Excusable behaviour


In R v Nicholson (2006) The Times, 13 June, the court pointed out that the offence of breaching an anti-social behaviour order (ASBO) is only committed if there is no reasonable excuse. It emphasised that ignorance, forgetfulness or misunderstanding is capable of amounting to a reasonable excuse and this is a matter of fact.



This is particularly important in relation to the older-style ASBOs, which were drawn in what are, by present standards, unacceptable terms, particularly those that were lengthy or generic in their prohibitions. Defence solicitors should be willing to advise on the entry of appropriate not-guilty pleas.



The process by which ASBOs are obtained is fully reviewed in R (Cleary) v Highbury Corner Magistrates Court [2006] EWHC 1869 (Admin). The decision is concerned with closure orders under the Anti-Social Behaviour Act 2003, but the principles apply equally to the obtaining of any ASBO whether in civil proceedings or at the end of criminal proceedings when an order is sought under section 1C of the Crime and Disorder Act 1998.



These are civil proceedings but, because of their implications, a high level of the civil burden of proof applies. The civil hearsay rules apply in accordance with section 1 of the Civil Evidence Act 1995. A party proposing to adduce hearsay evidence in civil proceedings has to give the other party notice of that fact and, on request, such particulars of or in relation to the evidence as is reasonable and practical in the circumstances for the purposes of enabling the respondent to deal with any matters arising from it being hearsay. Section 3 provides for the rules to allow another party to the proceedings, with leave, to call as a witness and cross-examine the maker of the hearsay statement. Thus the court held that to adduce hearsay evidence from a person who was not identified offends the spirit of the provision.



The court emphasised that people should not lightly be relieved of their obligation to give evidence. If there is a fear of doing so it must be genuine (see Lord Justice Brooke in Moat Housing Group South Limited v Harris [2005] EWCA Civ 287). The willingness of the court to admit hearsay evidence carries with it inherent risks. As the court in Cleary remarked: 'It is much more difficult for a court to assess the truth to what is being told if the original maker of the statement does not attend to be cross-examined. More attention should be paid by claimants to the need to state by convincing direct evidence why it is not reasonable and practicable to produce the original maker of the statement as a witness.' The words 'if any' in section 4 of the 1995 Act show that some hearsay evidence may be given no weight at all. Credible direct evidence may well carry greater weight than uncross-examined hearsay from anonymous witness or several anonymous witnesses.



A full review of the law on the making and drafting of ASBOs took place in R v Wadmore and Foreman [2006] Crim LR 857. It should be noted that in CPS v T (2006) The Times, 13 April, the court differed from the earlier view, expressed in W v DPP (2005) The Times, 20 June, when it held that an ASBO could not be declared invalid when enforcement was sought in breach proceedings, but instead an application to vary should be made. Funding for such applications is available at public expense. If the ASBO was made in criminal proceedings (see section 1C), the original representation order will still be effective. In civil proceedings advocacy assistance may be granted. However, in CPS v T, the court made clear the issues for the court were whether the conduct was actually a breach if the provision was poorly drafted and unclear, and that the lack of clarity might also amount to a reasonable excuse. Even if there was a breach, it may not be appropriate to impose a penalty.



The sort of ASBO that is no longer acceptable is illustrated by R v Barnard (2006) 150 SJ 1056, where the defendant received 15 months for attempted taking without consent and theft from a motor vehicle. The ASBO had no additional preventative purpose; its terms sought to do no more than prevent the commission of further crime, rather than identify the harassment alarm or distress that there was a necessity to prevent.