McGarrett, R (on the application of) v Kingston Crown Court

An anti-social behaviour order must be procedurally fair, necessary and proportionate. The court must record supporting findings, put its concerns to the offender, and consider existing orders or sanctions. An indefinite order based on a historic incident, disputed material and without proper analysis of an existing suspended possession order fell outside the Crown Court’s sentencing discretion and involved an error of law.

The claimant sought judicial review of an indefinite anti-social behaviour order imposed by Kingston Crown Court after his appeal against conviction for breaching a noise abatement notice. The order prohibited loud noise, contact with named neighbours and placing amusement facilities near his home.

He argued that the order was procedurally unfair, unnecessary and disproportionate, relying on the absence of recorded findings, disputed allegations, the lack of recent offending and an existing suspended possession order. The central issues were whether the order was lawful and within the Crown Court’s sentencing discretion.

1. Claim succeeded. The Divisional Court quashed the indefinite anti-social behaviour order.
2. The Crown Court could consider an order on its own initiative, but had to act fairly. It recorded no findings of fact supporting the order and did not put its concerns precisely to the claimant. The requirement to record findings, identified in R v W and F [2006] EWCA Crim 686, reflected broader procedural fairness.
3. Under section 1C of the Crime and Disorder Act 1998, anti-social conduct had to be proved to the criminal standard, while necessity required judgment and evaluation. The order also had to be precise, understandable and proportionate, and was protective rather than punitive, applying R v Boness and Others [2005] EWCA Crim 2395.
4. Necessity was not established. The principal matter was a single incident more than a year earlier. The alleged threat had not been led in evidence. The Crown Court also failed to analyse the order alongside the suspended possession order, contrary to R (F) v Bolton Crown Court EWHC 240 (Admin).
5. Applying R v St Albans Crown Court, ex parte Cinnamond [1981] QB 480, R v Crown Court at Croydon, ex parte Miller [1987] 85 Cr App R 152 and R v Truro Crown Court, ex parte Adair [1990] COD 296, the order was outside the reasonable range and indicative of an error of law.

Permission for judicial review was granted by Dobbs J in February 2009. The Divisional Court quashed the anti-social behaviour order.