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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
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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.
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.