Pender v Director of Public Prosecutions

An antisocial behaviour order should not be made where the defendant is genuinely incapable of complying with it. This is distinct from a case where compliance is difficult or disobedience is likely or inevitable. The court must assess both understanding of the order and capacity to comply. Fact-finders may reject expert evidence, including unchallenged evidence, but must identify the factual basis for doing so. Where the evidence establishes incapacity to comply and the lower court gives no reasoned basis for rejecting it, the order is an improper exercise of the statutory discretion and should be quashed.

The claimant appealed by way of case stated from the dismissal by the Isleworth Crown Court of his appeal against an antisocial behaviour order imposed by the West London Magistrates’ Court. The order prohibited him from approaching strangers in public and asking for money in the Royal Borough of Kensington and Chelsea, and from entering London Underground railway premises there except for travel.

The claimant had pleaded guilty to six begging offences. The central issue was whether, although he understood that begging was prohibited and knew that disobedience could have consequences, he lacked the capacity to comply with the order because of severe nicotine addiction, mental retardation and schizophrenia.

1. Appeal allowed. The antisocial behaviour order was quashed. The lower courts had accepted that the statutory condition concerning conduct likely to cause harassment, alarm or distress was satisfied, but had failed properly to address the separate question of capacity to comply.
2. The court applied the distinction explained in R(Cooke) v DPP, [2008] EWHC 278 (Admin). A defendant’s likely or inevitable disobedience does not by itself establish incapacity. An order may still be necessary to protect the public where the defendant can comply but is likely to choose not to do so. The position is different where the defendant is truly incapable of complying, because the order would neither provide the intended protection nor be a proper exercise of the statutory discretion.
3. The unchallenged report of Dr Lord went beyond showing that the claimant was likely to disobey. It described an overwhelming addiction, compounded by his other mental difficulties, which compelled him to beg when he lacked money for cigarettes. The court rejected the submission that his ability not to beg when he had sufficient money demonstrated a real capacity to choose compliance.
4. Fact-finders are entitled to disagree with expert evidence, but they must identify a factual basis for doing so and explain it, at least shortly. The case stated contained no finding or reasoning explaining why Dr Lord’s conclusion on incapacity was rejected. That omission was a defect in the stated case.
5. The only reasonable conclusion on the evidence was that this was a rare case in which the claimant lacked capacity to comply. The order should therefore not have been made.

• High Court (Administrative Court): allowed the appeal from the Isleworth Crown Court and quashed the antisocial behaviour order.
• Isleworth Crown Court: dismissed the claimant’s appeal against the order; decision recorded in a case stated dated 2 March 2012.
• West London Magistrates’ Court: imposed the antisocial behaviour order on 26 October 2011 after the claimant pleaded guilty to six begging offences.