Criminal Behaviour Orders: is sentence the end?

Aside from the confiscation regime, the reality is that for most defendants before the criminal courts, the day of reckoning, the day of sentence, is final. Not so for defendants facing the possibility of ancillary orders; Criminal Behaviour Orders, Stalking Protection Orders, Football Bannings Order; the list goes on. Are these orders no more than what is necessary in a fair and just society to protect the many from the few, or are we simply applying a vengeful mark of Cain on those who have already, by virtue of their sentence, paid their dues to society?

In this article, I focus specifically on the imposition of Criminal Behaviour Orders (“CBOs”) and where it may be appropriate to challenge the proposed terms of an Order or the Order in its entirety.

What is a CBO?

A defendant may face a CBO after conviction for any criminal offence in any criminal court. Described by the CPS website as “aimed at tackling the most serious and persistent offenders”, CBOs may comprise of both prohibitions to stop anti-social behaviour as well as active requirements to address the underlying causes of criminality. CBOs can amount to a significant curtailment on a defendant’s freedom.

The Legal Test

A CBO can only be imposed on a defendant following the prosecution’s application (not on the impetus of the Court) and only in addition to dealing with a defendant for an offence. Such orders do not therefore form part of the principal sentencing exercise and cannot be imposed for a defendant facing an absolute discharge/ a binding over the peace (s331 (3) Sentencing Act 2020).

To make an order, the court must be satisfied that:

1. the defendant has engaged in behaviour that caused or was likely to cause harassment alarm or distress to any person, and

2. that a CBO will help in preventing the defendant from engaging in such behaviour (s331(2) SA 2020)

When are CBOs imposed?

A CBO need not be imposed at the same time as sentence; indeed in many cases it may be appropriate to adjourn a hearing determining whether it is suitable to impose a CBO until after sentence (s332 (3)).

However, there can be no afterthoughts by a prosecutor; a court will be unable to consider a CBO application made days or weeks after the sentence date. The statutory guidance states, at paragraph 27, that the “court cannot consider an application for a CBO at a hearing after the offender has been sentenced unless the court has adjourned proceedings from the sentence date for the application to be considered”.

For youth defendants there is an extra step required; the prosecution must ascertain the views of the local Youth Offending Team before an application for a CBO is made (s331(5)).

Procedure

The Criminal Procedure Rules Part 31 detail the procedure to be followed. Crucially, rule 31.3 states that where the prosecution wants the court to make a CBO, they must serve notice of that intention on the court, the defendant, and “any person on whom the order would be likely to have a significant adverse effect” as “soon as practicable”. It would be misconceived for the prosecution to wait until conviction before serving an application for a CBO.

The notice must summarise the relevant facts, identify the evidence on which the prosecution relies in support of the application, and attach any written statement not already served. Such evidence need not have been served during the course of the criminal proceedings.

The importance of adhering to procedure is demonstrated by the Court of Appeal case of Lima [2010] EWCA Crim 284, in which the appellant’s CRASBO (old form CBO; ‘criminally related ABSO) was quashed on the basis of procedural failings. Lord Justice Mackay stated that; “this case illustrates in our judgment the need for observance of such rules where an order significantly restricting the liberty of a person is envisaged” [8].

Challenging the imposition of a CBO

Criminal courts are alive to the restriction a CBO may have on a person’s liberty. Lord Justice Bean stated in Khan (Kamran) [2018] EWCA Crim 1472 that “we are still in the early days of CBOs and the case law is not yet fully developed … We do not believe that it was the intention of Parliament that criminal behaviour orders should become a mere matter of box-ticking routine … such orders are not lightly to be imposed: the court should proceed with a proper degree of caution and circumspection” [19-20].

A contested CBO hearing will be held in the event that a defendant disputes the need for a CBO at all and/or challenges the proposed terms of a CBO. A court cannot make a CBO unless a defendant has had the opportunity to consider what order is proposed, why it is proposed, and the evidence in support of an application.

The two conditions of s331 (2) of the 2020 Act must be satisfied before a CBO is imposed.

Condition 1 – Is the court satisfied that the defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person?

A criminal conviction can simply be a springboard for the prosecution to invoke the court’s jurisdiction to make a CBO (Blackstone’s D25.23). There need not be a “link between the criminal behaviour which led to the conviction and the anti-social behaviour” for this condition to be satisfied (Statutory Guidance, paragraph 41). The criminal standard of proof applies. Commonly relied upon evidence includes a defendant’s previous convictions.

Condition 2 – Is the court satisfied that the making of a CBO will help in preventing the defendant from engaging in behaviour that will / is likely to cause harassment, alarm or distress?

The test is whether making a CBO in the terms sought by the prosecution will (not may) assist in preventing a defendant from engaging in further anti-social behaviour (Blackstone’s D25.23). There is no burden of proof on the prosecution to demonstrate to any standard that a CBO would be helpful (Blackstones, D25.23). The court must instead engage in an exercise of “judgment and evaluation” in determining if the second condition is made out (DPP v Bulmer [2015] EWHC 2323 (Admin) [2015] 1 WLR 5159 [32]).

Case law stresses that both the imposition of a CBO and the decision as to what terms should govern a CBO are matters which must be undertaken with care. In DPP v Bulmer, Lord Justice Beatson stated that the courts “should proceed with a proper degree of caution and circumspection because such orders are not lightly to be imposed” [35].

