W (A Juvenile) & Anor v R

An anti-social behaviour order made on conviction under Crime and Disorder Act 1998, section 1C, requires specific findings that the offender committed anti-social acts proved to the criminal standard and that an order is necessary to protect others. Necessity is an evaluative question, but each prohibition must be individually necessary, precise, enforceable and proportionate.

The prosecution must identify the material facts, rather than present undigested evidential material. Accepted facts and judicial findings must be recorded in the order. An ASBO cannot operate as additional punishment or merely prohibit criminal conduct in general terms. Procedural fairness requires a proper opportunity to consider and challenge the evidence.

The appellants, aged 14 and 15 when they committed a robbery, were convicted at Lewes Crown Court and each received a 12-month detention and training order. The sentencing judge also made five-year ASBOs to take effect on their release. The orders included general prohibitions on assault, property damage and carrying weapons, and a prohibition on association with each other and a co-accused.

The prosecution had supplied extensive material alleging wider conduct on the Broadfield Estate. Its service, admissibility and treatment at the sentencing hearing were unclear. The judge made no particular findings about that material, but concluded that the appellants had acted anti-socially and that ASBOs were necessary.

The appeals concerned whether the procedure and findings could support the statutory necessity requirement, and whether the orders’ terms and duration were lawful.

Disposition

1. The appeals were allowed and the ASBOs were discharged.

2. Proceedings under section 1C of the Crime and Disorder Act 1998 are civil, so hearsay may be received. However, alleged anti-social conduct must be proved to the criminal standard. The court proceeded on the basis that the principles of the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 should be followed by analogy. Procedural fairness was especially important because an ASBO may substantially restrict liberty.

3. The prosecution had not identified the particular facts relied on, the service of its material was uncertain, and there was no adequate process for challenging it. A court must distinguish facts from the evidence tendered to prove them. If facts are accepted, they should be recorded in writing; if disputed, they must be proved to the criminal standard. The judge must state and record the findings which constitute anti-social behaviour.

4. In the absence of findings other than the robbery itself, the judge’s conclusion that ASBOs were necessary under section 1C(2)(b) could not stand. It would have been wrong in principle to impose an ASBO operative on release solely on the basis of the offence for which the appellants had already received detention and training orders.

5. The court further held that the actual terms would in any event have been too vague and too long. General prohibitions on criminal conduct do not address the preventive purpose of an ASBO. Any restriction must target the identified anti-social behaviour and be tailored to the individual offender. A detention and training order did not, in principle, prevent a properly justified ASBO on release, but the necessary factual foundation was absent here.

• Court of Appeal (Criminal Division) Allowed the appeals against the ASBOs and discharged them.

• Crown Court at Lewes Convicted the appellants of robbery, imposed detention and training orders, and made five-year ASBOs to take effect on release.