W (A Juvenile) & Anor v R

W is now 15 years old. He was 14 at the time he committed the offence with which we are concerned and was 15 when sentenced. F is now 16 years old. He was just 15 when the offence was committed and the same age when sentenced.

On 31 August 2005 the two appellants were convicted of robbery after a short trial at Lewes Crown Court, before HHJ Rennie and a jury. They were sentenced by Judge Rennie on 4 October 2005. Each was sentenced to 12 months detention and training.

Each appellant was also made subject to an Anti-Social Behaviour Order (“ASBO”) for a period of 5 years, which was to start upon the appellants’ release from custody. The ASBOs stated that each appellant was prohibited from (i) assaulting, threatening or intimidating any person; (ii) entering within the boundary of any residential premises other than his own address without the prior permission of the lawful occupants; (iii) causing, threatening to cause or attempting to cause, damage to property or premises of another person without reasonable excuse or lawful authority, or encouraging others to do so; (iv) carrying any object which is made as or adapted for use as a weapon or missile; (v) being with G (who was a co-accused at the trial) or the other appellant in any place to which the public had access. It will be noted that the subject matter of prohibitions (i), (iii) and (iv) constitute crimes.

The appellants now appeal the ASBO orders made, with the leave of the single judge. In other cases this court has noted that whilst an ASBO is not strictly part of the sentencing process, nevertheless, when seeking to set aside or vary an ASBO made in the Crown Court, the appropriate course is to seek leave to appeal to the Court of Appeal Criminal Division: see sections 9(1) and 50(1) of the Criminal Appeal Act 1968, and the remarks of Henriques J in R v Shane Tony P [2004] EWCA Crim 287 at paragraph 36.

We need only state briefly the facts concerning the robbery. It occurred shortly after 8.25pm on 19 January 2005, in Seaford Road, Crawley, East Sussex. The victim was a pizza delivery man. He had made his delivery when the appellants and the co-accused G blocked his path and demanded the money the customer had given the victim. He refused to hand over the money but G then produced a knife and he and the two appellants stood around the victim.

The youths were then disturbed by the lights of an on-coming car and the victim tried to escape. But he was stopped again by the three and G said: “three seconds; give me the money”. The victim pulled out banknotes totalling about £30 and that was grabbed by the three who ran off. They were arrested later that evening.

Neither appellant had any previous convictions at the time they were sentenced by Judge Rennie, although W had received a reprimand for criminal damage and F had received a reprimand for common assault and a warning for burglary.

Prior to the sentencing hearing, the Crown Prosecution Service had issued Applications for Anti-Social Behaviour Orders against each of the three co-accused. (We have only seen the application in relation to W, but we assume that they were all in identical terms). The applications were made under section 1C(2) of the Crime and Disorder Act 1998, a section that was inserted into the existing legislation by section 64 of the Police Reform Act 2002, and amended by section 86 of the Anti-Social Behaviour Act 2003. Section 1C of the CDA 1998 as amended, provides:

“(1)

This section applies where a person (the “offender”) is convicted of a relevant offence.

The application form we have seen is in an unsatisfactory state. It is not signed and dated and there is no indication on it of when it was served on the appellants or their legal advisors or how that was done. The form states that it is alleged that: (a) the defendant had between 29 February 2004 and 19 January 2005 acted in an anti-social manner in Broadfield, Crawley, ie. in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and that (b) an ASBO was necessary to protect relevant persons from further anti-social behaviour by each of the appellants. The form goes on to state that, if the defendant pleaded guilty or was convicted, the prosecutor would apply for an ASBO in the terms set out in the draft order attached or such other order as the court might direct.

Underneath this, the form indicates that the prosecutor intends to rely upon: (i) the facts of the proceedings, as set out in a summary as attached; (ii) the defendant’s history of convictions-in fact neither had any at that time; and (iii) additional material as set out in an attached summary.

