McGrath, R. v [2005] EWCA Crim 353

Case No 2004/04598/A3[2005] EWCA Crim 353
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 10 February 2005
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE GRIGSON
and
MR JUSTICE GROSS
Between
R E G I N ACrownJAMIE PAUL McGRATHDefendant
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR A WILKINS appeared for APPELLANTMR N BARRACLOUGH appeared for CROWN
J U D G M E N TThursday, 10 February 2005
[1]On 22 June 2004, at the Crown Court at Luton, before His Honour Judge Maher, the appellant, Jamie Paul McGrath, aged 25, pleaded guilty to one count of theft. On 16 July 2004 he was sentenced to a 60 hour Community Punishment and 12 month Community Rehabilitation Order. An Anti Social Behaviour Order (“ASBO”) was imposed for two years. Another count was left on the file.[2]The facts of the offence were these. At about 8am on 18 June 2003 the owner of a Honda motor car parked his car in a car park at St Albans station. When he returned that evening he found that the car had been broken into, the window smashed and various compact discs stolen. The CD player itself had been damaged. Blood had been recovered from the car. A DNA analysis proved it to be the appellant’s. He was later arrested. He denied being responsible initially. He said that his blood might have been there because he was drunk, had stumbled into the car and cut himself.[3]As we shall return to them in due course, it is convenient to set out at once the full conditions of the ASBO. They are:
“The appellant was prohibited from: 1. Entering any car park which is owned, opened or leased by Network Rail, any train operating company or London Underground Ltd whether on payment or otherwise within the counties of Hertfordshire, Bedfordshire or Buckinghamshire. 2. Entering any other car park whether on payment or otherwise within the counties of Hertfordshire, Bedfordshire or Buckinghamshire. 3. Trespassing on any land belonging to any person whether legal or natural within those counties. 4. Having in his possession in any public place any window hammer, screwdriver, torch or any tool or implement which could be used for the purpose of breaking into motor vehicles. 5. Being found drunk in a public place in those three counties.”
[4]In passing sentence the judge said that the appellant had an appalling record. There was every reason to believe that he was turning over a new leaf, hence the Community Punishment and Rehabilitation Order. The more troubling part was the request for an ASBO. Account was taken of the authority of R v Shane Tony P [2004] EWCA Crim 287. It was important to look at the circumstances of the index offence, namely that the appellant had broken into a car in a station car park and stolen compact discs. It was not an offence of the gravest nature by itself, but it caused enormous inconvenience and real upset to those who found their cars had been broken into. The appellant’s long and unenviable record also had to be taken into account. He was still young, but over a ten year period he had been convicted of 112 offences, mostly offences of dishonesty. Despite previous custodial sentences, he had continued to offend.[5]Dealing with the ASBO the judge said that the Act in question, to which we shall return, came into force in 1999. The court had to consider whether the appellant had acted in an anti-social manner since that date. It was clear from his record and this offence that he had.[6]The next matter to consider was whether an ASBO was necessary. The British Transport Police had identified the geographical areas where some of the appellant’s offending had occurred. Hence the reference to car parks, land that had not belonged to him, and the possession of tools and so on, as acts which were likely, given his record, to give rise to unacceptable conduct. Once there was a simple qualifying offence, then the whole of his behaviour could be looked at. He had been solidly in trouble for offences ranging from the comparatively trivial to the fairly serious for a long time. He was about to turn over a new leaf, but these were early days and only time would tell. He had been given a chance and it was not wrong to impose an extra step by way of an Anti Social Behaviour Order.[7]The appellant appeals against sentence by leave of the single judge. The sentence against which he appeals relates solely to the ASBO. When granting leave the single

judge said this:

