No: 200505670/A0-200505762/A3 
Neutral Citation Number: [2006] EWCA Crim 255
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 2nd February 2006
 
B E F O R E:
 
SIR IGOR JUDGE 
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)

MRS JUSTICE DOBBS DBE 
 
SIR DOUGLAS BROWN 
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R E G I N A 

-v- 

H 
CYRIL JOHN STEVENS 
DAVID LEE LOVEGROVE 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR K RAYNOR appeared on behalf of the APPELLANT H
MR P RULE appeared on behalf of the APPELLANT STEVENS
MR J CONINGHAM appeared on behalf of the APPELLANT LOVEGROVE
MRS J NEEDHAM appeared on behalf of the CROWN
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J U D G M E N T
1.	SIR IGOR JUDGE:  These three appeal raise issues relating to Antisocial Behaviour Orders (ASBO).
2.	Christopher Henchcliffe was born on 9th January 1990.  He had no previous convictions but he had received a final warning for theft from a dwelling house and a reprimand for non residential burglary.  On 19th August 2005, in the Crown Court at Derby, before His Honour Judge Hamilton, he pleaded guilty to causing John Spotswood grievous bodily harm with intent.  He was sentenced to 3 years' detention and made subject to an ASBO in the following terms: 
1. Not to contact John Spotswood either directly or indirectly. 
2. Not to enter the area bounded by Chatsworth Road, Boythorpe Road, Hunlock Avenue and Walton Road in Chesterfield. The order was to run for a period of 10 years.  He appeals against sentence with leave of the Single Judge.  
3.	The facts of the offence are disturbing.  On 23rd March 2005, when the appellant was just 15 years old, he spent the evening drinking with his friends. He consumed at least 2 litres of light white wine with them and he was much the worse for drink. He believed, wrongly, that John Spotswood was a paedophile. The unfortunate Mr Spotswood, a 59 year old man who had never in any way been thought to be a sex offender, had already been subjected to nasty, unpleasant behaviour from a number of youth in weeks leading up to the attack by the appellant.  The appellant boasted that he would attack him and indeed he did. He went to Mr Spotswood's armed with a bed post.  Although Mr Spotswood could remember hearing a knock at his door, he remembered very little thereafter, save that he received a blow to the head and saw two people outside his home. In fact a number of youths saw the appellant holding the bed post in both hands and swinging it, striking Mr Spotswood twice to the head. The appellant was arrested that night. When interviewed he made no comment.
4.	The result of the attack was very serious. Mr Spotswood sustained an injury to his brain and suffered an epileptic fit.  He had undisplaced fractures to his left cheekbone and jaw and a number of broken teeth, together with cuts to both lips.  Some of the cuts required stitches. He had bleeding to the nose and mouth, swelling of both cheeks and eyes, a cut on the top of his head, which required stitching.  There was a large bruise to his left arm.  He was hospitalised for nine days. On discharge from hospital he suffered problems with his balance but gradually made a full recovery from his physical injuries. We are told that the appellant was shocked when he saw the photographs of the complainant's physical injury.  We too have seen the photographs. We are glad the appellant was shocked because they are truly shocking.
5.	Mr Spotswood remains very troubled by the attack. He is shocked that he was attacked at all and remains apprehensive about answering his door. He continues to be frightened, for understandable reasons, and his life has been significantly affected.  The attack on him has also had an impact on his family, who are, again entirely understandably, very upset at what has happened to him.
6.	In his sentencing remarks the judge was rightly concerned about the gravity of the attack by such a young man. He made every allowance for the appellant's youth and the absence of any previous convictions and gave the appellant credit for pleading guilty at the first available opportunity.
7.	He was obliged to impose a custodial sentence.  He was right to do so. There is no appeal either against the custodial sentence or its length. We shall simply add that we further agree with the judge's observation in his sentencing remarks, that if the appellant had been an older man the sentence would have been significantly longer.
8.	When the judge came to consider the anti-social behaviour order, he was very concerned about the potential impact on Mr Spotswood and his family, if the appellant moved back to live with his parents. Their home was close by Mr Spotswood's home, as the judge put it, "just down the road".
