Breach of an Anti-Social Behaviour Order
Legislation
Section 1(10) and (11) of the Crime and Disorder Act 1998 (CDA) provides:
'(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is guilty of an offence and liable:
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
(11) Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of that offence.'
On 7 February 2010, the Home Office released a public consultation document entitled 'More Effective Responses to Anti-social Behaviour', with a view to ensuring that the police and other professionals have the tools they need to deal with anti-social behaviour. The consultation ran until 17 May 2011 and is currently awaiting response.
Whilst the consultation focuses on ideas for improving the toolkit, implementing the proposals will take time. In the meantime all current legislation remains in force, and where it offers the more effective means of dealing with anti-social behaviour, it should continue to be used until further notice.
Principles
Prosecutors should recognise that breaching an anti-social behaviour order is a serious offence. The imposition of an anti-social behaviour order may be the culmination of a series of interventions attempting to curb prolonged anti-social behaviour, and as such a failure to effectively prosecute breaches may result in a drop in confidence in the CJS of the individuals or communities affected by the behaviour.
There is a strong public interest in prosecuting breaches of anti-social behaviour orders. Accordingly, where there is sufficient evidence to provide a realistic prospect of conviction, the public interest will normally require a prosecution.
Where the evidence discloses that the defendant has breached his anti-social behaviour order, there will be a number of compelling public interest factors in favour of prosecution which should be accorded proper weight. These include the following [see paragraph 4.16 Code for Crown Prosecutors, February 2010]:
(a) a conviction is likely to result in a significant sentence [The Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines (December 2008) state that even where no harassment, alarm or distress was actually caused by the breach and none was intended by the offender, the starting point for sentence is a community order (low). It should also be noted that the maximum penalty which may be imposed on indictment is imprisonment for a term not exceeding five years.];
(q) the suspect is alleged to have committed the offence in breach of an order of the court; and
(r) a prosecution would have a significant positive impact on maintaining community confidence.
Where the behaviour which is alleged to constitute the breach is a repetition of the behaviour which led to the order being imposed, or it is not the first time the defendant has breached the order, the following public interest factors are also relevant:
(s) the suspect's previous convictions or the previous out-of-court disposals which he or she has received are relevant to the present offence; and
(p) there are grounds for believing that the offence is likely to be continued or repeated.
Depending on the facts, there may also be other important public interest factors supporting prosecution, for example:
(d) the victim of the offence was in a vulnerable situation and the suspect took advantage of this; and
(h) the offence was committed against a person serving the public (for example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport).
(j) the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of these characteristics.
When reviewing a breach of ASBO file, prosecutors should take into account the reasons why the order was imposed when considering the public interest in bringing a prosecution. This information provides the context within which seemingly 'minor' breaches, such as presence in an exclusion zone, should be reviewed. For example, the exclusion zone may have been imposed to prevent the defendant being present near the residence of individuals who had been subject to the original anti-social behaviour which resulted in the order being imposed.
When considering public interest factors tending against prosecution prosecutors should note that in respect of 4.17a, it is unlikely that a court should be considering imposing a nominal penalty, for the reasons set out in the footnote to paragraph 4(a) above.
The Code for Crown Prosecutors makes it clear [paragraph 4.12] that a prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to impose an out-of-court disposal on the person. [Prosecutors should note that breach of an anti-social behaviour order is not one of the offences listed in Annex A of the Director's Guidance on Conditional Cautioning, and is not therefore eligible for that disposal.]
When reviewing a file, prosecutors must also check whether cases presented to the CPS as anti-social behaviour have any disability hate crime element to them, and if so, handle them in accordance with CPS Guidance on Prosecuting Cases of Disability Hate Crime as well as the guidance set out in this document.
Youths
The public interest factors set out above apply equally to youths as they do to adults, but in the case of youths, they must be balanced against the principles set out in the CPS Youth Offenders Guidance. Prosecutors must be able to show that the interests and welfare of the youth have been identified and balanced with the seriousness of the offence and any aggravating factors set out in the Code and CPS legal guidance.
