No: 2005/02747/A2
Neutral Citation Number: [2005] EWCA Crim 2237
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday, 26 July 2005

B e f o r e:

MR JUSTICE HUGHES

MR JUSTICE GOLDRING

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R E G I N A
 
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CLIFTON  GEORGE  MORRISON

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MR G BERMINGHAM appeared on behalf of THE APPELLANT 

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J U D G M E N T
Tuesday, 26 July 2005

MR JUSTICE HUGHES:  

1.	The sentence under appeal in this case was passed for breach of an Anti-Social Behaviour Order.  The question which is raised by the appeal is the proper approach to sentencing where the conduct complained of is, as well as being a breach of an ASBO, also a separate criminal offence for which a maximum sentence is prescribed by statute and that maximum is less than the available sentence for breach of the ASBO.

2.	The appellant is aged 46.  He has a driving record as bad as the courts see, at least in the absence of persistently dangerous driving.  He has been convicted of driving while disqualified on more than 50 different occasions.  In addition, he has many convictions for the much more serious offence of driving with excess alcohol or its equivalent, failing to provide a specimen.  There are also convictions for taking other people's cars.  Many years ago there were convictions for more serious offences, including robbery, but the last of those was twenty years ago.

3.	In 2004 the appellant was before different magistrates' courts on four separate occasions, three of them for driving while disqualified. In addition, there were offences of shoplifting and he was found drunk and disorderly.  On the last of those three occasions the Walsall Magistrates dealt with the appellant for driving while disqualified and also for driving with excess alcohol.  In addition there was an offence of driving without insurance, but there always is if a disqualified driver takes to the road.  The magistrates sent the appellant to concurrent terms of five months' imprisonment for the two principal offences.  They disqualified him for five years for the excess alcohol offence and they also made an Anti-Social Behaviour Order.  The terms of that order prohibited him indefinitely from being in either of the front seats (either the passenger's or the driver's seat) of any motor vehicle anywhere in England in Wales.  

4.	Notwithstanding the order, the appellant rapidly offended again, not once but twice.  In either January or February 2005 (there is some uncertainty about the date) he appeared before the Birmingham Magistrates' Court for a fresh offence of driving while disqualified.  The magistrates imposed a Community Rehabilitation Order (a probation order) for a period of two years.  There were other ancillary orders which need not concern us.

5.	On 2 March 2005, thus within a very short time of that Community Rehabilitation Order being made, the appellant was stopped at 3.50am driving a motor car again.  He gave a false name, address and date of birth.  He subsequently gave the excuse that he had not intended to drive, but that the owner/driver of the motor car had suddenly become ill.  Whether there was any genuine basis for that assertion we do not know, but at all events the appellant pleaded guilty to the following offences: first, driving while disqualified; second, driving without an appropriate test certificate for the car; third, driving without insurance; fourth, obstructing the police officer (which we take to be the giving of false details); and fifth, breach of the Walsall Magistrates Anti-Social Behaviour Order.

6.	The Birmingham Magistrates, before whom the appellant pleaded guilty to those offences, committed him for sentence.  The committal for the breach of the ASBO was an ordinary committal for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  For the other offences (which were all summary) the committal was properly made under section 6 of the 2000 Act, that is to say the ancillary committal provision.  In relation to those latter committals, the Crown Court is limited to the powers of the magistrates.  However, the breach of an Anti-Social Behaviour Order is an either way offence.  On indictment the maximum for such a breach is five years' imprisonment.  The breach of the ASBO in this case consisted of no more (though no less) than driving while disqualified again.  The maximum sentence for driving while disqualified is six months.  

7.	The appellant was sentenced by Mr Recorder Edwards as follows: For the breach of the Anti-Social Behaviour Order, 12 months' imprisonment.  For all the summary offences, including driving while disqualified, no separate penalty was imposed.  The Recorder also revoked the Community Rehabilitation Order so recently made, of which the appellant was in flagrant breach.

8.	Mr Bermingham on behalf of the appellant submits on broad principles and on authority that since the breach of the Anti-Social Behaviour Order in this case consisted of no more than driving while disqualified, it was wrong in principle to impose on the appellant the sentence of twelve months which is double the statutory maximum for driving while disqualified.

9.	An Anti-Social Behaviour Order may be made in the absence of any criminal proceedings on the application of either the local authority or the Chief Constable under section 1(1) of the Crime and Disorder Act 1998.  Since the passing of the Police Reform Act 2002, such orders may, however, also be made under a newly introduced section 1C of the 1998 Act, where a person has been convicted of an offence.  Except for geographical restrictions on the non-criminal Anti-Social Behaviour Order, the test for making an order is the same in either situation.  Section 1C provides that such an order may be made where 

"(a)	the offender has acted at any time since the commencement date 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...."