9.	The judge explained that he was anxious that Mr Spotswood should know that he would not "have to face seeing you in his immediate neighbourhood or on his doorstep".  The effect of the order made by the judge, however, was that the appellant's parents and family would have to move if the appellant was to continue to live at his home.  The judge then specified that the order should run for a period of 10 years.
10.	The single point taken on the appeal related to the period of the Anti-social Behaviour Order. We were concerned, however, about the terms of the order itself and accordingly we heard argument on both aspects of the case. When making the order the judge did not apparently directly address the relevant statutory provisions, but we assume that he had them well in mind.  The order should not be made unless necessary to protect the victim from further anti-social acts by the appellant.
11.	That was not how the judge expressed himself.  We have indicated his sentencing remarks already.  We have evidence to suggest both that the appellant is genuinely remorseful and also, as we have already noted, shocked by what happened.  He nevertheless continues to believe in the fundamental truth of the allegations against Mr Spotswood.  There are grounds, in our judgment, for discerning a significant risk that, on his release from custody, he may welcome an opportunity or perhaps, putting it equally realistically, not seek to avoid an opportunity to join with others, if not prepared to do so himself, to plaguing this unfortunate man, and even if not behaving with criminal violence towards him, to pressure him in a way which would cause alarm and distress.
12.	That said, the appellant is still a very young man. He has a lot of growing up to do, and the effect of the order in its present form is that he would not be permitted to return to his home on his release from custody.  In other words, his home would have to move outside the area prescribed by the judge, or, if for any family reasons, and there may be some, his family were unable or could not move, then the appellant would not be able to return home.  That would be a most troublesome start to his rehabilitation and we think likely to reduce the prospects of successful.
13.	Moreover, quite apart from the provisions of the criminal law, which should protect the victim from any further violent behaviour by the appellant, on his release from custody the appellant would in any event be subject to license conditions which should themselves serve to reduce the risk of trouble of any kind in Mr Spotswood's street.
14.	We propose to leave the Anti-social Behaviour Order in existence, but we shall reduce the period to one of 5 years to reflect a sufficient time for this young man to have reached the necessary level of maturity.  We shall leave the first condition in place, that is he is not to contact John Spotswood either directly or indirectly, and we shall amend the second part of the order, in relation to where the appellant may go, by reducing its application to the street in which Mr Spotswood lives, which we believe to Wolgrove Avenue.  To that limited extent therefore this appeal is allowed.
15.	Cyril John Stevens was born in May 1949.  He has a total of 135 previous convictions for over 200 offences, the list includes 133 offences of theft and kindred offences and 44 offences relating to drunkenness. On 27th February 2004, following convictions for a number of offences including non- residential burglary, theft by shoplifting, driving a motor vehicle with excess alcohol and failing to surrender, an Anti-social Behaviour Order was imposed by the Wickham and Beconsfield Magistrates' Court.  This order prohibited the appellant from: 
(a) being drunk in a public place; 
(b) entering any land or premises which were members of the Wickham watch scheme as prescribed or others notified to him in writing as a trespasser; 
(c) remaining on any land or premises as a trespasser having been asked to leave by the owner, occupier or agent thereof; 
(d) urinating or defecating in any public place other than a toilet; 
(e) using abusive or insulting language; 
(f) engaging in any behaviour that causes or is likely to cause harassment, alarm or distress to any person.
16.	The original order prohibited the appellant from committing any act of theft or any other criminal offence.  But this condition was rightly struck out at a later date by order of Judge Tyrer.  Conditions (a) and (d) were plainly linked. We infer the order was made on the basis that when in drink the appellant was liable to urinate or defecate in public.  
17.	The period for which the order was to run was 5 years.  On 31st May 2005, the appellant indicated at the same Magistrates' Court that he would enter a guilty plea to a breach of the Anti-social Behaviour Order and theft by shoplifting. The Magistrates committed the case to the Crown Court for sentence.
