Director of Public Prosecutions v Bulmer

A Criminal Behaviour Order may be made where, after the criminal-behaviour gateway is satisfied, the court evaluates that the order will help prevent further harassment, alarm or distress. Section 22(4) of the Anti-Social Behaviour, Crime and Policing Act 2014 requires judgment and evaluation, not proof to the criminal standard. A prohibition alone can satisfy the statutory condition; positive requirements are permitted but not mandatory. Past non-compliance, existing police powers and the absence of a positive requirement may be relevant, but none is automatically decisive. Appellate interference is confined, though proportionality requires careful scrutiny. Orders must be clear, certain and tailored to the offender. A repealed power cannot be treated as an available alternative.

The Director of Public Prosecutions appealed by case stated from the refusal of District Judge Lower at York and Selby Magistrates’ Court to make a Criminal Behaviour Order against Karen Bulmer. She had repeatedly breached an existing Anti-Social Behaviour Order and had a substantial history of alcohol-related anti-social behaviour in York.

The proposed order would have excluded her indefinitely from the area within York’s outer ring road. The District Judge held that section 22(4) of the Anti-Social Behaviour, Crime and Policing Act 2014 was not satisfied because the order contained no positive requirement addressing her alcoholism, would displace offending elsewhere, and alternative police powers were available. The central issues concerned the meaning and proof of the second statutory condition, the relevance of positive requirements and prior non-compliance, existing orders and the repealed section 27 power.

The appeal was allowed to the extent that the District Judge’s approach to section 22(4) was erroneous, and the questions of law were answered as follows.

1. Second condition. Section 22(4) of the Anti-Social Behaviour, Crime and Policing Act 2014 contains no express burden or standard of proof. Once section 22(3) is satisfied beyond reasonable doubt, the section 22(4) inquiry is evaluative. The court must consider whether the order will help prevent the specified behaviour. It is not a matter of pure discretion, but an appellate court should not interfere unless the judge plainly erred in fact, law or by omitting a relevant matter.
2. Positive requirements. The 2014 Act replaced the earlier prohibitory regime with a more flexible one. Removing “necessary” lowered the hurdle, while positive requirements were added as an option. Section 22(5) does not require every order to contain a positive requirement. Its absence may be relevant, especially where evidence shows that such a requirement would help, but it cannot be treated as dispositive.
3. Evaluation of the proposed exclusion. The effect of relocating offending, previous failures to comply with orders and the existence of an ASBO or other police powers may be considered. Past non-compliance is not by itself a reason to refuse an order and may support a different or varied order. Clear exclusion zones may provide pre-emptive protection and are easier to police than uncertain behavioural prohibitions. Orders must nevertheless be precise, proportionate and tailored to the individual. Proportionality is intensely fact-sensitive.
4. Section 27 power. The District Judge was entitled to consider the respondent’s previous compliance with a direction under section 27 of the Violent Crime Reduction Act 2006, but erred in treating that power as still available because it had been repealed by paragraph 45 of Schedule 11 to the 2014 Act.
5. The District Judge was entitled on the evidence to find that the respondent was sufficiently connected with, and could fairly be described as resident in, York. Had section 22(4) been satisfied, proportionality would also have required consideration. Mrs Justice Nicola Davies agreed.

1. High Court (Administrative Court) — The DPP appealed by case stated from the refusal of District Judge Lower at York and Selby Magistrates’ Court. The High Court answered the six questions of law and held that the District Judge had erred in his construction of section 22(4).