The appropriate venue for youth offenders is the Youth Court, irrespective of which court originally made the order.
Where the breach of an ASBO is a first criminal offence by the youth then a final warning may be appropriate. The gravity matrix score without any aggravating factors is 3 provided the breach was not a flagrant one. Where the breach was flagrant, then the expectation would be to charge, unless there were some very unusual circumstances.
In the case of breaches of an ASBO imposed following a conviction, the public interest will usually require a prosecution. The Code for Crown Prosecutors states (paragraph 8.5) that reprimands, final warnings and conditional cautions are intended to prevent re-offending and the fact that a further offence has occurred may indicate that those previous disposals have not been effective.
Selecting the Charges
Paragraph 6.1 of the Code for Crown Prosecutors states that prosecutors should select charges which:
- reflect the seriousness and extent of the offending supported by the evidence;
- give the court adequate powers to sentence and impose appropriate post-conviction orders; and
- enable the case to be presented in a clear and simple way.
This means that Crown Prosecutors may not always continue with the most serious charge where there is a choice nor continue with more charges than are necessary. However, where there is sufficient evidence to prove an offence of breach of an anti-social behaviour order in addition to another substantive offence it is good practice to charge both offences, even where the behaviour which constitutes the breach also relates to the other offence. This will ensure that the prosecution case and the basis of any pleas are clear.
Guidance on sentencing a breach of an anti-social behaviour order which also constitutes another criminal offence is set out in the Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines at paragraphs 22 and 23.
Parts 7 and 14 of the Criminal Procedure Rules 2005 set out the principles in respect of duplicity and should be taken into account when drafting charges, for example where one act by the defendant may be in contravention of two prohibitions within an ASBO. Guidance as to their application was circulated in March 2007 via Gateway BD 49/2007.
Appeals and Interim Orders
If a defendant is charged with breach of an ASBO but has lodged an appeal against the making of the order, the breach is still a criminal offence. There may be circumstances, however, in which the prosecutor may think it appropriate not to resist a request for an adjournment of the prosecution until the appeal has been dealt with. When considering this point, the prosecutor should be aware of the risk of defendants using appeal to delay prosecution for the breach.
Breach of an interim order is a criminal offence in the same manner as breach of a full order. Where an interim order has, however, been made without notice to the defendant, the order does not take effect until it has been served. [See Rule 5 of the Magistrates' Courts (Anti-social Behaviour Orders) Rules 2002.]
The Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guideline (December 2008) state that 'breach of an interim order or a final order is equally serious and the same approach to sentencing should be taken'. Further, the Sentencing Guidelines state that sentence for a breach of an interim order should be imposed as soon as possible. If the hearing regarding the final order can be brought forward, this should be done so that the two issues can be considered together. However, sentencing for the breach of the interim order should not be delayed for this purpose. [See page 4, paragraph 19 Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines (December 2008).]
Procedure
Unlike applications for anti-social behaviour orders, breach proceedings are criminal in nature and the criminal rules of evidence apply.
Prosecutor
Once the defendant has been arrested the CPS is likely to be the prosecuting authority by reason of its duties under section 3 of the Prosecution of Offences Act 1985. However, proceedings may be brought by a local council that is a relevant authority of the council for the local government area in which the defendant resides or appears to reside [see section 1(10A) Crime and Disorder Act 1998]. For example, a local authority may be the prosecuting authority in circumstances where the evidence of the breach is wholly from local authority employees, such as where the alleged breach concerns excess noise.
Mode of Trial
The offence is triable either way. Prosecutors must have regard to the current Magistrates' Court Sentencing Guidelines, the Sentencing Guidelines Council' Breach of an Anti-social Behaviour Order: Definitive Guidelines (December 2008) and the relevant Practice Direction when making submissions to the court about where the defendant should be tried. [See paragraph 9.1 Code for Crown Prosecutors, February 2010.]
