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Criminal Behaviour Orders

Summary of legal guidance

This document provides guidance on Criminal Behaviour Orders (CBOs). The provisions relating to the CBO are in Part 2 of the Anti-social Behaviour, Crime and Policing Act 2014. The provisions come into force on 20 October 2014.

The CBO is available on conviction for any criminal offence in any criminal court. The order is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court.

CBOs include prohibitions to stop the anti-social behaviour, and may also include requirements to address the underlying causes of the offender's behaviour.

The court may make a CBO against an offender only on the application of the prosecution. For a CBO to be made:

  • The court must be 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; and
  • That the court considers making the order will help in preventing the offender from engaging in such behaviour.

The CBO replaces the Anti-social Behaviour Order (ASBO) on conviction and the Drinking Banning Order (DBO) on conviction.

The main differences between the ASBO on conviction and the CBO are:

  • The behaviour (first limb of the test for imposing an order) only need to cause or be likely to cause harassment, alarm or distress to any person (removing the "not of the same household" requirement);
  • The "necessity" test becomes a "helpfulness" test (as with that for Football Banning Orders); and
  • The court may impose requirements as well as prohibitions.

The police will usually raise the possibility of an application for a CBO against an individual at the point of charge. A local authority may also approach the prosecution directly with a request to consider an application for a CBO without having to go via the police. The police / local authority must provide evidence to support the request for a CBO. Prosecutors should be alert at charging stage and beyond to cases in which a CBO application may be appropriate.

Before applying for a CBO for a youth, the prosecution must find out the view of the local youth offending team (YOT). In practice, the organisation preparing the application for the CBO (the police or local authority) will find out the view of YOT. If the views of YOT are not present on the file, the prosecutor must contact the police / local authority to request the information.

A CBO may be varied or discharged by the court which made the original order. Either the offender or the prosecution can make an application but if this is dismissed by the court, neither party can make a subsequent application without the consent of either the court or the other party.

It is a criminal offence if an offender fails to comply, without reasonable excuse, with the prohibitions and / or requirements in the CBO.

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Introduction

The provisions relating to the CBO are in Part 2 of the Anti-social Behaviour, Crime and Policing Act 2014 (the "Act"). The provisions come into force on 20 October 2014.

The CBO is an order on conviction, available following a conviction for any criminal offence in the Crown Court, magistrates' court or youth court.

A CBO:

  1. Prohibits the offender from doing anything described in the order (which might include a condition preventing specific acts which cause harassment, alarm or distress or preparatory acts which the offending history shows are likely to lead to offences (for example the individual entering a defined area);
  2. Requires the offender to do anything described in the order (for example, attendance at a course to educate offenders on alcohol and its effects).

It replaces the Anti-social Behaviour Order (ASBO) on conviction and the Drinking Banning Order (DBO) on conviction; the guidance about which have been archived.

The main differences between the ASBO on conviction and the CBO are:

  • The behaviour (first limb of the test for imposing an order) only needs to cause or be likely to cause harassment, alarm or distress to any person (removing the "not of the same household" requirement);
  • The "necessity" test becomes a "helpfulness" test, (as with that for Football Banning Orders); and
  • The court may impose requirements (such as attendance at an approved course) as well as prohibitions.

The court may make a CBO against an offender only on the application of the prosecution, and only if it is made in addition to:

  1. A sentence imposed in respect of the offence, or
  2. An order discharging the offender conditionally.

It follows that an order may not be combined with an absolute discharge nor be imposed at the same time as the court defers sentence.

Prosecutors should apply for CBOs as of the commencement date of Part 2, namely 20 October 2014. Any ASBO applications already commenced but not completed by that date will continue in the usual way.

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The test for making a CBO: first and second conditions (s22(3) and (4))

The first condition of the CBO test is that the court must be 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, (s22(3)). The ASBO requirement that the behaviour be directed towards persons "not of the same household" as the offender is repealed.

In deciding whether to make a CBO a court may take account of conduct occurring up to one year before the commencement day.

There is no requirement in the legislation for a nexus between the criminal behaviour which led to the conviction and the harassment, alarm or distress to be proved for the CBO. Evidence to show this type of behaviour other than criminal convictions can be used albeit the criminal standard of proof will apply. Harassment, alarm and distress must, however, be proved to the criminal standard.

