Crown Prosecution Service v T [2006] EWHC 728 (Admin)

[2006] EWHC 728 (Admin)Case No CO/9587/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 April 2006
Before
LORD JUSTICE RICHARDSMR JUSTICE DAVID CLARKE
Between
Crown Prosecution ServiceAppellantTRespondent
Charles Garside QC (instructed by Chief Crown Prosecutor, CPS, Manchester) for AppellantAdam Fullwood (instructed by Kaufman and Company) for RespondentHearing Hearing date : 22 February 2006
Judgment
[1]This is the judgment of the court, to which both members have contributed. The respondent to the appeal is a minor, not to be identified in any report of these proceedings.[2]This is a prosecution appeal by case stated from a decision of District Judge Alan Berg sitting in the Manchester City Youth Court on 25 September 2005 when he dismissed a charge against the respondent T of breach of an anti-social behaviour order (ASBO) on the ground that the relevant provision of the ASBO was unenforceable and void.

The factual background

[3]The prosecution arose in this way. On 21 October 2003, on an application by Manchester City Council, also before District Judge Berg, an ASBO of 2 years’ duration was made in respect of this young man, who was born on 11 August 1990 and was then aged 13 years 2 months.[4]From the preamble to the order it appears that the court made the necessary determinations which are prerequisites for the making of an ASBO under the Crime and Disorder Act 1998. It adjudged that the respondent had acted in an anti-social manner, within the definition contained in section 1C of the Act itself, “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 it adjudged that the order was necessary to protect persons in the City of Manchester local government area from further anti-social acts by him.[5]In the subsequent appeal to the Crown Court, however, the ASBO was treated as having been made “by consent”. The respondent’s mother contended that she had agreed to it, feeling under pressure at the court where she had just met counsel for the first time. It was said that the District Judge made the order on a consideration of the papers and without hearing any evidence. In view of the subsequent history it is not necessary for this court to consider whether or not this was in fact so.[6]The order itself was in the following terms:
“On the complaint of the Council of the City of Manchester, Town Hall, Albert Square, Manchester, M60 2LA It is adjudged that this Order is necessary to protect persons in the City of Manchester local government area from further anti-social acts by him/her. T shall not, by himself or by instructing, encouraging or inciting any other person: 1. Act in an anti-social manner in the City of Manchester. 2. Use abusive, insulting, offensive, threatening or intimidating language or behaviour in a public place or in any place to which the or to which the (sic) public has access. Approach, threaten, intimidate, or communicate directly or indirectly with … [there followed a list of names] 3. Enter the area in red on the plan attached, MARKED A 4. Congregate in a group numbering greater than three persons in the area marked red on Map B. 5. Associate in any way in a public place, or a place to which the public has access, with … [there followed a list of names] or any of them in the area marked in red on Map B. The order shall continue from the date of this order until midnight on 24 October 2005. NOTE: If without reasonable excuse the Defendant does anything which he is prohibited from doing by this order, he shall be liable on conviction to a term of imprisonment not exceeding five years or to a fine or to both.”

T shall not, by himself or by instructing, encouraging or inciting any other person:

[7]Paragraphs 2 to 5 of the order were clearly tailored to fit the respondent’s individual case and no question arises in this court in relation to those paragraphs. The problem which faces this court arises from paragraph 1, that the respondent shall not “act in an anti-social manner in the City of Manchester”. The principal argument before us arises from the words “act in an anti-social manner”, but it is noticeable that the wide geographical scope of this prohibition contrasts strikingly with the very specific geographical limits set in the remaining paragraphs.[8]On 19 July 2004 the respondent sought to appeal to Manchester Crown Court against the making of the ASBO. Counsel for the City Council took the point that the court could not hear an appeal against an ASBO made by consent, and the court accepted this submission and struck out the appeal.[9]The respondent sought judicial review of this decision and on 7 June 2005 it was quashed by Moses J in the Administrative Court ([2005] EWHC 1396 Admin). The City Council did not resist the quashing order, despite having taken the point in the court below. This led Moses J to remark: “It is all the more unfortunate that it appears to be their counsel who triggered the decision of the Recorder and this application. The time and money that this has taken would have been far better spent, firstly, in considering the merits of the Anti-Social Behaviour Order, and, secondly, in using those funds for the excellent work undertaken by the many people involved in considering the making of Anti-Social Behaviour Orders and the teams that do so much good and hard work prior to the matter ever reaching court”.[10]Moses J ordered that the appeal be relisted before the Crown Court as soon as possible. We were told that that no steps were taken to do this, and indeed that the Crown Court were never informed of the order of Moses J quashing the order of that court. This is yet another regrettable element of the unfortunate history of this case.[11]On 24 July 2005 the respondent committed an offence of interference with a motor vehicle, to which in due course he pleaded guilty and for which he was sentenced by the District Judge. He was caught on a privately installed CCTV camera in a locked back yard or back garden in which the occupiers, who had been troubled by previous intruders, kept their motor scooters. He appeared to be trying to take a motor scooter from that place, an act sufficiently covered by the offence of interfering with a motor vehicle contrary to section 9 of the Criminal Attempts Act 1981. This location was within the City of Manchester local government area, but was not within the locations specified in either of the maps (marked A and B) attached to the ASBO.

