Judges quash demonstrators' Asbos

Monday 25 September 2006

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R v Jones and others

Court of Appeal, Criminal Division
Moses LJ and Lloyd Jones J
20 September 2006

Sentence - Community order - Anti-social behaviour order - Defendants obstructing trains as part of public protest - Whether judge erring in not considering motives - Whether community order appropriate - Whether anti-social behaviour order necessary - Crime and Disorder Act 1998, s 1C(2)(b).

The ten defendants were involved in protests against the Defence Systems and Equipment International Exhibition (the Arms Fair). In the course of those protests, the defendants tried to prevent stationary trains of the Docklands Light Railway (DLR) from moving at CanningTown station, by securing chains across doors or by climbing onto the top of the trains. They all pleaded guilty to offences of obstructing or attempting to obstruct an engine or carriage using a railway, contrary to s 36 of the Malicious Damage Act 1861. Most of the defendants had no relevant previous convictions, apart from the third defendant, the second defendant, and the first defendant. Nearly all the defendants had records of voluntary service to the community. The judge refused to consider the motives of the defendants and he did not expressly refer to their good characters and records of voluntary service in his sentencing remarks. The judge imposed a community punishment order of 80 hours of unpaid work on all the defendants apart from the third defendant, who received a suspended sentence of six months' imprisonment, with 150 hours unpaid work, given that she had previous convictions for previous offences, committed in the course of public protests. He also imposed anti-social behaviour orders on all the defendants, preventing them from, inter alia, interfering with DLR, London Underground and Silverlink trains. The order was subject to no time limit. The defendants appealed against sentence. At the time of appeal, some of the defendants had already completed their hours of unpaid work.

They submitted, inter alia, that the judge should have considered their motives and paid more attention to their records of voluntary service. They submitted that the appropriate sentence would have been a conditional discharge, and requested that those who had already completed their hours of unpaid work should be given an absolute discharge. They also submitted that the judge had erred in imposing anti-social behaviour orders, since, inter alia, such orders were not necessary to protect persons from further anti-social acts from them, pursuant to s 1C(2)(b) of Crime and Disorder Act 1998.

The appeal would be allowed.
(1) If an offence was committed in the course of a public protest, that was a relevant factor in relation to the propriety of the sentence.

In the instant case, the judge had not taken proper account of the motives of the defendants, and their good records. The appropriate sentence for all the defendants, apart from the third defendant, was a conditional discharge for 12 months. In respect of the third defendant, the appropriate sentence was one of a community order of 80 hours unpaid work, given that she had previous convictions for similar offences committed in the course of public protests. Credit would be given for the hours that she had already worked. An absolute discharge would not be given to those defendants who had already completed, or nearly completed, their hours of unpaid work. Should they commit further offences within the period of the conditional discharge, any judge would take into account the hours that they had already completed.
(2) The judge had fallen into error with regard to the requirements of s 1C(2)(b) of the 1998 Act. It had been necessary for him to find that anti-social behaviour orders were necessary. However, he had not set out the basis for that finding, and nor was there any such basis for it. There had been no evidence before the judge that the defendants were likely to commit further anti-social acts.
R v Boness [2005] All ER (D) 153 (Oct) applied.

Maya Sikand(assigned by the Registrar of Criminal Appeals) for first to the ninth defendants.

Robert English (assigned by the Registrar of Criminal Appeals) for the tenth defendant.

Mandy McLean(instructed by the Crown Prosecution Service) for the Crown.

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