Reference may not currently be made to an accused's previous convictions on consideration of mode of trial, [Blackstones D6.17] however, reference to the behaviour which led to the imposition of the order may be relevant, in so far as it may influence the assessment of seriousness. Magistrates will always have the option of committing a defendant to the Crown Court for sentence after conviction.
Elements Of The Offence
The prosecutor must prove:
- That an anti-social behaviour order was in force at the time of the alleged breach;
- The wording of the relevant prohibition(s) in the order;
- That the defendant is the individual subject to the anti-social behaviour order; and
- What the defendant did was in breach of the relevant prohibition(s) in the order.
The offence does not require any mental element to be proved.
Proving an order in force at time of alleged breach and wording of relevant prohibition(s)
A copy of the original order, certified as such by the proper officer of the court which made it, is admissible as evidence of its having been made and of its contents to the same extent that oral evidence of those things is admissible. [See section 1(10C) of the Crime and Disorder Act 1998.]
In CPS v T [2005] EWHC 728 (Admin) the CPS appealed by way of case stated from a decision of a DJ (MC) who had dismissed a charge against T of breach of an ASBO on the ground that the relevant provision of the order was unenforceable and void. The Divisional Court held that it was not open to the judge to rule that the original order was unenforceable and void within breach proceedings. That issue must be raised either by an application to vary the order, or by an appeal against the order or possibly by an application for judicial review. Accordingly the contention that the order was itself unenforceable and void could not found a defence in later breach proceedings.
The approach the judge should have adopted was to consider whether:
1. The relevant provision lacked sufficient clarity to warrant a finding that T's conduct amounted to a breach.
2. The lack of clarity provided a reasonable excuse for non-compliance with the order.
3. If a breach was established, it was appropriate to impose any penalty. [See paragraph 6.5 Judicial Studies Board 'Anti-social Behaviour Orders' Guidance 2007.]
This approach is confirmed in the Sentencing Guidelines Council Breach of Anti-social Behaviour Order guidelines. [See paragraph 17, footnote 12.]
Defence
The prosecution must prove a breach of the order to the criminal standard. If the defendant raises the evidential issue of reasonable excuse, it is for the prosecution to prove, to the criminal standard, lack of reasonable excuse (R v Charles (2009) EXCA Crim 1570). An explanation given by the defendant and a consideration of whether a court is likely to find it credible in light of the evidence as a whole is a factor to be taken into account under the evidential stage of the Code test. [See paragraph 4.7d Code for Crown Prosecutors February 2010.]
In R v Nicholson [2006] 2 Cr App R 30, the trial judge ruled that, as a matter of law, ignorance of, forgetfulness as to, or misunderstanding of the terms of the ASBO could not amount to a reasonable excuse. R then pleaded guilty and appealed the conviction. The Court of Appeal held that the matters relied on by R were capable of amounting to a reasonable excuse and should have been left to the jury as an issue of fact and value judgement.
Sentencing
The prosecutor should draw the following sentencing guidance to the court's attention:
The Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines (December 2008). In force 5 January 2009.
The guideline recognises that breach of this type of order is different from breach of a community order or failure to surrender to custody because it has the potential to affect a community or the public at large in a way that causes direct harm. It goes on to state that the main aim of sentencing for breach of a court order is to achieve the purpose of the order. Therefore, the sentence for breach of an ASBO should primarily reflect the harassment, alarm or distress involved; the fact that it constituted a breach of a court order is a secondary consideration. [See paragraph 6, page 2, Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines (December 2008).] The guideline also notes in the Foreword, however, that 'any perception that the courts do not treat seriously a failure to comply with a court order can undermine public confidence and is therefore an important additional consideration'.