The proceedings before the District Judge

[12]It was the contention of the prosecution before the District Judge that the commission of the offence constituted anti-social behaviour, causing as it did harassment, alarm or distress to the owners of that property, and thus it was a breach of paragraph 1 of the ASBO. It was not suggested that the commission of the offence fell within any of the further, more specific and targeted, provisions of the ASBO.[13]In the case stated, the District Judge set out the contentions before him by reference to the skeleton arguments which had been provided to him. The contention on the respondent’s behalf was that the prohibition in paragraph 1 of the order was invalid and therefore unenforceable, being far too widely drawn. He drew an analogy with the decision of this court in R (W) v Director of Public Prosecutions [2005] EWHC 1333 (Admin), in which Brooke LJ and Field J held that an ASBO prohibiting the appellant from “committing any criminal offence” was far too wide. Again in that case there were other specific provisions prohibiting the appellant from a number of specific activities, properly included in the order as in the present case.[14]In support of this argument it was further argued for the respondent that the terms of the order were not sufficiently clear to enable him, a boy aged only 13 when it was made, to know what he may and may not do. The expression “not act in an anti-social manner” entirely failed this test.[15]For the prosecution it was contended that the respondent’s actions on 14 July clearly amounted to acting in an anti-social manner, by reference to the definition of that term contained in the Act, in that it was behaviour likely to cause harassment, alarm or distress. The absence of those further words from the order itself did not change the nature of the prohibition. Because that definition appears in the Act, the term was easily understood by those made subject to such orders. The prosecution drew a distinction between this order and the order in R (W) referring to criminal offences, and pointed out that Brooke LJ in R (W) expressly limited his decision to cases in which the appellant was prohibited from committing any criminal offence.[16]The District

Judge set out his conclusions in the case stated as follows:

“8. I heard submissions based on the skeleton arguments and considered the authorities referred to by both parties, specifically the cases of : (a) R (on the application of W) -v- D.P.P. [2005] EWHC 1333 (Admin). (b) B -v- Chief Constable of Avon and Somerset (2001) l WLR 340. 9. Additionally I considered the case of Regina -v- P (Shane Tony) (2004) EWCA Crim 287 and paid particular attention to paragraphs 19, 20 and 34 of that Judgement (sic). 10. Further, in coming to my decision, I considered the Home Office Publication ‘A Guide to Anti-Social Behaviour Orders’ (attached hereto) as well as Lord Justice Thomas’s ‘A Guide on ASBOs for Judges Sitting in the Magistrates’, Crown and County Courts’ of May 2005, laying particular emphasis on paragraph 2.2. 11. I was of the following opinion: (a) That clarity was essential in the drafting of prohibition in an anti-social behaviour order. (b) That any prohibition should be precise and target the specific behaviour that had been committed by the defendant. (c) That an anti-social behaviour order can include a general condition prohibiting behaviour which is likely to cause harassment, alarm or distress. (d) That whilst interfering with a motor vehicle on another’s property is behaviour which could properly and easily be understood by some to be inherently anti-social, that was not what I had to decide in this case. (e) That I had to direct my mind to the generality of the question i.e. I had to decide if a prohibition not to act in an anti-social manner without any qualifying or defining words, e.g. “that is in a manner likely to cause harassment, alarm or distress to another not of the same household” was too vague, and lacked clarity and as such was invalid and unenforceable. (f) That the prohibition not to act in an anti-social manner not otherwise defined could not easily be understood by a defendant in particular one aged 15 years. (g) There was no evidence before me that the Court when making the anti social behaviour order had explained to the Respondent in this case what behaviour constituted acting in an anti-social manner. (h) I could not distinguish the principles enunciated in the decisions in the cases of R (on the application of W) -v- D.P.P. 2005 EWCA Civ 1333, B -v- Chief Constable of Avon and Somerset (2001) 1 WLR 340 and Regina -v- P (Shane Tony) (2004) EWCA Crim 287 with regard to the questions of clarity and specificity of a prohibition not to act in an anti-social manner with the issues arising in this case. (i) That the prohibition ‘not to act in an anti-social manner’ was too vague, lacked clarity and was therefore unenforceable and void. (j) In view of the above that by committing the offence of interfering with a motor vehicle the Respondent could not therefore be in breach of a prohibition not to act in an anti-social manner. (k) That the charge of breaching the Respondent’s antisocial behaviour order should be dismissed. (l) That an appropriate sentence in this case, and having regard to all the circumstances, for the offences of interfering with a motor vehicle was a Supervision Order for 12 months together with an electronically monitored curfew order for one month each day between the hours of 9 p.m. and 7 a.m.”
[17]The question for the opinion of the High Court was:
“Did the learned District Judge err in law in concluding that a prohibition contained within an anti social behaviour order made under S.1 Crime and Disorder Act 1998 ‘not to act in an anti-social manner in the City of Manchester’ was invalid and unenforceable as being too vague, lacking clarity and too widely drawn, and was therefore incapable of being understood, without additional qualifying or defining words specifying what behaviour could amount to anti-social behaviour, e.g. ‘that is in a manner which caused or was likely to cause harassment alarm or distress …’?”
[18]Thus the District Judge held that this paragraph of the ASBO, which he himself had made nearly 2 years earlier, was invalid and unenforceable. By his reasoning, it was unenforceable and therefore invalid, rather than invalid and therefore unenforceable. Because it was in such wide terms and did not sufficiently specify what behaviour was or was not prohibited by it, it was unenforceable and this rendered it invalid.

