Cooke v Director of Public Prosecutions [2008] EWHC 2703 (Admin)

C had been made subject to an anti-social behavioural order following a conviction for a public order offence. Before making the order the magistrates had considered a report by C’s Community Psychiatric Nurse which had set out his mental health difficulties and concluded that he was not a danger to the public. The magistrates had concluded that C understood the nature of the order, had capacity for consequential thinking and that the nature of his mental health was not such that he would inevitably breach the order. They determined that in light of this and his offending behaviour it would be appropriate to make the order. C appealed by way of case stated to the High Court on the basis that his mental impairment was of an impulsive nature and as such he was not capable of complying with the order. He argued that the order was therefore unnecessary as it would not achieve it’s stated purpose, namely to protect others.

The High Court found in this instance that the magistrates were entitled to come to the conclusions they did in respect of his understanding of the order and whether it was inevitable that he would breach it given the evidence before it. As such they were right to make the order. However the High Court made clear that an antisocial order should never be made against someone whose mental impairment meant he would not have capacity to understand the order or comply with it, as the order was not necessary for the protection of the public,  Wookey v Wookey (1991) Fam 121 CA (Civ Div) considered. Imposing such an order in such circumstance would be an improper use of the magistrate’s discretion.

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