No: 200406516/A6
Neutral Citation Number: [2005] EWCA Crim 1796
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 28th June 2005
B E F O R E:
LORD JUSTICE MANCE
MR JUSTICE ELIAS
SIR CHARLES MANTELL
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	R E G I N A		
	-v-		
	THEO YESTIN WILLIAMS		
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MR H JONES appeared on behalf of the APPELLANT
MISS I RAY-CROSSBY appeared on behalf of the CROWN
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J U D G M E N T

1. SIR CHARLES MANTELL: Theo Yestin Williams is 36 years of age. By early last year he had managed to accumulate no fewer than 223 convictions arising out of 46 court appearances. They included convictions for theft, obtaining property by deception, criminal damage, taking a vehicle without authority, making off without payment, theft of vehicles, driving whilst disqualified, vehicle interference, burglary, theft, handling stolen goods, going equipped for theft, burglary with intent to steal, no insurance, trafficking offences, assaults, perverting the course of justice and so on. What is remarkable, perhaps, about that record is the number of driving offences, including a very large number of driving whilst disqualified and a significant number of dangerous driving and driving whilst under the influence of drink. He was, on any view, a thorough going nuisance. However it has to be noted that he an unfortunate background. He certainly had mental troubles. He had been detained in a psychiatric hospital. He had been assessed as having a personality disorder of an antisocial type.

2. It was against that background that on 1st August 2003 he was seen driving a motor car in the Portslade area not wearing a seat belt. Police officers attempted to stop him, but he drove off at high speed in a restricted area. He drove along dual carriageways on the wrong side of the road, ignoring traffic lights, and pedestrians were put at risk. At one point he reversed his car into the chasing police vehicle. Eventually a police helicopter was employed. The police were unable to stop him. The chase was eventually brought to an end when a police car rammed the back of the car he was driving and forced it into a ditch. On a breathalyser reading being taken, he was found to be over the limit by a considerable amount and he was, as his record shows, a disqualified driver.

3. Despite his record, when the matter came before the court on 24th February 2004 he was sentenced to a Community Rehabilitation Order for two years and, as he was bound to be, disqualified from driving for three years. However, he failed to take advantage of the chance he had been given. He did not attend his appointments at the probation office and within a very short time indeed was arrested for stealing a computer from a hospital. He was sectioned under the Mental Health Act, and when the section was lifted he committed criminal damage in the hospital and assaulted a member of staff.

4. It was in relation to the breach of the Community Rehabilitation Order that he was brought back before the Crown Court at Lewes on 26th October 2004, His Honour Judge Scott Scott-Gall presiding. He admitted his breaches of the order. He was resentenced on that occasion to one day's imprisonment on each count, those sentences having already been served, and made subject to an Antisocial Behaviour Order prohibiting him from: 

"... driving or attempting to drive a mechanically propelled vehicle on a road or any public place in England or Wales until 24th February 2007."

5. In addition, the Community Rehabilitation Order was revoked. It is worthy of note that the extent of the Antisocial Behaviour Order coincided with that of his disqualification both of which were to expire on 24th February 2007.

6. The judge made little secret of the fact in his sentencing remarks that he was taking the course that he did, an unusual and, if we may say so, imaginative one, in order to reinforce the effect of the banning order. It is against that he now appeals with leave of the single judge.

7. The argument has been presented by Mr Jones of counsel, who also appeared in the court below, and Miss Ray-Crosby appears on behalf of the Crown. The matter has, therefore, been argued on both sides before us, as was not the case in the two previous decisions which might have a bearing on this matter, namely the case of Hall (unreported) Monday 25th October 2004, a decision of the division of this Court consisting of Hunt and Tugendhat JJ, and a further decision of this Court Kirby, judgment being given on 4th May 2005 (unreported), consisting of Maurice Kay LJ, David Clarke J and the Recorder of Birmingham. Neither of those authorities was cited to the judge in the present case and, indeed, it was not until today that the members of this Court were informed about the decision in Kirby.

