Cooke, R (on the application of) v Director of Public Prosecutions

An anti-social behaviour order should not be made where mental incapacity means that the defendant cannot understand its meaning or comply with its terms. In those circumstances the order cannot protect the public and is not necessary under the Crime and Disorder Act 1998. A personality disorder, impulsiveness or a resulting likelihood of breach is insufficient, by itself, to prevent an order that is otherwise necessary. The court must distinguish genuine incapacity from difficulty in complying with an order. Medical evidence should normally address whether the defendant understands the order and can comply with it.

The claimant appealed by case stated against an anti-social behaviour order made by Northampton Magistrates' Court following his conviction for a public-order offence. The order prohibited him from entering Northampton town centre, begging, behaving anti-socially, possessing a knife or razor blade in public, and using a syringe in public. It was accepted that he had acted anti-socially. The dispute concerned whether his mental-health conditions made an order unnecessary, unjust or impossible to obey. The magistrates concluded that he understood the order, could make choices, and was not bound to breach it. The central question was whether an ASBO should be made against a person whose anti-social behaviour was caused by a mental-health disorder.

1. The appeal was dismissed. The statutory conditions for making an ASBO were satisfied, and the magistrates were entitled to exercise their discretion to make the order.
2. Under section 1C(2) of the Crime and Disorder Act 1998, an ASBO cannot be necessary to protect the public if, through mental incapacity, the defendant is incapable of understanding the order or complying with it. An order in those circumstances cannot operate as protection and would be a wrong exercise of discretion.
3. The court applied the reasoning in Wookey v Wookey Re S (a minor), [1991] 3 All ER 365, concerning the futility of granting an injunction which the respondent could not understand or obey. Although an ASBO is statutory rather than equitable, the underlying principle was applicable.
4. The relevant incapacity is a medical question. Evidence would normally be expected from a psychiatrist. A personality disorder may make breach more likely, but that does not establish incapacity and does not, without more, show that an otherwise necessary order is unnecessary.
5. The magistrates had not expressly used the language of capacity, but their finding that the claimant demonstrated consequential thinking meant that he could understand what the order required and what conduct would breach it. Their finding that breach was not inevitable was one they were entitled, and effectively bound, to reach. Later events and subsequent evidence could not affect the appeal.

• High Court (Administrative Court): The appeal by case stated from Northampton Magistrates' Court was dismissed. The magistrates' ASBO was upheld.