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few months were passed and offenders were liable to be released on licence (and therefore
subject to recall) the circumstances in which there would be a demonstrable necessity to
make a suspended anti-social behaviour order, to take effect on release, would be limited,
although there would be cases in which geographical restraints could properly supplement
licence conditions.
Anthony Malcolm Vittles ]2004] EWCA Crim 1089 [20051 1 Cr. App. R.(S.) 8 is an
example of a case in which the Court of Appeal decided that there was a demonstrable
necessity to make a “suspended” ASBO, despite the fact that the appellant was sentenced to a
total of three years and 10 months' imprisonment, The appellant, who was a heavy drug user,
admitted breaking into between 10 and 30 vehicles belonging to American servicemen who
lived off airbases used by American forces. The offences involved theft of items from the
motor cars to a value of £3,500. In upholding the making of the order, although reducing the
term, the Court of Appeal referred to and said that they took the view that the transient,
vulnerable, nature of the American population, specifically targeted by the appellant, made it
appropriate that, exceptionally, an antisocial behaviour order should be made,
notwithstanding the imposition of a substantial prison sentence.
An order shall have effect for a period (not less than two years) specified in the order or until
further order (S, l C (9) and 1C (7)). In Lonergan v Lewes Crown Court |20()5] EWHC 457;
[2005] 1 W.L.R. 2570; [2005] A.C.D. 84 (Admin) Maurice Kay L.J. said in the course of
delivering the judgment that just because an ASBO must run for a minimum of two years, it
does not follow that each and every prohibition within a particular order must endure for the
life of the order. Although doubt was expressed about this in the report of the working group
set up by Thomas L.J., in our view Maurice Kay L.J. is right. It may be necessary to include a
prohibition which would need to be amended or removed after a period of Lime for example
when the offender starts work (provided that at least one prohibition is ordered to have effect
for at least two years). Maurice Kay L.J. also said (para. [7)] that the statute requires the order
to be “substantially and not just formally prohibitory.”
PART 5 © SWEET & MAXWELL
.67,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 313
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