R v W and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Aikens |
| Judgment Date | 28 March 2006 |
| Neutral Citation | [2006] EWCA Crim 686 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case Nos: 200506212 A8 200506213 A8 |
| Date | 28 March 2006 |
[2006] EWCA Crim 686
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
HIS HONOUR JUDGE RENNIE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Mr Justice Aikens And
The Recorder Of Liverpool
(sitting As A Judge Of The Court Of Appeal, Criminal Division)
Case Nos: 200506212 A8 200506213 A8
CHRISTIAN WASUNNA Esq for Luke Paul Wadmore and Liam Philip Foreman
Mrs JULIA NEEDHAM for the Crown
Luke Wadmore is now 15 years old. He was 14 at the time he committed the offence with which we are concerned and was 15 when sentenced. Liam Foreman is now 16 years old. He was just 15 when the offence was committed and the same age when sentenced.
On 31 August 2005 the two appellants were convicted of robbery after a short trial at Lewes Crown Court, before HHJ Rennie and a jury. They were sentenced by Judge Rennie on 4 October 2005. Each was sentenced to 12 months detention and training.
Each appellant was also made subject to an Anti-Social Behaviour Order ("ASBO") for a period of 5 years, which was to start upon the appellants' release from custody. The ASBOs stated that each appellant was prohibited from (i) assaulting, threatening or intimidating any person; (ii) entering within the boundary of any residential premises other than his own address without the prior permission of the lawful occupants; (iii) causing, threatening to cause or attempting to cause, damage to property or premises of another person without reasonable excuse or lawful authority, or encouraging others to do so; (iv) carrying any object which is made as or adapted for use as a weapon or missile; (v) being with Lee John Goodsell (who was a co-accused at the trial) or the other appellant in any place to which the public had access. It will be noted that the subject matter of prohibitions (i), (iii) and (iv) constitute crimes.
The appellants now appeal the ASBO orders made, with the leave of the single judge. In other cases this court has noted that whilst an ASBO is not strictly part of the sentencing process, nevertheless, when seeking to set aside or vary an ASBO made in the Crown Court, the appropriate course is to seek leave to appeal to the Court of Appeal Criminal Division: see sections 9(1) and 50(1) of the Criminal Appeal Act 1968, and the remarks of Henriques J in R v Shane Tony P [2004] EWCA Crim 287 at paragraph 36.
We need only state briefly the facts concerning the robbery. It occurred shortly after 8.25pm on 19 January 2005, in Seaford Road, Crawley, East Sussex. The victim was a pizza delivery man. He had made his delivery when the appellants and the co-accused Goodsell blocked his path and demanded the money the customer had given the victim. He refused to hand over the money but Goodsell then produced a knife and he and the two appellants stood around the victim.
The youths were then disturbed by the lights of an on-coming car and the victim tried to escape. But he was stopped again by the three and Goodsell said: "three seconds; give me the money". The victim pulled out banknotes totalling about £30 and that was grabbed by the three who ran off. They were arrested later that evening.
Neither appellant had any previous convictions at the time they were sentenced by Judge Rennie, although Wadmore had received a reprimand for criminal damage and Foreman had received a reprimand for common assault and a warning for burglary.
Prior to the sentencing hearing, the Crown Prosecution Service had issued Applications for Anti-Social Behaviour Orders against each of the three co-accused. (We have only seen the application in relation to Wadmore, but we assume that they were all in identical terms). The applications were made under section 1C(2) of the Crime and Disorder Act 1998, a section that was inserted into the existing legislation by section 64 of the Police Reform Act 2002, and amended by section 86 of the Anti-Social Behaviour Act 2003. Section 1C of the CDA 1998 as amended, provides:
"(1) This section applies where a person (the "offender") is convicted of a relevant offence.
(2) If the court considers -
(a) that the offender has acted, at any time since [1 April 1999] 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.
……………….
(3A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.
……………..
(5) An order made under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody."
The application form we have seen is in an unsatisfactory state. It is not signed and dated and there is no indication on it of when it was served on the appellants or their legal advisors or how that was done. The form states that it is alleged that: (a) the defendant had between 29 February 2004 and 19 January 2005 acted in an anti-social manner in Broadfield, Crawley, ie. 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 that (b) an ASBO was necessary to protect relevant persons from further anti-social behaviour by each of the appellants. The form goes on to state that, if the defendant pleaded guilty or was convicted, the prosecutor would apply for an ASBO in the terms set out in the draft order attached or such other order as the court might direct.
Underneath this, the form indicates that the prosecutor intends to rely upon: (i) the facts of the proceedings, as set out in a summary as attached; (ii) the defendant's history of convictions-in fact neither had any at that time; and (iii) additional material as set out in an attached summary.
Attached to the application form is a one page document headed "Case Summary". That document gives details of the defendant, and then an "Overview of the Problem". This "overview" states that (in the case of Wadmore) he has been one of a large group of youths that:
"….hang around the Cotton Walk, Longhurst Road area of the estate. The main problem has subsided with the defendant's friend Lee Goodsell serving time in custody. However the local residents have not forgotten what has previously happened and are still in fear. The defendant is predominantly a follower but has previously offended by himself. The main problems have been acts of criminal damage, assaults, intimidation and verbal abuse to the local residents".
The form then sets out paragraphs headed "Intervention Strategies and Results"; "Defendant's Antecedence" [sic]; and "Conditions Sought in Application". Those conditions were not the same as those actually made by the judge.
The last paragraph is headed "Reasoning". That paragraph states:
"Such restrictions are necessary to protect the vulnerable residents in the estate the defendant lives in. I accept that since being on bail in the court for armed Robbery and being given bail conditions not to contact the co-defendants he hasn't re-offended however I feel that this supports my application and shows that when given conditions to reduce his offending he actually sticks to them and stays out of trouble. If the Court don't [sic] impose conditions against the defendant it is likely that further incidents occur when GOODSELL gets out of custody. It would also be pointless to give GOODSELL and FOREMAN conditions not to contact the defendant if he didn't also have conditions to contact them."
The Application Form also has a section headed " Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, Notice of Intention to Rely on Hearsay Evidence". The form states that the applicant intends to rely on hearsay evidence. On the form there is space to indicate whose witness statements will be relied upon, but that part of the form was left blank.
Attached to the form are witness statements on the usual form prescribed by section 9 of the Criminal Justice Act 1967. The first is that of PC Carrie Anne Kwasniewski, a Sussex police constable. Her statement, which is dated 26 July 2005, indicates that, before the robbery in January 2005, she had been dealing with community issues in the Broadfield area and that she had received information that Foreman and Goodsell had been part of a core group of youths that had been causing problems on the Broadfield Estate. Her witness statement refers to a spread sheet of incidents which she had reproduced from "the criminal investigation system". That spreadsheet is exhibited as CAK/02. This spreadsheet records some 20 incidents between 2002 and 2005 in which either or both the appellants are identified as the offender(s) or suspect(s). The incidents are nearly all in the area of the estate. They consist mostly of assaults, damage to property and abusive language. There are some incidents of shoplifting also.
Miss Kwasniewski also produces a print-out showing all the times that Goodsell, Wadmore and Foreman had been brought into custody. That is exhibited as CAK/03. A map of the Broadfield...
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