McGrath, R. v

An anti-social behaviour order under Crime and Disorder Act 1998 may be made only where the statutory conditions, including necessity to protect others from further anti-social acts, are met. Once post-commencement anti-social conduct is established, the court may consider the offender’s whole course of conduct, including conduct before the commencement date, when deciding necessity.

The prohibited acts need not themselves be likely to cause harassment, alarm or distress. However, an order must be imposed cautiously. Its terms must be clear and proportionate to the identified risk. A term exposing an offender to imprisonment must be justified by that risk; it cannot be saved by reliance on prosecutorial discretion.

The appellant pleaded guilty in the Crown Court at Luton to theft from a motor car. He received community orders and a two-year anti-social behaviour order. The order prohibited, among other matters, entry to all car parks in three counties, trespass on any land in those counties, and possession in public of tools or implements capable of use in breaking into vehicles.

He appealed against the anti-social behaviour order only. He contended that the sentencing judge could not rely on pre-commencement conduct, that an order was unnecessary because he had turned over a new leaf, and that several prohibitions were excessively wide.

1. Appeal allowed in part. The court upheld the decision to make a two-year anti-social behaviour order and retained terms 1 and 5. It struck out terms 2, 3 and 4.

2. Under Crime and Disorder Act 1998, section 1 C, the court has a discretion to make an order where the offender has acted anti-socially after the commencement date and the order is necessary to protect others from further anti-social acts. The index offence was sufficient to satisfy the first condition. In deciding necessity, the court could consider the appellant’s entire course of conduct, including conduct before the commencement date. The statute did not exclude that material.

3. The prohibited conduct did not itself have to cause, or be likely to cause, harassment, alarm or distress. There was no principled bar to an order concerning vehicle crime. Nevertheless, such orders require caution because breach can result in imprisonment for up to five years. They are not to be imposed lightly.

4. The court was just persuaded that an order was necessary despite the appellant’s apparent improvement, given his extensive history of offending. Term 1 was clear and appropriately directed to railway car parks connected with his offending. Term 5 was also retained.

5. Terms 2 and 3 were unjustifiably broad. They could criminalise entry to any supermarket car park, even as a passenger, or an inadvertent trespass. Prosecutorial discretion could not cure unjustified restrictions. Term 4 was impermissibly uncertain because “any tool or implement” lacked ascertainable meaning. To the extent it was narrowed by its final words, it overlapped with going equipped and was not properly justified.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part. The anti-social behaviour order remained, but terms 2, 3 and 4 were struck out.

• Crown Court at Luton: Following the appellant’s guilty plea to theft, imposed community orders and a two-year anti-social behaviour order.