Heron v Plymouth City Council

An anti-social behaviour order must impose restrictions that are necessary, proportionate, precise, comprehensible, enforceable and targeted at the individual conduct to be prevented. A prohibition may validly exclude a person from a defined shopping area where it removes a particular temptation and leaves reasonable access to essential facilities. A prohibition which merely repeats a general public-order offence, or is so obscure that its meaning cannot readily be understood, is invalid. Magistrates must give short but sufficient reasons so that the subject understands why an order was imposed and what it seeks to prevent.

This was an appeal by way of case stated from Plymouth District Magistrates’ Court. The magistrates had varied an anti-social behaviour order imposed in 2004 after the appellant had committed further offences and breached the order. The variation contained four prohibitions, including exclusion from part of Plymouth city centre, a prohibition on behaviour causing or likely to cause harassment, alarm or distress, a vehicle-related prohibition, and a complex restriction concerning possession of new or packaged goods without a receipt.

The appellant challenged the necessity, proportionality, clarity and legal validity of the restrictions, and also raised questions concerning hearsay evidence and the adequacy of the magistrates’ reasons.

1. Disposition. The appeal succeeded in part. The first prohibition, excluding the appellant from the defined city-centre area, was necessary and proportionate. The third prohibition was not challenged. The second and fourth prohibitions were invalid and had to be removed.
2. First prohibition. An ASBO is preventive rather than punitive, as recognised in R v Boness [2005] EWCA Crim 2395. Nevertheless, excluding the appellant from the marked shopping area was justified. It removed the particular temptation created by the concentration of shops while preserving access to shopping as needed and to the bus and railway stations, benefits office, police station and library.
3. Second prohibition. The prohibition against behaving in any way causing or likely to cause harassment, alarm or distress was too broad. It substantially repeated offences under the Public Order Act 1986 and lacked the precision and targeting required of an ASBO. The court applied the principle stated in CPS v T [2006] EWHC 728, particularly at paragraph 39.
4. Fourth prohibition. The restriction concerning packaged, wrapped, bagged, new or unused goods was unintelligible without extensive explanation. Given that breach of an ASBO could result in imprisonment for up to five years, its terms had to be kept as simple and clear as possible. It therefore failed the requirements of clarity and enforceability.
5. Evidence and reasons. Hearsay evidence may be admissible and valuable when an ASBO is imposed, but magistrates must not rely on a mere denied allegation of an offence unless it is proved. That issue did not arise materially on the variation application and the court’s answer was not part of the necessary decision. The reasons given orally by the magistrates were insufficient: although reasons may be short and simple, they must explain why the order was imposed and what it is intended to address.
6. The court endorsed the Judicial Studies Board’s Anti-social Behaviour Orders Guide for the Judiciary, which had received Court of Appeal endorsement, particularly in R v Charles [2009] EWCA Crim 1570.

There was no order as to costs, with taxation available if required.

1. High Court (Administrative Court): The appeal by way of case stated was allowed in part. The first prohibition was upheld, the second and fourth were removed, and the unchallenged third prohibition remained.
2. Plymouth District Magistrates’ Court: On 18 May 2009, the magistrates varied the appellant’s existing anti-social behaviour order.