The second condition of the test for imposing a CBO is that the court must consider that making the order will help in preventing the offender from engaging in such behaviour (which causes or is likely to cause harassment, alarm or distress to any person), (s22(4)).

This second stage of the test is, crucially, different from that for an ASBO on conviction, in that the court no longer needs to be satisfied that an order is necessary to protect persons in any place in England and Wales. The case law relating to necessity under the ASBO provisions is not relevant to the CBO assessment.

In deciding whether to make an order, a court may take account of conduct occurring up to one year before the commencement day.

No standard of proof is set out in the legislation for this condition. It is suggested that (as with ASBOs) determination of this condition will be an exercise of judgement or evaluation to be made by the court.

When making an assessment as to whether or not the order will help, prosecutors should look at the nature of the conduct, its frequency, duration and impact on victims or a community, likelihood of repetition, previous convictions and responses to past sentences and ASB interventions. If the offending is more serious, even if it has not been repeated, an application may still be appropriate.

It is important to call evidence to show the court why the CBO will help in preventing future harassment, alarm or distress. The offence itself may be sufficient evidence to prove that an order will help, but prosecutors should always consider calling additional evidence to establish this point.

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Commencement and duration (section 25)

An order comes into effect on the day it is made, unless on the day the CBO is made (the new order), the offender is subject to another CBO (the previous order). In such a case, the new order may be made so as to take effect on the day on which the previous order ceases to have effect.

The order must specify the period for which it has effect.

In the case of a CBO made before the offender has reached the age of 18, the order period must be a fixed period of:

  1. Not less than 1 year, and
  2. Not more than 3 years.

In the case of a CBO made after the offender has reached the age of 18, the order period must be:

  1. A fixed period of not less than 2 years, or
  2. An indefinite period (so that the order has effect until further order).

Within those duration periods, a CBO may specify periods for which particular prohibitions or requirements will have effect (ie they may last for a period less than the entire duration of the order).

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File review

The review of a CBO application must be carried out by a Crown Prosecutor. Crown Prosecutors must note the following:

  • Review as to whether to apply for a CBO is separate from review of substantive charges.
  • If no criminal charges are proceeded with, there can be no application for a CBO.
  • The proposed application and supporting evidence must be reviewed prior to the application being served.
  • As well as the criteria being made out, it must be in the public interest to apply for the CBO.
  • The decision whether to apply for the CBO must be recorded on the review screens of the CPS Case Management System (CMS). The recording should include the outcomes of discussions with agencies (for example, Youth Offending Teams) about whether to apply for a CBO.

The police will usually raise the possibility of an application against an individual at the point of charge, but prosecutors should also be alert to cases in which a CBO application may be appropriate when charging / reviewing a file. In these circumstances, the prosecutor might ask the police to consider whether an application for a CBO is required and included with the file submitted to the CPS after charge.

A local authority may approach the prosecution directly with a request to consider an application for an order without having to go via the police.

The police / local authority must provide evidence to support the request for a CBO, namely:

  • A lead officer statement which summarises the defendant's offending history.
  • Up to date PNC Prosecutor's print.
  • Victim Personal Statements, if necessary.
  • Community Harm Statement, if necessary.
  • If an exclusion zone is proposed, a clear map of the suggested area. If the defendant lives near the proposed exclusion zone, his / her home address should be marked.
  • The views of the YOT (see below).

The procedure by which the police request the CPS to apply for a CBO is set out at Annex A English edition. The procedure by which a local authority requests the CPS to apply for a CBO is set out at Annex B English edition, Annex B Welsh edition. Guides for the police and local authorities about preparing applications are at Annex C English edition, Annex C Welsh edition and Annex D English edition, Annex D Welsh edition.

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Evidential Considerations

An application for an order on conviction may be supported by:

  • The facts of the offence for which the defendant has just been convicted;
  • The facts of the defendant's previous convictions;
  • The facts of other behaviour (causing harassment, alarm or distress) by the defendant which did not lead to a conviction.

The court may consider evidence led by the prosecution and evidence led by the offender. It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted.

The standard of proof to show that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress, is to the criminal standard.

In all cases, prosecutors should give notice to the defence of evidence on which the prosecution intends to rely, (Rule 50 of the Criminal Procedure Rules). The defendant must be given the opportunity to consider the evidence in support of the order and the notice should be given as soon as practicable, without waiting for a verdict.

