Mind your language!
14/01/10
The importance of using plain and simple language in court orders has recently been the subject of judicial scrutiny. Any term in a court order that is not sufficiently clear may be unenforceable.
Heron v Plymouth City Council (2009) All ER (D) 149
In Heron, the Divisional Court had to consider the wording of an Anti-Social Behaviour Order (ASBO) imposed by the Plymouth Magistrates Court against Mr Heron, a fairly prolific shoplifter. The contentious terms of the ASBO were:
- not to enter Plymouth city centre or any part of a particular area, marked on a map
- not to behave in a way causing or likely to cause harassment, alarm or distress to any person
- not to have with him or carry any packaged, wrapped, bagged, new or unused goods or objects not belonging to him, except food, in any public place without a valid receipt or the consent of the owner of the packaged, wrapped, bagged, new or unused goods or objects in Plymouth as marked on a map.
What the Court decided
The Divisional Court found that the geographic restriction (condition 1 above) was 'necessary and proportionate' and 'plainly sensible'. In addition it was clear to understand as it was delineated on a map. That restriction was allowed to continue by the Court.
In relation to the behaviour restriction (condition 2 above), the Divisional Court found that it was 'too imprecise' and was no more than a repetition of offences contrary to the Public Order Act 1986. Conditions in ASBOs had to be 'precise, targeted and identify the type of anti-social behaviour that they sought to address'. The restriction against Mr Heron was 'too broad' and of 'no real efficacy'. As a result the Court disallowed this restriction.
The Divisional Court found that the condition requiring Mr Heron to have a receipt for all goods that he was carrying (condition 3 above) was unintelligible. It was not simple or clear to understand and so was not allowed by the Court.
What lessons can we learn?
In giving its judgment, the Divisional Court reiterated the guidance for drafting ASBOs provided by the Home Office and Judicial Studies Board. It also referred to the principles laid down in a number of earlier cases, including R v Boness (2005) EWCA Crim 2395. It would be sensible to keep these same principles in mind when drafting Anti-Social Behaviour Injunctions (ASBIs).
The key principles for drafting each prohibition in an ASBO are:
- It must be targeted at the individual and the specific form of anti-social behaviour it is intended to prevent and must not be a generic form of words designed on a word processor.
- It must be precise and capable of being understood by the defendant.
- It must be proportionate, ie commensurate with the risk it is to guard against.
- Care should be taken when seeking to prohibit the defendant from committing a specified criminal offence. It is better to make the prohibition anticipatory in nature to prevent a defendant from doing an act in preparation of committing a criminal offence. For example, if the defendant has a habit of spraying graffiti on walls, the prohibition could prevent him from carrying a spray can.
Tim Crook
Principal Solicitor, housing law services
www.housinglawservices.co.uk