Page 392 - 6. 2016 Diary 1st half New 26-05-21 No Table

- proportionate to the legitimate aim pursued and commensurate with the risk to be
guarded against, which is particularly important where an order may interfere with an ECHR
right (7? v lioness [2005] EWCA 2395); and expressed in simple terms and easily
understood.
- Identification of some of the best practice used within the courts suggests that the
following issues should be borne in mint! when formulating prohibitions:
- A court should ask itself before making an order are the terms of this order clear so
that the offender will know precisely what it is, he or she is prohibited from doing?’ (R v
lioness |2005| EWCA 2395).
- Less common phrases such as ‘curtilage’, ‘paraphernalia’ or ‘environs’ should be
avoided as they may cause confusion.
- Can it be enforced? Those who will enforce the order must be able to identify and
prove a breach.
- Are any excluded areas clearly delineated? Most courts require a map to be included
and it may be necessary to delineate which side of the road forms the boundary. If a line is
drawn down the middle of a road, there may be arguments as to which side of the road the
defendant was standing.
- Does the prohibition clearly identify those whom the defendant must not contact or
associate with?
- Where the defendant is a foreign national, some courts consider it good practice for
the order to be translated into the native tongue.
- testing the prohibition by considering ways in which it could be breached may
highlight its limitations (7? v McGrath EWCA Crim 353).
- There is no requirement that the acts prohibited by an order should by themselves give
rise to harassment, alarm, or distress (7? v McGrath [20051 EWCA Crim 353).
157,
Simon Cordell’s Skeleton Argument (2) Pdf
Simon Cordell Skeleton Argument (3).pdf
* Curfews are substantially prohibitive and, while also a sentence of the court, there is
nothing legally objectionable to a curlew as a prohibition if the necessary protection of the
public justifies its inclusion (7? (Lonergan) v Lewes Crown Court [2005] EWHC 457
(Admin)).
A prohibition can prohibit behaviour that is in any event unlawful, although previously the
courts have encouraged inclusion of comparatively minor offences only (R v Shane Tony P
[2004] EWCA Crim 287). However, recently the Court of Appeal has indicated that
prohibiting behaviour that is in any event a crime does not necessarily address the aim of an
order, which is to prevent anti-social behaviour. Prohibitions should enable agencies to act
before the anti-social behaviour takes place rather than waiting for a crime to be committed
(R v Bones [2005] EWCA 2395). Therefore, bail conditions provide a useful analogy when
considering what prohibitions to impose.
The Court of Appeal provided some hypothetical examples by way of guidance.
If faced with a defendant who causes criminal damage by spraying graffiti, then the order
should be aimed at facilitating action to be taken to prevent graffiti spraying by him before it
takes place. For example, the prohibition could prevent the offender from being in possession
of a can of spray paint in a public place, giving an opportunity to take action in advance of
the actual spraying. This makes it clear to the defendant that he has lost the right to carry such
a can for the duration of the order.
If a court wished to make an order prohibiting a group of youngsters from racing cars or
motor bikes on an estate or driving at excessive speed (anti-social behaviour for those living
on the estate), then the order should not (normally) prohibit driving while disqualified. It