Criminal Behaviour Orders

The Anti-Social Behaviour, Crime and Policing Act 2014 contains a range of powers designed to tackle anti-social behaviour.

One such power is the ability to close premises where disorder or nuisance to members of the public has occurred or is likely to occur. This can be achieved by the police or local authority issuing a Closure Notice in the first instance, which may result in the court making a Closure Order later on. We have previously described the application of Closure Notices and Orders in an earlier article.

The making of a Criminal Behaviour Order (CBO) is another power available to the court. Subject to two basic conditions, an order can be imposed on an offender convicted of any criminal offence. This means that a CBO can be used to deal with a wide range of criminal and anti-social behaviour.

Here we provide a brief summary of the CBO provisions of the Act in relation to adult offenders. Readers are encouraged to consult the legislation directly if they require further information.

Making an Order:

Only the prosecution can apply for an order, but it may apply at the request of the police or local authority.

The prosecution should make an application at the first hearing in relation to a criminal offence. The order will normally be considered at the same time as the offender is sentenced for that offence, be that at the first or subsequent hearing.

The court will hear representations from both the prosecution and offender in respect of making an order. It may adjourn proceedings in relation to the making of an order, even after the offender has been sentenced.

In accordance with section 22 of the Act, the court may make an order if two conditions are met:

• The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.
• The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.

An order can only be imposed when the offender is sentenced or receives a conditional discharge. An order cannot be made on acquittal, or in the event of an absolute discharge.

Looking at the first condition for a moment, it can be seen that an order can only be made in cases where the offender has demonstrated anti-social behaviour.

An order would not be appropriate, or lawful, in a situation where the offender's behaviour had been passive - e.g. a discreet shop thief who has no interaction with shop workers or members of the public during the commission of their offences.

Prohibitions and Requirements:

A CBO may:

(a) Prohibit the offender from doing anything described in the order ("a prohibition"), and/or
(b) Require the offender to do anything described in the order ("a requirement").

Prohibitions and requirements must be reasonable and proportionate to the offender behaviour the order is trying to address. They must also be clearly worded, understood and enforceable.

Prohibitions and requirements attached to an order must, so far as practicable, be such as to avoid:

• any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment;
• any conflict with the requirements of any other court order or injunction to which the offender may be subject.

In accordance with section 24 of the Act, the order must specify the name - be that an individual or organisation - of the person responsible for supervising the offender's compliance with any requirements imposed.

The person supervising compliance must notify the prosecution and police if the offender has complied with all relevant requirements, or has failed to comply with those requirements.

It is a requirement of the order that the offender keeps in touch with the person supervising compliance and notifies them of any change of address.

Duration:

In accordance with section 25 of the Act, an order takes effect on the day it is made and lasts for either:

• a fixed period of at least 2 years; or
• an indefinite period, until such time (if ever) a further order is made.

If, however, the offender is already subject to an existing order, any new order imposed will take effect from the date the existing order expires.

The order must specify:

• The duration for which it has effect ("the order period").
• Any periods during which particular prohibitions or requirements have effect.

Interim Orders:

In accordance with section 26 of the Act, if the court decides to adjourn prior to the order hearing, it can impose an interim order if it considers it just to do so.

Variation or Discharge:

In accordance with section 27 of the Act, either the offender or the prosecution can apply to the court for the variation or discharge of an order.

If the court dismisses an application to vary or discharge brought by the offender, a further application cannot be made without the consent of the court and the agreement of the prosecution.

If the court dismisses an application to vary or discharge brought by the prosecution, a further application cannot be made without the consent of the court and agreement of the offender.

In the case of orders made by a Magistrates' Court, an order can be varied by any Magistrates' Court in the same local justice area as the Magistrates' Court at which the order was made.

Offences:

It is an offence under section 339 of the Sentencing Act 2020 if, without reasonable excuse, a person:

(a) does anything he or she is prohibited from doing by a CBO, or

(b) fails to do anything he or she is required to do by a CBO,

The maximum penalty is 6 months' imprisonment and/or unlimited fine on summary conviction; or 5 years' imprisonment and/or an unlimited fine on conviction on indictment. In accordance with section 339(3) of the 2020 Act, the court is not empowered to impose a conditional discharge in respect of an offence.