No:
201600325 A4
Neutral Citation Number:
[2016] EWCA Crim 676
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 5th May 2016
B e f o r e
:
LORD JUSTICE McCOMBE
MR JUSTICE STEWART
THE RECORDER OF WESTMINSTER
(HIS HONOUR JUDGE McCREATH)
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A
v
JOHN JANES
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Computer-Aided Transcript of the Stenograph notes of
WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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Mr J Ryan
appeared on behalf of the
Appellant
The
Crown
was not present and was unrepresented
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J U D G M E N T
1.
LORD JUSTICE McCOMBE: On 16th November 2015, in the Crown Court at Cardiff, after a trial before His Honour Judge David Wynn Morgan and a jury, the appellant was convicted of two offences of fraud contrary to
section 1
of the
Fraud Act 2006
. On 1st December last year he was sentenced by the learned judge to concurrent terms of 18 months' imprisonment, and the judge also made a Criminal Behaviour Order against him pursuant to
section 22
of the
Anti-social Behaviour Crime and Policing Act 2014
for a period of ten years in the following terms:
i.
"The appellant is prohibited from:
ii.
(a)approaching or entering, directly or indirectly, any address in the United Kingdom, whether on his own or on others' behalf, for the purpose of offering his own or others' services for garden or building maintenance or any other business or work whatsoever (this prohibition includes dropping leaflets or flyers advertising his own or others' services through letterboxes);
iii.
(b) instructing others to do any of the acts specified above, whether on his own behalf, or on behalf of any firm of which he is the owner, or company of which he is a shareholder, director, officer, or company secretary."
2.
In other words, the order imposes a prohibition on touting for business.
3.
The facts underlying the conviction were as follows.
4.
Count 1 involved this. On 20th January 2014 the appellant told the victim of the offence, a Mr Rogers, a man in his eighties, living alone, that his neighbours were complaining about the state of his conifer hedge when no such complaint in fact had been made. He persuaded Mr Rogers to take the hedge down and to replace it. Mr Rogers decided he wanted a wall and was prepared to pay the appellant to have it built.
5.
Count 2: the appellant told him that cash payments of £1,500, £2,600, £3,000 and £2,000, represented fair payment for work carried out on moving the hedge and building a wall. When asked for money, Mr Rogers made trips to his bank to obtain the cash and paid to the appellant a total of £9,100. That cost for the work carried out on the property was, as must have been accepted by the jury at trial, about ten times the fair market price for the gardening and building works. The appellant had also entered into the contract for the supply of those works without giving Mr Rogers notice of the statutory right to cancel them.
6.
During the trial the court heard evidence from the City Council housing surveyor that a sum in the region of £1,250 would have been a reasonable sum for the work carried out. As a result, the Crown's case was that Mr Rogers was defrauded of the sum of £7,850.
7.
The appellant's case was that he received no more than a fair price for the work that he completed and that others asked for the cash payments unconnected to him. That contention on his behalf must have been rejected by the jury.
8.
The appellant is now 43 years old. He has six previous convictions involving 11 offences committed between 1995 and 2013. In 2009 he had been sentenced to two years' imprisonment for consumer credit offences and for money laundering contrary to
section 327
of the
Proceeds of Crime Act 2002
. He was also sentenced then to a further term of six months' imprisonment to be served consecutively for social security fraud.
9.
There was a pre-sentence report before the judge in which the appellant continued to deny the offending. He was assessed by the Probation Service as posing a medium risk of re-offending. A community order, with specified activity requirements, was recommended - a recommendation that, in our judgment, was wholly unrealistic.
10.
In passing sentence, the judge summarised the facts of the offence, which he described as an old-fashioned, cold-blooded and pitiless daylight robbery of an elderly and vulnerable gentleman, who been deliberately targeted because of his vulnerability. There had been serious detrimental effect on that victim, who was in receipt of a state pension and a small company pension and who was not well placed to withstand the loss inflicted. The judge said that the victim had been repeatedly targeted in the commission of the offence.
11.
In imposing the Criminal Behaviour Order, the judge said he was satisfied beyond reasonable doubt that the appellant had engaged in behaviour that caused or was likely to cause harassment, alarm or distress, and he considered, in the words of the statute, that the making of the order would help in preventing the appellant from engaging in such behaviour in the future. The judge said, in short, that the court did not trust the appellant not to engage in this type of conduct hereafter.
12.
