English, R. v [2005] EWCA Crim 2690

Case No 05/1212/C3[2005] EWCA Crim 2690
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12 October 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE NEWMAN
MR JUSTICE BEAN
Between
R E G I N ACrown-v-
Between
NICHOLAS JAMES ENGLISH
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR PAUL MOULDER appeared for APPELLANTMISS MARIA KARAISKOS appeared for CROWN
J U D G M E N T

LORD JUSTICE LATHAM:

On

[1]10th February 2005 in the Crown Court at Guildford this appellant was convicted of two counts of breach of an anti-social behaviour order contrary to section 1(10) of the Crime and Disorder Act 1988 and was sentenced to eighteen months' imprisonment concurrent on each count. He appeals against conviction with leave of the single judge, raising just one ground of appeal, and that is that the prosecution had failed to establish that there was in existence at the relevant time a valid anti-social behaviour order in respect of which he could have been in breach.[2]It is unnecessary for the purposes of determining that issue to deal in any detail with the facts of the case. The position was that the appellant had on 20th February 2003 been convicted by the magistrates in the South East Surrey Magistrates' Court of an offence of theft; and they sentenced him to a drug treatment and testing order for two years. They then proceeded to deal with an application that they consider the making of an anti-social behaviour order consequent upon that conviction.[3]The hearing resulted in a document being signed by the Justice of the Peace who was presiding, which set out what had happened at that hearing in the following general terms. Firstly, it set out the fact of the conviction. Secondly, it stated as follows:
"(2) The court found that: (i) the defendant had acted in the following anti-social manner, which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself [details of behaviour]."
Thereafter there was a blank. "and that (ii) an order was necessary to protect persons in England and Wales from further anti-social behaviour by him." It then proceeded to set out the terms of what would on their face appear to be the order that was made:
"(3) It is ordered that the defendant, Nicholas English, is prohibited from: (a) Entering any off-licence, or the part of premises in which an off-licence to sell alcohol is situated in the county of Surrey. (b) Assaulting, harassing, alarming, intimidating, threatening, abusing or distressing any person in the county of Surrey. (c) Being drunk and disorderly in any public place or public street in the county of Surrey. (d) Driving a motor vehicle unless legally allowed to do so in a public place. (e) Allowing himself to be carried in any vehicle in any public place unless the vehicle is in the possession and control of its legal owner or the person in possession and control of it has the legal owner's authority. (f) Being in the company of Christopher Jones (date of birth 25/04/78) and/or James Newham (date of birth 23/12/80) in a public place or a place to which the public have access. Each prohibition set out in this Order (a to f above) is in force for a period of three years from today's date."
[4]The submission on behalf of the appellant made to the Recorder at the Crown Court was to the effect that that document did not prove the existence of a valid anti-social behaviour order. The Recorder rejected that submission.[5]In order to evaluate its validity it is necessary to consider section 1C of the Crime and Disorder Act 1998, which provides for the making of an anti-social behaviour order in circumstances such as the present. That section provides as follows:
"(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 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..."
[6]The appellant's submission is that because in paragraph 2 of the order the details of the anti-social behaviour said to have been found by the court were not set out that invalidated the order and, accordingly, there was no valid basis upon which the appellant could be convicted of an offence of breaching that order.[7]In support of his submissions to us Mr Moulder on the appellant's behalf has referred us in particular to three authorities. The first in point of time is C v Sunderland Youth court, Northumbria Police and Crown Prosecution Service [2003] EWHC 2385 (Admin). That was an application for permission to apply for judicial review of a decision by the Sunderland Youth Court to impose an anti-social behaviour order. In his judgment Sullivan J stated as follows as to the general obligations in relation to proceedings for the making of such an[8]In the case of R v P [EWCA] Crim 287, this court considered the making of an anti-social behaviour order by the Crown Court in an appeal against the making of such an order, and, picking up the judgment of Sullivan J as to the proper procedures which should be adopted in such a case, Henriques J underlined the fact that an elementary requirement was that there should be clarity as to the basis for and scope of any order. In paragraph 34 he encapsulated what the court considered to be the proper principles in the following terms:
"In our judgment the following principles clearly emerge: (1) The test for making an order is one of necessity to protect the public from further anti-social acts by the offender. (2) The terms of the order must be precise and capable of being understood by the offender. (3) The findings of fact giving rise to the making of the order must be recorded. (4) The order must be explained to the offender. (5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced."
[9]So far as those two authorities are concerned, there is no doubt that they set out, as we have indicated, the proper procedure to be adopted in relation to the making of anti-social behaviour orders and there is no need for this court to underline the importance of those procedures being followed. They are of significant importance for the reasons given by Sullivan J, namely that the consequence of an anti-social behaviour order is that it exposes the offender to the risk of a significant sentence of imprisonment. But one thing is clear from the judgment of Henriques J, and that is that of course the order is the order made in court. The procedure adopted thereafter for ensuring that the offender knows what the order is may well be of importance in some cases and may, if it is the subject of proceedings in the Divisional Court for judicial review, provide some material which enables an applicant to challenge its validity. But the order, which is the basis for any subsequent proceedings, is the order made by the court in court.[10]In the present case what was said in court is purportedly set out in paragraph 3 of the notice, which was signed by the chairman Of the Magistrates and served on the appellant. There is no suggestion that that was not the form of the order that was made in court. It follows, it seems to us, inevitably that the form provided admissible evidence, accordingly, of the order that was made. That is all that was necessary for the purposes of establishing the basis for the charge that was brought by the prosecution in this case. There is and can be no suggestion that the form of the order as recorded in paragraph 3 indicated that the magistrates had exceeded the limits of their jurisdiction under section 1C of the Act nor is there any suggestion that the form of the order was defective, in that it failed to identify what it was that the appellant was precluded from doing.[11]The only case in which, at a hearing for the breach of such an order, it has been held that the court hearing those proceedings is entitled to look at the validity of the underlying order is W v Director of Public Prosecutions [2005] EWHC 1333 (Admin). In that case the Divisional Court, considering a case stated by a district judge, concluded that the form of the order in that case was far wider than could be justified by the provisions of the Act and accordingly the court was not empowered to make the order in question. In those circumstances, in the judgment of Brooke LJ, the court would be entitled to take the view that the order was invalid so that there was no order in force in respect of which the offender could be in breach. Brooke LJ was, however, clear in his view that that could only be the consequence in cases where the order was, as he put it, "plainly invalid". That does not apply in this case.[12]The presumption that any document such as the one in question here is recording a valid order is one which, in our judgment, should prevail in all other cases and that the only other way to challenge an order which is apparently valid on its face can be by way of an appeal under section 108 of the Magistrates' Courts Act or (if the underlying facts justify it) an application for judicial review on the basis of some failure or defect in procedure. In this appeal, accordingly, there is no basis for the argument that the prosecution have failed to establish the underlying order which justified the appellant's conviction and this appeal is accordingly dismissed.