18.	The facts relating to the breach of the Anti-social Behaviour Order are very simple. The appellant was found lying on the ground in a disused car park in High Wycombe.  He was slurring his words and appeared to be incoherent.  When trying to walk, he staggered about.  Police officers arresting him noticed liquid trickling down his leg into his shoes, urinating in their presence.  When arrested he said: "I only pissed myself out there so I could go back to prison.  That's why I did it".  
19.	Mr Rule, who appears for him on the appeal and appeared for him below, was instructed by the appellant that he denied using those words or saying anything similar.  In view of his drunken condition, we doubt whether those instructions can be very reliable but in any event, he was incontinent in a public place, no doubt because he had drunk to excess.
20.	On 19th August the appellant appeared at the Crown Court at Aylesbury before His Honour Judge Tyrer, when sentence was deferred until 12th February 2006.
21.	This was a merciful course.  The judge ordered that in the meantime the Anti-social Behaviour Order should continue, subject to a further condition that the appellant should live at a specified address in High Wycombe and abide by the rules of the establishment.  The judge had in mind that this accommodation might help to provide the appellant with a start to rehabilitation.  He explained that he wished to see whether the appellant may have learned to live reasonably and responsibly in the community, or whether it was simply going to be a question of "just locking you up for increasingly lengthy periods of time." He then gave the appellant a solemn warning that he would normally have considered the appropriate sentence to have been one of 9 months' imprisonment, but because of his hope that the appellant may indeed have learned to behave himself, he would defer making his order, reserving any breach proceedings for any further offence to himself, adding: "Let me make it perfectly plain, I only give one chance." If the appellant failed to take it, the judge told him that he would protect the public by "separating you from them for as long as I can".
22.	The appellant cast the chance away.  Three days after the order was made, on 22nd August, he went into a Tesco store, selected a bottle of whiskey and left without paying for it.  On 19th October the appellant was brought back to the Crown Court before Judge Tyrer. On this occasion the judge imposed the sentence of 9 months' imprisonment for the original breach of the Anti-social Behaviour Order, which had led the magistrate to commit the appellant to the Crown Court on 31st May, and there was a further sentence of 3 months' imprisonment, consecutive, for the offence of theft.  No separate order was made for any consequent breach of the Anti-social Behaviour Order.
23.	The sentence imposed for the breach of the ASBO is said by Mr Rule to have been wrong in principle.  The sentence was far in excess of any statutory maximum sentence which could have been imposed on the appellant for being drunk in a public place.  For that offence, the maximum permissible penalty was said to be a fine of £1000.  Accordingly, the sentence of 9 months' imprisonment was manifestly excessive.
24.	Mr Rule suggested that, as a matter of principle, the sentence following breach of an ASBO should not result in a sentence which would otherwise be in excess of the maximum sentence available for the offence itself.  He relied on some observations in R v Morrison [2005] EWCA Crim 2237, where Hughes J, giving the judgment of the Court, said: 
"It seems to us clear in principle that in those circumstances the sentence should not normally be exceed the statutory maximum for the criminal offence." 
Later in his judgment, he went on: 
"If a breach of an ASBO consists of no more than commission of an offence for which a maximum penalty is prescribed by statute, it is wrong in principle to pass a sentence for that breach, calculated by reference to the five year maximum for breach of an ASBO. Rather the tariff is determined by the statutory maximum for the offence in question.... 
We draw attention, however, in that last proposition, to the words 'no more than'.  There may be exceptional circumstances in which it can properly be said that the vice of the breach of an ASBO although it amounts to an offence, goes beyond that offence."
That was a decision of this Court in a two judge constitution, without the advantage of counsel for the prosecution and, perhaps more important, without reference to the earlier decision of a three judge constitution in R v Braxton [2005] 1 Cr App R(S) 167.  This case was a renewed application for leave to appeal.  Nevertheless Leveson J, speaking on behalf of the Court presided over by Hooper LJ, made some valuable observations about Anti-social Behaviour Orders.  In particular, at paragraph 3 he said: 
"It is undeniable that this represents [that was the Anti-social Behaviour Order] represents a serious infringement upon the liberty of the applicant, not only because it represents a restriction on his right to free movement, but also because breach constitutes a criminal offence punishable with a term of up to five years' imprisonment, which is greater than the maximum penalty which could be imposed for offences which might otherwise be reflected within the terms of the order.  It is, however, a response by Parliament to the increasing concern about the impact on the public of anti-social behaviour in its many constituent forms. It follows that this concern must be reflected in the sentences which the court imposes for breach of the order."
