Nicholson, R. v

For breach of an Anti-Social Behaviour Order, the statutory defence of acting with a reasonable excuse is capable, in an appropriate case, of encompassing genuine ignorance, forgetfulness or misunderstanding of the order’s terms. Such a defence is not excluded as an impermissible plea of ignorance of the law.

A judge may withdraw a proposed defence only where the evidence could not in law support it. Where the facts advanced could support a reasonable excuse, the factual issue and the evaluative judgment of reasonableness are for the jury. Describing the offence as one of strict liability does not assist that analysis.

The appellant was subject to an Anti-Social Behaviour Order made by the Peterborough Magistrates. It prohibited her from entering within 500 metres of listed premises, including Halifax House in Oxford.

She attended a permitted animal-rights demonstration within the prohibited area. She maintained that she had not appreciated that Halifax House was the laboratory’s address and had misunderstood the order. At trial in the Crown Court at Oxford, the judge ruled that this account could not amount to a reasonable excuse under section 1(10) of the Crime and Disorder Act 1998. The appellant then pleaded guilty and was sentenced to four months’ imprisonment.

She appealed against conviction, contending that her proposed evidence was capable of raising a reasonable-excuse defence for determination by a jury.

1. Appeal allowed; conviction quashed. The trial judge wrongly ruled, before the defence had been fully articulated in evidence, that ignorance, forgetfulness or misunderstanding of the order’s clear terms could not in law constitute a reasonable excuse.

2. A judge may prevent an issue being left to the jury where the proposed evidence cannot possibly provide a defence in law. But where the facts advanced could support an evidential issue, especially one requiring a value judgment as to reasonable excuse, it must be left to the jury. That principle applies equally to a pre-trial ruling and to a ruling made after the jury has been empanelled: R v Wang [2005] 1 WLR 661.

3. The words without reasonable excuse in section 1(10) of the Crime and Disorder Act 1998 bear their ordinary meaning. A genuine failure to appreciate the relevant terms of an Anti-Social Behaviour Order, whether through forgetfulness or misunderstanding, may be a reasonable excuse. The relevant matters include the reason for the ignorance, the person’s appreciation of where they were, and whether the explanation was reasonable in all the circumstances. It is artificial to treat that issue as ignorance of the law.

4. Authorities concerning possession of offensive weapons did not require forgetfulness to be combined with some further reason in this statutory context. In those offences, the prosecution must first establish knowing possession. That feature explains the caution in those cases and is absent from breach of an Anti-Social Behaviour Order. The reasoning in R v Evans supported the conclusion that a reasonable misapprehension of the scope of a restraining order may amount to a reasonable excuse.

5. The court expressed no view on whether the appellant’s account should ultimately be accepted. It held only that the proposed defence was capable of being left to a jury. The Crown was given time to decide whether to seek a retrial.

The court also observed that the label “strict liability” is unhelpful where an offence has no prosecution burden to prove mens rea but includes a statutory defence turning on the defendant’s state of mind.

• Court of Appeal (Criminal Division): Allowed the appeal in [2006] EWCA Crim 1518 and quashed the conviction.
• Crown Court at Oxford: On 2 February 2006, following a preliminary ruling that the proposed defence could not amount to a reasonable excuse, the appellant pleaded guilty to breach of an Anti-Social Behaviour Order and was sentenced to four months’ imprisonment.