DPP v Karen Bulmer

JurisdictionEngland & Wales
JudgeLord Justice Beatson,Mrs Justice Nicola Davies
Judgment Date31 July 2015
Neutral Citation[2015] EWHC 2323 (Admin)
Docket NumberCase No: CO/2886/2015
CourtQueen's Bench Division (Administrative Court)
Date31 July 2015

[2015] EWHC 2323 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Beatson

Mrs Justice Nicola Davies

Case No: CO/2886/2015

Between:
Director of Public Prosecutions
Appellant
and
Karen Bulmer
Respondent

Duncan Atkinson (instructed by Crown Prosecution Service) for the Appellant

The Respondent did not appear and was not represented

Hearing date: 30 July 2015

Approved Judgment

Lord Justice Beatson

I. Introduction

1

This is an appeal by the Director of Public Prosecutions ("the appellant") by way of case stated pursuant to section 111 of the Magistrates Court Act 1980 ("the 1980 Act") in respect of the decision made by District Judge Lower on 11 March 2015 at York and Selby Magistrates' Court. The learned District Judge refused to make a Criminal Behaviour Order pursuant to section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act") in respect of the respondent, Karen Bulmer, now aged 48. The order sought by the prosecution was of unlimited duration, and would have prohibited the respondent from entering the area within the York outer ring road as delineated on a map.

2

The appellant sought the order after the respondent was convicted on 1 December 2014 of breaching an Anti-Social Behaviour Order ("ASBO") imposed on her pursuant to section 1C of the Crime and Disorder Act 1998 ("the 1998 Act") at the Leeds Magistrates' Court on 8 August 2012. The appellant did so because the power to make ASBOs was abolished by paragraph 24(a) of Schedule 11 to the 2014 Act and replaced by the power to make a Criminal Behaviour Order. Existing ASBOs remained in force, but section 33 of the 2014 Act prevented them being varied after the 2014 Act came into force.

3

The appellant's notice was lodged on 18 June 2015. On 2 July the Deputy Master granted the appellant's application for expedition on the ground that the respondent is an alcoholic with a substantial history of offending and causing significant disturbance to members of the public in York, and that she has been found to be in further breach of the ASBO on seven occasions between the District Judge's decision and the time at which expedition was sought.

4

It is submitted on behalf of the appellant that the learned District Judge erred in refusing to make the order in a number of respects, in particular that he considered that the second condition for making a Criminal Behaviour Order was not met because the order sought did not include positive requirements to address the underlying causes of the respondent's anti-social behaviour, i.e. her chronic alcoholism. It is also submitted that the District Judge erred in concluding that dissociating the respondent from the defined area would not help prevent behaviour that was likely to cause distress or alarm, but would relocate it to other places. It was also submitted that the District Judge erred in concluding that other powers, in particular the power to require a person to leave a particular locality for a limited period pursuant to section 27 of the Violent Crime Reduction Act 2006, were an adequate alternative to a Criminal Behaviour Order because section 27 had been repealed by the 2014 Act and, in any event, did not have a pre-emptive status and only enabled exclusion for a period of up to 48 hours.

5

The grounds of appeal also contend that the exclusion requirement was a proportionate response and additionally was both easy to comply with and to enforce. Also, it was submitted that although the respondent's case was that the order was disproportionate because it excluded her from the area in which she lived, there was no proper or direct evidence before the District Judge that she was resident within the exclusion zone. Since, in view of his other findings, the District Judge did not (see below) decide whether the order was a proportionate response, I have construed the grounds as contending that he erred in not so deciding. I observe that the document containing the grounds of appeal does not simply identify the respects in which it is said that the District Judge erred, but includes material describing in part, in general terms, the circumstances giving rise to the appeal in a way that the Vice-President of the Court of Appeal Civil Division deprecated in Rasheed and others v Secretary of State for the Home Department [2014] EWCA Civ 1493 at [12].

