ASBO preventing hoodie lawful?

An ASBO (anti-social behaviour order) under section 1 of the Crime and Disorder Act 1998 can be granted if a person aged 10 or over has acted in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household and that an ASBO is needed to protect relevant persons from further such anti-social acts.

Following R. v. Boness and others [2005] EWCA Crim 2395 (Mitting J and Latham LJ) is clear that a condition of an ASBO must be ‘clear, necessary and proportionate’.

The Claimant was subject to an ASBO prohibiting him 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’.  He claimed that this was unreasonable in that it purpose and effect was not to reduce anti-social behaviour but to prohibit or restrict a particular appearance or style that the Claimant might wish to wear. In addition this restriction arguably could or did infringe his right to freedom of expression.

However, the Divisional Court on 10 November 2008 (R (B) v. Greenwich Magistrates’ Court [2008] EWHC 2882) agreed with the District Judge that the prohibition was imposed to reduce in two ways the swagger, menace and fear caused byintimidating group activity. These were to prohibit wearing what appears to be part of a gang uniform and also by diminishing the confidence of those who wear the uniform that they may escape detection by wearing and raising the hood. It was clear that the Claimant wore the hood for both these purposes. Consequently the prohibition satisfied the tests of clarity, necessity and proportionality identified in Boness.

Nicholas Dobson
Senior Consultant, Local and Public Law.