Hills v Chief Constable of Essex

An anti-social behaviour order may prohibit conduct which also constitutes a criminal offence. There is no absolute bar. The controlling question is whether the prohibition is necessary to protect the public from further anti-social acts by the defendant. Each prohibition must be precise, enforceable and specifically fashioned to the individual case. Preparatory conduct may be preferable, but a prohibition covering the criminal act itself can be lawful where it is more likely to prevent further anti-social behaviour. A non-association prohibition may also be imposed against one person without a reciprocal order against the other, provided the order is necessary and a reasonable excuse protects against unintended breaches.

The appellant, aged 12, was made subject to a two-year anti-social behaviour order by Witham Magistrates' Court. The Crown Court dismissed his appeal and stated a case for the High Court.

The appeal concerned whether the order could lawfully prohibit him from carrying any knife or bladed article in a public place and from associating with a named individual who was not subject to a reciprocal non-association order. The appellant accepted the conduct underlying the order, but challenged the necessity and scope of those prohibitions.

1. Appeal dismissed. Both questions were answered yes.
2. Under section 1 of the Crime and Disorder Act 1998, an order must be necessary to protect relevant persons from further anti-social acts. The prohibitions must be precise, enforceable and individually fashioned. Generic prohibitions are inappropriate, and each separate prohibition must itself be necessary.
3. There is no absolute bar on prohibiting conduct which would amount to a criminal offence. The court should ordinarily consider whether preparatory conduct can prevent the anti-social behaviour before it occurs. However, a direct prohibition may be justified where it is necessary and more likely to secure acceptable behaviour than the ordinary criminal sanction.
4. The knife prohibition was lawful. Section 139 of the Criminal Justice Act 1988 did not necessarily criminalise possession of a penknife with a blade of three inches or less. The Crown Court had found that the appellant used a penknife to threaten others. Prohibiting all knives in public was therefore necessary to address conduct falling outside the criminal prohibition and was not disproportionate. The statutory defence under section 139(4), and the reasonable-excuse defence to breach of the order, remained available.
5. The non-association prohibition was also lawful. Such a prohibition may be imposed where the subject behaves particularly anti-socially in the named person's company, even without a reciprocal order. Unintentional contact would not ordinarily constitute a breach because it would provide a reasonable excuse. The Crown Court was entitled to find that the appellant's conduct was significantly motivated by exhibitionism in the named person's presence and that non-association was necessary.
6. The appellant was ordered to pay the respondent's costs, to be assessed if not agreed, but not enforced without leave of the court.

1. High Court (Administrative Court) — [2006] EWHC 2633 (Admin): appeal by way of case stated dismissed and both questions answered affirmatively.
2. Chelmsford Crown Court — appeal against the magistrates' anti-social behaviour order dismissed; the Crown Court stated a case for the opinion of the High Court.
3. Witham Magistrates' Court — anti-social behaviour order made for two years.