N v Director of Public Prosecutions

An anti-social behaviour order must be framed in terms that are necessary and proportionate. A prohibition should not prevent ordinary, innocent activities merely because breach might be avoided by relying on a reasonable-excuse defence where that safeguard is inadequate. Where the mischief is group conduct likely to cause fear for personal safety, the prohibition may be narrowly framed to target that conduct. The relevant conduct need not itself amount to a criminal offence.

A 15-year-old appellant was made subject to an anti-social behaviour order after conviction for disorderly conduct. The Youth Court prohibited him from, among other things, congregating in groups of three or more in a public place, except with adults over 21. The Crown Court dismissed his appeal against the order but deleted one prohibition and left the group restriction substantially intact.

On an appeal by way of case stated, the Administrative Court considered whether that restriction was too wide and disproportionate, and whether it could be replaced by a more focused prohibition.

1. Appeal allowed in part. The existing prohibition on congregating in groups of three or more was quashed and replaced by an agreed prohibition against congregating in a public place in a group of two or more persons in a manner causing or likely to cause any person to fear for their safety.
2. The purpose of the prohibition was legitimate because the evidence showed that the appellant’s behaviour was, or could reasonably be expected to be, worse in the company of others. Nevertheless, the prohibition as drafted was impermissibly wide. It could catch ordinary conduct, such as standing in a bus queue or attending a football match.
3. The court applied the guidance in R v Boness [2006] 1 Cr App R (S) 120. A prohibition capable of preventing attendance at sporting or other outdoor events was disproportionate, and reliance on a reasonable-excuse defence was an insufficient safeguard.
4. The substituted wording appropriately targeted conduct causing, or likely to cause, fear for personal safety. Such conduct would not necessarily itself constitute a public order offence, including affray, which would require additional elements.

• High Court (Administrative Court): The appeal by way of case stated was allowed to the limited extent that prohibition (5) was quashed and replaced with narrower wording.
• Chelmsford Crown Court: The appeal against the anti-social behaviour order was dismissed, but one prohibition was deleted.
• North East Essex Youth Court: An anti-social behaviour order was imposed for 12 months following conviction.