Swindon Borough Council v Daniel Abrook

This appeal concerned the correct approach to applications for anti-social behaviour injunctions under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 and whether 'passive' begging falls within the statutory definition of "anti-social behaviour". The Court of Appeal held that the statutory test in section 2 — conduct that has caused, or is likely to cause, harassment, alarm or distress — is the proper focus and that any gloss distinguishing "passive" from "aggressive" begging should not replace the statutory language. The court also explained that once the court is satisfied the respondent has engaged in anti-social behaviour it may, if just and convenient for the purpose of prevention, impose restraints on conduct that is not intrinsically anti-social, subject to proportionality and the requirements for attaching a power of arrest under section 4. Finally the court held that the district judge had no power to discharge the injunction of his own motion at the sentencing hearing and that he erred in law in discharging Order 5.

Background and parties:

• The appellant council obtained an anti-social behaviour injunction dated 11 April 2022 (Order 5) against Mr Daniel Abrook. The district judge subsequently discharged Order 5 on 8 May 2023 after a sentencing hearing for admitted contempts. The council was granted permission to appeal and the matter was transferred to the Court of Appeal; the respondent did not take part in the appeal. An advocate was appointed to the court to assist.

Facts and procedural history:

• Mr Abrook, a persistent beggar in Swindon with a history of prior orders, had been the subject of earlier injunctions and committal proceedings. Order 5 prohibited, among other things, begging, sitting on pavements, sitting near pay-and-display machines and acting in any way likely to cause alarm, harassment or distress. The council relied on witness statements describing repeated begging, some aggressive incidents, discarded needles and public defecation, and statements that his conduct caused harassment, alarm or distress to businesses and the public.
• Mr Abrook admitted multiple breaches of Order 5 at various hearings and faced committal. At a bank-holiday hearing the district judge discharged Order 5 on the apparent basis that "passive" begging is not anti-social behaviour and because imprisonment was in his view not an effective response to underlying drug addiction. The council appealed on five limited grounds.

Issues framed:

1. Whether begging, in particular "passive" begging, is capable of amounting to anti-social behaviour under section 2 of the Act.
2. Whether an injunction may lawfully restrain conduct that is not intrinsically anti-social when that restraint is just and convenient for the purpose of preventing anti-social behaviour.
3. Whether the district judge had power to discharge the injunction of his own motion at a sentencing hearing without notice to the applicant and whether that discharge was lawful.

Court's reasoning and disposition:

• The court emphasised that the statutory definition in section 2 — conduct that has caused, or is likely to cause, harassment, alarm or distress — is the correct legal test and should not be replaced by a categorical dichotomy of "passive" versus "aggressive" begging. Whether particular begging satisfies the test depends on context and evidence: the applicant must show, on the balance of probabilities, that the behaviour has caused or is likely to cause one of the listed effects, and the court should expect descriptive particularity rather than bare assertions.
• The court explained the separate second limb of section 1: once anti-social behaviour is established the court may grant an injunction that restrains other conduct (even if not intrinsically anti-social) if it is just and convenient to do so for the purpose of prevention, subject to proportionality. Attachment of a power of arrest requires satisfaction of the section 4 threshold.
• Procedurally the district judge had no power to discharge the injunction of his own motion at the sentencing hearing; he should have given notice and dealt with sentencing for the admitted breaches or adjourned. For those reasons the Court of Appeal allowed the appeal, quashed the discharge of Order 5 and remitted the matter to the county court for sentencing in respect of the admitted contempts, with directions about proportionality and reference to relevant guidance and authorities.

Appeal allowed. The Court of Appeal held that the statutory test in section 2 of the Anti-social Behaviour, Crime and Policing Act 2014 — conduct that has caused, or is likely to cause, harassment, alarm or distress — is the governing test and should not be supplanted by a simplistic passive/aggressive begging dichotomy. Once anti-social behaviour is established the court may, if it is just and convenient for the purpose of prevention, impose restraints on conduct that is not intrinsically anti-social, subject to proportionality and the conditions for attaching a power of arrest. The district judge erred in discharging Order 5 of his own motion at a sentencing hearing without notice and the case is remitted for sentence on the admitted contempts.

Appeal from Swindon Law Courts, District Judge Hatvany (order discharging injunction dated 8 May 2023). Permission to appeal was granted and the appeal was transferred to the Court of Appeal (transfer accepted by Andrews LJ on 4 July 2023). This judgment: Court of Appeal, [2024] EWCA Civ 230 (08 March 2024).