Simsek, R. v

A criminal behaviour order under section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 requires a conviction after the relevant provisions came into force. Where criminal proceedings began before commencement, section 33 instead preserves the power to make an anti-social behaviour order under the earlier regime.

An anti-social behaviour order must remain necessary to prevent further anti-social conduct and must be proportionate in duration and terms. Conditions directed at mere possession of drug-related items are unnecessary where possession itself causes no harassment, alarm or distress and criminal law already addresses their unlawful use. Conditions which extend to lawful items without an obvious connection to the relevant anti-social behaviour are too wide.

The applicant pleaded guilty in the Crown Court at Blackfriars to three offences of supplying cannabis. He received concurrent suspended sentences, unpaid work and an anti-social behaviour order. After the commencement of the new statutory regime, the Crown Court purported under the slip rule to substitute a criminal behaviour order in the same terms.

The applicant sought leave to appeal against sentence and the order. Before the application was heard, the suspended sentence had been activated following breaches of the territorial restriction. The principal issues were whether the court had power to impose a criminal behaviour order, whether an order remained necessary, and whether its duration and conditions were excessive, vague or disproportionate.

1. Leave to appeal was granted and the appeal allowed in part. The criminal behaviour order was invalid because the applicant had been convicted before the relevant provisions of the Anti-Social Behaviour, Crime and Policing Act 2014 came into force.

2. Section 33 of the 2014 Act preserved the power to make an anti-social behaviour order where criminal proceedings had begun before 20 October 2014. The applicant's guilty plea and conviction pre-dated that day. The Crown Court could therefore make an anti-social behaviour order under section 1C of the Crime and Disorder Act 1998.

3. By contrast, the reference to conviction in section 22(1) of the 2014 Act naturally meant a conviction after the Act came into force. The Crown Court consequently had no power to make a criminal behaviour order in this case.

4. An anti-social behaviour order remained necessary. The applicant's subsequent breaches and activation of the suspended sentence undermined the argument that the risk of further anti-social conduct had sufficiently reduced. However, a five-year duration was disproportionate in his individual circumstances. The substituted order was therefore limited to three years.

5. The territorial restriction was retained. The court would not reshape it on unverified information about possible future accommodation. Any variation should be determined by the appropriate court on properly investigated evidence.

6. The prohibitions on drug paraphernalia and on herbal substances or self-seal bags were not reinstated. Applying R v Briggs [2009] EWCA Crim 1477, possession of paraphernalia alone would not cause the relevant distress, while unlawful use was already criminal. The remaining conditions also extended to lawful items without an evident connection to the conduct in issue.

7. The sentence of imprisonment was quashed and replaced with detention in a young offender institution for the same period and on the same terms. The £100 victim surcharge was quashed and replaced with a £20 surcharge.

• Court of Appeal (Criminal Division) — Granted leave and allowed the appeal in part. It replaced the invalid criminal behaviour order with a three-year anti-social behaviour order containing only the territorial restriction, and corrected the sentence and surcharge.
• Crown Court at Blackfriars — Imposed concurrent suspended sentences for three cannabis-supply offences, unpaid work and an anti-social behaviour order on 21 October 2014. On 5 November 2014, it purported to substitute a criminal behaviour order in the same terms under the slip rule.