The decision in R (W) v DPP

(W) v DPP

[19]R (W) v Director of Public Prosecutions [2005] EWHC 1333 (Admin), like the present case, was an appeal from a decision of a Youth Court dealing with an offence of breaching an ASBO. The appellant had committed an offence of shoplifting, thereby placing himself in breach of his ASBO prohibition from committing any criminal offences. The District Judge at Preston had reluctantly convicted the appellant of breach of the ASBO provision, which was unambiguous and had not been appealed against or varied. This court held that the prohibition was far too widely drawn, pointing out that the appellant might well not know what was a criminal offence and what was not.[20]The court went on to consider whether the District Judge was bound to convict or whether it was appropriate or necessary for the court in breach proceedings to take into account a submission that the order was plainly too wide. Brooke LJ went on: “11. The next question we have to decide is whether it was appropriate or necessary for the Magistrates to take into account a submission that the order was plainly too wide. Both counsel have accepted in their submissions that an order like the anti-social behaviour order in this case is to be treated as a valid order unless and until it is varied, and that it is only if an order is invalid, as opposed to an order which might have been made in some other form, that any question arises as to whether the court considering an allegation of breach of the order can take into account submissions relating to its validity. It is accepted by Mr Gelbart, who appears for the Crown, that the case of Boddington v British Transport Police [1999] 2 AC 143gives authority for the proposition that if an order of this type is plainly invalid, then the Magistrates can consider submissions to that effect in the same way as they can consider submissions that a byelaw was ultra vireswithout the necessity of prior proceedings or concurrent proceedings in the High Court for the purpose of identifying and declaring the invalidity.12. I would stress that anything I say in this case must be understood as referring only to an order as plainly invalid as one which contains a restraint preventing a defendant from committing any criminal offence. There is great force, in my judgment, in the submission that we have received from Mr Gelbart to the effect that there will be a danger of opening floodgates if challenges to anti-social behaviour orders could be made in breach proceedings, but in all these cases there are exceptions which are as plain as the exception in this case. I am satisfied that clause 6 of this order was unenforceable.13. Therefore, in answer to the first question asked by the District Judge, namely: ‘Was I correct in law in holding that, although the prohibition in the anti-social behaviour order was in my opinion far too wide and unnecessary for the purposes of protecting others from the appellant’s behaviour, it was unambiguous and a valid order unless appealed against or varied?’ I would answer, ‘No, it was open to him to hold that it was not a valid order.’” ‘Was I correct in law in holding that, although the prohibition in the anti-social behaviour order was in my opinion far too wide and unnecessary for the purposes of protecting others from the appellant’s behaviour, it was unambiguous and a valid order unless appealed against or varied?’[21]It is thus apparent that the court proceeded in that way in the light of a concession by the Crown that there was no jurisdictional difficulty preventing it from doing so.

