Kamran Khan [2018] EWCA Crim 1472
Summary
R v Kamran Khan [2018] EWCA Crim 1472 concerned an appeal against a criminal behaviour order imposed by His Honour Judge Boora at the Crown Court at Manchester. The Court of Appeal (Lord Justice Bean, Mr Justice Kerr and Her Honour Judge Cutts QC sitting) allowed the appeal and quashed the order.
The appellant had pleaded guilty to dangerous driving, being concerned in the supply of cannabis, and two counts of simple possession. On 21 December 2016 he was sentenced to 16 months’ imprisonment suspended for two years for dangerous driving, a community sentence for the supply offence, and no separate penalty for the possession counts. Shortly before the sentence hearing the prosecution applied for a criminal behaviour order against the appellant alone pursuant to section 22 of the Anti-Social Behaviour Crime and Policing Act 2014. The order sought was that the appellant should not associate with Aweis Bashir in a public place or place to which the public has access, including inside a mechanically propelled vehicle. The application was not listed before the judge until 9 August 2017, some seven months after the main sentencing hearing. The appellant did not attend but the judge made a CBO in the terms sought, to remain in force for three years with no geographical limitation.
The underlying incident occurred on 27 January 2016 on Regent Road in Salford. The appellant was driving a black BMW erratically with Mr Bashir as a passenger. When the vehicle stopped at traffic lights, Mr Bashir, who had a hood over his face, got out and smashed the windscreen of a Volkswagen Golf with a steering lock. Both men returned to the BMW. The Volkswagen drove off, crashed into the BMW, and then reversed into Mr Bashir. He smashed the rear window of the Volkswagen, which then drove off. The appellant drove after it, went through a red light and crashed into the back of the Volkswagen, causing it to spin around. The Volkswagen drove away and the appellant continued on his way. He was stopped by police and arrested. Officers noticed a smell of cannabis in the car and a small amount was found. Searches of two addresses connected with the appellant revealed 12.7 grams of cannabis valued at £109.20 and 6.7 grams valued at £57.77 respectively. In his basis of plea the appellant said he was concerned in the supply of cannabis on the basis that he gave Mr Bashir a lift knowing that Mr Bashir was supplying cannabis. Charges of affray and other counts were ordered to lie on the file. Mr Bashir pleaded guilty to affray, possession of cannabis with intent and possession of criminal property, and was sentenced to 12 months’ imprisonment suspended for two years.
The court was told that the prosecution applied for a CBO against the appellant alone because he had numerous previous convictions whereas Mr Bashir was of previous good character or nearly so. The notice of application stated that the non-association clause was considered proportionate due to the ferocity of the incident at a busy time of day on a main arterial route into Manchester in plain view of the public, and that Mr Bashir was a known long-standing associate of the appellant. The prosecution had originally proposed that the order should apply to the whole of Greater Manchester and be indefinite in length.
Single-judge leave to appeal had originally been confined to the issue of geographical extent but the case was adjourned to enable the appropriateness of the order to be considered as a whole. The Court of Appeal granted leave to appeal against the order generally.
The court reviewed the statutory framework provided by section 22 of the 2014 Act, which requires the court to be satisfied beyond reasonable doubt that the offender has engaged in behaviour that has caused or was likely to cause harassment, alarm or distress to any person, and to consider that making the order will help in preventing the offender from engaging in such behaviour. The court noted that unlike the first condition, the second does not require satisfaction beyond reasonable doubt. The court emphasised that an application for a CBO is not to be made or considered on the hoof, and cited procedural requirements in the Criminal Procedure Rules.
