Barclay & Ors v R.

A post-conviction ASBO under Crime and Disorder Act 1998, section 1C(2), must be tailored to the individual offender. The court must be satisfied that it is necessary to protect persons from that offender’s future anti-social acts, and every prohibition must be proportionate, precise and intelligible.

The deterrent effect of a custodial sentence is relevant but is not conclusive. An ASBO may remain necessary where the offender’s conduct contributes to nuisance, fear and intimidation associated with open street drug dealing, even if custody may deter further drug offending. Geographic exclusions and other restrictions require an evidential basis and must not extend beyond what is necessary.

Four appellants pleaded guilty at Bristol Crown Court to offences involving the street-level supply of Class A drugs uncovered during Operation Polar in the St Paul’s area of Bristol. They received custodial sentences and post-conviction anti-social behaviour orders. The orders excluded them from the Ashley ward, restricted association with named persons, and required mobile phones to be registered.

Mr Barclay also appealed his four-year detention in a young offender institution as manifestly excessive. All appellants challenged the necessity of the ASBOs and the proportionality and clarity of their terms. The central issue was whether the statutory conditions for post-conviction ASBOs were met despite the custodial sentences, and whether the particular restrictions were justified.

1. Sentence appeal dismissed. Mr Barclay’s four-year sentence was not manifestly excessive. The court applied the sentencing guidance in R v Djahit, [1999] 2 Cr App R(S) 142, and took account of the persistent Class A drug dealing, its scale, his record and the escalating pattern of offending.
2. ASBO appeals dismissed, subject to variations. Under Crime and Disorder Act 1998, section 1C(2), an ASBO must address the particular offender’s anti-social conduct and be necessary to protect persons from further acts by that offender. Its terms must also be proportionate, precise and capable of being understood.
3. The sentencing judge had sufficient material to find necessity for each appellant. The likely deterrent effect of custody required individual assessment. More importantly, the orders addressed not only future drug dealing but the nuisance, fear and intimidation which supported open street dealing and made the area difficult for residents and service providers. That was a distinct and proper protective purpose. The court applied the approach in R v Dyer, [2010] EWCA Crim 2096.
4. The exclusion from the whole Ashley ward lacked evidential justification. The orders were varied so that exclusion was confined to the St Paul’s area bounded by Ashley Road and Lower Ashley Road. On the individual circumstances, that narrower exclusion was proportionate. The association prohibition remained necessary and proportionate, but the appellants should receive adequate identifying information about the named persons.
5. The requirement to use only a mobile phone registered in the appellant’s own name remained proportionate. The additional requirement to register it with police intelligence officers was otiose and was removed. Definite end dates were fixed for the orders, measured from the statutory half-way point of the custodial terms while commencement remained upon release.

• Court of Appeal (Criminal Division) Dismissed the sentence appeal and the challenges to the imposition of the ASBOs, but varied the geographic exclusion and removed the police-station mobile-phone registration requirement.
• Bristol Crown Court HH Judge Darwall-Smith imposed custodial sentences following guilty pleas to Class A drug-supply offences and made post-conviction ASBOs.