Belaid, R v [2008] EWCA Crim 2153

Case No 2008/3088/A9[2008] EWCA Crim 2153
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 23 September 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE DAVIS
MR JUSTICE BURNETT
Between
R E G I N ACrownv
Between
MOHAMMED BELAID
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G King-Underwood appeared for Appellant
J U D G M E N T
[1]MR JUSTICE BURNETT: This is an appeal against sentence arising from a number of thefts, but limited to the imposition of an anti-social behaviour order in addition to concurrent terms of imprisonment.[2]On 6th May 2008 the appellant was sentenced by His Honour Judge Robbins at Southwark Crown Court to four concurrent terms of 30 months' imprisonment on three counts of theft and one of handling stolen goods. The appellant was a long-term heroin and crack addict. For years he had funded his habit by stealing. His modus operandi was to steal bags or their contents in public places where they had temporarily been put down. He targeted his victims at railway stations and in bars and cafes. It is a familiar and depressing picture which results in none of us being able to set down bags in such places without keeping a constant eye on them for fear that someone like the appellant will steal them or dip into them.[3]The facts of the cases before Judge Robbins can be very shortly stated. First, at about 7.30am on 5th February 2007 the first victim put his bag down in a food court area at Euston Station. He noticed nothing suspicious, but when he went to pick it up it had gone. In his bag was his laptop, a notebook and other property valued at about £900. The appellant was eventually identified from CCTV footage.[4]Secondly, at roughly the same time but on 28th July 2007 another passenger at Euston, this time having got on the train, put her bag down in order to assist another passenger. When she went to pick it up it had gone. She lost her credit cards, cash, her mobile phone and other bits and pieces to the value of about £300. Again the appellant was seen through CCTV footage.[5]Thirdly, at just after 10 o'clock in the evening on 6th September 2007 the appellant was seen by plain clothes police officers entering a public house in Dean Street and then acting suspiciously. He was followed to another pub where he was seen to dip his hand into a bag. He was soon thereafter stopped and was in possession of a lady's chequebook. That formed the subject matter of the handling count.[6]Fourthly, at about 10 o'clock in the morning on 20th September 2007 the appellant entered another pub, this time in Poland Street, and targeted an empty table with bags beneath it. He stole one of them.[7]His antecedents show a long history of similar offences, together with much else. Whilst we do not have a complete transcript of the ASBO proceedings, it is clear from the observations of the judge dealing with this aspect that many of the offences were committed in mainline railway stations. Judge Robbins made the order in the following terms:
"From the end of his sentence the defendant is prohibited from the following. From entering, remaining on, or alighting a train and entering the following mainline stations: London Paddington, London Euston, London St. Pancras, London King's Cross, Marylebone, Blackfriars, Liverpool Street, Cannon Street, London Waterloo, St. Pancras International, Waterloo East, Moorgate, London Bridge, Charing Cross, Victoria and Fenchurch Street stations, except in order to use the underground system."
The ASBO was expressed in terms to run for three years from the date of the appellant's release.[8]As is well-known, ASBOs were introduced by the Crime and Disorder Act 1998 and ordinarily are made by magistrates on application by way of complaint. In those circumstances there is no conviction and they are civil in nature, albeit that breach of an ASBO amounts to a criminal offence. Section 1C of that Act, introduced by amendment through the Police Reform Act 2002, enabled ASBOs to be made following conviction for any offence. The section as material reads 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 which prohibits the offender from doing anything described in the order."
The words "harassment, alarm and distress" are not further defined in the Act but they represent the three ways in which Parliament considered that someone might act in an anti-social manner.[9]Mr King-Underwood, who appeared on behalf of the appellant, submitted in writing that the appellant's actions, however reprehensible, did not amount to anti-social conduct for the purposes of the 1998 Act. He says that the appellant's way of offending involves the surreptitious removal of property. The victims do not even know he is there. He does not harass them or alarm them. On the contrary, he tries to operate undetected. The distress that victims of this type of crime suffer, if it is distress rather than annoyance or anger, is that suffered by the victim of any theft and that, he submits, is not what ASBOs are designed to tackle. In support of that submission Mr King-Underwood referred us to the judgment of Scott Baker LJ in R (Mills) v Birmingham Magistrates Court [2005] EWHC 2732 Admin, which concerned an ASBO imposed upon an habitual shoplifter from chain stores.[10]Whether the approach identified by Scott Baker LJ reads over to the facts of this case is something that we do not need to decide because, for reasons which we will explain, we are quite satisfied that this ASBO must be quashed.[11]Mr King-Underwood has drawn our attention to the decision of this court in R v Lee Kirby [2005] EWCA Crim. 1228 and submits that even if the circumstances might theoretically open up the possibility of an ASBO in this case, it was wrong in principle to impose one here. An ASBO is only ever appropriate if it is necessary to protect people from further antisocial acts. In Lee Kirby this court emphasised the need for there to be a demonstrable necessity for such an order. In the case before it the defendant had received a sentence of imprisonment of 25 months. At paragraph 7 of the judgment of the court, David Clarke J said this:
"Where a substantial custodial sentence is being imposed at the same time, on release from which the offender will be on licence and liable to recall, it should not generally be assumed that there is such a necessity. The need must be considered against the background of the facts of each individual case."
That is a potent factor in the case before us. The appellant received a sentence of 30 months' imprisonment. For 15 months, or thereabouts, after his release he will be on licence and subject to recall. That will provide protection against reoffending at least as powerful as an ASBO. His licence conditions, which may be crafted to deal with residual risk in the light of all that is known at the time of his release, are likely to be more effective than an ASBO. A further factor is in our judgment important. The appellant's offending is driven by his drug dependency. That dependency will be the subject of attention whilst he is serving the custodial part of his sentence. He may of course revert to drug abuse on release, but there is a real possibility that he will break free of drug addiction whilst in prison.[12]The appellant has of course been a pest for many years and we sympathise with the desire of the sentencing judge to deal with him, but it is to be observed that the appellant's way of stealing has habitually extended from railway stations to bars, pubs and cafes. If he were to return to that way of life, banning him from mainline stations would be likely to displace his activities, rather than curtail them, to his other chosen spots or even to the underground to which the ASBO would allow him to travel through mainline stations.[13]For all these reasons we do not consider that it can be said that the ASBO was necessary in this case and we quash that part of the sentence.