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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 22 May 2012, the Home Office published a White Paper, 'Putting victims first - more effective responses to Anti-Social Behaviour'. The White Paper follows the consultation 'More Effective Responses to Anti-Social Behaviour'.

On 13 December 2012, the Home Office published a draft Anti-Social Behaviour Bill (the Bill) for pre-legislative scrutiny. The Home Affairs Select Committee (HASC) will undertake pre-legislative scrutiny of the Bill in January 2013. The HASC will consider the implications of the reforms for victims and professionals, drawing on the knowledge and experiences of those who deal with anti-social behaviour on a daily basis. The HASC will make recommendations for amendments to the Bill during February 2013.

The main changes of note for the CPS are in Part 2 of the Bill which introduces a Criminal Behaviour Order (CBO) to replace the existing Anti-Social Behaviour Order (ASBO) on conviction. The main difference between the CBO and the ASBO on conviction is that the prosecutor may ask the court to impose positive requirements (such as attendance at an approved course) as well as prohibitions.

Implementing the new legislation will take time and, therefore, all current legislation remains in force. The current legislation should continue to be used where it offers the most effective means of dealing with anti-social behaviour.

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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.

In relation to the questions which must be considered when assessing public interest, which are set out in paragraph 4.12 of the Code for Crown Prosecutors, prosecutors should note the following points with regard to breaches of anti-social behaviour orders:

4.12a)  How serious is the offence committed?

The more serious the offence, the more likely it is that a prosecution is required.

a. 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.

In addition, a prosecution is more likely if the offence has been committed against a victim who was at the time 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).

4.12b) What is the level of culpability of the suspect?

The greater the suspect's level of culpability, the more liekly it is tha a prosecution is required.  Culpability is likely to be determined by a number of factors, including that the suspect is alleged to have committed the offence whilst subject to a court order.

Prosecutors should also consider the suspect's previous convictions and the previous out-of-court disposals which he / she has received, the pattern of offending whilst subject to a court order, and whether the offending was or is likely to be continued or repeated or escalated.

In addition, 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 level of culpability is likely to be higher.

4.12c) what are the circumstances of and the harm caused to the victim?

The circumstances of the victim are highly relevant.  The greater the vulnerability of the victim, the more likely it is that a prosecution is required.  Prosecutors should consider whether the victim was in a vulnerable situation and the supsect took advantage of this.

Prosecutors must also have regard to whether the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or the suspect's demonstrated hostility towards the victim based on any of those characteristics.  The presence of any such motivation or hostility will mean that it is more likely that a prosecution is required. 

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.

The Code for Crown Prosecutors makes it clear [paragraph 4.8] 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.

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.

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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 CPS legal guidance about Youth Offenders states 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.

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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.

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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).]

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Procedure

Unlike applications for anti-social behaviour orders, breach proceedings are criminal in nature and the criminal rules of evidence apply.

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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.

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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 8.1 Code for Crown Prosecutors]

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.

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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.]

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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 4.6 of the Code for Crown Prosecutors].

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.

In JB v Director of Public Prosecutions [2012] EWHC 72 (Admin) it was held that if the defence of reasonable excuse arose, a defendant could raise his state of mind, as that would usually be relevant.  It would not be right to exclude matters that went to the state of mind when an effect of s.1(10) is to criminalise conduct that would otherwise not be criminal.  In the instant case however, the appellant had pleaded guilty to an offence of criminal damage through recklessness arising from the same circumstances.  The appeal court found that the judge was entitled to consider the mental element of that plea in determining the mental element of the breach of the anti-social behaviour order.  The appeal was dismissed.

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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.

Prosecutors should note the case of R v McGhie [2012] EWCA Crim 1999.  McGhie had been made the subject of an ASBO because of his previous attempts to entice and make contact with young girls by hanging bank notes from his pockets, using bank notes to attract the attention of young girls on buses, and following girls from bus stops to their homes.  In relation to the assessment of seriousness, the court noted that where what drives the offending is a psychologically-based compulsive personality-based disorder there is a question as to the extent to which the breaches should be looked upon as deliberate.

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