Lonergan v Lewes Crown Court & Ors

An anti-social behaviour order may contain a curfew-style prohibition. The question is whether the order is substantially prohibitory, rather than whether it is expressed in negative terms. A restriction on leaving or travelling between specified premises at specified times satisfies that requirement. The same restriction is not penal merely because it limits freedom of movement or resembles a curfew imposed as a sentence. Its character depends on its purpose. In an anti-social behaviour order, the purpose must be preventative and protective, and the prohibition must be necessary to protect people from further anti-social acts. Courts should consider carefully the need and duration of a curfew, which may be shorter than the life of the order and may later be varied.

The claimant was made subject to an anti-social behaviour order by Brighton Magistrates Court. On appeal, Lewes Crown Court dismissed his challenge to a provision restricting him to specified addresses between 11.30 pm and 6.00 am. He sought judicial review of that decision.

The claimant argued that the provision was unlawful because a curfew was mandatory rather than prohibitory and because it was penal, contrary to the civil and preventative character of an anti-social behaviour order. The Divisional Court considered whether such a provision was authorised by section 1 of the Crime and Disorder Act 1998.

1. The claim was dismissed. A restraint on leaving or travelling between specified premises during specified hours is substantially prohibitory for the purposes of section 1(4) and (6) of the Crime and Disorder Act 1998. The court rejected an artificial distinction based on whether the order was framed as a prohibition or a positive obligation.
2. The definition of a sentencing curfew in section 37 of the Powers of Criminal Courts (Sentencing) Act 2000 did not determine the character of a curfew provision in an anti-social behaviour order. Legal obligations may be positive or negative, and the statutory wording of a sentencing curfew did not show that an anti-social behaviour order provision was mandatory.
3. The classification of a restriction as penal depends on its purpose, not merely its consequences. A curfew imposed as a sentence is penal because its purpose is punishment. A curfew in an anti-social behaviour order is preventative and protective, provided that it is necessary to protect relevant persons from further anti-social acts. The court may not treat the order as a sentence for past conduct or use sentencing limits to control its content.
4. The court nevertheless stressed that magistrates should examine carefully the need for, and duration of, a curfew. The minimum two-year duration of the order does not require every prohibition to last for two years. A shorter curfew, or a later application to vary it under section 1(8), may be appropriate, particularly where behaviour improves.
5. The court accepted that the restriction of movement was not a deprivation of liberty for Article 5 purposes. Article 2 of the Fourth Protocol was engaged, but the United Kingdom was not party to that Protocol and it had not been incorporated into the Human Rights Act.
6. Mr Justice Moses agreed with Lord Justice Maurice Kay. The claim was dismissed, with provision for the legal aid assessment of costs.

1. Lewes Crown Court: dismissed the claimant’s appeal against the anti-social behaviour order on 4 October 2004.
2. High Court (Administrative Court): dismissed the claim for judicial review of the Crown Court’s decision.