Morrison, R. v

Where breach of an Anti-Social Behaviour Order consists of no more than conduct which is itself an offence, the sentence for the breach should normally not exceed the statutory maximum for that underlying offence. The higher maximum available for breach of the order cannot be used to evade Parliament’s prescribed maximum.

An order may restrain conduct which is also criminal only if the statutory conditions are met. It must not be imposed simply to increase the available sentence for future offending. Exceptional circumstances may justify a higher sentence where the vice of the breach goes beyond the underlying offence.

The appellant had repeatedly driven while disqualified. A magistrates’ court had imposed an Anti-Social Behaviour Order preventing him from occupying either front seat of a motor vehicle. After he drove again while disqualified, he pleaded guilty to that offence, related summary offences, and breach of the order.

The Birmingham Magistrates’ Court committed him for sentence. The Recorder imposed 12 months’ imprisonment for breach of the order, imposed no separate penalty for the new summary offences, and revoked a recently imposed Community Rehabilitation Order. The appeal raised whether a breach sentence could exceed the six-month maximum for driving while disqualified where the breach consisted solely of that conduct.

1. The appeal was allowed. The 12-month sentence for breach of the Anti-Social Behaviour Order was quashed. It was replaced by four months’ imprisonment.

2. An Anti-Social Behaviour Order may restrain conduct which is independently criminal, but it must satisfy the statutory requirements in Crime and Disorder Act 1998. The conduct must cause, or be likely to cause, harassment, alarm or distress outside the offender’s household, and an order must be necessary for protection. Particular caution is required where the prohibited conduct is already criminal.

3. The court declined to follow the approach in R v Hall [2004] EWCA Crim 2671. It followed the principle in R v Kirby [2005] EWCA Crim 1228, as confirmed in R v Williams 2004/06516/A6, 28 June 2005. An order must not be made simply to increase the sentence available if it is later breached.

4. Where breach consists of no more than commission of an underlying offence, the sentencing tariff is governed by the statutory maximum for that offence, rather than the five-year maximum for breach of an order. Parliament fixes offence maxima, and the court cannot circumvent them through the terms of an order. A different result may be possible in an exceptional case where the wrong in breaching the order goes beyond the underlying offence itself.

5. The appellant’s breach consisted only of driving while disqualified. Following his guilty plea, four months was the proper sentence. Under Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000, the Recorder could also resentence him for the earlier driving-while-disqualified offence after revoking the Community Rehabilitation Order. A consecutive four-month sentence was imposed for that earlier offence, producing a total of eight months’ imprisonment.

• Court of Appeal (Criminal Division): Allowed the appeal. It quashed the 12-month sentence for breach of the Anti-Social Behaviour Order, substituted four months, and imposed a consecutive four-month sentence for the earlier offence after revocation of the Community Rehabilitation Order.
• Crown Court: The Recorder sentenced the appellant to 12 months’ imprisonment for breach of the order, imposed no separate penalty for the new summary offences, and revoked the Community Rehabilitation Order.
• Birmingham Magistrates’ Court: Following guilty pleas to the new offences, committed the appellant to the Crown Court for sentence.