Criminal procedure - Antisocial behaviour orders - Sentence length - Supply of drugs

R v (1) Kirk Jordan Barclay (2) Noah Ntuve (3) Francis Cowan (4) Trevor Junior Prince Campbell: CA (Crim Div) (Lord Justice Pitchford, Mr Justice Cranston, Judge Warwick McKinnon (Recorder of Croydon)): 1 February 2011

The appellants appealed against the imposition of antisocial behaviour orders (ASBOs) following their pleas of guilty to supplying class A drugs including heroin and cocaine.

The appellants had been tried under separate indictments for offending which was uncovered as part of the same police operation in the St Paul’s area of Bristol: Operation Polar.

Each appellant had been caught selling drugs to undercover police officers on several occasions. Open drug dealing had a negative impact on the St Paul’s area which had resulted in a general decline of the area. Residents suffered fear, intimidation and nuisance as a result of the drug dealing.

The judge imposed sentences of imprisonment and detention and similar post-conviction ASBOs on all four appellants preventing them, inter alia, from entering the Ashley ward of Bristol.

The first appellant (B) submitted that his sentence of four years’ imprisonment was manifestly excessive as insufficient account had been taken of his age, which was 18 at the date of the first offence.

The appellants all appealed against their ASBOs on the basis that there was no need for an ASBO in light of the sentences passed, and it seemed to be police policy to apply for a standard ASBO for each offender caught up in Operation Polar without justifying them in the special circumstances of each appellant’s case.

The appellants further argued that, if the ASBOs were upheld, the exclusion zone was too large.

Held: (1) There was nothing wrong with a sentence of four years’ imprisonment in the circumstances of B’s case. R v Djahit (Turkesh) [1999] 2 Cr App R (S) 142 CA (Crim Div) established a starting point of 5-6 years for a street retailer of class A drugs, Djahit followed.

Despite B’s age, he had previous convictions for possession of class A, class B and class C drugs, which indicated a lack of respect for the authority of the courts (see paragraph 17 of judgment).

(2) The case of R v Dyer (Julio) [2010] EWCA Crim 2096 was especially relevant as it was an appeal by an offender also caught up in Operation Polar against his ASBO which mirrored those imposed on the appellants. In that case it was open to the trial judge to decide that an ASBO was necessary and that the pre-conditions for the making of a post-conviction ASBO were met, Dyer followed (paragraph 21).

The appellants’ challenge that the judge omitted to set out the factual basis for each appellant’s ASBO failed. The judge had vast background information before him of the circumstances of each appellant from which he could conclude that the statutory requirement of necessity for an ASBO was met in the case of each of the appellants.

He considered the potential deterrent impact of the sentence.

The post-conviction ASBOs were not simply directed at future drug offending, but also at their involvement in the antisocial behaviour associated with the open street dealing of drugs and their contribution to making St Paul’s a ‘no go’ area.

The ASBOs were also targeted at the nuisance, fear and intimidation which were conducive and preparatory to open drug dealing. The ASBOs were justified in the case of each appellant.

The appeals against the imposition of ASBOs were dismissed.

However, the ASBOs were varied to reduce the exclusion area specified to the St Paul’s area (paragraphs 29, 33-34, 38).

Appeals allowed in part.

James Ward (instructed by CPS) for the Crown; David Miller (instructed by Allen Hoole) for the first and third appellants; Mark Worsley (instructed by Rodney King & Partners) for the second appellant; Ian Halliday (instructed by Elite) for the fourth appellant.