The jurisdictional issue

[22]Well in advance of the hearing of the present appeal the court was provided with a skeleton argument prepared on behalf of the appellant, the Crown Prosecution Service, which also raised no such impediment to the court considering the validity of the ASBO provision. By paragraph 5 of that skeleton argument it was submitted, echoing Brooke LJ in R (W), that it is only if the original order is plainly invalid that a court dealing with an alleged breach can refuse to act on it or treat it as having been wrongly made.[23]By a supplemental skeleton argument, prepared by Mr Garside QC and served on the court shortly before the hearing, the appellants contended that the court dealing with an alleged breach has no jurisdiction to act in that way, and that the concession made by counsel for the Crown in R(W) was wrongly made. The ASBO in this case was made by a court of competent jurisdiction and is valid on its face; any challenge should have been by way of appeal against the making of the order or by application to vary it. This raises an issue of principle which must be considered before we return to consider the District Judge’s reasons for deciding as he did on the issues before him.[24]Regrettably, neither counsel was adequately prepared to deal with the issue at the hearing. We therefore directed that further submissions be made in writing. We have been assisted by those written submissions but should note that the issue has not been argued as fully before us as it might have been.[25]The concession upon which the court acted in R (W) was based on the decision of the House of Lords in Boddington v British Transport Police [1999] 2 AC 143. The appellant in Boddington was convicted of the offence of smoking a cigarette in a railway carriage where smoking was prohibited, contrary to a byelaw made under the Transport Act 1962. The issue on the appeal was whether it had been open to him to raise in the magistrates’ court, as a defence to the criminal charge, a contention that the byelaw, or an administrative decision made pursuant to the powers conferred by it, was ultra vires. The House of Lords held that he was so entitled and that no distinction was to be drawn in this respect between a contention that the byelaw was substantively invalid and a contention that it was invalid by reason of procedural error.[26]The validity or invalidity of a byelaw or an administrative decision falls to be determined in accordance with conventional public law principles by reference to the powers conferred by the enabling legislation. Their Lordships in Boddington affirmed the ultra vires doctrine as the essential basis of judicial review of such measures: see in particular per Lord Irvine of Lairg LC at 154-157; per Lord Browne-Wilkinson at 164A-C and per Lord Steyn at 171F-172A. The central point of dispute in Boddington was whether the issue of validity could be determined only by the Administrative Court in proceedings for judicial review or whether it was also within the jurisdiction of the magistrates’ court to determine it when raised as a defence in criminal proceedings. In holding that the magistrates’ court had such jurisdiction, their Lordships were strongly influenced by the fact that, if precluded from raising the issue as a defence in the magistrates’ court, an individual might not otherwise have a fair opportunity to challenge the measure breach of which was alleged to constitute a criminal offence by him: see per Lord Irvine at 161D-162C and per Lord Steyn at 173C-F.[27]Very different considerations apply in the present context. First, the normal rule in relation to an order of the court is that it must be treated as valid and be obeyed unless and until it is set aside. Even if the order should not have been made in the first place, a person may be liable for any breach of it committed before it is set aside. Secondly, the person against whom an ASBO is made has a full opportunity to challenge that order on appeal or to apply to vary it: indeed, the respondent did appeal the order made against him in this case, though the matter was not pursued to a conclusion. Accordingly, in so far as any question does arise as to the validity of such an order, there is no obvious reason why the person against whom the order was made should be allowed to raise that issue as a defence in subsequent breach proceedings rather than by way of appeal against the original order. The policy consideration that influenced the finding in Bonnington that the magistrates’ court had jurisdiction to determine issues of validity of a byelaw or administrative decision is wholly absent when the issue is the validity of an order of the court.[28]The normal rule that an order of a court must be obeyed unless and until set aside was expressed as follows by Romer LJ in Hadkinson v Hadkinson [1952] P 285, 288:
“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. ‘A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it …. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order that was null and irregular and who might be affected by it was plain. He should come to the court that it might be discharged. As long as it existed it must not be disobeyed.’ (Per Lord Cottenham LC in Chuck v Cremer (1846) Cooper temp. Cott. 205, 338).”