order

"25. While section 1C does not prescribe any particular procedure for making an order, whether the proceedings are civil or criminal it is common ground that, in making an order, the magistrates' court must act fairly and have regard to all relevant considerations. What fairness requires and what considerations are relevant will depend upon the circumstances of each particular case. In addition to the requirement to act fairly, there is the elementary requirement that there should be clarity as to the basis for, and scope of, any order made by the magistrates under section 1C, particularly if breach of such an order exposes a person to potential criminal penalties. In my judgment, the procedure adopted by the court in the present case failed to meet those criteria and was wholly unsatisfactory for the following reasons." He then goes on to set out the circumstances of that case, which make it plain that, firstly, the magistrates had failed to give any or any proper reasons for a decision to make an anti-social behaviour order in a case where apparently such an order had been refused on a previous occasion, and without there being any change in the circumstances. There were serious procedural irregularities, in particular a failure to indicate to the applicant in that case the basis on which an order might be appropriate and the material upon which it was proposed to rely so that the applicant could make meaningful submissions to the magistrates; and the material which was relied on by the court included material which had not even been heard by the applicant so as to enable him to deal with it. Sullivan J, not surprisingly, in those circumstances, considered that the procedure was such as to render the order that was made invalid by reason of unfairness, and that was a conclusion with which Brooke LJ agreed. But in the course of his judgment, Sullivan J included passages in which he sought to set out the proper procedure which should be adopted in such cases, including an admonition that it is vital that the terms of an order that is made should be clearly and accurately explained by the magistrates in open court, as should the basis upon which the court had made such an order.

Cited in 1 later judgment