The court endorsed guidance from earlier cases including R v Boness [2005] EWCA Crim 2395 and DPP v Bulmer [2015] EWHC 2323 (Admin). The terms of the order must be precise and capable of being understood by the offender. Findings of fact giving rise to the order must be recorded. The order must be explained to the offender. The exact terms must be pronounced in open court and accurately reflected in the written order. Prohibitions must be reasonable, proportionate, realistic, practical and in terms which make it easy to determine and prosecute a breach. Individuals whom the defendant is prohibited from contacting must be clearly identified. The court noted that in DPP v Bulmer, Beatson LJ stated that the guidance on anti-social behaviour orders remained relevant to criminal behaviour orders, though modified to reflect that the requirement of necessity was no longer part of the statutory scheme. Section 22(4) does not expressly impose any burden of proof and does not require satisfaction to the criminal standard. However, such orders are not lightly to be imposed and the court should proceed with caution and circumspection. The order must be tailored to the specific circumstances of the person on whom it is to be imposed and assessments of proportionality are intensively fact sensitive. The court noted Home Office statutory guidance stating that the CBO is intended for tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court.
The court observed that it was still in the early days of CBOs and the case law was not yet fully developed. On a literal construction section 22 might apply to a high proportion of cases in the criminal courts, as many offences are committed in public places and cause a degree of alarm and distress. The court did not believe Parliament intended criminal behaviour orders to become a matter of box-ticking routine.
Turning to the present case, the court observed that it was the conduct of Mr Bashir in wielding the vehicle lock and the response of the driver of the Volkswagen which must have caused alarm and distress to onlookers, rather than the appellant’s driving as such. The application for and making of a CBO against the appellant alone had the curious result that the appellant was prohibited from associating publicly with Mr Bashir but not the other way round, despite the fact that the appellant was not the one convicted of affray. There was no evidence to demonstrate even on the balance of probabilities that the appellant and Mr Bashir were fellow members of a gang. The court found it most unsatisfactory that the application for a CBO did not come before the judge until more than seven months after the main sentencing hearing. Although there is power to adjourn a CBO application, a delay of several months save in the most exceptional circumstances is wholly unacceptable. The court noted that the notice of application under Rule 31.2 must be served before the judge passes sentence for the offences forming the factual basis for the application.
The court held that the CBO should not have been made at all and it was therefore unnecessary to decide whether it should have been limited to Greater Manchester. The court observed that while a nationwide order or one of wide geographical extent might well be disproportionate if the restriction is broad, it might more readily be justified when the only prohibition is against associating in public with a named individual who is not a member of the defendant’s family. In short, the appeal was allowed and the criminal behaviour order quashed because it was not appropriate to make such an order in the circumstances of this case.
The appellant had pleaded guilty to dangerous driving, being concerned in the supply of cannabis, and two counts of simple possession. On 21 December 2016 he was sentenced to 16 months’ imprisonment suspended for two years for dangerous driving, a community sentence for the supply offence, and no separate penalty for the possession counts. Shortly before the sentence hearing the prosecution applied for a criminal behaviour order against the appellant alone pursuant to section 22 of the Anti-Social Behaviour Crime and Policing Act 2014. The order sought was that the appellant should not associate with Aweis Bashir in a public place or place to which the public has access, including inside a mechanically propelled vehicle. The application was not listed before the judge until 9 August 2017, some seven months after the main sentencing hearing. The appellant did not attend but the judge made a CBO in the terms sought, to remain in force for three years with no geographical limitation.
The underlying incident occurred on 27 January 2016 on Regent Road in Salford. The appellant was driving a black BMW erratically with Mr Bashir as a passenger. When the vehicle stopped at traffic lights, Mr Bashir, who had a hood over his face, got out and smashed the windscreen of a Volkswagen Golf with a steering lock. Both men returned to the BMW. The Volkswagen drove off, crashed into the BMW, and then reversed into Mr Bashir. He smashed the rear window of the Volkswagen, which then drove off. The appellant drove after it, went through a red light and crashed into the back of the Volkswagen, causing it to spin around. The Volkswagen drove away and the appellant continued on his way. He was stopped by police and arrested. Officers noticed a smell of cannabis in the car and a small amount was found. Searches of two addresses connected with the appellant revealed 12.7 grams of cannabis valued at £109.20 and 6.7 grams valued at £57.77 respectively. In his basis of plea the appellant said he was concerned in the supply of cannabis on the basis that he gave Mr Bashir a lift knowing that Mr Bashir was supplying cannabis. Charges of affray and other counts were ordered to lie on the file. Mr Bashir pleaded guilty to affray, possession of cannabis with intent and possession of criminal property, and was sentenced to 12 months’ imprisonment suspended for two years.
