Page 32 - tmp

It has been held, rightly in our view, that an ASBO should not be used merely to increase the
sentence of imprisonment which an offender is liable to receive. In Kirby [2005] EWCA
Crim 1228; [2006] I Cr. App. R. (S.) 26 (p.S51) an ASBO had been made prohibiting the
offender from driving, attempting to drive or allowing himself to be carried in any motor
vehicle which had been taken without the consent of the owner or other lawful authority, and
driving or attempting to drive a motor vehicle until after the expiration of his period of
disqualification. As the Court (presided over by Maurice Kay LJ) found, the judge’s purpose
in making this order was to secure the result that if the appellant committed such offences
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 breach of the anti-social
behaviour order. David Clarke J giving the judgment of the Court said:
“In our judgment this decision of the court [in R. r P] and the earlier case of [C v Sunderland
Youth Court [2003] EWHC 2385; [2004] 1 Cr. App. R. (S.) 76 (p.443) ] serve to demonstrate
that to make an anti-social behaviour order in a case such as the present case, where the
underlying objective was to give the court higher sentencing powers in the event of future
similar offending, is not a use of the power which should normally be exercised.”
That decision was in conflict with an earlier decision Hall [2004] EWCA Crim 2671; [2005]
1 Cr. App. R. (S.) 118 (p.671) (Hunt and Tugenhat J. J.), the correctness of which was
doubled by Dr Thomas ([2005] Crim. L.R. 152). In Williams [2006] 1 Cr. App. R. (S.) 56
(p.305), the Court (Mance L.J., Elias J. and Sir Charles Mantell) preferred Kirby to Hall. We
also agree with the decision in Kirby.
Different considerations may apply if the maximum sentence is only a fine, but the court
must still go through all the steps to make sure that an ASBO is necessary.
There is another reason why a court should be reluctant to impose an order which prohibits an
offender from, or merely from, committing a specified criminal offence. The aim of an
ASBO is to prevent anti-social behaviour. To prevent it the police or other authorities need to
be able to take action before the anti-social behaviour it is designed to prevent takes place, if,
for example, a court is faced by an offender who causes criminal damage by spraying graffiti
then the order should be aimed at facilitating action to be taken to prevent graffiti spraying by
him and/or his associates before it takes place. An order in clear and simple terms preventing
the offender from being in possession of a can of spray paint in a public place gives the police
or others responsible for protecting the property an opportunity to lake action in advance of
the actual spraying and makes it clear to the offender that he has lost the right to carry such a
can for the duration of the order.
If a court wishes to make an order prohibiting a group of youngsters from racing cars or
motor bikes on an estate or driving at excessive speed (anti-social
PART 5 © SWEET & MAXWELL
69,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 30
R. v DEAN BONES AND OTHERS
behaviour for those living on the estate), then the order should not (normally) prohibit driving
whilst disqualified. It should prohibit, for example, the offender whilst on the estate from
taking part in, or encouraging, racing, or driving at excessive speed. It might also prevent the
group from congregating with named others in a particular area of the estate. Such an order
gives those responsible for enforcing order on the estate the opportunity to take action to
prevent the anti-social conduct, it is to be hoped, before its takes place. Neighbours can alert
the police who will not have to wait for the commission of a particular criminal offence. The
ASBO will be breached not just by the offender driving but by his giving encouragement by

Page 30 of 139