W" R (on the application of) v Director of Public Prosecutions

An anti-social behaviour order must be clear, comprehensible and no wider than necessary and proportionate to protect the public. A prohibition preventing a defendant from committing any criminal offence is plainly too wide and unenforceable. Where an order is plainly invalid, its validity may be challenged in proceedings for breach, without requiring prior proceedings to quash or vary it. The court left open whether a valid anti-social behaviour order may prohibit conduct which is independently criminal, and whether a conviction for that conduct creates an autrefois convict or double jeopardy bar to prosecution for breach.

W appealed by way of case stated from his conviction in the Preston Youth Court for breaching an anti-social behaviour order, contrary to section 1(10) of the Crime and Disorder Act 1998. He had also admitted theft and was given an absolute discharge for the breach and a conditional discharge for the theft.

The order prohibited several specific forms of conduct and also prohibited him from committing any criminal offence. The District Judge considered that the general prohibition was unnecessarily wide but treated it as valid because it was unambiguous and had not been appealed or varied. The central issue was whether the Magistrates could treat that provision as invalid in the breach proceedings.

1. The appeal was allowed on the first question. The general prohibition against committing any criminal offence was plainly too wide. It was not sufficiently tailored to the protection required, and a young defendant might not know what conduct constituted a criminal offence.
2. An anti-social behaviour order must be expressed in simple and unambiguous terms so that the restrained person, the police and the court can understand what conduct is prohibited. It must not extend beyond what is necessary and proportionate to the legitimate protective purpose. The court relied on B v Chief Constable of Avon and Somerset [2001] 1 WLR 340.
3. The fact that the order had not been appealed or varied did not prevent the Magistrates from considering its validity. Under the principle in Boddington v British Transport Police [1999] 2 AC 143, a plainly invalid order could be challenged in the proceedings alleging breach, in the same way as an ultra vires byelaw.
4. The court confined its conclusion to an order as plainly invalid as a prohibition against committing any criminal offence. It did not decide whether a valid order could prohibit conduct which was also an offence, or whether a conviction for that offence would engage autrefois convict or double jeopardy.
5. The matter was remitted to the Magistrates, who were expected to set aside the absolute discharge in light of the High Court’s decision. The appellant was awarded his costs out of central funds.

• Preston Youth Court: District Judge Ward convicted W of breaching an anti-social behaviour order and of theft. The District Judge treated the general prohibition as valid notwithstanding its excessive breadth. Lay justices later imposed an absolute discharge for the breach and a conditional discharge for the theft.
• High Court (Administrative Court): The court answered the first question in the negative, held the general prohibition unenforceable, declined to answer the alternative question, and remitted the matter to the Magistrates.