Anti Social Behaviour in UK Law

We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present. But where custodial sentences in excess of a few months are passed, and offenders are liable to be released on licence, circumstances in which there is demonstrable necessity to make anti-social behaviour orders are likely to be limited.

In my judgment, where an anti-social behaviour order has been imposed, that is a factor which reinforces, and in some cases may strongly reinforce, the general public interest in the public disclosure of court proceedings. The public has a particular interest in knowing who in its midst has been responsible for such outrageous behaviour.

In our judgment this decision of the court and the earlier case of C serve to demonstrate that to make an anti-social behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised.

It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent.

We have had our attention drawn to other cases, including, particularly, the case of P heard in February of this year by the Lord Chief Justice, Richards J and Henriques J, where the orders are considered and the following principles emerged. The test for making an order is one of the necessity to protect the public from further anti social acts by the offender.

Before turning to the particular finding in this case, we should observe that section 127 relates only to proceedings for an anti-social behaviour order in the magistrates courts. There is provision in the Act, in section 1B, for county courts to make an anti-social behaviour order if satisfied of the same two constituents following the making of an order in the county court proceedings.

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.