English, R. v

In a prosecution for breach of an anti-social behaviour order, the prosecution may prove the order by a signed notice that accurately records the order made and pronounced in court. An omission from the notice of particulars of the conduct underlying the order does not, without more, invalidate an order that is valid on its face and within the court’s jurisdiction.

A collateral challenge at the breach hearing is available only where the underlying order is plainly invalid, such as where its terms exceed the statutory power. Other alleged procedural defects must be pursued by appeal or judicial review.

The appellant was convicted at the Crown Court at Guildford of two breaches of an anti-social behaviour order and received concurrent sentences of 18 months’ imprisonment. The order had been made by magistrates following his conviction for theft. Its signed notice recorded the prohibitions imposed, but left blank the space intended to describe the anti-social conduct found by the court.

On appeal against conviction, the appellant contended that this omission meant that no valid order had been proved and that he could not therefore be convicted of breach. The central issue was whether the signed notice provided sufficient proof of a valid order, and whether the Crown Court could examine alleged defects in the underlying order.

1. Appeal dismissed. The signed notice was admissible evidence of the anti-social behaviour order made by the magistrates. There was no suggestion that the terms recorded in paragraph 3 differed from those pronounced in court.
2. Under Crime and Disorder Act 1998, section 1C, the making of an order requires findings of anti-social conduct and necessity for protection from further conduct. The recorded prohibitions were within the magistrates’ jurisdiction and identified with sufficient clarity what the appellant was forbidden to do. The blank in the part of the notice describing the underlying conduct did not invalidate the order or prevent proof of it at the breach trial.
3. The court accepted that fair procedure, clear findings, precise terms, explanation to the offender, and an accurate written record are important safeguards. The guidance in C v Sunderland Youth Court, Northumbria Police and Crown Prosecution Service [2003] EWHC 2385 (Admin) and R v P [EWCA] Crim 287 concerned the proper making and recording of such orders. The order that matters for a later prosecution is, however, the order made in court.
4. Following W v Director of Public Prosecutions [2005] EWHC 1333 (Admin), a court trying an alleged breach may treat the underlying order as ineffective only where it is plainly invalid, for example because its terms exceed the statutory power. Otherwise, an apparently valid order is presumed valid. Any procedural challenge must be made by appeal under section 108 of the Magistrates’ Courts Act or, where appropriate, judicial review.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2005] EWCA Crim 2690.
• Crown Court at Guildford: convicted the appellant on 10 February 2005 of two breaches of an anti-social behaviour order and imposed concurrent sentences of 18 months’ imprisonment.
• South East Surrey Magistrates’ Court: made the underlying anti-social behaviour order following the appellant’s conviction for theft.