Attached to the application form is a one page document headed “Case Summary”. That document gives details of the defendant, and then an “Overview of the Problem”. This “overview” states that (in the case of W) he has been one of a large group of youths that:

“….hang around the Cotton Walk, Longhurst Road area of the estate. The main problem has subsided with the defendant’s friend G serving time in custody. However the local residents have not forgotten what has previously happened and are still in fear. The defendant is predominantly a follower but has previously offended by himself. The main problems have been acts of criminal damage, assaults, intimidation and verbal abuse to the local residents”.

The form then sets out paragraphs headed “Intervention Strategies and Results”; “Defendant’s Antecedence” [sic]; and “Conditions Sought in Application”. Those conditions were not the same as those actually made by the judge.

The last paragraph is headed “Reasoning”. That paragraph states:

“Such restrictions are necessary to protect the vulnerable residents in the estate the defendant lives in. I accept that since being on bail in the court for armed Robbery and being given bail conditions not to contact the co-defendants he hasn’t re-offended however I feel that this supports my application and shows that when given conditions to reduce his offending he actually sticks to them and stays out of trouble. If the Court don’t [sic] impose conditions against the defendant it is likely that further incidents occur when G gets out of custody. It would also be pointless to give G and F conditions not to contact the defendant if he didn’t also have conditions to contact them.”

The Application Form also has a section headed “Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, Notice of Intention to Rely on Hearsay Evidence”. The form states that the applicant intends to rely on hearsay evidence. On the form there is space to indicate whose witness statements will be relied upon, but that part of the form was left blank.

Attached to the form are witness statements on the usual form prescribed by section 9 of the Criminal Justice Act 1967. The first is that of PC Carrie Anne Kwasniewski, a Sussex police constable. Her statement, which is dated 26 July 2005, indicates that, before the robbery in January 2005, she had been dealing with community issues in the Broadfield area and that she had received information that F and G had been part of a core group of youths that had been causing problems on the Broadfield Estate. Her witness statement refers to a spread sheet of incidents which she had reproduced from “the criminal investigation system”. That spreadsheet is exhibited as CAK/02. This spreadsheet records some 20 incidents between 2002 and 2005 in which either or both the appellants are identified as the offender(s) or suspect(s). The incidents are nearly all in the area of the estate. They consist mostly of assaults, damage to property and abusive language. There are some incidents of shoplifting also.

Miss Kwasniewski also produces a print-out showing all the times that G, W and F had been brought into custody. That is exhibited as CAK/03. A map of the Broadfield area of Crawley which marks the location of offences committed by G and the addresses of others is exhibited as CAK/04.

Next there is exhibit CAK/05, which is a print-off from the Operational Incident System. It lists all the incidents where G, W and F are named as having been involved. That list is summarised in a schedule of incidents prepared by the police, which is exhibit CAK/06. The schedule lists 16 incidents during the period from October 2003 to May 2005. The “person responsible” for the incidents in each case is identified as one or both appellants. The incidents are nearly all on the estate. The incidents are, typically, assaults, damage to property, abusive language and theft. In one case it is said that F threatened a youth with a 7 inch kitchen knife. F is identified in substantially more incidents than W.

A further statement of PC Kwasniewski, dated 1 February 2005 is also attached to the Application. That deals with a firearms incident involving G on 1 February 2005.

Also attached to the ASBO Application is a manuscript statement of Kirsly Mason, a Neighbourhood Housing Manager employed by Crawley BC. She deals with the central area of the Broadfield Estate and has done so since July 2004. She states that, at the request of PC Kwasniewski, in January 2005 (after the robbery), she produced a spread sheet of all the complaints in which, it is said, W, F and G are named. That spreadsheet is exhibited to her statement as KLM/01.

We have examined that spread sheet. There are no incidents in which W is identified. F is identified in three incidents logged on 15 September 2003 and one logged on 5 February 2004. All concern activities on the estate, such as kicking a front door, posting faeces through a letter box and shouting abuse at others who live on the estate.

There is also a further statement of a 14 year old girl which gives details of two incidents where it is said that G and F used threatening words and behaviour to her on the estate.

