Rabess, R (on the application of) v Commissioner of Police for the Metropolis

An anti-social behaviour order may prohibit conduct which also amounts to a criminal offence, provided the order is preventative, necessary and proportionate. The overlap with criminal law is not an absolute bar, but the court must examine the facts and whether the criminal law provides adequate protection. Necessity requires evaluation both of the order in principle and of each individual prohibition. Terms may address conduct occurring in private where it causes harassment, alarm or distress to persons outside the household. However, prohibitions must be sufficiently specific and confined to conduct affecting the protected public. An order may be amended to achieve that clarity.

This was an appeal by way of case stated against anti-social behaviour orders made following a volatile and abusive relationship between the claimant and his partner. The orders prohibited abusive, insulting, threatening or intimidating language or behaviour and violence between them. The claimant argued that the orders were punitive, disproportionate, unclear and unenforceable because they overlapped with criminal offences and concerned domestic conduct.

The central issues were whether the statutory conditions for an order were satisfied, whether the prohibitions were necessary and proportionate, and whether their terms were sufficiently clear.

1. The appeal was allowed to the limited extent that the terms of the anti-social behaviour order were varied.
2. Under section 1 of the Crime and Disorder Act 1998, the first limb required proof to the criminal standard that the claimant had acted in an anti-social manner causing or likely to cause harassment, alarm or distress to persons outside his household. The meaning of “likely” was that stated in Chief Constable of Lancashire v Potter [2003] EWHC 2272 Admin.
3. Once the first limb was established, necessity was a matter of judgment and evaluation rather than proof to a particular standard. The court had to consider both whether an order was necessary in principle and whether each prohibition was necessary. The deputy district judge was entitled to find necessity given the longstanding and regular behaviour, its effect on neighbours and members of the public, the failure of police intervention to prevent it, and the effectiveness of the interim order.
4. The fact that a prohibition might cover conduct amounting to a criminal offence did not itself prevent its inclusion. The court had to exercise caution and examine whether the prohibition added protection which the criminal law did not adequately provide. Here the terms did not fully mirror the relevant offences and were preventative rather than punitive.
5. The prohibitions could extend to conduct in private where the conduct affected neighbours or other persons outside the household. The claimant’s private-life rights had to be balanced against the rights of others. A geographical limit was unnecessary because the behaviour occurred wherever the couple happened to be.
6. Although the terms were intelligible, they were too wide and insufficiently specific because they could prohibit private insulting or abusive remarks which did not affect the wider public. They were amended by adding, in relation to each term, the qualification “within sight or hearing of a person not of the same household as the appellant”.
7. The third question posed in the case stated added nothing and required no separate answer. There was no order as to costs.

This was an appeal by way of case stated from anti-social behaviour orders made by a deputy district judge on 20 February 2006. The High Court varied the terms of the orders and made no order as to costs.