10.	In R v Shane P [2004] 2 Cr App R(S) 63 at 343, this court (Lord Woolf CJ, Richards and Henriques JJ) accepted that it might be proper to make an ASBO even though the conduct prohibited would in any event consist of or involve a criminal offence.  In its judgment the court said:

"30.  .... we are by no means persuaded that the inclusion of such matters is to be actively discouraged.  So far as more minor offences are concerned, we take the view that there is no harm in reminding offenders that certain matters do constitute criminal conduct, although we would only encourage the inclusion of comparatively minor criminal offences in the terms of such orders."

11.	There is before us no appeal against the making of this Anti-Social Behaviour Order.  Indeed the order itself was never appealed.  It seems to us, however, that an Anti-Social Behaviour Order to restrain driving while disqualified alone would (usually at least) be unlikely to be within the terms of the statute.  Driving while disqualified is an offence, and rightly so, but it is not normally one which is likely to cause harassment, alarm or distress to persons not in the offender's household -- at least unless some other offence was committed at the same time or perhaps there was an unusual public nuisance occasioned by the frequently repeated manner of the offender's driving.

12.	This Anti-Social Behaviour Order was, however, made against a man whose appalling driving record involved frequent offences of driving with excess alcohol.  As to that, it seems to us that it could be that an Anti-Social Behaviour Order might be appropriate.  This order was made on the occasion when the appellant had committed that offence as well as driving while disqualified.  The terms of this order went beyond prohibiting driving while disqualified.  Indeed, they went beyond prohibiting any criminal offence because the order prevented the appellant from travelling in the front passenger seat of any vehicle.  The magistrates may have had in mind underlining the sanction in the event that the appellant committed any further driving offence.  We have not heard argument about the reasoning which led the magistrates to make the unusual order that they did and we say no more about it.  However, we draw attention to the fact that while Anti-Social Behaviour Orders are a flexible and no doubt useful weapon in the armoury of courts, if they are to be made the facts must fall within the test provided by the statute.  The behaviour against which they are directed must be behaviour which is likely to cause harassment, alarm or distress to persons outside the offender's own household.

13.	However, if an Anti-Social Behaviour Order is made which has the effect of prohibiting behaviour which would in any event be a criminal offence, then the question arises: what is the proper approach to sentencing if the offender subsequently commits such a criminal offence and in consequence is also in breach of the ASBO?  

14.	It seems to us clear in principle that in those circumstances the sentence should not normally exceed the statutory maximum for the criminal offence.  When the Recorder passed sentence in this case he had available to him no authority.  Thanks to the industry of the Criminal Appeal Office, both we and Mr Bermingham now have available a number of recent cases.  In R v Shane P, to which we have already referred, the court was not concerned with any question of sentence.  It was concerned only with the making of the ASBO which, for a variety of reasons in that case, it quashed.  That decision does not afford assistance on the point which we now have to address.

15.	In R v Hall [2004] EWCA Crim 2671 an ASBO had been made prohibiting the appellant from driving any vehicle unless he had a valid driving licence and insurance.  This court (Hunt and Tugendhat JJ) varied that order for other reasons, but accepted that the order had the effect, and legitimately had the effect, of increasing the potential penalty for driving without a driving licence from six months to a maximum of five years.  

16.	Conversely, in R v Kirby [2005] EWCA Crim 1228, this court (Maurice Kay LJ, David Clarke J and the Recorder of Birmingham), to whom the decision in Hall was not referred, held that it was wrong to make an Anti-Social Behaviour Order prohibiting the taking of other people's motor cars and driving while disqualified for the sole purpose of increasing the available sentence in the event of breach.  

17.	In R v Williams (2004/06516/A6, 28 June 2005), this court considered both those preceding cases.  It resolved the doubt in favour of the latter decision of Kirby.  The appellant Williams had accumulated a driving record not dissimilar to that of the present appellant, with a very large number of offences of driving while disqualified.  Also in his case there were a significant number of offences of dangerous driving and excess alcohol.  When passing sentence for offences of both excess alcohol and driving while disqualified, the judge in the Crown Court imposed in addition an ASBO prohibiting the appellant from 

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

The judge expressly imposed that order to reinforce the effect of the existing disqualification and because he was conscious that it would increase the available sentence in the event of a further breach to the five years available for breach of an ASBO.  This court had the benefit in that case of argument not only for the appellant but also on behalf of the Crown.  It concluded, as we have indicated, that the principles set out in Kirby should be followed.  The making of the Anti-Social Behaviour Order for the purpose of increasing the available sentence was improper.

