Swindon Borough Council v Daniel Abrook

Under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, begging is not automatically anti-social behaviour. The labels ‘passive’ and ‘aggressive’ do not replace the statutory test. The question is whether the conduct has caused, or is likely to cause, harassment, alarm or distress to any person. The listed effects are alternatives, and the conduct must be their direct cause. Courts must assess the evidence carefully and reject bare assertions. Once anti-social behaviour is established, an injunction may restrain other conduct where that is just and convenient for preventing it. A court cannot discharge an injunction of its own motion where the statutory scheme requires an application. Sentences for breach must remain proportionate to criminal sentencing levels.

Swindon Borough Council obtained an anti-social behaviour injunction under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 against Mr Abrook. The injunction restrained begging and several other forms of conduct in Swindon. After Mr Abrook admitted four breaches, District Judge Hatvany discharged the injunction at a sentencing hearing, holding that passive begging was not anti-social behaviour unless it was aggressive.

The Council appealed on five grounds. They concerned the construction of the statutory definition, the scope of permissible injunction terms, the discharge of the injunction without an application, and the proper response to the admitted breaches. The central issue was whether passive begging could amount to anti-social behaviour under the statutory test.

Appeal allowed on all five grounds. Order 5 had been wrongly discharged. The case was remitted to the county court to sentence Mr Abrook for the four admitted breaches.

1. Discharge and sentencing. Section 8(1) of the Anti-social Behaviour, Crime and Policing Act 2014 permits discharge on the application of the applicant or respondent. The statutory scheme left no room for a court to discharge an injunction of its own motion: Hazell v Hammersmith v Fulham London Borough Council [1992] 2 AC 1 was applied. Any discharge, if available, would have required advance notice and could operate only prospectively. The judge should instead have sentenced for the admitted breaches or adjourned sentence for good reason.
2. Scope of injunction terms. The conditions for granting an injunction are distinct. Once the first condition is established, the court may restrain conduct which is not intrinsically anti-social behaviour if it is just and convenient to do so for the purpose of preventing anti-social behaviour. The restraint must be justified by the statutory purpose and sufficiently serious to warrant intervention. The court should also consider whether a positive requirement would be more appropriate.
3. Begging. ‘Passive’ and ‘aggressive’ begging are not useful legal categories. The statutory test must be applied to the evidence and context. Under section 2, the three effects are alternatives. The applicant may rely on evidence of actual effects or sufficiently particular evidence showing that the conduct was likely to cause one of them to any person. General assertions are insufficient, and courts should not approach such evidence credulously. The definition does not capture trivial conduct.
4. Original order. As Order 5 had not been successfully appealed, the judge dealing with the later hearing had to assume that the original court had been satisfied that both statutory conditions were met. Paragraphs 3 to 5 could therefore have been lawful restraints, and paragraphs 6 to 9 addressed conduct falling within the statutory definition.
5. Further guidance. A power of arrest may be attached only where section 4(1) is satisfied. Without-notice applications and interim injunctions require careful compliance with sections 6 and 7 and the statutory guidance. On remittal, the sentencing judge was directed to Lovett v Wigan Borough Council [2022] EWCA Civ 1631; the sentence for breach must be proportionate to sentences imposed for criminal offences.

• Court of Appeal (Civil Division) allowed the Council’s appeal on all five grounds and remitted the case to the county court for sentencing on the admitted breaches.
• Swindon Law Courts: District Judge Hatvany discharged Order 5 on 8 May 2023, holding that passive begging was not anti-social behaviour unless aggressive.