[29]That passage was quoted with approval and applied by the Privy Council in Isaacs v Robertson [1985] AC 97, 102, which in turn was cited with approval by the House of Lords in M v Home Office [1994] 1 AC 377, 423H.[30]It is true that those observations were made in the context of a court of “unlimited jurisdiction”, such as the High Court, as was made clear in Isaacs v Robertson, and that their premise may be explained by a passage in In re A Company [1981] AC 374, 384D-G, where Lord Diplock stated:
“There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction …. There is simply no room for error going to his jurisdiction, nor … is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court ….”
[31]But the rule that an order of the court must be obeyed unless and until set aside has since been applied to courts of limited jurisdiction as well. Johnson v Walton [1990] 1 FLR 350 concerned an application in the county court to commit for contempt of court for breach of a non-molestation undertaking given to the court. The assistant recorder dismissed the application on the ground that the court had had no jurisdiction to accept the undertaking. The Court of Appeal held that he had been wrong to dismiss the application on that ground. Lord Donaldson of Lymington MR said (at 352):
“If it had been an injunction, no question could have arisen before him as to whether the injunction was rightly imposed. That could only have arisen if the defendant had either appealed against the injunction if one had been granted or, which is the equivalent in the case of an undertaking, had been asked to be released from his undertaking. It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place.”
[32]In B v B [2004] EWCA Civ 681 the same approach was applied in relation to a residence order and prohibited steps order made in the county court under the Children Act 1989. The Court of Appeal held that, because the child concerned was habitually resident in Scotland, the order had been made withoutjurisdiction. It also held, however, that the order was not a nullity and that “[t]he normal rule about orders which, on their face, are regular, but which are in fact made without jurisdiction is that they remain in force until such time as they are discharged” (per Wall LJ at para 68). Hadkinson v Hadkinson, Isaacs v Robertson and Johnson v Walton were all cited.[33]It is difficult to see why a different approach should be adopted in relation to ASBOs made under the Crime and Disorder Act 1998. Such orders may be made by the county court, magistrates’ court or Crown Court. In each case there are clearly defined avenues of appeal, as well as a right to apply for a variation. There are strong arguments in favour of the view that, whichever court makes the order, the order must be treated as valid and must be obeyed unless and until it is set aside or varied on appeal or on an application to vary: during the intervening period it cannot be treated as a nullity and of no legal effect.[34]Even if that were wrong, we take the view that any issue as to the validity of the original order should be raised by way of an appeal against that order (or possibly by an application for judicial review, if that were an appropriate remedy despite the existence of an avenue of appeal) rather than as a defence to breach proceedings. We have already pointed out the major difference in that respect between the circumstances in Boddington and those relating to an ASBO. In the latter situation there is no good reason why the magistrates’ court should be held to have jurisdiction to rule on the validity of the original order.[35]Yet another consideration in the present case is that, although it is alleged that the relevant provision of the ASBO is unduly wide and uncertain and unnecessary for the purpose of protecting against further anti-social acts, we very much doubt whether that could be said to go to the validity of the order. The magistrates’ court plainly had jurisdiction under the Crime and Disorder Act 1998 to make an ASBO. It seems to us that if the court was in error in including a provision in these terms (a question that we discuss below), that did not have the consequence of taking the order outside the court’s jurisdiction; and if the order was within the court’s jurisdiction, it would remain valid even if there were errors in it that were open to correction on appeal. With great respect to the Divisional Court in R (W), we do not accept that because an order is “plainly too wide” it is also “plainly invalid”.[36]For all those reasons, based very largely on authorities that were not cited to the court in R (W), we take the view that the concession on which the court acted in R (W) was wrongly made and we would respectfully decline to follow the approach of the court in that case. In our judgment it was not open to the District Judge, as a matter of jurisdiction, to rule that the original order was invalid.[37]It does not follow that the District Judge lacked any means of giving effect to the concerns he had about the width and uncertainty of the order. It was open to him to consider whether the relevant provision lacked sufficient clarity to warrant a finding that the respondent’s conduct amounted to a breach of the order; whether the lack of clarity provided a reasonable excuse for non-compliance with the order; and whether, if a breach was established, it was appropriate in the circumstances to impose any penalty for the breach. We will return to this topic after giving further consideration to the District Judge’s views on the terms of the order.

