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

An anti-social behaviour order condition must be clear, necessary and proportionate. A prohibition on wearing a hooded garment may satisfy those requirements where the evidence shows that the garment forms part of a gang uniform, is used to intimidate others and helps conceal the wearer’s identity. Prohibiting only the raising of the hood may be ineffective, making a prohibition on wearing the garment itself proportionate. The condition may therefore be lawful even though it affects an individual’s preferred appearance and engages an argument based on freedom of expression.

The claimant challenged an anti-social behaviour order made by Greenwich Magistrates’ Court under Crime and Disorder Act 1998, section 1. The order prohibited him from wearing any garment with an attached hood in public in the London Borough of Greenwich, whether the hood was raised or lowered.

The condition followed findings that the claimant and other members of a gang wore hooded tops during intimidating public disorder, both as part of a gang uniform and to reduce the chance of recognition. The central issues were whether the condition was unreasonable, whether it was necessary and proportionate, and whether it arguably infringed Article 10 of the European Convention on Human Rights.

1. The application for judicial review was dismissed. The challenged condition was lawful.
2. A condition in an anti-social behaviour order must be clear, necessary and proportionate. The court applied the principles summarised in R v Boness and others [2005] EWCA Crim 2395.
3. The District Judge was entitled to find that the hooded tops contributed to swagger, menace and fear associated with intimidating group activity. The prohibition addressed two connected purposes: preventing the wearing of an apparent gang uniform and reducing the wearer’s confidence that the hood would assist concealment and avoidance of identification.
4. The condition was directed at conduct intended to cause fear and minimise recognition, rather than at appearance as such. On the findings made, it was necessary and proportionate. Prohibiting only the raising of the hood would have been ineffective, so prohibiting the wearing of the garment was justified.
5. The court rejected the claimant’s objections based on unreasonableness and Article 10. The costs issue was remitted to a taxing judge for determination in accordance with the applicable Regulations, including public funding assessment.

The judgment describes the earlier making of the anti-social behaviour order by Greenwich Magistrates’ Court, but this was a first-instance judicial review determination rather than an appeal.