JB v Director of Public Prosecutions

An offence of breaching an anti-social behaviour order under section 1(10) of the Crime and Disorder Act 1998 does not require proof of a specific mental element when the prohibited act is committed. The defendant’s state of mind may nevertheless be relevant to whether there was a reasonable excuse. Once the defendant raises that issue and satisfies the evidential burden, the prosecution must prove the absence of reasonable excuse. The court may consider all the circumstances, including an admission of subjective recklessness in a related criminal damage offence and the defendant’s failure to give evidence.

The appellant, aged 15, was subject to an anti-social behaviour order containing prohibitions on association, entering a specified area and causing harassment, alarm or distress in public. He pushed or dropped a sandbag from a multi-storey car park. It shattered the skylight of a bus and alarmed and distressed passengers.

He was prosecuted for breaching the order and for criminal damage. He pleaded guilty to criminal damage on the basis of recklessness but denied intentionally dropping the bag. The Youth Court treated the breach offence as one of strict liability, while alternatively finding that the risk had been foreseen. The case was stated to the Divisional Court on the mental element required, the admissibility of the recklessness plea and the effect of the appellant’s failure to give evidence.

Appeal dismissed.

1. Nature of the offence. Section 1(10) of the Crime and Disorder Act 1998 does not require the prosecution to prove a specific mental element at the time of the acts constituting the breach. Describing the offence as one of strict liability does not resolve the separate question of how the statutory defence of reasonable excuse operates.
2. Reasonable excuse. Where the defendant raises an issue about his state of mind and satisfies the evidential burden, that state of mind must be considered in deciding whether the prosecution has proved the absence of reasonable excuse. The burden of proving that there was no reasonable excuse remains on the prosecution. Accidental breach, forgetfulness or a misapprehension about the order may, depending on the circumstances, be relevant.
3. Application to the facts. The appellant’s account that the bag had slipped raised the issue of reasonable excuse, notwithstanding that his advocate had not expressly advanced it. The judge was entitled to consider the appellant’s guilty plea to criminal damage on the basis of recklessness, since recklessness required subjective awareness of the risk. The judge was also entitled to take account of the appellant’s failure to give evidence. The evidence supported the conclusion that the risk had been obvious, had actually been foreseen and that the conduct was not accidental.
4. It was unnecessary to decide whether the prosecution would also have to prove that the appellant knew that his conduct constituted a breach of the order, since there was no evidential basis for that issue.

• High Court (Administrative Court): On an appeal by way of case stated, dismissed the appeal and upheld the Youth Court’s conclusion that the offence was proved.
• Birmingham Youth Court: Convicted the appellant of breaching the anti-social behaviour order and sentenced him to a four-month detention and training order. The court stated three questions for the opinion of the Divisional Court.