It is important that the prosecution identifies the facts which are alleged to constitute behaviour which caused or was likely to cause harassment, alarm or distress. If the facts are not accepted, they must be proved, to the criminal standard, by the prosecution.

In relation to a defendant's previous convictions:

  • Where the previous convictions are probative to obtaining a CBO, they will be admissible. If a defendant does not admit the existence of the previous convictions, the prosecution will need to prove them and should follow the provisions of section 11 of the Civil Evidence Act 1968.
  • The Rehabilitation of Offenders Act 1974 applies to a request for an order on conviction. No reference should be made to convictions that are "spent" in the CBO proceedings without the consent of the Court.
  • Details of the defendant's offending history may be given, but the names of victims or associates should not be read out in open court, unless they are relevant to the conditions of the order sought and it is necessary to read them out.

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Civil Rules of Evidence

Prosecutors must follow civil evidence rules when using such evidence (Civil Evidence Act 1995).

In M v DPP [2007] EWHC 1032 Admin, (an ASBO case), the court held that failure to serve a hearsay notice was a procedural irregularity. In the circumstances of this case, the absence of the notice caused no prejudice to the defendant. The court was at pains to point out that it did not regard compliance with the rules as a mere technicality and was concerned that little consideration was given as to why unidentified witnesses were not called to give evidence and why special measures were not considered.

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Hearsay Evidence

If the prosecution (or the defence) intend to rely on hearsay evidence, Criminal Procedure Rules 31.6, 31.7 and 31.8 apply. These broadly correspond with Rules 3, 4 and 5 of the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 which apply in civil proceedings in magistrates' courts. The hearsay notice should be served at the same time as the notice of intention to apply (as soon as practicable without waiting for verdict), and in any case it should give reasonable and practicable notice of the proposal to introduce the hearsay evidence (section 2 of the Civil Evidence Act 1995). A model hearsay notice is at Annex E.

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Unused Material

As applications for CBOs are civil in nature, Part 1 Criminal Procedure & Investigation Act 1996 and the Attorney General's Guidance of Disclosure of Material in Criminal Proceedings do not apply. There is no obligation to disclose unused material in CBO applications. The usual rules governing the conduct of prosecutors apply and all cases should be presented in a fair and balanced manner.

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Making the application

Procedural rules for the making, variation and revocation of behaviour orders (including the CBO) are set out in Part 31 of the Criminal Procedure Rules, which apply in both the magistrates' and Crown Court. A Notice of Intention to Apply is at Annex F.

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Court Procedure

The proceedings in which the defendant is convicted are criminal. The proceedings in which a CBO is applied for are civil, even though they are conducted by a criminal court.

The question whether to make an order is not part of the sentencing process, so the court should decide the appropriate sentence and then decide whether to make a CBO, whether at the sentencing hearing or a later hearing.

The court may adjourn any proceedings on an application for a CBO even after sentencing the offender. If the offender does not apear for any adjourned proceedings the court may:

  1. Further adjourn the proceedings
  2. Issue a warrant for the offender's arrest, or
  3. Hear the proceedings in the offender's absence.

The court may not issue a warrant for the offender's arrest unless it is satisfied that the offender has had adequate notice of the time and place of the adjourned proceedings.

Once an offender is sentenced, the court has no power to remand him in custody or on bail (with or without conditions). As such, prosecutors, should seek to ensure, wherever possible, that the order is made at the sentencing hearing.

If, for any reason, the application for the CBO has to be adjourned after sentence, the prosecutor should consider applying for an interim order (see below). Relevant circumstances might include the need to immediately protect specific individuals or section of the community, any history of failing to surrender or non-compliance with court order, the reasons for the adjournment and the length of time until the next hearing. An interim order must be served within 7 days in order for it to take effect and the police / ASB team will need to be in a position to make personal service and provide evidence of that, if we are to prove that the offender is aware of the order.

If the offender fails to appear at the next hearing, the court may proceed to make the CBO in absence, but the court may not proceed in the offender's absence unless it is satisfied that the offender:

  1. Has had adequate notice of the time and place of the adjourned proceedings, and
  2. Has been informed that if the offender does not appear for those proceedings the court may hear the proceedings in his or her absence.

Although there is no requirement that the full CBO be served personally on the offender, best practice would be to ensure that this occurs when the offender does not appear in person, if we are to avoid the offender aruging that his lack of awareness of the order amounts to a reasonable excuse for the breach.

