Lovegrove, R. v

An anti-social behaviour order must be necessary to protect a victim or the public from further anti-social conduct. It is not justified merely because an offender has a serious record or because other sentencing powers may deter future offending.

A breach of such an order is a distinct statutory offence. Where the conduct also constitutes another offence with a lower maximum penalty, that maximum remains relevant to proportionality but does not cap the sentence for breach. The court must sentence for the breach of the order, within its separate statutory maximum, and impose a commensurate sentence.

Three conjoined appeals concerned anti-social behaviour orders (ASBOs).

Henchcliffe, aged 15 when he seriously assaulted his neighbour, appealed the duration and geographical terms of a ten-year ASBO imposed with a custodial sentence. Stevens appealed a nine-month sentence for breaching an ASBO by being drunk and urinating in public. Lovegrove appealed an ASBO imposed after two shoplifting offences, alongside an 18-month conditional discharge.

The common issues were whether the orders were necessary and proportionate, and whether a sentence for breach of an ASBO was limited by the maximum penalty for the conduct which also constituted a separate offence.

1. Henchcliffe’s appeal was allowed to a limited extent. There was a real risk that, on release, he might harass, alarm or distress the victim. An ASBO therefore remained necessary. But a ten-year exclusion from a broad area would prevent him from returning to his family home and would impede rehabilitation. The order was reduced to five years; the non-contact condition remained, and the geographical restriction was confined to the victim’s street.

2. Stevens’s appeal was dismissed. A sentence for breach of an ASBO is for the distinct statutory offence of breaching the order. If the same conduct is also a criminal offence with a lower maximum penalty, that maximum is relevant to commensurability but is not a ceiling on the sentence for breach. The contrary approach in R v Morrison [2005] EWCA Crim 2237 had been wholly undermined. The judge’s nine-month sentence was not excessive given the breach, the warning on deferred sentence and the appellant’s extensive offending history.

3. Lovegrove’s appeal was allowed. The evidence did not show that the shoplifting offences created the harassment, alarm or distress which ordinarily underpins an ASBO. The conditional discharge and potential activation of 427 days’ imprisonment already supplied a substantial deterrent. The ASBO was neither necessary nor justified and was quashed; the conditional discharge remained.

• Court of Appeal (Criminal Division): varied Henchcliffe’s ASBO, dismissed Stevens’s sentence appeal, and quashed Lovegrove’s ASBO.

• Crown Court: Henchcliffe was sentenced at Derby; Stevens was sentenced at Aylesbury after committal from the magistrates’ court; and Lovegrove received a conditional discharge and an ASBO at Isleworth.