Neutral Citation Number: [2015] EWCA Crim 1268
Case No. 2014/05706/A5

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  4th June  2015

B e f o r e:

THE  PRESIDENT  OF  THE  QUEEN'S  BENCH  DIVISION
(Sir Brian Leveson)

MR  JUSTICE  KENNETH  PARKER

and

MR  JUSTICE  STEWART
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R E G I N A
 
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ONUR  SIMSEK
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Miss K O'Raghallaigh appeared on behalf of the Applicant 

Mr D Atkinson appeared on behalf of the Crown
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J U D G M E N T

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:  I shall ask Mr Justice Kenneth Parker to give the judgment of the court.

MR JUSTICE KENNETH PARKER:
1.  On 24th September 2014 in the Crown Court at Blackfriars the applicant, Onur Simsek, now aged 18, pleaded guilty to three offences of supplying cannabis, contrary to section 4(1) of the Misuse of Drugs Act 1971.  On 21st October 2014 he was sentenced by His Honour Judge Karsten QC concurrently for each of those offences to 12 months' imprisonment suspended for 24 months, with an unpaid work requirement of 120 hours.  The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.
 
2.  We were informed only this morning by Miss O'Raghallaigh, who appears on behalf of the applicant, that the suspended sentence was in fact activated.  The applicant appeared before the Crown Court at Blackfriars on 25th February 2015 in respect of three breaches of an Anti-Social Behaviour Order committed on two occasions on 14th January 2015, and on one occasion on 15th January 2015.  The applicant had entered the prohibited area of Camden.  It is said on his behalf that he was visiting an aunt in Camden with whom, it is said, he has a close relationship. However, the outcome was that the sentence was activated to the extent of nine months, and a consecutive term of three months was imposed in respect of the breaches.  The result was that an effective immediate sentence of 12 months' detention in a young offender institution was imposed.  That has had an effect on the disposition of this application, as acknowledged by Miss O'Raghallaigh this morning.

3.  As already noted, when dealing with the suspended sentence the judge in addition imposed an Anti-Social Behaviour Order ("ASBO") with three conditions: first, that the applicant should not enter a specified area of the London Borough of Camden; secondly, not to have in his possession or control in any place in England or Wales any drugs paraphernalia made, adapted or intended for use in relation to the supply, production or consumption of any controlled drug; and thirdly, not to have in his possession any small wrap of clingfilm, paper or self-seal bags containing any herbal substances or having any empty sealed bags in any public place in London.  The duration of the ASBO was set at five years.

4.  On 5th November 2014 the applicant's case was relisted under the "slip rule", and the learned judge substituted a Criminal Behaviour Order ("CBO") in the same terms as the earlier ASBO.  It is the substitution of the terms of the order that is the subject of this application.  Three questions are raised: first, whether the correct order, if any, to be made was an ASBO or a CBO; secondly, whether any order was necessary; and thirdly, whether the terms of the order were excessive, vague or disproportionate.

5.  As to the first question, ASBOs were created by section 1C of the Crime and Disorder Act 1998, which, insofar as is relevant, states:

"(1)  This section applies where a person (the 'offender') is convicted of a relevant offence.

(2)  If the court considers –

(a)	that the offender has acted, at any time since the commencement date [1st April 1999] in an anti-social manner, that is to say 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

(b)	that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,

it may make an order which prohibits the offender from doing anything described in the order."

6.  By Schedule 11, paragraph 24(a) of the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"), ASBOS were in effect abolished and CBOs were created by Part 2 of the 2014 Act.  That Schedule came into effect on 20th October 2014: see article 3 of the Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No 7 Saving and Transitional Provisions) Order (SI 2014/2590).  The power to make a CBO derives from section 22 of the 2014 Act.  That section, insofar as is relevant, states:

"(1)  This section applies where a person ('the offender') is convicted of an offence.

(2)  The court may make a criminal behaviour order against the offender if two conditions are met.

(3)  The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.

(4)  The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour."

7. Transitional provisions contained in section 33 of the 2014 Act are of particular importance.  Insofar as is relevant, section 33 states:

"(1)  The repeal or amendment by this Act of provisions about any of the orders specified in subsection (2) does not – 

(a)	prevent an order specified in that subsection from being made in connection with criminal proceedings begun before the commencement day;

(b)	apply in relation to an order specified in that subsection which is made in connection with criminal proceedings begun before that day;

(c)	apply in relation to anything done in connection with such an order.