The terms of the ASBO

[38]We turn from the issue of jurisdiction to the decision of the District Judge on the merits of the challenge to the ASBO in this case. We are told that such a wide provision, prohibiting a person from acting in an anti-social manner in the City of Manchester, has been very commonly requested by the Chief Constable and by the City Council and has been granted regularly by the courts. We are told further that Home Office figures show that from the commencement of the Act until June 2005 a greater number of ASBOs were made in Manchester than in any other court district including London. So it is little surprise that the decision of the District Judge to hold that his own order was too vague and widely drawn to be enforceable was greeted with some surprise or even consternation.[39]We have been referred, as he was, to passages from the Guidance on ASBOs issued to judges and magistrates sitting in the magistrates’, Crown and county courts. The first edition of this Guide had been issued in May 2005; we now have the second edition dated 1 October 2005, which is in very similar terms but has been updated with reference to a number of decisions of this court and of the Court of Appeal (Criminal Division). The Guide sets out important principles in relation to the making of ASBOs and the terms properly to be contained in them.[40]We pick out a number of those principles. Each prohibition must be precise and must be targeted at the individual and at the type of anti-social behaviour it is to prevent. It must be expressed in simple terms so as to be easily understood. It must be proportionate and commensurate with the risk to be guarded against.[41]We have also been referred to a number of the cases referred to in that Guidance, which are all to similar effect. As long ago as 2001, in B v Chief Constable of Avon and Somerset [2001] l WLR 340, Lord Bingham CJ said:
“If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed.”
[42]This theme has been echoed in a number of subsequent cases, including R v P [2004] EWCA Crim 287and R v McGrath [2005] EWCA Crim 353. As we have already recorded, in R (W), which was a breach case, this court held similarly in relation to a wide prohibition against committing any criminal offences.[43]In R v Boness and others [2005] EWCA Crim 2395, the Court of Appeal gave a comprehensive reserved judgment in a group of 11 appeals against the making of ASBOs or against some of the prohibitions contained within them. In the judgment of the court given by Hooper LJ, many of the earlier authorities were brought together and reviewed. Numerous provisions were struck out as being unnecessary or too vague or too widely drawn or too difficult to be clearly understood by the defendants. We have no doubt that the provision in question in the present case, not to act in an anti-social manner, would have been struck out on appeal or on an application to vary the order, in conformity with this approach.[44]We would hold that the District Judge was entirely right in the conclusion which he reached in relation to paragraph 1 of the order. It did not even include the explanatory words contained in the statutory definition, namely the words “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 of himself”. It lacked the essential element of clarity as to what the respondent was and was not permitted to do. He, a boy aged 13 to 15 years during the currency of the order, could not be taken to know the ambit of the words “act in an anti-social manner”. He would probably not know the geographical ambit of the City of Manchester.[45]We are not persuaded to distinguish R (W) on the ground that this is a more precise and defined prohibition than the prohibition against committing any criminal offences; on the contrary, we would hold that it is an even less precise and even less comprehensible prohibition to be understood by a boy of that age.[46]This case provides a particularly good example of the need carefully to match the prohibitions in an ASBO to the type of behaviour which it is necessary to prohibit for the purposes specified in the Crime and Disorder Act. In our judgment such a wide provision as “not to act in an anti-social manner”, without further definition or limitation, should never again be included in an ASBO. The ASBO Guidance gives numerous examples of proper forms of prohibitions, and courts cannot do better than to adopt and follow the guidance contained in that document.

Conclusion

[47]What then is to be done in the present case? The District Judge having not been entitled to strike down the offending paragraph of the ASBO, it remained in force until it expired in October 2005. It was in force when the respondent committed the offence of vehicle interference, and indeed it was still in force when the breach proceedings were heard. Thus, however inappropriate he considered it to be, he should have gone on to determine whether there was a breach of the order and, if so, to consider the question of penalty.[48]It may very well be that the District Judge would have been entitled to hold that there was no breach of the order. We think it unnecessary, however, to dwell on that issue. It is sufficient for present purposes to consider the question of penalty if a breach had been established. It should be remembered that the respondent was duly sentenced for the substantive offence which he committed. The penalty for breach of an ASBO is of course distinct from the sentence for any underlying offence and can in an appropriate case exceed the maximum sentence for that underlying offence (see R v Stevens [2006] EWCA Crim 255; The Times, 24 February 2006). In the particular circumstances of the present case, however, we take the view that it would have been wrong in principle to impose any penalty additional to that imposed in respect of the underlying offence.[49]Accordingly, although we allow the appeal on the basis that the District Judge was wrong to act as he did and effectively to strike down paragraph 1 of the prohibitions in the ASBO, we endorse his substantive concerns about the terms of that paragraph and, in the exercise of our discretion, we decline to quash his decision or to remit the case to him to continue the hearing.

Cited in 13 later judgments

and 4 more of the most senior