Crime and disorder

Section 1C of the Crime and Disorder Act 1998 – as most recently amended by the Serious Organised Crime and Police Act 2005 – provides that if a defendant is convicted of an offence, the court may impose an antisocial behaviour order (ASBO) if the offender has acted in an antisocial manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and that an order under this section is necessary to protect persons in any place in England or Wales from further antisocial acts by him.


> Evidence may be introduced in connection with these issues, even if not relevant to the original trial. Section 1(4A) provides that the hearing may be adjourned even after sentencing the defendant. Children and young people are no longer given automatic anonymity.


At the start of last month, it appeared that the law could be set out in three fundamental principles.


An order must be necessary to prevent harassment alarm or distress. In R v Williams (2005) The Times, 15 July and R v Kirby [2005] Crim LR 732, the court confirmed that it was not proper to use an ASBO to increase the court’s sentencing powers for matters such as offences of driving while disqualified. Parliament has laid down a maximum penalty. A court should not seek to bypass that penalty by the imposition of an ASBO, breach of which carries a maximum five-year penalty.


> It cannot be necessary, save in exceptional circumstances, to make an order not to commit crime. Such is already prohibited and it cannot be necessary, in normal circumstances, to make an order to achieve the same purpose. The courts should not seek to turn one crime into another (Kirby). This applies both to a general provision not to commit crime and an order not to commit specific crimes. However, careful drafting may deal with the issue. Thus, orders not to enter a defined red-light district or street may be enforced. Each case must be analysed on its own facts. It will seldom be that shoplifting, for instance, can cause harassment alarm or distress. This was the factual finding in R (Mills) v Birmingham Magistrates’ Court (2005) Daily Telegraph, 20 October.


An ASBO once imposed must be clear in its terms and commensurate with the seriousness of the offence and risk of future conduct.


> The leading authority is now R v Boness and R v Bebbington (2005), The Times 24 October. The decision emphasises that each order must be tailored to meet the facts of the individual case and general wide-ranging provisions, often vague and lacking proportionality, should not be imposed. The imposition of the order is not part of the sentencing process but a preventative order to provide for the future. The order must be commensurate with the risk to be guarded against.


> This case confirms the decision in R v McGrath [2005] EWCA Crim 353 (visit: www.sentencing-guidelines.gov.uk), while indicating that the courts may have regard to the totality of the defendant’s behaviour. The imposition of an order should not be in vague or wide terms.


> A similar outcome was reached in W v DPP (2005) The Times, 20 June, where an ASBO not to commit any criminal offence was found to be so vague as to be unenforceable. The courts could adequately deal with that defendant by sentencing him for the new crime of theft. In R v Lawson [2005] Crim 871, the Crown Court had imposed prison sentences, a six-year driving disqualification, and an ASBO not to occupy the driver’s seat of a car until further order, for an offence of dangerous driving by an offender who was also guilty of driving with excess alcohol and at speed. The appeal court reduced the driving disqualification to four years to allow the defendant some prospect of being able, in due course, to drive lawfully, and the ASBO was quashed to allow for the defendant’s rehabilitation.


> In R (Longergan) v Lewes Crown Court [2005] 2 All ER 362, the court held that the terms should be carefully considered, and that while an order must last a minimum of two years, not every term in that order need do so.


> There is a three-tiered approach to sentencing, with the leading decision now appearing to be R v Lamb [2005] EWCA Crim 2487, (2005) The Times, 2 December.


The court drew the distinction between a breach that represents further antisocial behaviour and those that are merely breaches of the terms of an order, for instance, as in that case, not to enter a particular metro system. Differing from earlier decisions – in particular from the case of R v Morrison [2005] EWCA Crim 2237 – the court held that the orders are properly designed to protect the public from frequent and distressing repeated misbehaviour. The decision in Morrison was disapproved on the basis that it had suggested that, if the breach amounted to a specific criminal offence that carried a particular penalty, the sentence for breach of the ASBO could not be greater than that.


> As the court in Lamb pointed out, this would merely encourage people to commit criminal offences rather than breach their ASBOs in other ways. The court has therefore laid down a series of steps for consideration prior to the imposition of a sentence.


> Where a breach does not involve harassment, alarm or distress, a community order should be considered to assist the defendant to learn to live with the terms of the ASBO. This is entirely consistent with the guideline on breach proceedings issued by the Sentencing Guidelines Council, where it is pointed out that custody should be used as a last resort, and the primary purpose of breach proceedings should be to ensure that the order itself is observed.


> However, Lamb confirmed that where there is a persistent breach without harassment, alarm or distress, it may become necessary to impose custody to preserve the authority of the court. In those circumstances, the sentence should be as short as possible, and in Lamb the individual sentences were reduced to two months. However, where the new breach amounts to further harassment, alarm or distress, then the court thought orders of eight months, on a guilty plea, were appropriate applying R v Braxton [2005] 1 CR APP R (S) 36, R v Tripp [2005] EWCA Crim 2253 and R v Dickinson [2005] 2 CR APP R (S) 488.


Most importantly, the court pointed out the possibility of the variation of existing ASBOs under section 1C(6) of the Crime and Disorder Act 1998. Remuneration for such applications is provided for under the original representation order, valid at the time of the imposition of the ASBO. The variation proceedings will represent the same case as the original proceedings. Clients at risk of merely breaching ASBOs without causing harassment, alarm or distress, and particularly those where every part of the order has a minimum term of two years, may wish to consider using these provisions to reduce the level of risk.


By Anthony Edwards, TV Edwards, London