18.	There is undoubtedly room for legitimate argument that the statutory maximum for driving while disqualified is set too low at six months.  This is after all an offence which necessarily involves deliberate refusal to accept the punishment which has been imposed by the court on an earlier occasion.  Until 1998, this was an offence which was punishable on indictment and carried a sentence of twelve months' imprisonment.  It is an offence which is not infrequently committed by repeat offenders, and sometimes by repeat offenders of the kind with whom we are dealing in this case.  There is no significant change in relation to the maximum to be found in the forthcoming provisions of the Criminal Justice Act 2003.  It is, however, for Parliament to fix the maximum for offences and not for this court.  The maximum has been fixed by Parliament; it is fixed at six months.  It is not open to this court to evade that maximum by imposing an Anti-Social Behaviour Order and then taking advantage of the maximum for breach of that order in the event that a further offence is committed.  That, we are satisfied, follows from R v Kirby and R v Williams, and we are satisfied also that it follows from elementary principles.

19.	It follows that we draw from those cases and from principle the following propositions:

(1)	An Anti-Social Behaviour Order, though it may prohibit conduct which is also a distinct offence, must be justified  by reference to the statutory requirements of section 1C(2)(a) and (b).  Caution should be exercised in the making of an Anti-Social behaviour order if the behaviour in question would in any event be a criminal offence.

(2)	An ASBO should not be made simply for the purpose of increasing the available sentence beyond the maximum which would otherwise be laid down by statute for the conduct which is prohibited.

(3)	If a breach of an ASBO consists of no more than the commission of an offence for which a maximum penalty is prescribed by statute, it is wrong in principle to pass a sentence for that breach calculated by reference to the five year maximum for breach of an ASBO.  Rather the tariff is determined by the statutory maximum for the offence in question.

(4)	We draw attention, however, in that last proposition to the words "no more than".  There may be exceptional cases in which it can properly be said that the vice of the breach of an ASBO, although it amounts to an offence, goes beyond that offence.  We do not attempt to foresee circumstances in which that may occur but we have in mind, for example, repeated offences of criminal damage directed against a particular and perhaps vulnerable victim or group of victims.  We have not, however, heard any argument about such an exceptional case.  Argument about it must await the occurrence of appropriate events, if they occur.  We are satisfied that, absent exceptional circumstances, the proposition which we have set out as number 3 must prevail.

20.	It follows that the sentence of twelve months' imprisonment for the breach of the Anti-Social Behaviour Order in this case must be quashed.  However, in the present case that is not the end of the story.  Whilst we are satisfied that, in making allowance for the appellant's plea of guilty, the right sentence for the breach of the ASBO was four months, there was in this case also the identical earlier offence for which a Community Punishment and Rehabilitation Order had been very recently made.  The Recorder had power under Schedule 3 of the Powers of Criminal Courts (Sentencing) Act 2000, paragraphs 11(1)(b) and 11(2), not only to revoke the Community Rehabilitation Order, as he did, but also to re-sentence for the offence for which it had been imposed.  It is plain to us, and Mr Bermingham rightly concedes, that there can be no possible argument other than that a consecutive sentence for that offence was richly deserved.  The appropriate sentence for that earlier offence following a plea of guilty would be one of four months.  Accordingly there were available to the Recorder consecutive sentences of four plus four, that is to say eight months' imprisonment.  In the absence of any authority cited to him, it may very well be that it was the combined effect of the two offences that the Recorder had in mind, for he clearly directed his mind to the Community Rehabilitation Order and decided to pass no separate sentence in the light of the sentence that he had already imposed for the original offence. Having reviewed the authorities as we have, however, we are satisfied that it is important that the sentences should be structured in the way which we have set out.

21.	The net effect is that this appeal is allowed.  The sentence of twelve months' imprisonment for breach of the Anti-Social Behaviour Order is quashed and for it is substituted a sentence of four months' imprisonment.  The Recorder's order revoking the Community Rehabilitation Order remains.  But in addition we impose a consecutive sentence of four months' imprisonment for the offence of driving while disqualified for which that Community Rehabilitation Order had originally been made.  That makes a total sentence of eight months' imprisonment.  To that extent this appeal is allowed.