An alternative to proceeding in absence might be to request an adjournment or seek a warrant associated with a request that the court make / continue with a interim order.

If a court refuses to impose an order that the prosecution has applied for, the advocate must make a note of the reasons why on the Hearing Record Sheet.

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Prohibitions and requirements (s22(5))

Pursuant to section 22(9), prohibitions and requirements must, so far as practicable, 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.

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Prohibitions

A CBO may, for the purpose of preventing an offender from engaging in behaviour which caused or was likely to cause harassment, alarm or distress to any person, prohibit the offender from doing anything described in the order (s22(5)(a)).
The principles supporting prohibitions on ASBOs will be relevant as to whether a prohibition can be placed on a CBO, (see Annex G).

The Guide to ASBO prohibitions in reported cases outlines case law which should still be used when seeking prohibitions in CBOs, (see Annex H).

Prosecutors should be familiar with the case of R v Simsek [2015] EWCA 1268, which concerns a variation of a CBO to an ASBO with only the first prohibition. The second condition, which concerned the prohibition on possession of drugs paraphernalia, was not reinstated, as the prohibition was less specific and precise than that which was found to be unnecessary in R v Briggs [2009] EWCA Crim 1477. The third (and final) prohibition, which prohibited the possession of herbal substances, was also not reinstated in the ASBO. The scope of this prohibition exposed the applicant to breach proceedings for being in possession of a wide range of items which are lawful and which bear no obvious relationship to the ASB that formed the subject of the indictment. The final part of this prohibition, concerning being in possession of any self-seal bags, was too wide.

It is possible that the prohibitions sought will interfere with one or more of the offender's ECHR rights. Interference with some rights is justifiable where it is necessary, prescribed by law, and proportionate, (R v Boness [2005] EWCA Crim 2395).

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Requirements

A CBO may include positive requirements that assist in preventing the offender from engaging in behaviour that could cause harassment, alarm and distress in the future. Such requirements could include attendance at a course to educate offenders on alcohol and its effects.

If an order includes a requirement, it must specify the person who is to be responsible for supervising compliance with that requirement. The person may be an individual or an organisation.

Before including a requirement, the court must receive evidence about its suitability and enforceability from:

  1. The individual to be specified in the order, or
  2. An individual representing the organisation to be specified in the order.

The court must also consider the compatibility of the requirements.

Care should be taken to ensure the requirements of a CBO are not duplicated in the terms of any community or suspended sentence imposed by the court. There may be circumstances where it would be more helpful in terms of preventing criminal behaviour to have the requirements as part of a CBO, rather than a community order or suspended sentence. Regard should be had to the power of arrest and penalties available for breaching the CBO.

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Interim Orders (s26)

Section 26 sets out the powers of the court to make interim orders. Section 26 applies where a court adjourns the hearing of an application for a CBO.

The court may make a CBO that lasts until the final hearing of the application or until further order (an interim order) if the court thinks it is just to do so. Section 22(6) to 22(8) and section 25(3) to 25(5) do not apply in relation to the making of an interim order. Subject to this, the court has the same powers whether or not the CBO is an interim order. Accordingly, an interim order may be varied or discharged.

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Interagency Working

Liaison with other agencies as to the progress and result of an application is important. Where possible the person who has prepared the application (police or local authority) should attend court to assist the prosecution advocate, even if there is a prospect of the case being adjourned. This will allow all parties involved to be aware of orders made for enforcement purposes, and also assist victims and witnesses being kept aware of the progress of the case. In the event of the defendant not being convicted for any reason, there is no power for the court to impose a CBO. The party that prepared the application should be advised of the outcome as soon as possible so that alternative anti-social behaviour tools can be considered. Care should be taken to not mislead the defendant that these tools may not be used.

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Domestic violence

There will be a small number of occasions when it will be appropriate to use a CBO in connection with domestic violence cases. But where there is a named victim and the offence is one which falls within the broad definition of being a domestic incident, an application for a restraining order is more appropriate and can be made on acquittal as well as conviction. Restraining orders are intended to provide protection for an individual.

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Hate Crime

An increasing number of incidents of anti-social behaviour are targeted at particular individuals, rather than neighbourhoods. Such incidents may appear minor but the impact on the victim and their families may be devastating and life changing. Hate crime can also have a negative impact on cohesion and integration in communities if incidents are not dealt with quickly and effectively.