We have been provided with a transcript of the proceedings before Judge Rennie on 4 October 2005. At the outset of those proceedings, counsel for the prosecution, Mr N Hall, handed up to the judge “the very latest refinement of the draft ASBO orders” which were being requested in respect of the three defendants. Mr Hall also gave to the judge a schedule, which he described as a “refinement of a rather large bundle of material that your Honour will already have in the file”. Mr Hall described that document as a “brief schedule setting out in the briefest possible terms, the sort of evidence that the Crown would seek to rely upon in its application for ASBOs.” We are not sure which document this is.

Mr Hall stated that he had not discussed with counsel for the defence their attitude to “this part of the case”. So he invited the judge to hear from them at that stage. Mr Edwards, who then appeared for G, did not address that question directly and the judge invited him to mitigate in respect of the robbery conviction. When the judge had sentenced the three defendants in respect of the robbery, he returned to the question of the ASBOs. He asked Mr Hall the purpose of the orders sought, particularly as they listed “various criminal offences which are against the law anyway”. Mr Hall submitted that they were framed in that way so as to “nip the problem in the bud”. Mr Hall also submitted that there should be ASBOs despite the fact that a DTO had just been imposed on the appellants.

Mr Edwards, for G, submitted that the proposed ASBOs were unnecessary given the custodial sentence that had been imposed and because the orders simply prohibited criminal offences, other than conditions 2 and 5: (no trespassing and no association between the three offenders). Miss Woolfe, who then appeared for F, adopted Mr Edward’s submissions. She also stated that her client accepted that he was involved in “some” of the incidents listed in a schedule, but not all of them. There was no further investigation of that point. Mr Wasunna, who then represented W only, stated that his client accepted that he was involved in the incidents set out in “the schedule”.

Judge Rennie then proceeded to make the ASBO Order. In doing so he said:

“I find as a fact, in relation to all three young men, that they have in the past, and on the occasion with which I have been concerned, acted in an anti-social manner which caused or was likely to cause harassment, alarm or distress to one or more persons, not of the same household as themselves, based on the evidence before me in relation to this offence and previous allegations.

I also find that an Anti-Social Behaviour Order, which I do make in respect of all three of them, is necessary to protect persons in England and Wales from further anti-social acts by all of them”

The judge then read out the five prohibitions in the “refined” form that Mr Hall had given to him and set the term of the order at 5 years, to start after the offenders’ release from the custodial sentence that he had imposed in relation to the robbery conviction.

At the hearing of this appeal, we enquired of Mrs Needham, who represented the Crown on the appeal, and Mr Wasunna, who represented both appellants before us, whether there were any rules of procedure in the Criminal Procedure Rules that have to be followed at the Crown Court in relation to ASBO Applications that are made under section 1C of the CDA 1998. We also asked what evidential material had in fact been served on the defendants or their advisers and when. We asked if the defendants had been able to consider the statements and the exhibits that we have been shown. We regret to say that we did not get satisfactory answers from counsel on any of these points.

From our own researches it appears that there are no specific procedural rules set out in the Criminal Procedure Rules 2005 in relation to an application for an ASBO in the Crown Court, other than that set out at Rule 50.4. That Rule simply directs that an order made in the Crown Court under section 1C of the CDA 1998 shall be in the form set out in the Practice Direction. The form appears to be the same format as set out in Schedule 13 to S.I. 2002 No 2783, which amended the Crown Court Rules 2002 to make a new Rule (38), stipulating that an order made under section 1C of the CDA on conviction in criminal proceedings “shall be in the form set out in Schedule 13 or form to the like effect”. The form in Schedule 13 has a space where the judge, or court official, should record details of the behaviour of the offender that has been found by the court to constitute anti-social behaviour.

The form used in the present case was not precisely that set out at Schedule 13. However, it does have a space in which the court must record the details of the behaviour that it has found constitutes anti-social behaviour by the offender. That part of the form was not completed in this case. It is important that this space is completed. Counsel should assist the court in doing so. In this case counsel for the Crown had inundated the judge with material without any attempt to elucidate it. As a result, perhaps not surprisingly, the judge had made no particular findings of fact in relation to either appellant concerning the details of their anti-social behaviour.

