REGINA v Nicholson

Factual and Procedural Background

On 2 February 2006, in the Crown Court at The City, before Judge Corrie, the Appellant pleaded guilty to breaching an Anti-Social Behaviour Order (ASBO). The Appellant was sentenced to four months' imprisonment, with 29 days remanded counted towards the sentence. The Appellant now appeals the conviction by leave of a single judge.

The Appellant is an animal rights campaigner involved in protests against Company A and related entities. On 17 January 2005, a Magistrates' Court issued an ASBO prohibiting the Appellant from coming within 500 metres of specified premises for not less than two years. One such premise was a proposed primate testing laboratory at The University, known as Halifax House, South Parks Road, The City.

On 19 May 2005, the Appellant attended a demonstration within 500 metres of Halifax House, breaching the ASBO unless she had a "reasonable excuse" under section 1(10) of the Crime and Disorder Act 1998. Initially pleading not guilty, the Appellant later changed her plea to guilty following a preliminary ruling by the trial judge that ignorance or misunderstanding of the ASBO terms could not constitute a reasonable excuse, effectively leaving no defence.

Legal Issues Presented

1. Whether ignorance, forgetfulness, or misunderstanding of the terms of an Anti-Social Behaviour Order can amount to a "reasonable excuse" under section 1(10) of the Crime and Disorder Act 1998.
2. Whether the trial judge erred in ruling that the offence was one of strict liability and that the defence of reasonable excuse based on ignorance or misunderstanding should be excluded from jury consideration.
3. Whether the issue of reasonable excuse should be left to the jury when there is evidence, even if tenuous, supporting such a defence.

Arguments of the Parties

Appellant's Arguments

• The trial judge wrongly ruled that ignorance, forgetfulness, or misunderstanding of the ASBO terms could not amount to a reasonable excuse.
• The question of reasonable excuse should be left to the jury to decide based on the evidence.
• The phrase "without reasonable excuse" should be given its ordinary meaning, allowing for a defence based on genuine misunderstanding.
• The judge's ruling effectively precluded any defence of reasonable excuse based on ignorance, which is incorrect.

Respondent's Arguments

• The offence is one of strict liability, requiring the subject of the ASBO to familiarize themselves with its terms.
• Ignorance of the law or terms of the ASBO is no excuse for breach.
• The ASBO imposes legal prohibitions specifically on the individual, and failure to observe them cannot be excused by ignorance.
• Policy considerations caution against allowing ignorance or forgetfulness to undermine enforcement of ASBOs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Quayle [2006] 1 All ER 988	A judge may exclude a defence issue from the jury if it cannot constitute a defence in law.	Supported the principle that a defence based on reasonable excuse should be left to the jury if there is evidence to support it.
R v Wang [2005] 1 WLR 661	A defence involving the defendant's state of mind must be left to the jury if there is any evidence supporting it.	Clarified that a judge should not direct conviction if any evidence, however tenuous, of a defence exists.
R v Glidewell [1999] 163 JP 557	Forgetfulness may contribute to a defence of reasonable excuse in possession offences.	Indicated that forgetfulness could be relevant but must be considered with caution.
R v Jolie [2003] EWCA Crim 1543	Similar to Glidewell, addressing reasonable excuse and forgetfulness in possession cases.	Used to illustrate how forgetfulness can play a part in a defence.
R v Bird [2004] EWCA Crim 64	Considered "good reason" and reasonable excuse involving forgetfulness.	Supported the view that forgetfulness might be a component of a defence.
R v Cugullere (CCA) 45 Cr App R 108	Requirement for prosecution to prove knowledge in possession offences.	Referenced regarding the difficulty of accepting forgetfulness as a sole defence.
R v McCella (1988) 87 Cr App R 373	Similar principle regarding proof of knowledge in possession offences.	Referenced in the context of knowledge and forgetfulness.
R v Felix Densu [1998] 1 Cr App R 400	Policy considerations cautioning against easy claims of ignorance or forgetfulness to avoid conviction.	Used to highlight policy concerns in allowing ignorance as a defence.
R v Evans (6 December 2004, 2004/03662/B3)	Reasonable excuse includes acting under a reasonable misapprehension as to the scope or meaning of a restraining order.	Applied analogously to ASBOs to support that misunderstanding can be a reasonable excuse.

Court's Reasoning and Analysis

The court examined whether ignorance or misunderstanding of an ASBO's terms could constitute a reasonable excuse under section 1(10) of the Crime and Disorder Act 1998. It acknowledged established principles from case law that a judge may exclude a defence from the jury if it cannot legally succeed, but if there is any evidence supporting the defence, it must be left to the jury.

The court found no direct authority on "reasonable excuse" in the context of ASBO breaches but drew on related cases concerning possession offences and breaches of restraining orders. These cases suggest that forgetfulness or misunderstanding may, depending on circumstances, be part of a reasonable excuse defence.

The court rejected the characterization of the offence as strict liability in a way that excludes consideration of reasonable excuse based on ignorance. It reasoned that the defence involves factual and value judgments about the defendant's state of mind and the reasonableness of the excuse, which are properly matters for the jury.

Given the facts and the lack of precise articulation of the defence in evidence at trial, the court concluded the trial judge erred in removing the issue from the jury. The court emphasized the importance of balancing policy concerns about enforcement of ASBOs with the need to allow genuine defences where appropriate.

Holding and Implications

The court allowed the appeal and quashed the conviction.

The direct effect is that the Appellant's conviction for breaching the ASBO is overturned. The court invited the Crown to consider whether to seek a retrial. This decision does not establish new precedent beyond clarifying that issues of reasonable excuse based on ignorance or misunderstanding in ASBO breaches should generally be left to the jury when supported by evidence. The ruling underscores the necessity of jury consideration in fact-sensitive defences involving the defendant's state of mind.