The argument that the second condition is not satisfied by virtue of a defendant facing a lengthy sentence (affording time for rehabilitation and reflection) was successfully made in R (F) v Bolton Crown Court [2009] EWHC 240 (Admin). Mr Justice Simon found that a CRASBO was unnecessary because the sentence imposed by the court offered sufficient protection for those who could be affected by a defendant’s continuing anti-social behaviour [14].

This condition is relevant not only to the need for the Order itself, but also to its terms. Particular reference has been made to the need to ensure that the terms of the CBO, whether prohibitions or requirements, must be “reasonable, proportionate, realistic, practical, clear, and enforceable” (Boness [2005] EWCA Crim 2395; Bulmer at [36] and [46]).

The court should ask themselves ‘are the terms of this order clear so that the offender will know precisely what it is that he is prohibited from doing?’ (Khan (Kamran);P (Shane Tony) [2004] EWCA Crim 287).

Case law indicates that the following terms would arguably fail to meet the requirements arising
from the above case law:

1. Exclusion zones not clearly delineated by maps (Khan (Kamran) [2018] EWCA Crim 1472 [15]).

2. Vague terms / terms requiring a value judgment from the defendant;

The Divisional Court in M v DPP [2007] EWHC 1032 (Admin) quashed a CRASBO after finding that the condition ‘not to knowingly associate with a person or persons while such person or persons are engaging in attempting or conspiring to commit any criminal offence in England and Wales’ on the basis it invoked a value judgment on the part of the defendant, who may have to take an instant decision as to whether those with whom he was associated were about to commit a crime.

In the same vein, in Maguire [2019] EWCA Crim 1193, the Court of Appeal quashed a term in a CBO that required D to notify the police when he formed a relationship with a female because it was “hopelessly vague” (at [21]). In doing so the Court re-emphasised how important it is that the provisions of behaviour orders such as the CBO are “policeable” in the sense that they must be clear and comprehensible to a defendant, to the police and to the public.

3. Unreasonable terms.

A CBO ought not to set a defendant up to fail.

Should Exclusion Zones cause a defendant difficulty in keeping/ attaining employment or stable accommodation, they ought to be challenged. A court ought to be reminded that the conditions of a CBO conditions ought to go no further than that which is necessary to satisfy the purpose of a CBO while being proportionate and reasonable.

Terms which seek to restrict a defendant’s use of a smartphone and / or the internet will likely fail at the same hurdle. The internet is widely deemed to be a utility without which it would be difficult to function in a modern society. This view is reflected in case law; in Brain [2020] EWCA Crim 457, Mrs Justice Carr held that a blanket ban on the defendant using any internet based social networking site was too wide because it interfered with the defendant’s ability to carry out his employment. Accordingly it was amended to permit the Defendant to access social networking sites for employment-related purposes only.

This principle arguably has application to any conditions prohibiting social media use, given the dominance social media applications can have in a person’s working and personal life.

A condition with which the defendant is incapable of complying with (for instance, a condition which requires a homeless defendant to reside at an established address), will unlikely satisfy the two part test contained in s331(2) SA 2020.

4. Where a defendant’s mental impairment means s/he is unable to comply with its terms. Lord Justice Dyson in R v (Cooke) v DPP [2008] EWHC 2703 (Admin) ruled that a CRASBO was not necessary where a defendant’s mental impairment rendered them unable to comply with its terms.

Indeed, Mr Justice Stuart-Smith in the Divisional Court case of Humphreys v CPS [2019] EWHC 2794 (Admin) endorsed Cooke and held that where a defendant is capable of understanding the terms of a CBO but incapable of complying with with them, “so that the only effect of the order will be to criminalise behaviour over which he has no control” that “will indicate that the order will not be helpful and will not satisfy the second condition” [24].

Humphreys may be of assistance to defendants with alcohol / drug dependency issues facing proposed alcohol / drug monitoring requirements which they are unlikely to be able to comply with.

5. Terms which would interfere with a defendant’s work, schooling, or the operation of any other order or injunction imposed by any other court (Blackstones, D25.24). It is not hard to envisage certain exclusion zones that may amount to such an interference.

Length

A CBO takes effect on the day it is made (s334 (1) SA 2020). The period of the CBO must be set out in the Order itself (s334 (3) SA 2020). For youth defendants (under 18 at the time a CBO is made), the CBO must be for a period of no less than a year and nor more than three years (s334
(4).

For adult defendants, the CBO must be either for a fixed period of no less than two years or for an indefinite period (s334(5) SA 2020).

Indefinite CBOs ought to be a rarity and will often be disproportionate (West [2013] EWCA Crim 1309).

Arguments that the suggested length of a CBO is inimical to its aims will likely be bolstered by reference to the sentence a defendant is facing and / or the age of a defendant. For example, a young defendant facing a custodial sentence / a stringent community-based sentence will arguably be less likely to require a lengthy CBO, as such a sentence ought to address some of the concerns the CBO is designed to address. The Khan principle has application here; a CBO ought not to comprise a box ticking routing and ought not to be lightly imposed, therefore the length of a suggested CBO must be carefully examined and only be imposed for as long as it is necessary.

Conclusion

CBOs are here to stay; mark of Cain or not. To defendants facing the possibility of CBOs upon conviction, it will be important to consider the necessity of the individual terms proposed as well as the necessity of the Order in the first place