Kirby, R. v

A criminal anti-social behaviour order should be made only where it is demonstrably necessary to protect the public from further anti-social acts. It is an exceptional measure where a substantial custodial sentence is imposed and release on licence provides protection. The need must be assessed on the individual facts.

An order must not be used merely to convert anticipated further offending into breach of the order, thereby increasing the available penalty. It should not become a standard feature of sentencing, particularly where the offending does not itself involve intimidation, harassment or distress.

The appellant pleaded guilty in the Crown Court at Teesside to dangerous driving and driving while disqualified. He received 20 months’ imprisonment for dangerous driving and five months’ imprisonment consecutively for driving while disqualified.

The sentencing judge also imposed a ten-year criminal anti-social behaviour order. It prohibited the appellant from driving or attempting to drive while disqualified, and from driving, attempting to drive, or being carried in a vehicle taken without authority. The appeal challenged both the custodial sentences and the making and duration of that order.

1. Appeal allowed in part. The court quashed the criminal anti-social behaviour order, but dismissed the appeal against the aggregate 25-month custodial sentence.
2. The governing question for a criminal anti-social behaviour order is whether it is demonstrably necessary to protect the public from further anti-social acts. The court applied the approach in P, [2004] 2 Cr App R (S) case 63, and C v Sunderland Youth Court, [2004] 1 Cr App R (S) case 76. A substantial custodial sentence, followed by licence and possible recall, will ordinarily make demonstrable necessity difficult to establish. Each case nevertheless turns on its own facts.
3. The order here was not protective in the required sense. Its practical purpose was to expose the appellant to the greater maximum penalty for breach of the order if he committed comparable motoring offences in future. That was an unwarranted use of the power. The offending did not involve intimidation, harassment or distress, and no exceptional circumstances justified the order. Vittles, [2005] 1 Cr App R (S) case 8, was distinguishable because its geographical restriction was necessary for a proper protective purpose.
4. The court advised that applications for such orders should receive proper advance notice and individual consideration. They should not be made as standard sentencing practice.
5. The driving was exceptionally serious and the appellant’s record was extensive. Consecutive sentences were justified, and the judge had given sufficient credit for the guilty pleas. The sentence appeal was therefore dismissed.

• Court of Appeal (Criminal Division): Allowed the appeal only to quash the criminal anti-social behaviour order; dismissed the appeal against sentence: [2005] EWCA Crim 1228.
• Crown Court at Teesside: The appellant pleaded guilty to dangerous driving and driving while disqualified. He received consecutive custodial sentences totalling 25 months and a ten-year criminal anti-social behaviour order.