The court was told that the prosecution applied for a CBO against the appellant alone because he had numerous previous convictions whereas Mr Bashir was of previous good character or nearly so. The notice of application stated that the non-association clause was considered proportionate due to the ferocity of the incident at a busy time of day on a main arterial route into Manchester in plain view of the public, and that Mr Bashir was a known long-standing associate of the appellant. The prosecution had originally proposed that the order should apply to the whole of Greater Manchester and be indefinite in length.
Single-judge leave to appeal had originally been confined to the issue of geographical extent but the case was adjourned to enable the appropriateness of the order to be considered as a whole. The Court of Appeal granted leave to appeal against the order generally.
The court reviewed the statutory framework provided by section 22 of the 2014 Act, which requires the court to be satisfied beyond reasonable doubt that the offender has engaged in behaviour that has caused or was likely to cause harassment, alarm or distress to any person, and to consider that making the order will help in preventing the offender from engaging in such behaviour. The court noted that unlike the first condition, the second does not require satisfaction beyond reasonable doubt. The court emphasised that an application for a CBO is not to be made or considered on the hoof, and cited procedural requirements in the Criminal Procedure Rules.
The court endorsed guidance from earlier cases including R v Boness [2005] EWCA Crim 2395 and DPP v Bulmer [2015] EWHC 2323 (Admin). The terms of the order must be precise and capable of being understood by the offender. Findings of fact giving rise to the order must be recorded. The order must be explained to the offender. The exact terms must be pronounced in open court and accurately reflected in the written order. Prohibitions must be reasonable, proportionate, realistic, practical and in terms which make it easy to determine and prosecute a breach. Individuals whom the defendant is prohibited from contacting must be clearly identified. The court noted that in DPP v Bulmer, Beatson LJ stated that the guidance on anti-social behaviour orders remained relevant to criminal behaviour orders, though modified to reflect that the requirement of necessity was no longer part of the statutory scheme. Section 22(4) does not expressly impose any burden of proof and does not require satisfaction to the criminal standard. However, such orders are not lightly to be imposed and the court should proceed with caution and circumspection. The order must be tailored to the specific circumstances of the person on whom it is to be imposed and assessments of proportionality are intensively fact sensitive. The court noted Home Office statutory guidance stating that the CBO is intended for tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court.
The court observed that it was still in the early days of CBOs and the case law was not yet fully developed. On a literal construction section 22 might apply to a high proportion of cases in the criminal courts, as many offences are committed in public places and cause a degree of alarm and distress. The court did not believe Parliament intended criminal behaviour orders to become a matter of box-ticking routine.
Turning to the present case, the court observed that it was the conduct of Mr Bashir in wielding the vehicle lock and the response of the driver of the Volkswagen which must have caused alarm and distress to onlookers, rather than the appellant’s driving as such. The application for and making of a CBO against the appellant alone had the curious result that the appellant was prohibited from associating publicly with Mr Bashir but not the other way round, despite the fact that the appellant was not the one convicted of affray. There was no evidence to demonstrate even on the balance of probabilities that the appellant and Mr Bashir were fellow members of a gang. The court found it most unsatisfactory that the application for a CBO did not come before the judge until more than seven months after the main sentencing hearing. Although there is power to adjourn a CBO application, a delay of several months save in the most exceptional circumstances is wholly unacceptable. The court noted that the notice of application under Rule 31.2 must be served before the judge passes sentence for the offences forming the factual basis for the application.
The court held that the CBO should not have been made at all and it was therefore unnecessary to decide whether it should have been limited to Greater Manchester. The court observed that while a nationwide order or one of wide geographical extent might well be disproportionate if the restriction is broad, it might more readily be justified when the only prohibition is against associating in public with a named individual who is not a member of the defendant’s family. In short, the appeal was allowed and the criminal behaviour order quashed because it was not appropriate to make such an order in the circumstances of this case.