N v Director of Public Prosecutions [2007] EWHC 883 (Admin)

Case No CO/10437/2006[2007] EWHC 883 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 3rd April 2007
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE TOMLINSON
Between
"N"Appellant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
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 S JESSOP (instructed by Corbetts Solicitors) appeared for APPELLANTMR P EVANS appeared for RESPONDENT
J U D G M E N T
[1]MR JUSTICE TOMLINSON: This is an appeal by way of case stated against the decision of the Chelmsford Crown Court, Mr Recorder Chandler and two lay justices, on 25th August 2006, dismissing an appeal against the imposition by the North East Essex Youth Court of an anti-social behaviour order following conviction. The Crown Court did in fact vary the terms of the anti-social behaviour order in one respect.[2]On 12th July 2006, for an offence of disorderly conduct contrary to section 5 of the Public Order Act 1986, at the North East Essex Youth Court (sitting at Harwich), the appellant, a minor aged 15 years, was made subject to a six month supervision order and to an anti-social behaviour order for 12 months. The circumstances of the offence were that, following the confiscation of alcohol by a police community support officer, he was abusive, both verbally and by gesture. It is quite unnecessary to go into the details of his conduct.[3]The order imposed by the Youth Court prohibited the appellant from:(1) abusing, threatening or causing any harassment, alarm or distress to any person not of the same household;(2) trespassing on any property in Essex;(3) entering the Highwood Estate in Colchester (which was described by reference to boundary roads and an attached map);(4) associating with Danny Beddoes in any public place; and(5) congregating in groups of three or more in a public place other than when with adults over the age of 21 years.[4]The appellant appealed to the Crown Court against the imposition of that order on the basis that the order was neither necessary nor proportionate; alternatively, that the prohibitions were too wide, not necessary or not proportionate, particularly prohibition (5), which it was submitted on his behalf could lead to an inadvertent breach of the order by the appellant by, for example, his standing in a bus queue with other young people not known to him or indeed by attending a football match. The Crown Court was referred to the decision of the Court of Appeal Criminal Division in R v Boness [2006] 1 Cr App R (S) 120.[5]The Crown Court dismissed the appeal against the imposition of the anti-social behaviour order, but amended the order to delete prohibition (1).[6]The question now for the opinion of this court is whether it was wrong in law to draft the order in such terms as detailed in prohibition number (5) on the basis that that was too wide and therefore not proportionate.[7]Some guidance in relation to matters of this sort was given by the Court of Appeal in the case to which I have already referred. Giving the judgment of the court, Hooper LJ, at paragraphs 78 and 79, said this:
"The tenth order prohibited the appellant from: 'congregating in groups of people in a manner causing or likely to cause any person to fear for their safety or congregating in groups of more than SIX persons in an outdoor public place.' Given the appellant's previous history the first part of the prohibition can be justified as necessary. As the respondent points out, the final clause would appear to prohibit the appellant from attending sporting or other outdoor events. Such a prohibition is, in our view, disproportionate. Although, as the respondent points out, the appellant would be able to argue that he had a reasonable excuse for attending the event, this is, in our view, an insufficient safeguard."
[8]The vice at which the Crown Court, and indeed the Youth Court, were aiming in imposing prohibition (5) is all too plain to see in that the evidence demonstrated, not surprisingly, that the appellant's behaviour was worse, or could reasonably be expected to be worse, when in the company of others. However, having regard to the guidance given by the Court of Appeal in Boness, the Crown Court, in my judgment, fell into error in imposing prohibition number (5) for precisely the reasons given by Hooper LJ, which have been repeated and relied upon today by Mr Jessop for the applicant.[9]It was agreed before us by Mr Jessop for the applicant and Mr Evans for the Crown that prohibition number (5) could, in a legitimate manner, be re-drafted so as to achieve the obvious aim intended. Counsel were agreed that prohibition number (5) should be re-drafted so that the appellant is "prohibited from congregating in a public place in a group of two or more persons in a manner causing or likely to cause any person to fear for their safety".[10]I was at first a little troubled that conduct so described might in any event amount to some public order offence. On reflection, it seems to me that conduct of that sort would not of itself be sufficient to constitute for example an affray, for an affray would require additionally at least proof that a person of reasonable firmness present at the scene had feared for his personal safety and the wording which counsel are agreed is appropriate does not include that added element. One would also need to consider whether there was a threat of unlawful violence. It is, I think, unnecessary to debate any further whether the particular conduct described might amount to some other public order offence. The answer no doubt is that conduct so described is not of itself without more necessarily criminal. Counsel are agreed that this is an appropriate prohibition, and it is a prohibition which in almost identical terms commended itself to the Court of Appeal in the case of Boness. In such circumstances, it commends itself to me.[11]For my part, therefore, I would allow the appeal to this extent, that I would quash prohibition number (5) as it stands but replace it with the agreed amended prohibition in the terms which I have already read out.

LORD JUSTICE LAWS: So would I.

Cited in 1 later judgment