(2)  The orders are –

(a)	an order under section 1C of the Crime and Disorder Act 1998 (orders on conviction in criminal proceedings); 

…

(3)  As from the commencement day there may be no variation of an order specified in subsection (2) that extends the period of the order or of any provision of the order.

(4)  At the end of the period of 5 years beginning with the commencement day –

(a)	this Part has effect in relation to any order specified in subsection (2) that is still in force as if the provisions of the order were provisions of a criminal behaviour order;

(b)	subsections (1)  to  (3) cease to have effect.

This Part, as it applies by virtue of paragraph (a), has effect with any necessary modifications (and with any modifications specified in an order under section 185(7)).

(5)  In deciding whether to make a criminal behaviour order a court may take account of conduct occurring up to one year before the commencement day."

8.  The combined effect of section 33(1)(a) and section 33(2)(a) is as follows.  Notwithstanding the effective repeal of ASBOs on 20th October 2014, the court retains power to impose an ASBO after that date, just as if ASBOs remained in force, if, and only if, the relevant "criminal proceedings" began before 20th October 2014. The 2014 Act does not specifically define "criminal proceedings" or indicate at what time such proceedings should be treated as commencing for the purposes of these transitional provisions.  However, on any view, in the present case proceedings clearly began before 20th October 2014, for the applicant was already convicted of the relevant three counts on the indictment on his own guilty plea tendered on 23rd September 2014 – nearly a month before the relevant operative date of 20th October 2014.  The learned judge, therefore, had power to impose, as he initially had imposed, an ASBO on the applicant on 21st October 2014 by virtue of these transitional provisions contained in section 33 of the 2014 Act.

9.  The question arises, however, whether on 21st October 2014 the judge also had power to impose a CBO on the applicant under the 2014 Act by virtue of the fact that the operative parts of the 2014 Act were by then in force.  The 2014 Act does not state in terms that there was no such power, but we believe that the judge had no such power. 

10.  Section 22(1) of the 2014 Act makes "conviction" a necessary precondition for the making of a CBO.  In the present context, the natural interpretation of "conviction", consistent with general principles of statutory interpretation in this area, is a conviction after the 2014 Act came into force.  In the present case the applicant's conviction, through his own guilty plea, occurred before 20th October 2014.  The learned judge therefore had no power to impose a CBO on the applicant under the 2014 Act.  It might be noted that this was not a case where the criminal proceedings commenced before 20th October 2014 and conviction occurred after that date.  For completeness, it might also be noted that section 33(5) of the 2014 Act permits the court to take into account conduct in the year predating the commencement of the 2014 Act, thus allowing for an order to be made where the conviction follows shortly after commencement of the Act and for which conduct relevant to the making of the order predated the commencement date.

11.  The question then arises whether it is appropriate for this court to impose an ASBO in substitution for the CBO and, if so, what its terms should be.  In attractive, succinct submissions Miss O'Raghallaigh originally argued that it would be wrong in principle to substitute an ASBO, because an ASBO was not necessary in the circumstances of this case.  She relies on R v Briggs [2009] EWCA Crim 1477, and in her written Grounds of Appeal she made three essential points.  First, she referred to the sentence which had been imposed, and also referred to the offences to which the applicant had pleaded guilty.  Secondly, she referred to the fact that the applicant has now turned 18, has matured, and has taken steps towards rehabilitation in recognition of the importance of complying with the criminal law, as evidenced by the opinion expressed by the Probation Service and also reflected in the decision of the learned judge to suspend the sentence, as he did.  She submitted that those three factors show that the risk of re-offending and the risk of causing harassment, which fell within the scope of an ASBO, had been eliminated or reduced to such an extent that it was no longer necessary.

12.  However, Miss O'Raghallaigh has this morning realistically recognised that by reason of the recent events to which we have alluded, namely the activation of the suspended sentence and the circumstances of the breach of the CBO that had been imposed, the strength of her main point has been seriously reduced, if not completely destroyed.  It appears to us, taking account of those recent events, that her main submission falls away and that the judge's assessment was entirely correct.