Even now it remains entirely unclear to us: (i) what documents the judge had been given and asked to study before the hearing on 4 October 2005. (ii) What documents had been served on the appellants and their legal advisers before the hearing on 4 October 2005, in particular the exhibits to the statements of Miss Kwasniewski and Ms Mason. (iii) Whether the schedule that Mr Hall handed to the judge on the morning of the hearing had been served on the appellants and their advisers before the hearing and if so when. (iv) Whether, and if so when, the defendants and their advisers had been able to consider all these documents. (v) Whether, and if so when, the defendants and/or their advisers indicated to the prosecution whether any of the statements or exhibits were to be challenged.

We are also unclear on what basis the judge received the evidence in the statements attached to the ASBO Application and the various schedules and printouts that were exhibited to the statements. Although the part of the Application Form which indicates that the applicant for the ASBO intends to rely on Hearsay Evidence makes a reference to the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, (“the Magistrates’ Hearsay Rules”), we are not at all sure that those are the relevant procedural rules that apply when an application for an ASBO is made under section 1C of the CDA 1998 and the applicant wishes to adduce hearsay evidence to the Crown Court in support of the application. Counsel were not able to assist us on which rules applied to govern when and how hearsay evidence could be adduced in the Crown Court in support of an application under section 1C of the CDA 1998.

In R (McCann and others) v Crown Court at Manchester and another [2003] 1 AC 787, the House of Lords had to consider the characterisation of the proceedings for ASBOs brought against defendants by a local authority in the Magistrates’ Court under section 1 of the CDA 1998, before it was amended. The House held that the nature of the proceedings was civil as opposed to criminal, for the purposes of both domestic law and the European Convention on Human Rights, Article VI: see in particular Lord Steyn’s speech at paragraphs 27 and 34. Lord Steyn held that, as the proceedings for an ASBO in the Magistrates’ Courts were civil in nature, therefore they were governed by the Magistrates’ Hearsay Rules. However he also held that, before an ASBO could be ordered, the applicant had to prove that there had been anti-social behaviour to the criminal standard: see paragraph 37 of his speech. The other Law Lords concurred with these conclusions.

In W (a juvenile) v Acton Youth Court [2005] EWCH 954 (Admin), the Divisional Court followed the McCann case and held that proceedings in the Crown Court under section 1C of the CDA 1998, as amended, constitute civil, as opposed to criminal proceedings: see paragraph 22 of the judgment of Pitchers J, with whom Sedley LJ agreed. However, these are proceedings in the Crown Court and not the Magistrates’ Court. Therefore, unless there is some special provision, of which we are unaware, which makes the Magistrates’ Hearsay Rules apply in the Crown Court, those Rules are not the correct procedural rules to follow in relation to adducing hearsay evidence in support of an ASBO in the Crown Court.

The Criminal Procedure Rules 2005 (S.I. 2005 No 384) are stated to apply in general, to “all criminal cases in the magistrates’ courts and in the Crown Court”. However, as applications for ASBOs are civil in nature, it is not clear that those Rules apply to such proceedings. On the other hand, the Civil Procedure Rules, which apply to all proceedings in the High Court and County Courts, will also not govern this type of application: see CPR Part 2.1 (1).

So it seems that although it is common for applications for ASBOs to be made in the Crown Court under section 1C of the CDA 1998, the procedure for serving and adducing evidence, in particular hearsay evidence, in support of those applications is not expressly governed by any one set of court rules. If this is indeed the case then it is most unfortunate. It means that the CPS, defendants and their advisers and judges in the Crown Court have no clear rules to follow. We hope that this question will be considered by the appropriate Rules Committee(s) as a matter of urgency.

We note that in W (a juvenile) v Acton Youth Court [2005] EWHC 954 (Admin), (“the Acton Youth Court case”), the court held that hearsay evidence was admissible in relation to proceedings in the youth court pursuant to section 1C of the CDA 1998. However, the court did not analyse the matter in detail and it was not dealing with a case in the Crown Court. For the purposes of the present case we will presume that hearsay evidence is capable of being adduced in support of an application in the Crown Court for an ASBO under section 1C of the CDA 1998, because the proceedings are civil in nature and so subject to the provisions of the Civil Evidence Act 1995.

