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being a passenger or a spectator. It matters not for the purposes of enforcing the ASBO
whether he has or has not a driving licence entitling him to drive.
Not only must the court before imposing an order prohibiting the offender from doing
something consider that such an order is necessary to protect persons from further anti-social
acts by him; the terms of the order must be proportionate in the sense that they must be
commensurate with the risk to be guarded against. This is particularly important where an
order may interfere with an ECHR right protected by the Human Rights Act 1998, e.g., Arts
8, 10 and 11.
We think that bail conditions provide a useful analogy. A defendant may be prohibited from
contacting directly or indirectly a prosecution witness or entering a particular area near the
alleged victim’s home. The aim is to prevent the defendant trying to tamper with witnesses or
committing a further offence. But the police do not have to wait until he has tampered or
committed a further offence and thus committed a very serious offence. If he breaks the
conditions even without intending to tamper, he is in breach of his bail conditions and liable
to be remanded in custody. The victim has the comfort of knowing that if the defendant
enters the prescribed area, the police can be called Lo Lake action. The victim does not have
to wait for the offence to happen again.
We look at some examples of how the Divisional Court and this Court have approached
ASBOs.
In McGrath [2005] EWCA Crim 353; [2005] 2 Cr. App. R. (S.) 85 (p.529) considered the
terms of an ASBO made under s. 1C in respect of an appellant, aged 25, with an appalling
record who pleaded guilty to a count of theft which involved breaking into a car in a station
car park and stealing various compact discs. The ASBO contained (amongst others) the
following prohibitions:
Entering any other car park whether on payment or otherwise within the counties of
Hertfordshire, Bedfordshire, or Buckinghamshire.
Trespassing on any land belonging to any person whether legal or natural within those
counties.
Having in his possession in any public place any window hammer, screwdriver, torch or any
tool or implement which could be used for the purpose of breaking into motor vehicles.”
In respect of term 2, the Court of Appeal held that it was unjustifiably draconian and loo
wide; it would, for example, prevent the appellant from entering, even as a passenger, any car
park in a supermarket. Similar considerations
PART 5 © SWEET & MAXWELL
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Simon Cordell’s Skeleton Argument (2) Pdf
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R. v DEAN BONES AND OTHERS
applied lo term 3.11"the appellant look a wrong turn on a walk and entered someone’s
property, he would be at risk of a five-year prison sentence. The Court of Appeal look the
view that term 4 was unacceptably wide. The meaning of the words “too! or implement” was
impossible to ascertain. Insofar as the wording of term 4 was sufficiently qualified by the
final wording “which could be used for the purpose of breaking into motor vehicles”, the
Court of Appeal observed that, effectively, the term overlaps with the offence of going
equipped.
In IV v DPP [2005] EWHC 1333 held that a clause in an ASBO made in respect of a young
offender which prohibited him from committing any criminal offence was plainly loo wide
and unenforceable. There was a danger that W would not know what a criminal offence was
and what was not. It was well established that an order had to be clear and in terms that
would enable an individual to know what he could and could not do. A general restriction

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