Stephan, R. v

An anti-social behaviour order may be justified where anti-social conduct has caused alarm and distress and remains necessary to protect those affected. Good character, detection and prosecution do not necessarily remove the protective need, especially where the offender has not understood the cause or impact of the conduct.

Its restrictions must, however, be proportionate and commensurate with the risk. An order must not operate as punishment. A condition of excessive geographical scope, which is impracticable to police and exceeds the identified protective need, should be removed. The duration must also reflect the protective purpose rather than punish the offender.

The appellant pleaded guilty at Truro Crown Court to ten theft offences. He had taken women’s intimate possessions over several years on the Isles of Scilly. The Crown Court imposed concurrent community punishment orders and a seven-year anti-social behaviour order. The order prohibited him from entering the Isles of Scilly and from entering the curtilage of any dwelling-house in the United Kingdom without permission.

He appealed against sentence. The central issues were whether an anti-social behaviour order was justified despite his previous good character, and whether its scope and duration were proportionate.

1. Appeal allowed in part. The making of an anti-social behaviour order was correct in principle. The appellant’s sustained conduct was anti-social, had caused alarm and distress to women in a small community, and an order remained necessary for their protection.
2. The appellant’s good character and the deterrent effect of detection and prosecution did not make the order unnecessary. The pre-sentence material showed that he had not fully understood either the motivation for his conduct or its impact on the victims. Protection was not confined to preventing further theft. It also extended to preventing inappropriate conduct towards women which might not itself amount to an offence, and to protecting victims from the distress of encountering him again.
3. The restrictions nevertheless had to be proportionate and commensurate with the risk guarded against. Referring to the observations on policing in R v Boness [2005] EWCA Crim 2395, the court held that the nationwide condition prohibiting entry into the curtilage of any dwelling-house was too wide and impracticable to police. It was deleted.
4. The seven-year exclusion from the Isles of Scilly was also excessive. Its punitive effect was impermissible, since the order’s function was protective. A two-year restraint allowed time for the appellant to address and manage his problem while protecting the relevant members of the public. The prohibition on landing on or entering the Isles of Scilly was therefore reduced to two years.

• Court of Appeal (Criminal Division): Allowed the appeal to the extent of varying the anti-social behaviour order: [2005] EWCA Crim 3429.
• Truro Crown Court: On 18 July 2005, following guilty pleas to ten theft counts, imposed concurrent community punishment orders and a seven-year anti-social behaviour order.