P, R. v

An anti-social behaviour order under Crime and Disorder Act 1998 section 1C requires a demonstrable necessity to protect the public from future anti-social acts. A substantial custodial sentence and post-release licence do not automatically preclude such an order. However, where custody may realistically reform a young offender, a court cannot infer the required future necessity merely from serious past offending.

Any order must be based on a fair procedure. Its factual basis and terms must be clear, precise, recorded, pronounced in open court and explained to the offender. The written order must accurately reflect the order made. A detention sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 is unavailable for theft.

The appellant, aged 15 when the offences were committed, pleaded guilty at Manchester Crown Court to twelve offences including robbery, attempted robbery, false imprisonment, theft and an assault with intent to rob. He received an intended total of four years’ detention. The judge also made an anti-social behaviour order under Crime and Disorder Act 1998 section 1C, suspending its operation until release and then imposing restrictions for two years.

The appeal challenged two detention sentences imposed for theft, the overall length of the sentence and the making and terms of the anti-social behaviour order. The central issue was whether, despite the substantial custodial sentence and subsequent licence period, the order was necessary to protect the public from future anti-social conduct.

1. Appeal allowed. The intended four-year sentence was quashed and replaced with three years’ detention. The anti-social behaviour order was quashed.

2. Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 did not authorise detention for either theft count. The power applies to offenders aged at least 14 but under 18 who are convicted on indictment of an offence punishable, in the case of an adult, by at least 14 years’ imprisonment. Theft was not such an offence. The concurrent detention sentences on counts 2 and 12 were therefore quashed, with no separate penalty imposed.

3. Under section 152, a court must take account of the timing and circumstances of a guilty plea and must state in open court if the resulting sentence is less severe. The court accepted the guidance in R v Fearon [1996] 2 Cr App R(S) 25 and R v Aroride [1999] 2 Cr App R(S) 406 that credit should be made plain. Taking account of the guilty pleas, youth, first custodial sentence and disadvantaged background, an effective starting point of five years or more was excessive. Three years was appropriate.

4. The statutory condition for an order under Crime and Disorder Act 1998 section 1C(2)(b) is necessity to protect persons from further anti-social acts. Although the appellant’s past conduct satisfied the anti-social conduct limb, the court could not determine that an order would be necessary after a substantial period in detention. There was a real possibility that custody, intervention and training would improve his behaviour. The power under section 116 to return him to custody also provided an appropriate deterrent during the relevant period.

5. The court adopted the procedural guidance in C v Sunderland Youth Court (DC) [2003] EWHC 2385 (Admin). An order must follow a fair procedure; allegations and evidence must be capable of challenge; its terms must be precise and comprehensible; findings of fact must be recorded; and the order must be explained, pronounced in open court and accurately reproduced in writing. These observations were additional to the conclusion that the statutory necessity test was not met.

• Court of Appeal (Criminal Division): allowed the appeal, reduced the detention term to three years and quashed the anti-social behaviour order: [2004] EWCA Crim 287.
• Manchester Crown Court: Judge Ensor sentenced the appellant to an intended total of four years’ detention after guilty pleas to twelve offences and made an order under section 1C of the Crime and Disorder Act 1998.