Henry, R. v

Where a young offender has received a substantial custodial sentence, a criminal anti-social behaviour order requires compelling, case-specific material showing that custody and licence supervision will not adequately protect the public from further anti-social conduct. Previous possession of weapons, without a history of disobeying court orders or prior custody, may not meet that threshold. Necessity and proportionality must be assessed on the individual facts at the time of sentence.

R v Henry concerned an 18-year-old who pleaded guilty at Birmingham Crown Court to possessing a prohibited firearm, possessing ammunition without a certificate, and possessing a bladed article. He received five years’ detention on the firearm count. The Crown Court also imposed a 10-year Anti-Social Behaviour Order prohibiting entry into specified areas of Birmingham and contact with named persons.

He renewed an application for leave to appeal against the order, contending that it was unnecessary, too wide and excessive in duration. The Court of Appeal also identified that detention orders purportedly imposed under section 91 of the Powers of Criminal Court (Sentencing) Act 2000 on counts 2 and 3 were unlawful. The central issue was whether the evidence justified an ASBO despite the substantial custodial sentence and prospective licence supervision.

1. The appeal was allowed. The Anti-Social Behaviour Order was quashed. Although carrying a loaded firearm in a city centre was exceptionally serious, the seriousness of the offence and concern about gang culture did not by themselves establish that a further order was necessary after a five-year period of detention.
2. Following the approach illustrated by R v P [2004] 2 Cr App R (S) 63 and R v Kirby [2005] EWCA Crim 1228, each case depended on its facts. Once an 18-year-old offender had received five years’ detention, compelling reasons were required for an ASBO, particularly one lasting 10 years. The relevant question was whether the custody and licence regime would fail to protect the public from comparable future conduct.
3. There was no sufficient material to answer that question affirmatively. The appellant had twice previously possessed weapons, but had not previously received a custodial sentence. There was also no history of disobeying court orders. Such a history could have supported the conclusion that a further order was required. The contrasting circumstances in R v Parkinson [2004] EWCA Crim 2757, involving extensive previous offending and persistent anti-social behaviour, did not assist the Crown.
4. The court also quashed the concurrent sentences on counts 2 and 3. Their statutory maxima meant that the Crown Court had no jurisdiction to sentence under section 91 of the Powers of Criminal Court (Sentencing) Act 2000. Concurrent four-month detention and training orders under section 106A were substituted. The five-year sentence on count 1 remained effective and was not under appeal.

• Court of Appeal (Criminal Division) — in [2011] EWCA Crim 3051, granted renewed leave, quashed the Anti-Social Behaviour Order, and corrected the unlawful sentences on counts 2 and 3.
• Birmingham Crown Court — on 28 July 2011, sentenced the appellant after guilty pleas and imposed a 10-year Anti-Social Behaviour Order.