Browne-Morgan, R. v

A criminal behaviour order under section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 requires proof beyond reasonable doubt of conduct causing, or likely to cause, harassment, alarm or distress. The court must then judicially consider whether the order will help prevent that conduct; that second assessment does not require proof beyond reasonable doubt.

There is no requirement that the future conduct targeted by an order must occur in the same location as the past conduct. On appeal, the question is whether the sentencing judge was entitled to make the preventive assessment. A geographical prohibition must nevertheless be proportionate and defined with sufficient clarity, especially where breach may be alleged.

The appellant was sentenced at Swindon Crown Court on three counts of possessing heroin and crack cocaine with intent to supply. Further supplies were taken into consideration. The sentencing judge also made a three-year criminal behaviour order containing geographical, association, mobile-phone and knife prohibitions.

With permission of the Single Judge, the appellant challenged only the order. He contended that the statutory threshold for past anti-social behaviour was not met, that several prohibitions lacked a sufficient preventive connection, and that the Southwark geographical exclusion was excessive and unclear. During the appeal, the Crown proposed replacing that exclusion with a prohibition on intimidating public congregations.

1. The appeal was allowed in part. The court upheld the making of the criminal behaviour order and all challenged prohibitions except the Southwark geographical exclusion. It amended prohibition 2 to prevent the appellant from congregating in a public place in a group of two or more persons in a manner causing, or likely to cause, any person to fear for their safety.
2. Under section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014, repeated drug supplies and their circumstances were capable of establishing beyond reasonable doubt conduct causing, or likely to cause, harassment, alarm or distress. The first statutory condition was therefore satisfied. The court referred in particular to R v Sharon Briggs [2009] EWCA Crim 1477.
3. The phrase “such behaviour” in the second condition did not require the proposed prohibition to concern the same place as the earlier conduct. Location was not part of the statutory definition of the behaviour to be prevented.
4. The second condition required a judicial assessment that the order would help prevent the relevant behaviour. It did not require proof beyond reasonable doubt. The appellate question was whether the sentencing judge was entitled to reach that assessment, rather than whether this court would have done so itself. The material concerning a possible drugs source, gang association, gang violence and the pre-sentence assessment, although of varying precision and quality, was sufficient in combination to support prohibitions on association and carrying a bladed article.
5. The Southwark exclusion raised separate concerns over its proportionality and its uncertain mapped boundaries. Clarity was especially important because breach of the order could later be alleged. The replacement prohibition was appropriate because violence and threats were linked on the evidence to the drug-related behaviour being targeted. Similar wording had been accepted in R v Bowness and Others [2005] EWCA Crim 2395 and N v DPP [2007] EWHC 883 (Admin).

• Court of Appeal (Criminal Division): Allowed the appeal only to amend the Southwark geographical prohibition in the criminal behaviour order.
• Crown Court at Swindon: On 27 November 2015, sentenced the appellant for three counts of possessing Class A drugs with intent to supply and made the three-year criminal behaviour order.