Lamb, R. v

A sentence for breach of an anti-social behaviour order must be proportionate to the actual seriousness and social impact of the breach. Persistent and deliberate defiance of a court order is serious and may justify custody. However, where the breach consists only of entering a prohibited area, without harassment, alarm, distress or other anti-social conduct, a lengthy custodial sentence will usually be disproportionate.

Community penalties should be considered to help an offender comply with the order. If no community penalty is available, custody needed to uphold the authority of the court should be kept as short as possible. Longer sentences may be justified where the breach itself involves repeated conduct causing public harassment, alarm or distress.

The appellant, aged 18, appealed with leave against sentence following three admitted breaches of an anti-social behaviour order. The order prohibited him from entering Whitley Bay town centre and the Tyne and Wear Metro system, from consuming alcohol in public, and from being drunk in any place.

The three breaches involved his presence at Metro stations shortly after release from an earlier custodial sentence. There was no allegation that he harassed, alarmed or distressed members of the public. The Crown Court at Newcastle imposed 22 months’ detention in a young offender institution on each count concurrently, consecutive to two months outstanding from an earlier sentence, producing an effective term of two years.

The central issue was the appropriate sentence for repeated and deliberate breaches of an order where the breaches had no proved adverse impact on the public.

Appeal allowed. The court quashed the 22-month concurrent sentences and substituted two months’ imprisonment for each breach, to run consecutively. Those six months were to follow the two-month period of licence which remained to be served, making an effective sentence of eight months’ imprisonment.

1. An anti-social behaviour order is a serious restriction on liberty, and deliberate, repeated breach is itself serious because a court order must be obeyed. Sentencing must nevertheless remain proportionate to the particular breach. The court must consider both the conduct constituting the breach and its actual social impact.

2. The court distinguished Curtis Braxton [2004] EWCA Crim 1374. That case involved repeated aggressive begging and conduct causing real public concern and distress, and could justify a long sentence for repeated breaches. In the present case, the appellant had entered prohibited places but, apart from being drunk on one occasion without causing a nuisance, had not engaged in anti-social behaviour or affected the public.

3. The court disapproved the approach in Morrison [2005] EWCA Crim 2237, which would normally limit sentence by reference to the maximum penalty for an offence that also constituted the breach. That approach failed to reflect the wider public impact at which the legislation was directed. The court preferred the contrary approach in Tripp [2005] EWCA Crim 2253.

4. Where a breach does not involve harassment, alarm or distress, community penalties should be considered to assist compliance. If no such penalty is available, custody required to maintain the authority of the court should be as short as possible. This was consistent with the proportionality approach noted in Page and others [2004] EWCA Crim 3358.

The court did not determine the validity of the underlying order. It observed that the statutory justification and precise limits of such orders require careful consideration, and noted that variation was available under the Crime and Disorder Act 1998.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted an effective sentence of eight months’ imprisonment: [2005] EWCA Crim 3000.
• Crown Court at Newcastle: On 30 June 2005, His Honour Judge Whitburn QC imposed 22 months’ detention in a young offender institution on each of three breaches concurrently, consecutive to two months outstanding from an earlier sentence.
• Earlier challenge to the anti-social behaviour order: A Recorder at Newcastle Crown Court dismissed the appellant’s appeal against the terms of the order. That decision was not further challenged by case stated.