II. The 2014 Act

6

The material parts of the 2014 Act are:

"22 Power to make orders

(1) This section applies where a person ("the offender") is convicted of an offence.

(2) The court may make a criminal behaviour order against the offender if two conditions are met.

(3) The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.

(4) The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.

(5) A criminal behaviour order is an order which, for the purpose of preventing the offender from engaging in such behaviour —

(a)prohibits the offender from doing anything described in the order;

(b)requires the offender to do anything described in the order.

(9) Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid —

(a) any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment;

(b) any conflict with the requirements of any other court order or injunction to which the offender may be subject.

24 Requirements included in orders

(1) A criminal behaviour order that includes a requirement must specify the person who is to be responsible for supervising compliance with the requirement.

The person may be an individual or an organisation.

(2)Before including a requirement, the court must receive evidence about its suitability and enforceability from —

(a) the individual to be specified under subsection (1), if an individual is to be specified;

(b) an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.

These obligations have effect as requirements of the order."

III. The factual background and the evidence

7

The material facts, taken from the case stated (paragraph numbers below are references to paragraphs in the case stated), are:

(1) Ms Bulmer is a chronic alcoholic who struggled on a daily basis to avoid drinking alcohol or to behave in a way that did not cause a nuisance to others (paragraphs 8 and 23).

(2) On 8 August 2012, at the Leeds Magistrates' Court, at which Ms Bulmer had been convicted of an offence of disorderly behaviour while drunk, the court, on the application of the local authority, made an ASBO under section 1C of the 1998 Act. "The terms of that ASBO were that Ms Bulmer was prohibited from (a) acting in a manner which is likely to cause harassment, alarm or distress to any members of the public within the area of England and Wales, (b) approaching any person not known to her and request, ask, demand or beg money or other item within the area of England and Wales and (c) be in possession of any open container of alcohol in a public place. The [ASBO] was ordered to expire on 7 August 2017" (paragraph 4).

(3) On 1 December 2014, Ms Bulmer appeared before the Justices sitting at York and Selby Magistrates' Court charged pursuant to section 1(10) of the 1998 Act with breaching the terms of the ASBO on 28 November 2014 (paragraph 3).

(4) "The alleged breach of the ASBO … was that the offender had been seen to drink from a can of lager at the entrance to a museum in York. The police were called by a supervisor at the museum and Ms Bulmer was arrested on suspicion of breaching the ASBO. She was interviewed under caution and told the police that she couldn't remember the incident. On appearing in court she pleaded guilty to the offence. She was sentenced to one day's detention in the court cells, which the Justices deemed to have been served, given the time she had spent in police custody from arrest to first appearance" (paragraph 5).

(5) "At the conclusion of the hearing, the prosecution served an application for the Criminal Behaviour Order, which was adjourned and came before [the District Judge] on 11 March 2015" (paragraph 6).

(6) "… [T]he prosecution relied on a number of witness statements, a schedule of 47 instances of Ms Bulmer's behaviour dating from 7 May 2014 until 5 February 2015 and her previous convictions. The defence did not dispute the alleged behaviour described in the application and the application proceeded by way of submissions" (paragraph 7).

(7) Ms Bulmer "had been found in possession of open containers of alcohol in York on a regular basis since the date the [ASBO] was imposed. On a number of occasions she had been abusive to members of staff at hotels, cafes and shops in York. This had taken place in the presence of customers, including children. On one occasion Ms Bulmer had entered a restaurant and urinated in view of customers. On another occasion, following an altercation with a man over a bottle of cider, Ms Bulmer's trousers had fallen below her buttocks and she exposed herself to passing members of the public. Further, Ms Bulmer had helped herself to loose change that members of the public had placed in the collection case of a street performer. She had stolen food and alcohol from a number of shops in York. The last incident upon which the prosecution relied took the form of Ms Bulmer lying on the floor of a taxi office, preventing staff and customers from entering" (paragraph 8).

(8) "Not all, but most of these incidents, had resulted in Ms Bulmer's arrest, prosecution and conviction...

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