Barnard, R. v

An anti-social behaviour order under section 1C of the Crime and Disorder Act 1998 is preventative, not punitive. It requires both anti-social conduct and a necessity to protect the public from further anti-social acts.

An order is not necessary merely because it duplicates an existing criminal prohibition or might permit earlier police intervention. The court must assess whether it provides a useful protection beyond ordinary policing and criminal powers. Its terms must also be proportionate to the risk guarded against.

The appellant pleaded guilty in the magistrates’ court to theft from a motor vehicle and attempting to take a motor vehicle without consent. At the Crown Court at Blackfriars he received concurrent 15-month terms of detention in a young offender institution and a five-year anti-social behaviour order.

The order prohibited him from touching or entering unattended vehicles in a wide area and from possessing objects for breaking glass. He appealed against both the custodial sentence and the order. The central issue was whether the statutory necessity requirement for an anti-social behaviour order was met.

1. The appeal was allowed in part. The custodial sentence was not manifestly excessive. Although severe when the offences were viewed alone, it was justified by the appellant’s record, drug-related offending, recall on licence, and the fact that the offences followed shortly after release on licence.

2. The anti-social behaviour order was quashed. Section 1C of the Crime and Disorder Act 1998 imposed two cumulative conditions: anti-social conduct and the necessity of an order to protect persons from further anti-social acts. The first condition was satisfied, but the second was not.

3. Applying R v Boness and others [2006] 1 Cr.App.R (5) 690, the court held that an ASBO is preventative. It should not be used merely to prohibit criminal conduct or to increase the punishment available for later offending. The proposed restrictions would add no useful protection beyond ordinary observation, arrest and prosecution. The offending could occur within seconds, so the order would be of limited practical use as a means of prevention.

4. The court added that, had an order been necessary, its five-year duration and geographical scope would have required reduction. ASBO terms must be proportionate to the risk addressed.

• Court of Appeal (Criminal Division): Allowed the appeal against the anti-social behaviour order and quashed it; dismissed the appeal against sentence.
• Crown Court at Blackfriars: On 10 April 2006 imposed concurrent 15-month detention terms and a five-year anti-social behaviour order. On 5 May 2006 varied the sentence to credit 38 days spent on remand.
• West London Magistrates’ Court: On 19 January 2006 the appellant pleaded guilty and was committed for sentence.