“1. I consider that the judge was entitled to make an ASBO and to take account of pre- commencement date behaviour. Further, there is no requirement that the acts prohibited by the Order should be such as are likely to cause harassment, alarm or distress. 2. In the circumstances, however, I consider it is arguable that the Order made was too long or that its terms were disproportionately wide.”
[8]Developing his argument today Mr Wilkins for the appellant pointed to the fact, as indeed the judge had found -- and this is a matter to which we shall return -- that the appellant had turned over a new leaf. He argued that in principle the judge was not entitled to take into account the behaviour of the appellant prior to the commencement of the relevant legislation and he also queried the applicability of Anti Social Behaviour Orders to offences of dishonesty. He queried the necessity for an Anti Social Behaviour Order, having regard to the new leaf. Further than that, Mr Wilkins mounted a sustained attack on terms 2, 3 and 4 of the ASBO. It is said that term 2 was draconian; the appellant was prevented from going into a car park in a shopping centre, for instance. Term 3 had the potential effect of converting a civil tort into a five year prison sentence. Term 4 was either impossibly wide in the sense that almost anything could come within the wording “any tool or implement”. Conversely, term 4 overlapped with the offence of going equipped and was to that extent inappropriate.[9]Section 1C of the Crime and Disorder Act 1998 (“the CDA 1998”) 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 antisocial 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 antisocial acts by him, it may make an order which prohibits the offender from doing anything described in the order.”
Elsewhere in the statute “relevant offence” is defined as meaning an offence committed after the coming into force of section 64 of the Police Reform Act 2002. That section came into force on 2 December 2002. “Commencement date”, as far as we understand the legislation, means 1 April 1999. (a) that the offender has acted, at any time since the commencement date, in an antisocial 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 antisocial acts by him,[10]Against the background of those statutory terms the framework governing ASBOS may be summarised as follows: (1) The court has a discretion to make an ASBO if two conditions are satisfied: (i) that the offender (that is a person convicted of an offence committed after 2 December 2002) has acted in an anti-social manner after the commencement date, ie 1 April 1999; and (ii) that such an order is necessary to protect others from further antisocial acts by him. (2). Provided the offender has acted in an antisocial manner after the commencement date, in determining whether an ASBO is necessary, the judge is entitled to take all the offender’s conduct into account, both before and after the commencement date. (3). There is no requirement that the acts prohibited by an ASBO should by themselves give rise to harassment, alarm or distress. (4). The test for the grant of an ASBO is necessity, as is clear from section 1C(2)(b). (5). As to the scope of the terms of an ASBO, (i) they must be clear as the sanction for breach may well be imprisonment; (ii) they should be commensurate with the risk to be guarded against and hence not disproportionate. What is “disproportionate” must depend on the facts of each case, having regard both to the restrictions to be imposed on the offender and the risk against which the ASBO is seeking to protect the public.[11]It follows from these conclusions that the judge did not err in principle insofar as he was entitled to have regard to the totality of the appellant’s conduct both post and pre the commencement date. Nor do we understand there to be any restriction of principle preventing the imposition of an ASBO in relation to vehicle crime. Furthermore, the prohibited acts did not need to be such as would by themselves cause harassment, alarm or distress.[12]However, before we go further, there are one or two matters of concern. The first is that ASBOs should be approached with a proper degree of caution and circumspection. They are not cure-alls. They are not lightly to be imposed. The sanction for breach, as we have already outlined, may well be a term of imprisonment -- indeed imprisonment for up to five years. Conversely, there is also some concern in this matter in the light of certain remarks in the supplementary pre-sentence report available to this court. The appellant would be most unwise to throw away the chance that he has been given.[13]We return to the main theme. Was it appropriate to make an ASBO in this case? Was it necessary to do so, as we have underlined, a condition for the order being made? Mr Wilkins argued that it was not. Mr Barraclough, who appeared here for the Crown, said that it had been regarded as necessary at the time in the light of the appellant’s overall conduct.[14]Having considered the matter with some care, we are persuaded, if only just, that this was a case where in principle the judge was justified in imposing an ASBO. We are satisfied, notwithstanding the new leaf which he found that the appellant had turned over, that an ASBO nonetheless was necessary. But we emphasise the caution with which we have approached the matter.[15]That leaves the question of the terms. No serious opposition is presented by Mr Wilkins to term 1, relating to railway car parks. He is right not to oppose that term. Much of the appellant’s offending relates to thefts from cars parked in such car parks and it is appropriate that such a term was imposed. Its ambit is entirely clear. Similarly, there is no real opposition to term 5, on the basis not least that the appellant has declared that he will not be drinking in the future. Terms 2-4 remain. Apart from saying that they were thought justified at the time, Mr Barraclough has not (and it is not a criticism of him) been able to articulate a reasoned defence of those terms. As it seems to us, term 2 is unjustifiably draconian; it is far too wide and would prohibit the appellant from entering, even as a passenger, any car park in a supermarket. We cannot see that that can be appropriate. By way of consolation Mr Barraclough said that prosecution would not necessarily follow; there was a discretion. We do not think that is a correct approach in principle. The terms must be justified and commensurate. A party at risk of a prison sentence should not be left to the discretion of the prosecution as to whether to prefer charges.[16]The same considerations apply with equal if not greater force to the next term, the prohibition on trespassing. Again one only needs to test it. If the appellant took a wrong turn on a walk and entered someone’s property, he would be at risk of a five year prison sentence. It would be small comfort that there is a prosecutor’s discretion.[17]Term 4 raises difficulties of a different order. First, it is unacceptably wide. Neither an ASBO nor even a civil injunction could be made in such terms. The meaning of the words “any tool or implement” is impossible to ascertain. In addition, insofar as the wording of term 4 is sufficiently qualified by the final wording “which could be used for the purpose of breaking into motor vehicles”, effectively term 4 overlaps with the offence of going equipped. We do not think that term 4 is properly justified. We would therefore allow the appeal to this extent. We would strike out terms 2-4 of the ASBO. We do not interfere with the decision to make the order for an ASBO, or with terms 1 and 5.

Cited in 4 later judgments