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H9 It followed from the requirement that the order must be necessary to protect persons from
further anti-social acts by the offender, that the court should not impose an order which
prohibited an offender from committing a specified criminal offence if the sentence which
could be passed following a conviction for the offence should be a sufficient deterrent. If
following a conviction for the offence, the offender would be liable to imprisonment, then the
order would add nothing other than to increase the sentence, if the sentence for the offence
was less than five years’ imprisonment. If the offender was not deterred from compelling the
offence by a sentence of imprisonment for the offence, the order was not likely further to
deter and therefore was not necessary. It had been said in that the Court was not persuaded
that the inclusion of matters among the prohibitions which were criminal offences was to be
actively discouraged. The Court in that case took the view that there was no harm in
reminding offenders that certain matters did constitute criminal conduct. The Court would
only comment that the test for making an order was not whether the offender needed
reminding that certain matters did constitute criminal conduct, but whether the order was
necessary.
H10 It had been held, rightly in the Court’s view, that an order should not be used merely to
increase the sentence of imprisonment which an offender was liable to receive. In Kirby
[2006] 1 Cr. App. R. f S.) 26 (p. 151) an order had been made prohibiting the offender from
driving, attempting to drive or allowing himself to be carried in any motor vehicle which
been taken without the consent of the owner, and driving or attempting to drive a motor
vehicle until the expiration of the appellant’s period of disqualification. The judge’s purpose
in making the order was to secure the result that if the appellant committed such offence
again the court would not be limited to the maximum penalty for the offences themselves but
would be able to impose up to five years’ imprisonment for breaches of the anti-social
behaviour order. The Court in Kirby considered that this was not a way in which the power
should normally be exercised. This decision was in conflict with Hall |2005] 1 Cr. App. R.
(S.) 118 (p.671), but in Williams [2006] 1 Cr. App. R. f S.) 56 (p.305) the Court preferred
Kirby to Hall. The Court in the present case also agreed with Kirby. Different considerations
might apply where the maximum sentence was only a fine, but the court must still go through
all the steps to make sure that an order was necessary.
HI I The aim of an order was to prevent anti-social behaviour. What the police or other
authorities needed was to be able to lake action before the anti-social behaviour look place. If
for example a court was faced by an offender who caused criminal damage by spraying
graffiti, then the order should be aimed at facilitating action to be taken to prevent graffiti
being sprayed by him or others. An order in clear and simple terms preventing the offender
from being in possession of a can of spray paint in a public place gave the police or others
responsible for protecting property an opportunity to take action in advance of the actual
spraying and made it clear lo the offender that he had lost the right to carry such a can for the
duration of the order.
H12 In addition to the court considering that the order prohibiting the offender from doing
something was necessary to protect persons from further anti-social acts by the offender, the
terms of the order must be proportionate in the sense that they
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Simon Cordell’s Skeleton Argument (2) Pdf
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R. v DEAN BONES AND OTHERS
must be commensurate with the risk to be guarded against. This was particularly important
where the order might interfere with Convention rights protected by the Human Rights Act
1998. In considering the order made against the appellant Bones, the Court accepted that the

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