8. Was such an order available to the judge in this case as a matter of principle? An Antisocial Social Behaviour Order is available under section 1C of the Crime and Disorder Act 1998, as amended by the Police Reform Act 2002. It has been available since 2nd December 2002. Provided it is in relation to a relevant offence, and there is no question that the offences in this case are relevant, the section provides that if an offender: 
"(a) ... has acted at any time since the commencement date, in an antisocial 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 form further antisocial acts by him, 
It may make an order which prohibits the offender from doing anything described in the order."

9. It was such an order that His Honour Judge Scott-Gall purported to make in the present case. The question is, of course, was he entitled to do so. As we have said, there is no doubt that he had in mind that the existence of such an order would reinforce the banning order which was already in place.

10. The reason why that is so, a matter about which he made no bones in the course of his judgment, is that for breach of the Antisocial Behaviour Order it is open to the court to impose a sentence of imprisonment up to five years, whereas, at the relevant time, for driving whilst disqualified the maximum available in the Magistrates' Court, and that is the only arena in which such a hearing can take place, the maximum was six months, now possibly increased by virtue of a recent Act of Parliament to 51 weeks. Clearly the judge considered that the existence of the Antisocial Behaviour Order might have a salutary effect upon the conduct of this otherwise incorrigible appellant.

11. The two authorities, however, to which we have been referred, and which His Honour Judge Scott-Gall was not, do not, unfortunately, speak with one voice. In the case of Hall (reference already given) the Court was considering the imposition of an Antisocial Behaviour Order in a driving case. The terms of the order under consideration were not far removed from those before this Court.

12. What was said in the course of the judgment given by Hunt J was this: 
"We have had our attention drawn to other cases, including, particularly, the case of P heard in February of this year by the Lord Chief Justice, Richards J and Henriques J, where the orders are considered and the following principles emerged. The test for making an order is one of the necessity to protect the public from further antisocial acts by the offender. There is nothing wrong in principle in making such an order when they are driving offences of such a regularity and type and in such an area that they do constitute antisocial behaviour. It is said that the terms of the order must be precise and capable of being understood by the offender. The findings of fact giving rise to the making of the order must be recorded and the order must be explained to the offender. The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced." 
It was noted that the making of such an order is strictly not part of the sentencing process.

13. The Court continued: 
"The point that is made before us is that it is said that the judge only made this order in order, in the event of the appellant's offending again, he would not just be liable to six months' imprisonment for driving while disqualified, but he would be liable to imprisonment for up to five years for breach of the Antisocial Behaviour Order." 
The Court went on to voice the opinion that that might not have been the only reason behind the making of the order.

14. In the case of Kirby, however, in which, we hasten to point out, Hall was not cited, the Court stated in the judgment given by David Clarke J, at paragraph 9: 
"In our judgment this decision of the court and the earlier case of C serve to demonstrate that to make an antisocial behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised."

15. And at paragraph 11: 
"In our judgment the making of an order of this sort should not be a normal part of a sentencing process, particularly in cases which do not in themselves specifically involve intimidation, harassment and distress. It is an exceptional course to be taken in particular circumstances. There was, in our judgment, nothing in this case, despite the deplorable record of the appellant for offences of this sort, to justify the use of this power in the present case. Its effect was no more than to transform any such offence into a different offence, namely breach of an antisocial behaviour order, so as to increase the potential penalty. In our judgment that was unwarranted in this case in the absence of exceptional circumstances."

16. It is to be noted that in Kirby the Court did not rule out the possibility of such an order in exceptional circumstances. It might be said, and indeed it has been said on behalf of the respondent, that these were indeed exceptional circumstances in this case.

17. We think, however, that following the principle to be found in Kirby, here the course was unwarranted in this case. We have, we ought to, considerable sympathy with the judge in the difficult situation in which he found himself, and, moreover, it may very well be from the history of this man since the making of this order that it was not without some effect. Accordingly, we allow the appeal to the extent that we quash the Antisocial Behaviour Order.