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Simon Cordell’s Skeleton Argument (2) Pdf
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R. v DEAN BONES AND OTHERS
There are provisions for applications to vary or discharge an order (see s. 1 C (6) and s. 140
of the Serious Organised Crime and Police Act 2005 which inserts s. 1CA of the CD A
1998).
We turn to the requirement that an order can only be made if it is necessary to protect persons
in any place in England and Wales from further anti-social acts by the offender. Following a
finding that the offender has acted in an anti-social manner (whether or not the act constitutes
a criminal offence), the lest for making an order prohibiting the offender from doing
something is one of necessity. Each separate order prohibiting a person from doing a
specified thing must be necessary to protect persons from further anti-social acts by him. Any
order should therefore be tailor-made for the individual offender, not designed on a word pro-
cessor for use in every case. The court must ask itself when considering any specific order
prohibiting the offender from doing something, “Is this order necessary to protect persons in
any place in England and Wales from further anti-social acts by him?”
The purpose of an ASBO is not to punish an offender (see Lonergan, para.[10]}. This
principle follows from the requirement that the order must be necessary to protect persons
from further anti-social acts by him. The use of an ASBO to punish an offender is thus
unlawful. We were told during the course of argument that the imposition of an ASBO is
sometimes sought by the defendant’s advocate at the sentencing stage, hoping that the court
might make an ASBO order as an alternative to prison or other sanction. A court must not
allow itself to be diverted in this way—indeed it may be better to decide the appropriate sen-
tence and then move on to consider whether an ASBO should be made or not after sentence
has been passed, albeit at the same hearing.
It follows from the requirement that the order must be necessary to protect persons from
further anti-social acts by him, that the court should not impose an order which prohibits an
offender from committing a specified criminal offence if the sentence which could be passed
following conviction for the offence should be a sufficient deterrent. If following conviction
for the offence the offender would be liable to imprisonment, then an ASBO would add
nothing other than to increase the sentence if the sentence for the offence is less than five
years’ imprisonment. But if the offender is not going to be deterred from committing the
offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be
thought) further to deter and is therefore not necessary. In, Henriques J. said (para. [3()]):
“Next, it is submitted that (two of] the prohibitions are redundant as they prohibit conduct
which is already subject to a general prohibition by the Public Order Act 1986 and the
Prevention of Crime Act 1953 respectively. In that regard we are by no means persuaded that
the inclusion of such matters is to be actively discouraged. So far as more minor offences are
concerned, we Lake the view that there is no harm in reminding offenders that certain matters
do constitute criminal conduct, although we would only encourage the inclusion of
comparatively minor criminal offences in the terms of such orders.”
PART 5 © SWEET & MAXWELL
68,
Simon Cordell’s Skeleton Argument (2) Pdf
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R. v DEAN BONES AND OTHERS
We would only make one comment on this passage. The test for making an order is not
whether the offender needs reminding that certain matters do constitute criminal conduct, but
whether it is necessary.

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