Court of Appeal rejects distinction between ‘aggressive’ and ‘passive’ begging when it comes to obtaining anti-social behaviour injunctions

Legislation on anti-social behaviour does not distinguish between aggressive and passive begging in determining whether an offence has been committed, the Court of Appeal has ruled.

The case concerned Swindon Borough Council’s efforts to curb anti-social behaviour by a Mr Abrook, who had had an anti-social behaviour injunction against him discharged by District Judge Hatvany, who decided the begging had been passive rather than aggressive.

DJ Havatny, though, gave Swindon permission to appeal, because there was doubt about the questions raised, and ordered this to go to the Court of Appeal rather than a county court.

In Swindon Borough Council v Abrook [2024] EWCA Civ 221  Lady Justice Elisabeth Laing said that under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 the right question to ask was not whether begging was aggressive or passive but “whether the behaviour of a respondent has caused, or is likely to cause, harassment, alarm or distress”.

She said Abrook is a persistent beggar in Swindon, who gives the impression of being homeless although he is not, and is also addicted to Class A drugs.

He has been subject to several orders over the years and in April 2022 one - known as Order 5 - was issued that restrained him from; begging; sitting on the ground or pavement in any public space in Swindon; sitting within 20 metres of any pay-and-display parking machine; acting in a way which was likely to cause alarm harassment or distress to any person; having or discarding any needle or sharp or pointed object in any public place; defecating or urinating in any public place.

Local police had cited “reasonable grounds to suspect he was having a detrimental effect on the quality of life” of others in the local area due to persistent begging and nuisance behaviour.

In July 2022 Mr Recorder Main Thompson committed Abrook to prison for contempt of court for 10 months for breaches of the orders.

Abrook made a number of further court appearances for breaches of orders against him until April 2023, when he did not attend a sentencing hearing and District Judge Humphreys issued a warrant for his arrest.

At a May 2023 hearing DJ Hatvany said begging per se, as long as it was not aggressive, was not conduct likely to cause harassment alarm or distress, and so was not anti-social behaviour but simply “a feature of urban life”.

Abrook gave an undertaking that he would attend a meeting with the charity Change Grow Live and would address his addictions. The district judge was “not convinced that prison would address the underlying cause “and that perhaps prison is too blunt an instrument, and what needs to be addressed is the drug addiction”.

Swindon told the Court of Appeal its appeal should be allowed because the district judge “had made no attempt to consider the evidence on which [the] order was based” and had been wrong to say that Abrook's begging was not aggressive.

Cecilia Ivimy, who was instructed by the Treasury Solicitor as advocate to the court for Abrook, said the 2014 Act defines anti-social behaviour by reference to its effects on other people, rather than specified conduct and so was ambiguous.

There was no express threshold of seriousness and whether or not conduct would amount to anti-social behaviour depended on the context.

Elisabeth Laing LJ turned first to Swindon’s procedural appeal. She said the 2014 Act gives the court power to discharge an ASBI on the application of the person who applied for it or the respondent.

But since neither the council nor Abrook had applied for the discharge, the district judge had no power to do this.

Even if he had had such a power, its exercise would have been wrong in this case, she said, because Swindon should have advance notice of his intention and he anyway could not discharge the ASBI with retrospective effect and Abrook should have been sentenced for four breaches he admitted.

Elisabeth Laing LJ said: “I do not consider that a distinction between 'aggressive' and 'passive' begging is useful.

“It should not be substituted for the statutory test, which is clear, and framed in ordinary language. A court considering an application for an ASBI must examine the evidence on which the applicant relies, and ask itself, on the balance of probabilities, whether the statutory test is met.

“A court should expect more by way of evidence than general assertions, such as the bald assertion, in the language of the statutory test, that the test is met (of which there are examples in this case). It should expect a description of the behaviour and of its actual effect, or likely effect, and ask whether it is satisfied on that evidence that the test is met. The court should not take a credulous approach to such evidence and there may be cases in which such an assertion is made but the court is not prepared to accept it.”

She added: “A court can only restrain behaviour if it is also satisfied that it is just and convenient to do so.”

The judge said a power of arrest should not be attached to an order as a matter of course.

“The impression I have from the papers I have seen (and this may be an unfair criticism) is that there might not have been, on those occasions when applications were made without notice, evidence of an exceptional case in which such an application was necessary to prevent serious harm to any victim,” she said.

Concluding, Elisabeth Lang LJ said: “I would therefore allow the appeal on all five grounds. The district judge was wrong to discharge Order 5.”

The case was remitted to county court to sentence Abrook for the four admitted breaches of Order 5. She also drew the attention of the sentencing judge to Lovett v Wigan Borough Council [2022] EWCA Civ 1631; [2023] 1 WLR 1443.

Lord Justice Edis and Lord Justice Singh both agreed.

Mark Smulian