Factual and Procedural Background
On 27 January 2016, an incident of road rage occurred on Regent Road in The City involving the Appellant driving a black BMW with a passenger, referred to as Bashir. The BMW was driven erratically and stopped at traffic lights where Bashir, hooded, exited the vehicle and smashed the windscreen of a Volkswagen Golf with a steering lock while shouting. Both the Appellant and Bashir returned to the BMW. The Volkswagen attempted to overtake but collided with the BMW. Bashir then smashed the rear window of the Volkswagen after it reversed into him. The Appellant pursued the Volkswagen, which ran a red light and was subsequently hit from behind by the BMW, causing it to spin but it managed to drive away. The Appellant was stopped by police, arrested, and small quantities of cannabis were found in his car and at two addresses linked to him. He admitted to being concerned in the supply of cannabis by giving Bashir a lift knowing of Bashir’s involvement in supply.
The Appellant was charged with dangerous driving, cannabis supply, and possession offences, pleading guilty to all. He received a suspended prison sentence for dangerous driving and a community sentence for the supply offence. Bashir pleaded guilty to affray and other offences and received a suspended sentence. Before sentencing, the prosecution applied for a criminal behaviour order ("CBO") against the Appellant alone, citing his numerous previous convictions compared to Bashir's near good character. The CBO sought prohibited association between the Appellant and Bashir in public places across Greater Manchester indefinitely.
The CBO application was delayed and heard on 9 August 2017 before Judge Boora, who made the order prohibiting the Appellant from associating with Bashir in public for three years with no geographical limitation. The Appellant appealed, initially on the geographical extent, but leave was extended to appeal the order generally.
Legal Issues Presented
- Whether the criminal behaviour order was lawfully made against the Appellant.
- Whether the terms of the CBO, including its indefinite and wide geographical scope, were proportionate and appropriate.
- The proper application of the statutory test under section 22 of the Anti-Social Behaviour Crime and Policing Act 2014 for making a CBO.
- The procedural fairness and timeliness of the CBO application process.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Browne-Morgan [2016] EWCA Crim 1903 |
Clarification that the court must be satisfied beyond reasonable doubt only that the offender engaged in harmful behaviour, not that making the order will prevent future behaviour. |
The court noted this distinction in applying the statutory test under section 22 of the 2014 Act. |
| R v Boness [2005] EWCA Crim 2395 |
Guidance on anti-social behaviour orders requiring precision, clarity, recording of findings, and explanation of orders to offenders. |
The court emphasized these principles apply equally to CBOs to ensure orders are clear and understood by offenders. |
| R v P (Shane Tony) [2004] EWCA Crim 287 |
Foundation for procedural requirements in making anti-social behaviour orders, including clear terms and open court pronouncement. |
Reiterated as essential procedural safeguards for CBOs. |
| DPP v Bulmer [2015] EWHC 2323 (Admin) |
Modification of ASBO principles for CBOs, emphasizing caution, proportionality, and fact-sensitive tailoring of orders. |
The court adopted these principles, stressing the need for proportionality and tailored orders based on specific circumstances. |
| Leeds City Council v Fawcett [2008] EWCA Civ 597 |
Appellate court's reluctance to interfere with detailed provisions of orders unless there is a clear error. |
Referenced to support deference to trial judge’s evaluation unless proportionality concerns arise. |
| Barclay [2011] EWCA Crim 32 |
Example of appellate court narrowing exclusion zones to ensure proportionality. |
Used as precedent for tailoring CBO restrictions to fit the anti-social behaviour. |
Court's Reasoning and Analysis
The court analyzed the statutory framework under section 22 of the Anti-Social Behaviour Crime and Policing Act 2014, emphasizing that the prosecution must prove beyond reasonable doubt that the offender engaged in behaviour causing or likely to cause harassment, alarm, or distress, but the court need only be satisfied on a lower standard that the order will help prevent such behaviour. The court stressed that CBO applications require careful procedural compliance and must not be made hastily.
Drawing on established case law concerning anti-social behaviour orders, the court underscored the necessity for orders to be precise, understandable, and proportionate. The terms must be clear so the offender knows exactly what is prohibited. The court also highlighted the importance of tailoring orders to individual circumstances, with proportionality assessments being intensely fact-sensitive.
Applying these principles, the court observed that the behaviour causing alarm was principally that of Bashir, not the Appellant, who was not convicted of affray. The unilateral prohibition on the Appellant associating with Bashir, without reciprocal restrictions, and the absence of evidence linking them as gang members, undermined the proportionality and appropriateness of the order.
The court further criticized the delay of over seven months between sentencing and the CBO hearing, deeming such delay unacceptable except in exceptional circumstances, particularly when notice of application had been properly served before sentencing.
Consequently, the court concluded that the CBO was improperly imposed and should be quashed without needing to decide on the geographical extent issue.
Holding and Implications
The appeal is ALLOWED and the criminal behaviour order is QUASHED.
The direct effect of this decision is the removal of the CBO against the Appellant. No broader legal precedent is established beyond reaffirming the necessity for procedural rigor, proportionality, and fact-specific tailoring in imposing CBOs. The case underscores the importance of timely hearings and reciprocal restrictions where appropriate, ensuring fairness and clarity in orders restricting associations.