Asbos and brutal sentencing revisited

I’ve mentioned before just how brutal courts in England are becoming. I’ve been critical of Anti Social Behaviour Orders [ASBOS]. This is a local example from the caseload of His Honour Judge Whitburn sitting at Newcastle upon Tyne Crown Court where both collide.

The case involved a young man called Lamb. Lamb had previous convictions when he appeared before North Tyneside Magistrates court on the 11^th October 2004. He was 16 years old.
He pleaded guilty to using disorderly behaviour or threatening abusive or insulting words likely to cause harassment alarm or distress, at Whitley Bay Metro Station and to common assault. He was ordered to undertake community punishment for 120 hours and made the subject of an ASBO for two years, the terms of which were as follows:

"The Defendant is prohibited from entering Whitley Bay Town Centre as defined in the map given to him. Furthermore, you are not permitted to enter the entire Metro transport system in Tyne & Wear and you are not permitted to enter any Nexus premises forming part of the Metro system. Furthermore you are not to consume alcohol in any public place nor be drunk in any place."

Nexus is the company that operates the Tyne and Wear Metro (map pdf right click save as) system. Additionally they operate most of the local buses and own all the bus shelters.

On the 16^th October, Lamb was found travelling on the Metro, arrested and charged with breaching the ASBO. There were no aggravating features. He was not involved in any anti-social behaviour. He once again appeared before North Tyneside Magistrates Court. He was sentenced to a 6 month Detention and Training Order (DTO). Three months in custody and three months supervision in the community.

On 19^th November 2004, Lamb was arrested at another Metro station and ran away from the police. Again, no harassment was alleged. He appeared before North Shields justices. He was sentenced to a 12 month DTO.

By March 2005, Lamb was at liberty. On 3^rd March 2005, he was found “just within the prohibited area of the Metro”. The North Shields Magistrates imposed a 3-month sentence of imprisonment.

He was released on 1^st April and within a few hours, he was found drunk within the prohibited area. This time the North Shields Justices sent him the Crown Court for sentence. He was sentenced to a further two months imprisonment.

Summer came to the Metro system. Lamb had been released and once again found travelling irresistible.
On the 4^th June, he was seen entering the station at Monkseaton, spotted by the police but made good his escape across the railway [breach 1]. An hour later, he was seen running across the lines further along the system at Whitley Bay station [breach2] and finally, he was spotted by the Northumbria Police helicopter hiding in a garden within the prohibited area and arrested [breach3].

Thus, on the 30^th June, Lamb appears before the fearsome Judge Whitburn Q.C. at Newcastle Crown Court. His honour, when sentencing declared:

“If you persistently breach it [the ASBO] the Court has no alternative but to impose a sentence, in your case of custody in a young offender's institution of some very considerable length. The public deserve to be protected. The public, it is clear are sick and tired of antisocial behaviour by people like you."

And off Lamb went to spend 22 months in a Young Offenders Institution.

Not surprisingly, he appealed such a brutal sentence. His appeal was heard on 10^th October2005.

Mr Justice Leveson eventually brings sanity to Lamb’s case.

“ Given that none of these breaches had been occasioned by antisocial behaviour properly so described (as opposed to being on property that was the subject of a prohibition in the order), it is not entirely clear in the case of this appellant from what specific conduct the public required protection. The justification for imposing punishment was and can only have been based upon the appellant's persistent and deliberate failures to comply with the order of the court. That justification is perfectly sufficient but it is important to provide a measure of context.
It is worth saying something about the effect of the ASBO on this appellant and the reason (justified or not) for his sense of grievance. Miss MacDonald [Lamb’s Counsel] has explained that the reference in the order to Nexus is to the company operating the bus service in this area. Thus, an exclusion from Nexus property is an exclusion from bus shelters operated by that company that form part of the Metro system so that not only can the appellant not enter the Metro system but he has difficulties otherwise accessing public transport. Given that he cannot enter Whitley Bay town centre either, his opportunities for social interaction are particularly limited. As a result, she submits that compliance means that he will become more and more isolated from mainstream society such that rehabilitation and reintegration will be extremely difficult.”

And considering the appropriate approach to sentencing in such a case:

… The social impact of this appellant's offending…. indeed, did not impact on the public in any way. Save for one occasion when the appellant was drunk (without there being any suggestion that he was causing a nuisance), none of these breaches have resulted from antisocial behaviour as such. The ever-longer sentences have been driven only by the determination of the court to ensure that its orders limiting the appellant's movements are not flouted.”

And the sentence is reduced, at a stroke, to one of 8 months. I calculate this would mean, bearing in mind he had been in custody since his arrest on the 4^th June 2005, he would be released immediately.

You can read the Court of Appeal Judgement here

This case shows just how ASBO's are doled out by the courts. Though how on earth the magistrates, advised by a lawyer, concluded that an ASBO was necessary in the first place, is beyond me. The Court of Appeal in as withering a comment on this as you are likely to hear:

"We are not privy to the argument advanced before the learned Recorder upon the appeal against the ASBO or as to the manner in which the statutory preconditions for an ASBO were satisfied and, in particular, whether pursuant to section 1C(2) of the Crime and Disorder Act 1998 it was truly necessary to protect persons in England and Wales from the offender acting 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".

Secondly, the unacceptably wide ambit of the order itself. Lamb was effectively prevented from travelling on virtually all local public transport. Indeed, it was ironic that one of the reasons advanced for the imposition of a custodial sentence before the Crown court was the ASBO prevented Lamb from attending the local Probation Office.
Thirdly, how easy it was, in this case, for the magistrates and the Crown Court judge to justify the imposition of increasingly excessive and harsher sentences on the young man, not for the criminality of the admitted breaches, but for his blatant flouting of the court order. Don't get me wrong, Lamb's continued flouting of the order merited a custodial sentence, but those imposed in this case, initially by the magistrates were simply wrong and by His Honour Judge Whitburn, excessive.