Humphreys v CPS

For a criminal behaviour order under section 22 of the Antisocial Behaviour, Crime and Policing Act 2014, the court must consider whether the order will help prevent further antisocial behaviour. An order should not be made where the offender is incapable of understanding or complying with it, because it would merely criminalise conduct over which the offender has no control. A greater likelihood of breach caused by mental illness or a personality condition is not enough. Where incapacity may occur only intermittently, the question remains fact-sensitive. Breach caused by incapacity may constitute a reasonable excuse under the statutory breach provision.

The appellant appealed by way of case stated against the decision of Caernarfon Magistrates’ Court, which made a five-year criminal behaviour order after convictions for violence, public order and related offences. The appellant relied on unchallenged psychiatric evidence concerning untreated ADHD and rare episodes of psychosis. He argued that his condition meant that he could not comply with the order. The central issue was whether the magistrates had erred in concluding that he was capable of understanding and complying with the order, and that it would help prevent further antisocial behaviour.

1. Appeal dismissed. The case stated disclosed no error of law. The magistrates were entitled, and right, to find that the appellant understood the order and was capable of complying with it.
2. Section 22 of the Antisocial Behaviour, Crime and Policing Act 2014 contains the applicable conditions. The second condition asks whether making the order will help prevent the offender from engaging in the relevant behaviour. The statutory test is not one of necessity. The change from the former ASBO regime was intentional.
3. Applying the principles in Wookey v Wookey [1991] (Fam) 121 and R(Cooke) v DPP [2008] EWHC 2703 (Admin), a finding that an offender is incapable of understanding or complying with the order will indicate that the order cannot satisfy the second condition. The relevant distinction is between true incapacity and a condition that makes breaches more likely. ADHD, impulsivity, provocation or personality difficulties do not, without more, establish incapacity.
4. Where incapacity may arise only on some occasions, the court must decide the statutory question on the particular facts, including the precise circumstances and prognosis. An order may still be helpful despite a risk of occasional incapacity. In such a case, incapacity causing a breach may amount to a reasonable excuse under the breach provision.
5. The psychiatric evidence showed that the appellant was generally able to distinguish right from wrong, had insight into his actions and could comply with boundaries. His psychotic episodes had been rare and brief. The magistrates were therefore entitled to conclude that the order would help prevent further antisocial behaviour.

• High Court (Administrative Court): On an appeal by way of case stated, the court dismissed the appeal and upheld the decision of Caernarfon Magistrates’ Court.