A common feature of hostility based offending is escalation: from relatively minor but common behaviour to increasingly serious and even life threatening offending. Where there is evidence of hostility towards personal characteristics such as ethnicity, religion, gender identity, sexual orientation or disability, prosecutors should be proactive in seeking further evidence from the police.

Correctly identifying an anti-social behaviour case as a hate crime is important because the case can then be flagged and treated as a hate crime. This means that we will follow hate crime prosecution legal guidance and take account of victim support needs in accordance with our policy regarding victims of the most serious crime.

Hate crime legal guidance includes: racially and religiously aggravated crime, homophobic and transphobic crime and disability hate crime.

In all cases of hate crime, prosecutors should consider whether it is appropriate for the police to make further enquiries, for example:

  • asking the victim, the victim's carer and / or family, neighbours, housing agencies etc if there have been any other incidents involving this victim;
  • checking whether the suspects have been involved in any other incidents and, if so, whether the victims on those occasions shared personal characteristics on the grounds of ethnicity, gender identity, sexual orientation or disability.

In recent years, a number of high profile incidents have underlined the link between anti-social behaviour and disability hate crime in particular. Where the anti-social behaviour is targeted at a particular individual who is disabled or has a member of their family who is disabled, it is important that the prosecutor is proactive in seeking further information from the police.

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Gang Related Crime

CBOs can be used to disrupt gang offending.

Prosecutors should be alert to the possibility of gang offending in a wide range of cases (including those involving drugs, firearms, offensive weapons, criminal damage, theft and domestic abuse) and, where appropriate, consider applying for a CBO.

CBO prohibitions to prevent gang offending include: non-association; exclusion zones; curfews; the wearing of hooded clothing; possession of unregistered mobile phones; and contributions to websites.

Social Media

CBOs are a useful tool to address the abuse of social media. Prosecutors should refer to the Guidelines on prosecuting cases involving communications sent via social media, and note that CBOs are more likely to be appropriate in Category 1 or 2 social media cases

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Appeals

A defendant has a right of appeal against a CBO made by a magistrates' court by virtue of section 108 Magistrates' Courts Act 1980, as "sentence" includes any order made on conviction, (section 108(3) Magistrates' Courts Act 1980).

Where the order is made by the Crown Court the defendant's right of appeal is the Court of Appeal Criminal Division, (section 9 Criminal Appeal Act 1968). An appeal is appropriate where the offender seeks to argue that the order should not have been made, or the prohibitions are wrong. If the offender seeks to argue that circumstances have changed, then an application to vary or discharge the order may be more appropriate.

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Variation or discharge of an order (s27)

Applications for variation and discharge of an order on conviction may be made under section 27.

A CBO (including an interim order) may be varied or discharged by the court which made it on the application of:

  1. The offender, or
  2. The prosecution.

If an application by the offender is dismissed, the offender may make no further application without:

  1. The consent of the court which made the order, or
  2. The agreement of the prosecution.

If an application by the prosecution is dismissed, the prosecution may make no further application without:

  1. The consent of the court which made the order, or
  2. The agreement of the offender.

The power to vary the order includes extending the term of the order or including additional prohibitions or requirements in the order.

In the case of a CBO made by a magistrates' court, the "court which made the order" includes any magistrates' court acting in the same local justice area as that court.

An application for variation or discharge (in relation to an ASBO) will be appropriate "to deal with change of circumstances or, potentially, the passage of time, where the offender is able to come back to the court and say that he has mended his ways, left the area, got a proper job or any other considerations which may lead the magistrate to think that the prohibition on him can now be lifted".

The procedure to follow when seeking to vary or revoke a behaviour order is set out in Rule 31.5 of the Criminal Procedure Rules. No forms for the application are specified. The application is generally made by letter setting out the variation sought and enclosing the evidence relied upon. A template application for variation of a Criminal Behaviour Order is at Annex I.

A prosecutor who wants the court to take account of any particular evidence before making its decision must, as soon as practicable serve notice in writing on the court officer, the defendant and any other person on whom the court directed the application to be served setting out the evidence and attaching any written statement that has not already been served.

The court officer must:

  • Serve the application on any person, if the court so directs; and
  • Give notice of any hearing to:
    • The applicant, and
    • Any person required to be served.