25.	Judgments of this Court subsequent to Morrison include,  Tripp, another decision of a two judge constitution, and then a decision of a three judge constitution, provided over by Hallett LJ in appeal R v Lamb [2005] EWCA Crim 2487.  The Court addressed the possible inconsistency between Braxton and Morrison.  Hallett LJ made these observations: 
"16. We are conscious that in Morrison [2005] EWCA Crim 2237, this Court held that if the breach of an ASBO is no more than the commission of an offence for which the maximum penalty is prescribed by statute, it is normally wrong in principle to pass a sentence for a breach calculated by reference to the maximum for breach of an ASBO.  With respect, that appears to ignore the impact of antisocial behaviour on the wider public which was the purpose of the legislation in the first place; it also means that antisocial behaviour short of a criminal offence could be more heavily punished than antisocial behaviour that coincidentally was also a criminal offence.  We thus prefer the contrary approach of this Court in Tripp [2005] EWCA Crim 2253 which itself reflects Braxton."
26.	The principle to be derived from the legislation and the authorities can, in our judgment, be readily identified.   Anti-social Behaviour Order requires specific statutory criteria to be established.  In brief, the order is intended to provide protection against harassment, alarm or distress, caused by Anti-social behaviour.  It is obvious that when passing sentence for breach of an anti-social behaviour order, the court is sentencing for the offence of being in breach of that order.  Plainly, any sentence, in any court, must be proportionate or, to use the word with which all sentencers are familiar, "commensurate".  Therefore, if the conduct which constitutes the breach of the Anti-social Behaviour Order is also a distinct criminal offence, and the maximum sentence for the offence is limited to, say, 6 months' imprisonment, that is a feature to be borne in mind by the sentencing court in the interests of proportionality.
27.	It cannot, however, be right that the court's power is thereupon limited to the 6 months maximum imprisonment for the distinct criminal offence.  That would treat the breach as if it were a stand alone offence, which at the time when it was committed did not amount to a breach of the court order.  In reality, the breach is a distinct offence on its own right, created by statute, punishable by up to 5 years' imprisonment.  We therefore reject the submission that it was wrong in principle for the judge to have imposed a custodial sentence, where, for the instant offence of drunkenness, the maximum sentence would have been a fine.  To the extent that the submission of the appellant on this particular aspect of the appeal is supported by Morrison, we respectfully conclude that its authority has been wholly undermined.
28.	For the avoidance of controversy, we must add that we are not suggesting, and should not be taken to suggest, that an ASBO should be imposed as a kind of device to circumvent maximum penalties which are believed to be too modest. That is a distinct point which does not arise here. The principle is covered by two decisions of this Court, R v Kerby [2005] EWCA Crim 1228 and R v Boness [2005] EWCA Crim 2395.  As we repeat, that is a distinct principle which relates to the circumstances in which it is proper to make an ASBO, not to the consequences which may follow its breach.
29.	In the present case there was a plain breach of the Anti-social Behaviour Order, drunk and urinating in a public place.  The judge was merciful.  He deferred sentence. He gave a solemn warning. The appellant left court and within a short time returned, throwing away the chance that the judge had given him. The judge had no alternative but to do what he said he would do.  Given the appellant's prolonged history of offending it would not be right for this Court to interfere with his decision.  Accordingly this appeal is dismissed.
30.	By way of footnote to the case, it appears that Judge Tyrer was not supplied with the evidence which led to the making of the original order.  It would have been sensible if that issue had been considered before the hearing.  It seems to us that either that evidence or perhaps, more conveniently, a brief summary of the evidence, reduced to, say, one or two typed pages, could have been prepared and served on the defendant before the hearing as well as the court to enable the defendant to take issue with any aspect of the material which was mentioned.
