognise, say, in more rural areas. The absence of any geographical restriction reinforces our view. Furthermore, there is no practical way that compliance with the order could be enforced, at least outside the appellant's immediate home area (see paragraph 47 above).
  105. The eighth order prohibited the appellant from:
  106. Touching or entering any unattended vehicle without the express permission of the owner.
  107. The respondent submits:
  108. "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."
  109. We agree generally but we would have preferred a geographical limit so as to make it feasible to enforce the order. Local officers, aware of the prohibition, would then have a useful weapon to prevent the appellant committing vehicle crime. They would not have to wait until he had committed a particular crime relating to vehicles.
  110. The ninth order prohibited the appellant from:
  111. 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.
  112. The respondent submits that this was a proper order to make and is in accordance with the Home Office guidance. We would prefer some geographical limit, in the absence of good reasons for having no such limit.
  113. The tenth order prohibited the appellant from:
  114. 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.
  115. Given the appellant's previous history the first part of the prohibition can be justified as necessary. As the respondent points out, the final clause would appear to prohibit the appellant from attending sporting or other outdoor events. Such a prohibition is, in our view, disproportionate. Although, as the respondent points out, the appellant would be able to argue that he had a reasonable excuse for attending the event, this is, in our view, an insufficient safeguard.
  116. The eleventh order prohibited the appellant from:
  117. Doing anything which may cause damage.
  118. The respondent submits that this prohibition, even if justified (which is far from clear), is far too wide. In the words of the respondent: "Is the appellant prohibited from scuffing his shoes?" We agree.
  119. The twelfth order prohibited the appellant from:
  120. 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.
  121. Although curfews can properly be included in an ASBO, we doubt, as does the respondent, that such an order was necessary in this case. Although the offences of interfering with a motor vehicle and attempted burglary (for which the appellant was sentenced on 16/5/02) were both committed between 10pm and midnight on the same evening, there is no suggestion that other offences have been committed at night. Moreover, the author of the pre-sentence report states that the appellant's offending behaviour did not fit a pattern which could be controlled by the use of a curfew order.
  122. We would go further than the respondent. Even if an ASBO was justified a 5 year curfew to follow release is not, in our view, proportionate.
  123. The thirteenth order prohibited the appellant from:
  124. Being carried on any vehicle other than a vehicle in lawful use.
  125. The respondent submits this prohibition is sufficiently clear and proportionate. We are not convinced. We do not find the expression "lawful use" to be free from difficulty. If "the carrying" is likely to constitute a specific criminal offence (e.g. one of the family of taking without consent offences), what does this order add? We would also have preferred some geographical limit.
  126. The final order prohibited the appellant from:
  127. 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.
  128. The respondent submits:
  129. "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."
  130. The respondent, however, has doubts whether a prohibition that prevents the appellant from associating with any of the named individuals for five years after his release, even in a private residence where one or more resides, is disproportionate to the risk of anti-social behaviour it is designed to prevent. We share those doubts.
  131. Bebbington and others - the ASBOs

  132. We have no doubt that in respect of all the appellants, other than Schofield and Bruce, it was not "necessary" to make any ASBO, given their antecedent history, reports and references.
  133. Counsel on behalf of Schofield attacked the judge's findings of fact. The judge conducted the trial and was in the best position to decide upon Schofield's role.
  134. For Scofield and Bruce, given their history and the judge's findings, an order could properly have been made to prevent a repetition of the disgraceful conduct of that night. The judge was entitled, absent any special circumstances, to make only one of the orders, namely:
  135. 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.
  136. We amend the ASBO made in respect of Bruce by quashing the other orders and confirming this part only of the original order. In so far as Schofield is concerned, he will be living and working within the exclusion zone, so the order made is inappropriate. In his case the order will read:
  137. 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.
  138. As the trouble that arose in this case did so on a day when Wrexham AFC was playing away and the club's supporters were returning home via Chester railway station there will be in the case of both Bruce and Schofield an additional term in the ASBO as follows.
  139. In the case of Bruce: .
  140. 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.
  141. In the cases of Schofield:
  142. 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..
  143. The period of ten years for which the judge ordered the ASBOs to run is manifestly excessive. In the case of each appellant the order will last for four years from 7 January 2005, the date when they were sentenced.


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