Section 142 of the Magistrates' Courts Act 1980 (slip rule) is not available to correct errors in CBOs, given that the power to re-open cases to rectify mistakes is available to criminal proceedings only. In the Crown Court, any errors can be corrected via the "slip rules" as long as it is within 28 days and the relevant parties are notified. There is no basis for saying that a variation requires the proof of a fresh anti-social act. The Act is drafted very widely and does not limit the kind of evidence which a court may consider before varying an order. There will have to be cogent evidence adduced before the court is willing to conclude that it is necessary to extend the terms of the order and this may include evidence of further anti-social acts but that is not necessarily so.

Courts have a discretion to hear an application to vary an order in the absence of the defendant. It is, however, necessary for a fair hearing that both parties should have a proper opportunity of being heard. A court considering whether to adjourn an application would need to be careful to distinguish genuine reason for the absence of the defendant. It would only be appropriate to proceed if the reasons put forward for absence were spurious or designed to frustrate the process.

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Special measures

Section 31 provides that Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 (special measures directions in the case of vulnerable and intimidated witnesses) applies to CBO proceedings as it applies to criminal proceedings (both magistrates' and Crown Court). Section 47 of the YJCE Act (restrictions on reporting special measures directions) applies with any necessary modifications to a direction under section 19 of that Act and any discharge or variation of such a direction.

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Criminal Behaviour Order (CBO) Breaches (s30)

Pursuant to section 30(1) of the Act, a person who without reasonable excuse:

  • Does anything he or she is prohibited from doing by a CBO, or
  • Fails to do anything he or she is required to do by a CBO,
    commits an offence.

A person guilty of an offence under section 30 is liable:

  • On summary conviction, to imprisonment for a period not exceeding 6 months or to a fine, or to both;
  • On conviction on indictment, to imprisonment for a period not exceeding 5 years or to a fine, or to both.

Unlike applications for CBOs, breach proceedings are criminal in nature and the criminal rules of evidence apply.

The prosecutor must prove:

  • That a CBO was in force at the time of the alleged breach;
  • The wording of the relevant prohibition(s) / requirement(s) in the order;
  • That the defendant is the individual subject to the CBO; and
  • What the defendant did was in breach of the relevant prohibition(s) / requirement (s) in the order.

The offence does not require any mental element to be proved.

The prosecution must prove both the existence of an order at the time of the alleged offence and the terms of that order. 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 (section 30(4)).

When the CBO itself records the findings of fact on which the court based the decision to impose an order, prosecutors should make a formal bad character application, or if such an approach is not justified in the circumstances of the case, adduce the existence and details of the order via s10 statement or admission in the case management form, or a redacted form of the order.

There is a strong public interest in prosecuting breaches of CBOs. Where there is sufficient evidence to provide a realistic prospect of a conviction, the public interest will normally require a prosecution.

When assessing public interest (paragraph 4.12 of the Code for Crown Prosecutors), prosecutors should consider the following with regard to breaches of CBOs:

  • The offence involves a breach of a court order.
  • 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, (the Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines [December 2008]).
  • 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.
  • Whether the behaviour repeats the behaviour which led to the order being imposed.
  • Whether the victim was in a vulnerable situation.
  • Whether the victim was vulnerable for some other reason (for example, was the offence motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or transgender identity; or the suspect's demonstrated hostility towards the victim based on any of these characteristics?).

Prosecutors should also take into account the reasons why the order was imposed. This information provides the context within which seemingly "minor" breaches, such as presence in an exclusion zone, should be reviewed.

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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.

Guidance on sentencing a breach of an ASBO which also constitutes another criminal offence is set out in the Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guidelines (December 2008), (see paragraphs 22 and 23).

Parts 7 and 14 of the Criminal Procedure Rules 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.

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Appeals and Interim Orders

If a defendant is charged with breach of a CBO but has lodged an appeal against the making of the order, the breach is still a criminal offence. There may be circumstances 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.

The Sentencing Guidelines Council's Breach of an Anti-social Behaviour Order: Definitive Guideline (December 2008) suggest that breach of an interim order should be dealt with no differently to breach of a final order.

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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) EWCA Crim 1570, see also Annex J). 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 for Crown Prosecutors test, (see paragraph 4.6).