31.	We come to David Lovegrove.  David Lee Lovegrove was born in September 1981. He has 16 previous findings against him, together largely for offences of theft.  His most recent conviction before the matters with which we are concerned, however, involve possession with intent to supply a Class A drug.  For that he was sentenced to two-and-a-half years' imprisonment. He was on licence when he committed two offences of theft by shoplifting in February 2005.
32.	The first involved theft of six DVDs from the Safeways Supermarket store in Hounslow.  The total value was £35.94. He was apprehended.  When interviewed he made no comment. He was then granted bail.  A week later, on 13th February, he stole two DVD box sets from a different store in Hounslow. When he was chased by members of staff, he dropped the box sets and then fell over injuring himself.  The boxes were individually valued at virtually £52 and £35 pounds.
33.	When arrested he again had no comment to make.
34.	On 28th June, in the Crown Court at Isleworth, before Mr Recorder Riza, the appellant pleaded guilty to two counts of theft.  Sentence was adjourned to 19th July.  On that occasion he appeared before Judge Kathkuda. Judge Katkhuda made the appellant subject to conditional discharge for 18 months.  
35.	After he had done so, and the judge appeared to have finished his sentencing remarks, the Crown sought to draw his attention to and sought an Anti-social Behaviour Order.  That having happened, without as far as we can see any objection by counsel for the appellant, an Anti-social Behaviour Order to run for an unspecified time, until further order, was then made.  The order prohibited him from: 
(a) engaging in any behaviour that causes or likely to cause harassment, alarm or distress to any person not of the same household of the appellant within England and Wales; 
(b) entering any part of Hounslow as defined save the drug rehabilitation in Alexander House, Hounslow, via a prescribed route during the centre's opening hours or to visit his grandmothers at 22 Benson Close, Hounslow, every Monday between 3.00 and 4.00 pm via a prescribed route; 
(c) committing any act of theft within England and Wales. The order required that he attend the probation offices as directed by the probation service.
36.	In making the order that he did the judge had clearly in mind, not only the appellant's dreadful record, but also that he had pleaded guilty, that all the goods were recovered without any form of resistance from him.  He also noted that the appellant had put himself in jeopardy of being called back to prison for 427 days before any sentence would be considered for the instant offences. The order made by the judge was therefore an extremely merciful one. He took that merciful course because he detected what he described as "a glimmer of hope".
37.	The appellant had kept out of trouble for something like 5 months, not very long on any objective assessment, but for this particular appellant, very long and possibly a sign of increasing maturity, and perhaps the possibility that the habit of committing crime was being addressed.
38.	The judge warned the appellant that if he returned to court after committing any further offences the case would be reserved to himself and the outstanding period of 427 days would be fully implemented in addition to any further sentence for the subsequent offence.  His sentencing remarks ended "the whole point of all this is to make sure that you are going to behave yourself in future."
39.	The Anti-social Behaviour Order is said to have been inappropriate and wrong in principle because the order for conditional discharge and the consequence of any further offending, that is to say the 427 days still outstanding, made the Anti-social Behaviour Order unnecessary and oppressive and in any event, the making of the order with the conditions attached to it were simply not justified by the appellant's history or behaviour.  On these occasions, at any rate, the offences of theft did not demonstrate that members of the public were likely to be harassed, or distressed, or alarmed by the appellant's behaviour, and it was not necessary for the order to have been made.
40.	Before us, the Crown was disposed to agree that on the evidence before the judge the order was inappropriate.  On the evidence, we agree.  Without the ASBO, a significant sanction is still available to act as a deterrent to future criminal behaviour.  There is no evidence that these particular offences created the kind of conditions which are a normal prerequisite to an order.  The conditions attached to the order themselves serve to show that it was in the circumstances not necessary.  If it was not necessary for it to be made, it should not have been made. Accordingly this appeal in relation to the ASBO, but not the order for conditional discharge will be allowed.  The ASBO will accordingly be quashed.