R (on the application of Mills) v Birmingham Magistrates' Court
Queen's Bench Division (Divisional Court)
Scott Baker LJ and Owen J
11 October 2005
Magistrates - Proceedings - Anti-social behaviour order - Order prohibiting defendant pleading guilty to theft from entering retail outlets in city centre - No evidence defendant's behaviour causing harassment alarm or distress to persons working in retail outfits - Whether court justified in making order - Crime and Disorder Act 1998, s 1C(2).
Section 1C of the Crime and Disorder Act 1998, so far as material, provides: '(2) If the court considers?(a) that 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, it may make an order which prohibits the offender from doing anything described in the order.'
The claimant was spotted by a plain-clothes police officer taking three pairs of gloves from a store in Birmingham without paying. The officer followed her outside the shop and arrested her. At all times the claimant was fully co-operative and not abusive in any way. The Crown Prosecution Service (CPS) applied for an anti-social behaviour order (ASBO) pursuant to s 1C of the Crime and Disorder Act 1998 banning her from entering retail outlets in the city centre without prior permission from the police. They informed the magistrates' court that the claimant had numerous convictions for similar offences and that her behaviour had caused harassment, alarm and distress to the staff of the shops from which she stole and that the order was also needed to protect the public since the costs of her offending were passed on to them. The matter came before a deputy district judge who decided that the criteria in s 1C(2) were made out, namely that the claimant's behaviour was capable of causing harassment, alarm or distress and therefore it was necessary to make an ASBO to prevent further thefts being committed by her. The claimant applied for judicial review. The prosecution did not oppose the application.
The claimant submitted that the deputy district judge had not been justified in finding that the claimant had acted in a manner which brought her within s 1C(2).
The application would be allowed.
While some thefts might cause harassment, alarm or distress, and so fall within the criteria in s 1C(2) of the 1998 Act, that did not mean that all such offences would do so. The facts of the case had to trigger the section. First the criteria in the section had to be met and secondly the prosecution had to establish that an order was necessary in order to protect the public from further anti-social acts by the defendant.
In the instant case, there was no evidence of any anti-social behaviour on the part of the claimant. Indeed the stealing of the gloves was unbeknown to the employees of the shop where the theft occurred and therefore the claimant's actions were not likely to have caused them any harassment. It followed that the deputy district judge had been in error.
The ASBO would be quashed and costs ordered against the interested party.
Per Curiam: It is unhelpful if the CPS seek to have an ASBO made, and apply to the court for such an order, but then when such an order is made and judicial review sought, to take no steps to assist in the High Court in the proceedings.
Stephen Simblet (instructed by Jonas Roy Bloom, Birmingham) for the claimant.
The defendant did not appear and was not represented.