Cooke v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,MR JUSTICE PITCHFORD |
| Judgment Date | 21 October 2008 |
| Neutral Citation | [2008] EWHC 2703 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5358/2008 |
| Date | 21 October 2008 |
[2008] EWHC 2703 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Dyson and
Mr Justice Pitchford
CO/5358/2008
Miss H Mettam (instructed by McGanns Law, Northampton NN2 6HR) appeared on behalf of the Claimant
Mr M Brookes-Baker (instructed by CPS Northampton) appeared on behalf of the Defendant
(As approved)
This is an appeal by case stated against the decision of the Northampton Magistrates' Court on 22 February this year to make an anti-social behaviour order (ASBO) against the appellant under section 1C of the Crime and Disorder Act 1998, subsection (2) of which provides:
“If the court considers-
(a) that the offender has acted, at any time since the commencement date in an anti-social 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
(b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,
it may make an order which prohibits the offender from doing anything described in the order.”
Subsection (4) provides:
“An order under this section shall not be made except …”
The order was made following the appellant's conviction on 21 December 2007 for an offence contrary to section 5 of the Public Order Act 1994, in respect of which a fine of £50 was imposed. The appellant is 24 years of age. He has numerous previous convictions, including eight for public order offences. The ASBO was made after a hearing lasting three days, which ended on 22 February. It was adjudged by the justices that he had caused, or was likely to cause, harassment, alarm or distress to one or more persons not of the same household as himself, by begging aggressively in Northampton Town Centre, being aggressive to police officers and self-harming. By the order he was ordered:
“1. Not to enter Northampton Town Centre.
2. Not to beg for food or money from members of the public in Northampton.
3. Not to act in a manner that causes or is likely to cause harassment, alarm or distress to any person not of the same household in Northampton.
4. Not to be in the possession of a knife or razor blade in a public place in Northampton.
5. Not to use a syringe in a public place in Northampton.”
It was conceded on behalf of the appellant before the justices that he had acted 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. What was in issue was whether an ASBO was necessary to protect persons from further anti-social acts by him and if so whether the court should make an order. It was submitted to the justices that (i) an ASBO was not necessary because it would not protect persons from further anti-social acts, since the appellant's mental state was such that he would be unable to comply with the order, and (ii) that it would be unjust to make one. The only effect of such an order would be to “criminalise the appellant's mental health problems”
The only witness called on behalf of the defence was Mr Harjit Nijjer, a court psychiatric nurse employed by the Northamptonshire Health Care NHS Trust. He told the court that the appellant had been diagnosed as suffering from a borderline personality disorder and post traumatic stress disorder. Mr Nijjer put it this way in his report, dated 22 December 2007:
“Mr Cooke has complex mental health problems and the main problems appear to centre on personality issues. In addition to suffering from an Emotionally Unstable Personal Disorder, there is evidence of Post Traumatic Stress Disorder together with a possible diagnosis of Asperger's Syndrome. Together these make Mr Cooke very difficult to engage with, understand and the manner in which he interacts with others, especially those in authority, can be construed as deliberately antagonistic but his behaviour is consequential to his mental health problems.
…
Unfortunately, I am unable to make any specific comments or recommendations with regards to this matter, however, if you would like to consider these matters in light of what has been said, then this matter would be appropriate for consideration of diversion on mental health grounds. If you were satisfied with my explanation of Mr Cooke's mental health then I would recommend a Police Caution as a suitable disposal for this case.”
We have been told by counsel that in his evidence Mr Nijjer said that the appellant was not capable of complying with an ASBO. He could on occasions demonstrate consequential thinking, but in the opinion of Mr Nijjer his behaviour was symptomatic of his mental health disorder and could not be prevented without medical treatment. The appellant would repeatedly breach an ASBO and such an order would effectively criminalise his mental health problems.
In the case stated the justices said:
“2. [Jamie Cooke]
(i)does know right from wrong and has demonstrated that he is capable of choice
(ii)he caused harassment, alarm and distress to members of the general public
(iii) has made threats of physical violence &
(iv) has chosen not to engage in mental health services.”
3. It was contended by the Respondent that: an anti-social behaviour order containing five prohibitions was necessary for the protection of the public:-”
The prohibitions were then set out and were reflected in the order that was eventually made:
4. It was contended on behalf of the appellant that:-
(i) none of the witnesses who gave evidence to the court were aware of his personality disorder or mental health issues
(ii) his borderline personality disorder prevented him from fully understanding and complying with an anti-social behaviour order
(iii) the granting of an anti-social behaviour order would be unreasonable and would be criminalising his mental health disorder
(iv) the report of the Community Psychiatric Nurse showed that he was not a danger to the general public and that the possession of knives didn't pose a threat to the general public
(v) there should be further opportunity for him to receive treatment for his mental health disorder.
5. We were referred to the following cases-
(i) Wookey v Wookey [1991] 3 All ER 365
6. We were of the opinion that; the Appellant meets the criteria for us to use our power to make an anti-social behaviour order and that an anti-social behaviour order was necessary to prevent future acts of anti-social behaviour by the Appellant and accordingly an anti-social behaviour order was made against the Appellant.
We took account of Mr Harjit's Nijjer's evidence, particularly the point of the Appellant's mental health problems.
We found that he has understanding when he is well but can be irrational when he is unwell. We recognised that the Appellant needs a programme of treatment but we must weigh that up against protection of the public. Making an order won't prevent the Appellant receiving treatment and we actively encourage the agencies to get involved with the Appellant. However, we felt that members of the public and workers should go about their business without being caused harassment, alarm, or distress.
7. The question for the opinion of the High Court is: should an anti-social behaviour order be made against a person whose anti-social behaviour is caused by, or consequently of, a mental health order?”
We feel sure that the phrase “a mental health order” is in error for “a mental health disorder”
Following an order made by Collins J, apparently not in response to an application made on behalf of the appellant, the justices were asked to amplify their findings and added to their case stated the following:
“We were not satisfied upon evidence that there was the 'lengthy' involvement...
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