On the present appeal, in cogent, succinct and helpful submissions, Mr Ryan argues that the imposition of the Criminal Behaviour Order was wrong in principle in being made after "one off" offending against a single victim and against a background of the appellant having worked in his job as a self-employed gardener for over 20 years without similar offending, and indeed for the particular victim for a number of years. Mr Ryan submits that in those circumstances the likelihood of repetition was small. He argues that the order made was disproportionate to the risk in preventing the appellant from working to provide for himself and his family in his normal occupation. It is pointed out that the appellant is illiterate and innumerate and not equipped easily to gain other meaningful employment. He has a wife and five children to support; the children are aged between 4 and 14 years old. Mr Ryan points out that soliciting business from new and established customers had been his style of operation and until this offence it had caused no difficulty. In the written grounds it is submitted, although not advanced orally to us this morning, that the order made infringed the appellant's rights under Article 8 of the European Convention on Human Rights for much the same reasons as advanced upon the application of the statute.
13.
Section 22
of
the 2014 Act
is a revised and amended successor to the statutory provision enabling the court to make anti-social behaviour orders. The relevant parts of the section provide as follows:
i.
"(1) This section applies where a person ('the offender') is convicted of an offence.
ii.
(2) The court may make a criminal behaviour order against the offender if two conditions are met.
iii.
(3) The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.
iv.
(4) The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.
v.
(5) A criminal behaviour order is an order which, for the purpose of preventing the offender from engaging in such behaviour -
(a)
prohibits the offender from doing anything described in the order;
(b)
requires the offender to do anything described in the order."
14.
It is necessary only to refer further to subsection (9) of
section 22
, which is in the following terms:
i.
"Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid -
(a)
any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment ..."
15.
Mr Ryan accepts, in the course of his submissions, that the first condition, i.e. that the behaviour engaged has caused or was likely to cause harassment et cetera, was met on the facts of this case. He submits, however, that the second condition, that the order would help in prevent the offending from engaging in such behaviour, was not satisfied, and in any event he submits that the learned judge should not in his discretion have made the order he did.
16.
It is to be noted, as indeed Mr Ryan does in the course of his submissions, that a precondition for the making of an order is not that it is "necessary" to do so as under the former statutory provision, but rather that the court considers that the order will "help in preventing the offender engaging in such behaviour", i.e. behaviour that caused or was likely to cause harassment, alarm or distress to any person.
17.
Clearly, in our judgment, the section does not require proof of a sustained course of conduct, although in the present case there were a series of dishonest demands made of this one victim over a period of time, relatively short as it was. Equally, it is to be noted that the section envisages that the order should not interfere with the "times" at which the offender normally works, which might imply that such orders should not prevent an offender from working "so far as practicable". However, where the conduct established derives from the very performance of work or in the course of it, there seems to us to be no
a priori
reason not to make an order in an appropriate case. While the (to use the vernacular) ASBO jurisdiction was usually invoked to restrain the unruly behaviour of offenders, there seems to us to be no limitation in the present jurisdiction to behaviour of that character.
18.
In our judgment, there was nothing wrong in principle in making an order of the type imposed in the present case for the reasons identified by the judge. As we have said, Mr Ryan does not pursue the point made in writing as to the application of Article 8, and we think, with respect to him, he is correct to do so. If that article was engaged in this case, as to which we make no express decision, to preclude the making of an order, provided that the order is necessary for the prevention of crime and is proportionate in its application. In our judgment, an order of an appropriate jurisdiction would not normally fall foul of Article 8.
19.
There seems to us, on reflection on Mr Ryan's submissions nothing, in this order which would prevent the appellant seeking work upon his release in employment by others, provided he does not engage in conduct covered by the order, namely touting. Indeed, it would "help" to prevent such behaviour such as was the characteristic of this offence if he were to be under the control of a supervising employer. If difficulties prove to be really insuperable he can apply to the court to vary the order under
section 27
of
the Act
.
20.
We are, however, as we have indicated during the course of argument, concerned by the duration of the order imposed. We can see the need to put a restraint in place for the early period after the appellant's release. However, we would have thought that an order of three years' duration would have met the needs of this case. It seems to us that an order lasting ten years as imposed in the Crown Court was indeed excessive. We propose therefore to reduce the duration of the Criminal Behaviour Order to one of three years in substitution for the ten year period imposed below. To that limited extent this appeal is allowed.