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- 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
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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
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