Mills, R (on the application of) v Birmingham Magistrates Court

For a criminal anti-social behaviour order, the court must establish both that the offender’s conduct caused or was likely to cause harassment, alarm or distress, and that an order was necessary to protect persons from further anti-social acts. Theft does not automatically satisfy the first requirement. The assessment is fact-sensitive. Shoplifting may sometimes qualify, but the particular circumstances must provide a proper basis for the statutory conclusion. A single undiscovered theft of low-value goods, causing no actual or likely harassment, alarm or distress, cannot support the order. Where the statutory threshold is not met, the order is beyond the magistrates’ power and may be quashed. The court did not need to determine proportionality.

The claimant sought judicial review of an anti-social behaviour order made by a deputy district judge in the Birmingham Magistrates’ Court on 2 December 2004. The order followed her guilty plea to stealing three pairs of gloves from a city-centre shop. The magistrates’ court relied on her extensive history of shoplifting and treated the theft as behaviour likely to cause harassment, alarm or distress. It prohibited her from entering retail premises within a defined part of Birmingham city centre unless authorised by the police.

The claimant argued that the statutory anti-social behaviour threshold was not met, that the order was perverse, and that its scope was disproportionate. The central issue was whether the particular theft was behaviour likely to cause harassment, alarm or distress within section 1C of the Crime and Disorder Act 1998.

1. Application allowed and order quashed. The magistrates’ court had made the order under section 1C of the Crime and Disorder Act 1998, following the claimant’s conviction for theft.
2. Section 1C imposed two cumulative requirements. The offender must have acted in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons outside the offender’s household. The court must also be satisfied that an order was necessary to protect persons in England and Wales from further anti-social acts.
3. The conduct relied upon was the claimant’s theft of three pairs of gloves. No employee knew of the theft until the police officer returned the gloves, and the claimant had been cooperative and neither abusive nor obstructive. On those facts, the theft had not caused, and was not likely to cause, harassment, alarm or distress within the statutory meaning.
4. The fact that some shoplifting or other thefts may satisfy section 1C did not mean that harassment, alarm or distress inevitably followed from every theft. Treating this theft as sufficient would make almost any shoplifting capable of triggering the section, which was not the statutory position.
5. The court accepted in substance the grounds that the statutory power had not been engaged and that the order was perverse. It was unnecessary to decide whether the geographical and temporal scope of the order was disproportionate. The Anti-Social Behaviour Order was quashed.

• Birmingham Magistrates’ Court: On 2 December 2004, a deputy district judge made an Anti-Social Behaviour Order against the claimant after her conviction for theft.
• High Court (Administrative Court): The judicial review application was allowed and the order was quashed.