B, R (on the application of) v Commissioner of Police of the Metropolis

1. LORD JUSTICE LATHAM: I will ask Mr Justice Mitting to give the first judgment.

2. MR JUSTICE MITTING: By an anti-social behaviour order, made under section 1 of the Crime and Disorder Act 1998 on 6th July 2007, the claimant was prohibited from: "... wearing any article of clothing with an attached hood in any public place in the London Borough of Greenwich, whether the hood is up or down."

3. District Judge Riddle made that order on the basis of findings of fact by him, which were in turn largely founded upon facts that were agreed in detail and submitted to him. The facts included a lengthy recitation of anti-social behaviour admittedly committed by the claimant between September 2005 and October 2006. The agreed statement of facts opened with the following words: "... it does not appear to be disputed that the Cherry Boyz [a gang] gather together in the street, in housing estates, railway stations, bus stops and similar locations. Members of the gang intimidate members of the public through language and gestures. They wear hooded tops to help conceal their identity."

4. The District Judge expanded upon those findings, which he accepted and adopted as part of his reasoning. He noted, as was admitted, that hooded tops or hats were often worn during the disturbances identified in the agreed schedule, and that during those disturbances members of the public and police officers had been intimidated. He noted that each of the four young men in court, including the claimant, had been involved in public disorder when hoods or hats have been worn. In a finding crucial to the imposition of the condition which is challenged in these proceedings, he said: "I am satisfied that a prohibition would reduce the swagger, menace and fear of anti social behaviour."

5. On those findings of fact and on that premise, it seems to me that the imposition of the challenged condition satisfied the tests for the imposition of a condition in an anti-social behaviour order, in particular as those tests were considered in the leading case of R v Boness and others [2005] EWCA Crim 2395 . The principles are well known and can be summarised. A condition of an anti-social behaviour order must be clear, necessary and proportionate.

6. Mr Lennon, for the claimant, submits that this condition offends those principles essentially, as I understand his submission, for the following reasons. First, it is said to be unreasonable. Its purpose and effect is not to reduce anti-social behaviour, but to prohibit or restrict a particular appearance or style of a kind that the claimant might wish to wear. Secondly, he submits that his freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights, is or may arguably be infringed.

7. The short answer to both of those propositions is that on the District Judge's finding the prohibition was imposed to reduce the swagger, menace and fear caused by intimidating group activity and to do so in two ways. First, by prohibiting the wearing of what appears to be part of a gang uniform and, secondly, by diminishing the confidence of those who wear the uniform that they may escape identification by wearing and raising the hood. It is clear on the District Judge's findings that this claimant, together with other members of the gang, wore the hooded tops deliberately for both of those purposes. Consequently, it seems to me that this prohibition clearly satisfies the tests of clarity, necessity and proportionality identified in Boness .

8. I add that the District Judge considered whether or not to prohibit merely the raising of a hooded garment, but sensibly concluded that such a prohibition would be ineffective. The only means of achieving the two ends which he identified is to prohibit the wearing of the garment at all. In my judgment, the order was clearly lawful.

9. LORD JUSTICE LATHAM: I agree. Implicit in the findings of the District Judge, as my Lord has indicated, is his finding that this applicant was wearing a hooded top with the intention of causing fear and with the intention of minimising the chance of his being recognised. That is the vice to which this prohibition was directed and in my judgment, like my Lord's, it was both necessary and proportionate.

10. Accordingly, this application must be dismissed.

11. MR THOMAS: My Lord, the interested party would seek its costs of responding to this. A schedule has not been prepared because we were potentially only dealing with permission today.

12. LORD JUSTICE LATHAM: Yes. What sum are you asking for, or are you simply asking for therefore a detailed assessment?

13. MR THOMAS: A detailed assessment if not agreed, my Lord, yes. There would of course that stage, because I think B is in receipt of legal aid, the issue of enforcement will be ( inaudible ), but that is a separate issue. We are entitled to costs.

14. LORD JUSTICE LATHAM: What are you going to say about costs, Mr Lennon?

15. MR LENNON: My Lord, I accept that the usual order to be made is that costs follow the event.

16. LORD JUSTICE LATHAM: The matter should be remitted to a taxing judge for determination in accordance with the Regulations, I think, is the right answer, is it not? In other words, your application will then be dealt with in accordance with the - I cannot remember which Regulations they are, but they are the ones which ensure that there is an assessment of the appropriateness of any particular amount to be paid.

17. MR THOMAS: My Lord, yes.

18. MR JUSTICE MITTING: You are applying for your costs from the claimant personally. He is publicly funded, so you will not get them unless the court gives you permission to do so.

19. MR THOMAS: My Lord, that is correct.

20. LORD JUSTICE LATHAM: We are remitting it to a taxing judge for determination in accordance with Regulations.

21. MR LENNON: My Lord, yes. I am not sure if I have to ask for it in your Lordship's ruling, but just in case we would ask for an order for legal aid taxation as well.

22. LORD JUSTICE LATHAM: Yes. It is called a public funding assessment because the language has all changed.

23. Thank you both very much.

24. MR THOMAS: My Lord, thank you.