Legal Commentary
| Published date | 01 December 2006 |
| DOI | 10.1177/1473225406069495 |
| Date | 01 December 2006 |
| Author | Nigel Stone |
| Subject Matter | Articles |
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L E G A L C O M M E N T A R Y
Copyright 2006 The National Association for Youth Justice
Published by SAGE Publications (London, Thousand Oaks and New Delhi)
www.sagepublications.com
ISSN 1473-2254, Vol 6(3): 211–218
DOI: 10.1177/1473225406069495
Legal Commentary
‘Enforcement of Anti-social Behaviour Orders’ and
‘Discretion in Provision of Secure PACE
Accommodation’
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies, Elizabeth
Fry Building, University of East Anglia, Norwich NR4 7TJ, UK. Email: n.stoneVuae.ac.uk
1. Enforcement of Anti-social Behaviour Orders
Uncertainties arising from use of powers under the Crime and Disorder Act (CDA)
1998 to impose an anti-social behaviour order (ASBO) have generated several appeals
and challenges through judicial review, as noted in earlier Legal Commentaries (see
Stone, 2004 and 2006). The issue is worth revisiting in light of Crown Prosecution Service
v T. [2006] EWHC 728 (Admin) (April 2006) which not only illustrates the appropriate
ambit of an ASBO but, more importantly, clarifies the appropriate response when
breach is alleged in respect of an order that exceeds that ambit.
Challenge of T.’s Order
A boy then aged 13 had been subject of numerous complaints about his behaviour,
culminating in an application by the local authority to Manchester Magistrates’ Court1
for an ASBO to be imposed. He was represented by counsel and accompanied by his
mother. She had been under considerable personal pressure, at work and in handling
her son, and after consultation with his legal representative she decided not to oppose
the application. In light of this parental stance the district judge made an order without
hearing any evidence, and the papers were marked to the effect that it had been made
‘by consent’. Four of the order’s prohibitions were specific in respect both of location
and the nature of prescribed conduct but the initial clause stated that he should not
‘act in an anti-social manner in the City of Manchester’.2
The boy subsequently sought to challenge the order as ‘unnecessary’ but, when the
appeal came before the Crown Court, counsel for the City Council argued that appeal
could not be pursued against an order made by consent. The recorder accepted this
submission and struck out the appeal without considering the merits, stating that he
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Youth Justice 6(3)
found no error of fact or evidence of undue pressure and could ‘find no compelling
reason to vacate the consent given’. The boy sought judicial review of that decision and
when the matter came before the Administrative Court the City did not resist a
quashing order.
Giving judgement, in R (on the application of T.) v Manchester Crown Court [2005] EWHC
1396 (Admin)), Moses J. referred to the relevant provisions of CDA 1998 s.1 and noted
that an ASBO cannot be made merely on the basis of consent, and a court to which
application is made must be satisfied that the criteria for imposing an order are
established. While co-operation and consent is ‘welcome and relevant’, this is only a
factor to be considered and ‘cannot be dispositive of the case’. ‘Whether or not such
consent is given, if a claimant seeks to appeal the appeal must be heard’, though the
fact of consent ‘will be powerful evidence that there is absolutely nothing in the appeal’.
Appeals in such circumstances should be ‘rare indeed’. Accordingly, Moses J. ordered
that the appeal should be relisted before the Crown Court as soon as possible.
No such steps were taken and it transpired that the Crown Court was not notified
even of the order quashing the recorder’s decision. In the meantime the boy, now aged
nearly 15, committed an offence of interference with a motor vehicle, being seen on
CCTV trying to remove a motor scooter from a private yard within the City of
Manchester but not within any of the specific locations named in clauses 2 to 5 of the
ASBO. On his guilty plea to the offence the prosecution contended that this constituted
anti-social behaviour that breached the first clause of his ASBO. The boy’s
representatives responded that the terms of clause 1 were too widely drawn and thus
invalid, with the consequence that the order in that respect was not enforceable.
The W. Judgement
A contention of this nature had already been subject to scrutiny by the Divisional Court
in R (on the application of W.) v Director of Public Prosecutions [2005] EWHC 1333 (Admin),
arising from a s.1C ASBO imposed on a Preston boy aged 14 following his conviction
of various offences including criminal damage and assault. The order included a clause
restraining him from ‘committing any criminal offence’. On his conviction of a further
offence of theft of sweets from a supermarket he was also convicted of breach of
ASBO. He appealed by means of the ‘case stated’ process. In response the youth court
judge who had dealt with the matter acknowledged that the clause in question had been
too widely drawn, and was unnecessary for the purposes of protecting others from the
boy’s behaviour, but it was an unambiguous, and remained a valid, enforceable order
unless and until successfully appealed against or varied.
Brooke LJ agreed that a general prohibition on committing criminal offences was far
too widely drawn, particularly in light of the young offender’s age when ‘he might not
know what was a criminal offence and what was not’. Though recognizing...
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