A defendant cannot defend himself from prosecution for breach of a Community Protection Notice (‘CPN’), on the basis that the CPN is invalid. The reason, stated in Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin), is that there is an effective means to challenge the CPN - either by exercising the right of statutory appeal or by judicial review. Allowing a challenge to the validity of the CPN at trial is not what the relevant statute (the Anti-social Behaviour, Crime and Policing Act 2014, ‘the 2014 Act’) intends, nor is it an effective remedy because the person subject to a CPN should not be required to breach a CPN in order to exercise a right to challenge it.

The facts and the criminal trial

The Appellant had been issued with a CPN for anti-social behaviour outside a McDonald’s in Reading. It was for indefinite duration and he prohibitions included:

1. That he was not to enter the area of Reading Town Centre as defined by the map provided with the CPN, unless there was a prearranged appointment with a court or probation worker;

2. He was not to be in a group of more than three individuals, wherever he happened to be.

Five days after the CPN was issued, the Appellant was seen in the proscribed area in Reading town centre. He was arrested and charged with failing to comply with the CPN.

The Appellant pleaded not guilty. At trial he made an application of no case to answer, on the basis that the prosecution had the burden of establishing that the CPN was valid but could not do so having called no evidence of the circumstances in which the CPN had been made. The District Judge, Sophie Toms, rejected the application. She noted that section 46 of the 2014 Act provided for an appeal within 21 days and that the CPN had not been appealed. She found that if the Appellant had wished to challenge the validity of the CPN, he had to appeal under section 46. The Appellant was convicted and sought to appeal by way of case stated. 

High Court appeal - principles to be applied

This case engages the interesting legal question: to what extent can public law defences be raised in criminal proceedings?

There is a tension between, on the one hand, the rule of law and fairness to defendants facing criminal charges and, on the other, the public interest in orderly administration. Whether a public law defence may be deployed turns on what Parliament intended. In divining Parliament’s intentions, courts proceed from a strong presumption that individuals affected by legal measures promulgated by executive pubic bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings [27], citing Lord Irvine of Lairg LC in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 at 152, 160 and 161.

The High Court concluded that the intention of the 2014 Act was clearly that a challenge to the validity of a CPN should not be a defence to a charge of breach. In coming to that conclusion, the Court took into account in particular the following:

1. The CPN is not aimed at the world-at-large, but is specific to an individual and his behaviour. By contrast, in Boddington, where Mr Boddington was permitted to argue that a smoking ban on a train was ultra vires the rail company’s powers as a defence to a criminal charge for breaching the ban, the ban applied to all passengers.

2. Unlike Boddington, the Appellant had a prior opportunity to challenge the scope of the underlying provision (the CPN). In Boddington, the first time that Mr Boddington had a sensible opportunity to challenge the ban was when he was charged with breach. The individual to whom a CPN is issued must be told at the time of its issue that he or she can appeal against it: sections 43(7)(b) and 46.

3. On its face, the 2014 Act envisages that a challenge can and should be by way of appeal [37] and [38].

The Defendant’s main argument was that the appeal window was now closed and that if he was not able to challenge the alleged disproportionality of the CPN as part of the criminal breach trial, it would be unjust, there being no alternative route of challenge [44]. The High Court disagreed, finding that there are two means by which the validity of the CPN can be tested, after the 21-day appeal window has expired:

1. Under section 43 the Magistrates Court has the power to vary or discharge a CPN; and

2. By judicially reviewing the authorised person’s failure to revoke/vary the CPN on request by the affected person [45].

As to the first route of challenge, the Court construed section 43 so as to provide a power to vary or discharge a CPN on the basis that to do otherwise produced an absurd result [40]. After the 21 days, the police may accept that a CPN is no longer necessary; or a CPN may be issued to the wrong person who only lately came to know about it [41]. Moreover, an appeal under section 46 of the 2014 Act was determined within the civil jurisdiction whereas breaches of CPNs were assessed on the criminal standard. To permit the challenge to be raised at trial, would provide a perverse incentive not to appeal but to await prosecution for breach [43].

With regards judicial review, if an affected person wrote to the authorised person (in this case the police and local authority), explaining why they considered the CPN was inappropriate on ordinary public law principles, the authorised person would have to consider those representations in determining whether to retain, revoke or vary the notice. If they failed to do so, the individual would be able to judicially review that failure [45]. Whilst it was accepted that the court might be unimpressed with an application for judicial review where the right of appeal had lapsed, refusals to vary or discharge a CPN after the appeal window has closed were in a different category because there was no right of appeal against those decisions under the statute [47).

Practical guidance

The Court made four recommendations to those issuing CPNs (authorised persons):

1. Authorised persons should have a system for receiving and adjudicating requests for variation or discharge of CPNs;

2. When issuing CPNs, authorised persons should give individuals information as to how to seek variation or discharge, in addition to information required by statute about a statutory appeal [53];

3. CPNs should be limited in time; and

4. Prior to issuing a CPN, authorised persons should consider with care the prohibitions and restrictions imposed to ensure that they go no further than is necessary and proportionate to address the behavior which has led to the CPN being made [54]. Police forces will be familiar with this approach, as it is one adopted with regards other community orders such as Sexual Harm Prevention Orders.