Under that Act, civil proceedings means civil proceedings “before any tribunal”: see section 11. By section 1(1) and 1(2)(a) and (b) of the 1995 Act, in civil proceedings evidence shall not be excluded on the ground that it is hearsay. “Hearsay” is defined in section 1(2)(a) and (b) as:

“… a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and

(b)

references to hearsay include hearsay of whatever degree”.

In the Acton Youth Court case, Pitchers J noted that ASBOs are a powerful weapon in the fight against anti-social behaviour by youths and others. It is powerful because the prohibitions that can be made can place significant restrictions on the liberty of the person who is the subject of the ASBO. Pitchers J observed (at paragraph 30 of his judgment) that: “The actual and potential consequences for the subject of an ASBO make it, in my judgment, particularly important that procedural fairness is scrupulously observed”. We agree and would emphasise the point. In particular, the defendant must have a proper opportunity to consider the evidence advanced by the prosecution in support of the ASBO, especially in a case such as this one, where the CPS wishes to rely on material that goes far wider than the evidence concerning the particular offence of which the appellants were convicted. If the defendant wishes to challenge it, he must be given proper time to do so. The Magistrates’ Hearsay Rules make provision for all this and we will presume that, by analogy, the principles set out in those Rules should have been followed in this case.

On that basis, we note the following: (i) we were not told when the CPS Applications were served on the defendants. The Magistrates’ Hearsay Rules provides that at least 21 days notice of hearsay evidence must be given. (ii) The Application Notices do not identify the hearsay evidence relied on, nor the person who made the statement which is to be given in evidence. This failure might have been cured in relation to the statements if, (which is not clear), they were attached to the Application Notice that was sent to the defendants and their advisers. But that would not deal with the schedules or print-outs: see (v) below. (iii) The Application Notice does not state why the person who is supposed to be identified will not be called to give oral evidence. (See: Magistrates’ Hearsay Rules paragraph 3). (iv) Service of an application to adduce hearsay evidence must be served on either the defendant, or if he is represented by a solicitor, on his solicitor. It is not clear what was done in this case. (v) The spreadsheets or schedules that are exhibited to the statements of Miss Mason and Miss Kwasniewski probably constituted documents that are “part of the records of…a public authority” within section 9 of the Civil Evidence Act 1995. As such they are admissible as evidence of the facts stated in them in civil proceedings. But if a party wishes to rely on such documents, then they should be accompanied by a certificate to the effect that they are part of the records of a public authority, which is signed by an officer of the authority: section 9(2). That requirement can be dispensed with by a court if it thinks it appropriate “in the circumstances of the case”: section 9(5). However we doubt whether that requirement should be waived in a case where proof is required to the criminal standard, as it is when an application for an ASBO is made under section 1C of the CDA 1998.

At the hearing before us, Mrs Needham informed us of a document called “ASBO Guidance for the Judiciary”, which was compiled by a working-party set up by the Senior Presiding Judge, Thomas LJ. It is now in its second edition. We note that in paragraph 3.3 of the Guidance, it states that there is no specified procedure for making an order upon conviction, pursuant to section 1C of the 1998 Act. Given the number of cases that have had to be considered by both the Court of Appeal Criminal Division and the Divisional Court in relation to the imposition of ASBOs by the Crown Court, we respectfully suggest that it would be helpful to have a specified procedure in the Crown Court.

This court has on several occasions recently dealt with the principles that should be followed by sentencing judges when an ASBO is sought. There is a most comprehensive consideration of the principles in the case of R v Boness and others: [2005] EWCA Crim 2395. The judgment of the court was given by Hooper LJ. He reviewed many of the cases in the Court of Appeal Criminal Division and the Divisional Court concerning ASBOs. He referred also to the House of Lords case of McCann. We have also been shown the judgment of Sir Igor Judge, President of the Queen’s Bench, in the case of R v H, Stevens and Lovegrove, [2006] EWCA Crim 255.