13.  We should add that, even without the circumstances to which we have just drawn attention, we would nonetheless have concluded, in the light of more recent authorities upon which Mr Atkinson who appears for the prosecution relied in his very helpful written argument, that the risk in this case of the applicant behaving in an anti-social way had not been reduced to such an extent that the order was unnecessary.

14.  However, we recognise force in the points generally made on this first ground by Miss O'Raghallaigh, and for that reason we have come to the conclusion that the duration of the order, namely the period of five years, is too long in the individual circumstances of the applicant's case.  Having regard to all the relevant circumstances, as they now emerge, we have concluded that a term of three years for the ASBO would be appropriate and proportionate in this case.

15. In relation to the first condition of the ASBO, we were informed this morning that certain difficulties have emerged in the light of the applicant's breach.  The position is that the applicant would ordinarily live with his mother in another area of London (not Camden).  However, we have been told that difficulties have arisen in relation to that.   The applicant's breach of the ASBO is said to be putting his mother's council tenancy at risk.  His mother has already been alerted to the potential difficulty that would arise if, after his release from his detention, the applicant were to seek to return to his mother's home.  It is said that the other alternative is that the applicant could live with an aunt, but that aunt lives in Camden, within the exclusion zone of the ASBO as it is currently formulated.  Mr Atkinson rightly points out that none of this information that appears to have been conveyed this morning to Miss O'Raghallaigh has been the subject of investigation by the police, and therefore he is not in a position to say that it has been appropriately verified.  In those circumstances he submitted that the right course would be for the applicant, who is faced with these difficulties, to apply for a variation of the ASBO to change the territorial scope.  

16.  We agree with that submission.  We believe it would not be appropriate for us on the information that we have received to seek to construct an ASBO to anticipate the problems that are said will be likely to arise in the future.  However, we wish to make clear that it will be for the appropriate court in due course, if an application for variation is made, to investigate that matter and to reach a judgment on it having regard to the circumstances that are relevant for the disposition of that application.  Nothing that we have said in this judgment should prejudice in any manner the fair and proper disposal of any such application if it is made.

17.  In relation to the second and third conditions of the ASBO, there is considerable force, in our judgment, in the submissions made by Miss O'Raghallaigh.  As to the second condition, in Briggs the court said this about the prohibition on possession of drugs paraphernalia:

"15.  The third prohibition, again it seems to this court, was unnecessary.  If she was in the area, and if she was in possession of drug paraphernalia, in that area, or indeed elsewhere, the possession of itself would be insufficient to cause distress.  It would be the use of the paraphernalia which would cause distress and its use would, of course, amount to a criminal offence and the ASBO would be unnecessary to address that."

It seems to us that those observations equally apply to the applicant's case.  Furthermore, the prohibition regarding drugs paraphernalia in Briggs was in respect of specified paraphernalia.  In the applicant's case the prohibition is less specific and precise than that which was found to be unnecessary in Briggs.  We therefore do not reinstate this prohibition in the ASBO.

18.  The final term of the ASBO imposed by the learned judge prohibited the possession of herbal substances.  The scope of such a prohibition exposed the applicant to breach proceedings for being in possession of a wide range of items which are lawful and which bear no obvious relationship to the anti-social behaviour that formed the subject of the indictment.  The final part of the prohibition, namely a prohibition on being in possession of any self-seal bags, is also patently too wide.  We therefore do not reinstate that prohibition in the ASBO.

19.  The result of the application is that we grant leave to appeal and we allow the appeal to the extent that the CBO is varied to an ASBO with only the first prohibition, namely the territorial prohibition, and the duration of the ASBO will be for a period of three years.

20.  The learned judge inadvertently imposed a sentence of imprisonment. The applicant was only 18 years of age at the time of sentence.  Therefore the sentence of imprisonment as such must be quashed, but a sentence of detention in a young offender institution for the same period on the same terms is imposed.

21.  It has also been brought to our attention that the learned judge imposed a victim surcharge order of £100.  The applicant was under 18 when the offence was committed.  The offence was committed after 10th October 2012, and at that time a suspended sentence of detention in a young offender institution had been imposed.  Therefore the correct amount of the surcharge should have been £20.  Accordingly, we quash the surcharge of £100 and substitute a surcharge of £20.

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