The guideline also notes that 'the original conduct that led to the making of an order is a relevant consideration in so far as it indicates the level of harm caused and whether this was intended'. [See paragraph 15, Sentencing Guidelines Council's Breach of an ASBO Definitive Guidelines (December 2008).]
The guideline relates to the sentencing of both adult and young offenders, but states that as the sentencing framework that applies to offenders aged under 18 years is significantly different from that for older offenders, the guidance for young offenders is in the form of principles particularly regarding the circumstances in which a custodial sentence might be justified. When sentencing youths, courts must also have regard to the Sentencing Guidelines Council Definitive Guideline: Overarching Principles - Sentencing Youths (November 2009).
The guidelines acknowledge that an ASBO may be breached in a wide range of circumstances and may involve one or more prohibitions not being complied with. The examples given below [from Sentencing Guidelines Council Breach of an ASBO Definitive Guidelines (December 2008), page 8] are intended to illustrate how the scale of the conduct that led to the breach, taken as a whole, might come within the three levels of seriousness:
- Serious harm caused or intended - breach at this level of seriousness will involve the use of violence, significant threats or intimidation or the targeting of individuals or groups of people in a manner that leads to a fear of violence.
- Lesser degree of harm intended or likely - examples may include lesser degrees of threats or intimidation, the use of seriously abusive language, or causing more than minor damage to property.
- No harm caused or intended - in the absence of intimidation or the causing of fear of violence, breaches involving being drunk or begging may be at this level, as may prohibited use of public transport or entry into a prohibited area, where there is no evidence that harassment, alarm or distress was caused or intended.
Detailed sentencing guidelines including sentencing ranges and starstarting points, the decision making process and factors to be taken into consideration in respect of adult offenders are set out in Part D of the guidelines.
CPS Standing Instructions to Prosecutors
The CPS issued standing instructions to all CPS prosecutors on 1 February 2010, by way of a joint Prosecution Team letter. This states:
'One important aspect of dealing with anti-social behaviour is ensuring that breaches of anti-social behaviour orders are dealt with effectively. This includes ensuring that information about why an order was imposed is put before the court to inform the sentence.'
In order to ensure this happens, the CPS will issue the following standing instructions to prosecutors in breach of ASBO cases.
- The prosecutor should request a copy of the order in every breach of ASBO case (this should set out the anti-social behaviour found to be proven by the court at the time the ASBO was imposed).
- If a copy of the order is not available, or it does not contain information about why the order was imposed, the prosecutor should ask the police whether there is further information available about why the order was imposed, for example an agreed summary of the application case.
- The prosecutor should ensure that Victim Personal Statements, Community Impact Statements and other contextual information are on the file where relevant. Where information about why an order was imposed, or victim personal or community impact statements are on the file, the prosecutor should bring this to the attention of the court at the point of sentence, along with any other information relating to sentence.
The joint letter goes on to state:
'In order to assist with the delivery of these standing instructions, the police will ensure that the breach file contains a copy of the ASBO and check that the order sets out the reasons why it was imposed. Local procedures should be put in place to ensure that information about why an order was imposed, as well as other relevant contextual information is provided to the CPS where necessary.'
Ancillary Orders
Prosecutors should draw the court's attention to the provisions relating to parenting orders in sections 8-10 of the Crime and Disorder Act 1998 (applicable when a young person is convicted of a crime), as well as any other ancillary orders relevant to the circumstances of the case. Further guidance can be found in the Ancillary Orders Toolkit.
Useful Links
Home Office 'A guide to anti-social behaviour orders' (August 2006):
http://www.crimereduction.homeoffice.gov.uk/antisocialbehaviour/antisocialbehaviour55.pdf
Judicial College (Studies Board) Anti-social Behaviour Orders: http://www.judiciary.gov.uk/publications-and-reports/judicial-college/anti-social-behaviour-orders-ASBOs
Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidance (December 2008):
http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm
The Prosecution Team joint letter about anti-social behaviour