From these and other cases a number of principles, relevant to the present case, can be drawn. These include the following:

Before us, Mr Wasunna, who has appeared for both appellants, accepted that he did not, on behalf of W, specifically challenge any of the facts set out in whatever statements and exhibits that were before the Crown Court. However, he also stated that, before the judge, F did not accept all those facts. In his submission the judge was wrong to conclude that it was necessary to impose an ASBO in the broad terms of the order made. He also submitted that the period of 5 years starting from the appellants’ release on licence under the DTO was far too long, given that the appellants are only 15 and that they should mature, particularly over the course of the DTO.

We are very concerned about the procedure adopted in this case in relation to the ASBO. First, as we have already noted, we do not know when or how the defendants were given notice of the ASBO application and the material in support of the application. Secondly, there is no indication that any procedure analogous to that set out in the Magistrates Hearsay Rules was used. Thirdly, the Case Summary attached to the Application for the ASBOs does not set out particular facts on which the CPS intended to rely, in addition to the facts constituting the robbery offence of which the appellants had been convicted. Instead it set out only a vague “Overview of the Problem” and some “Reasoning” in the terms we have reproduced above. Therefore there was no summary of facts that the judge could put to the offenders to see, quickly and easily, whether or not the facts were disputed by them. It is also unfortunate that the prosecution did not assist the judge or the defence in summarising the facts at the hearing when the ASBO was sought.

The result was that the judge was in no position to make findings of particular facts to support his general conclusion that the appellants had been guilty of anti-social behaviour, other than the facts of the robbery offence.

We suggest that in future cases in the Crown Court under section 1C of the CDA 1998, it is imperative that the prosecution identifies the particular facts said to constitute anti-social behaviour. We emphasise the word fact, as opposed to evidence adduced to prove a fact to the criminal standard. If the offender accepts those facts, then they should be put in writing, in the same way that a “Basis of Plea” should always be put in writing. If facts are not accepted, then they have to be proved to the criminal standard before they can be acted upon. The judge should state his findings of fact expressly and they should be recorded in writing on the Order made by the judge in the space provided on the form.

The consequence of this lack of findings of particular fact is, in our view, that it is impossible to uphold the judge’s conclusion that, in the circumstances, an order was necessary to protect persons in England and Wales from further anti-social acts by the appellants, pursuant to section 1C(2)(b) of the CDA 1998. The only finding of particular fact is that the appellants had committed the robbery offence. For that they were sentenced to a DTO. In our view it would have been wrong in principle to impose an ASBO to take effect on the appellants’ release if the basis for the ASBO had been just the facts of that offence itself.

If the judge had made findings of particular facts of anti-social behaviour, which had either been specifically accepted by the offenders or which he had found proved to the criminal standard if contested, then we would have been inclined to accept that some form of ASBO might have been “necessary”, within section 1C(2)(b) of the CDA 1998. In our view the sentence of 12 months DTO would not, in principle, have precluded the imposition of an ASBO to take effect upon the appellants’ release.

However, the terms of the ASBO that was actually imposed would have been too vague and for too long a period. As we have already pointed out, orders (1), (3) and (4) prohibit the offender from committing specified criminal offences in general terms. As this court pointed out in Boness, at paragraph 36, such orders do not tackle the problem that ASBOs aim to solve, namely, how to prevent anti-social behaviour before it takes place. So, in this case, if the appellants were involved in the incidents set out in the materials appended to the Application, then the nub of their anti-social behaviour is that the appellants acted in a group and went around assaulting people, damaging their cars or their homes, and shouting abuse and threats on the Broadfield estate in Crawley. An order that prevented the appellants being in one another’s company on the estate or some other closely defined area for a period of, say two years following release, might have been necessary and proportionate.

As it is, (i) we are not satisfied that a proper procedure was followed in relation to the ASBOs; and (ii) in the absence of any specific findings of fact as to anti-social behaviour other than the offence of robbery, the conclusion of the judge that ASBOs were necessary cannot be upheld.

Therefore the orders for ASBOs made by the judge must be discharged.