Where a defendant fails to comply with a requirement of his / her CBO, the existence of a sick note that specifically excuses the individual from the obligation that he / she had to comply with is evidence of a reasonable excuse. If an investigator has any reason to doubt the authenticity or provenance of the note, he / she should make further enquiries. Prosecutors should note that the Criminal Practice Directions issued on 23 July 2014 includes a Direction about medical certificates being submitted by defendants in criminal proceedings as justification for not answering bail. The Practice Direction may be of assistance with regard to failure to attend in respect of a requirement of a CBO.

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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 Guideline (December 2008).

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Criminal Behaviour Orders - Youths

The principal aim of the youth justice system is preventing offending (s37 Crime and Disorder Act 1998). Where the offender is under the age of 18, in so far as the proceedings relate to the making of the CBO:

  • Section 49 of the Children and Young Persons Act 1933 (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the offender;
  • Section 39 of that Act (power to prohibit publication of certain matters) does apply.

Where a youth is prosecuted for a breach of a CBO under section 30 there are no automatic reporting restrictions on the proceedings in respect of the breach (s30(5)), although any other charges heard at the same time will still be subject to Section 49 Children and Young Persons Act 1933). The court does, however, retain the power to make a section 39 order.

Annex K sets out the relevant considerations when considering imposing or removing reporting restrictions.

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Youths: the views of the Youth Offending Team (s22(8))

Before applying for a CBO for a youth, the prosecution must find out the views of the local youth offending team (YOT). If the views of the local YOT are not present on the file, the prosecutor must contact the police / local authority to request the information. The application can be prepared if the YOT does not respond, or raises objections which the reviewing lawyer considers do not address the issues in the case. In the latter situation, prosecutors should be aware that YOT objections may be renewed in court. If there is insufficient time to find out the views of YOT, consideration should be given to seeking an interim order, (s26). The court may then adjourn any proceedings on an application for a CBO, even after sentencing the offender (section 23(3)). When seeking an interim order in such circumstances, it is recommended that any order should only include prohibitions. This is because a court must receive evidence about the suitability and enforceability of a requirement from the person or organisation who will be supervising compliance with it before it can be imposed.

The process to find out the views of YOT and the template to obtain the views of YOT are set out at Annex L.

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Youths: annual review of Orders (s28)

There is a requirement for an annual review where the offender is a youth, (section 28).

Section 29 states that the review is to be carried out by the chief officer of police of the police area in which the offender lives or appears to be living. The chief officer, in carrying out the review, must act in co-operation with the council for the local government area in which the offender lives or appears to be living, and the council must co-operate in the carrying out of the review. The chief officer may invite the participation in the review of any other person or body. The CPS may be asked to provide advice where, following a review, it is proposed that a CBO is varied or discharged. In such circumstances prosecutors may be asked to advice on new prohibitions / requirements and whether they are legally enforceable.

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Youths: breaches of CBOs

The public interest factors 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 legal guidance on Youth Offenders. 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 for Crown Prosecutors and relevant CPS legal guidance.

Where a youth breaches a CBO, a youth caution may be appropriate. The CPS legal guidance on Youth Offenders states that youth cautions are intended to provide a proportionate and effective response to offending behaviour and can be used for any offence providing the statutory criteria are satisfied. Offence seriousness is determined by reference to the ACPO Gravity Matrix, which sets out the most prevalent offences, and provides them with a score of 1, 2, 3 or 4. The score may be raised or lowered by one level according to aggravating and mitigating factors which are set out in the Matrix.

The Gravity Matrix score for breach of a CBO 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 a CBO imposed following a conviction, the public interest will usually require a prosecution.

Where prosecution takes place, the appropriate venue is the Youth Court, irrespective of which court originally made the order.

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Transitional Arrangements (s33)

Section 33 states that the repeal or amendment by the Act of provisions relating to ASBOs on conviction, drinking banning orders (DBOs) on conviction or individual support orders (ISOs) does not:

  • Prevent an order from being made in connection with criminal proceedings begun before the commencement date;
  • Apply in relation to an order which is made in connection with criminal proceedings begun before that day;
  • Apply in relation to anything done in connection with such an order.

R v Simsek [2015] WLR (D) 252 confirms that the transitional provisions of the Act provide that courts have power to continue to impose an ASBO after the Act's commencement where criminal proceedings had started before that date, but the court has no power to impose a CBO in such circumstances.

As from 20 October 2014, there may be no variation of any of the orders listed above that extends the period of the order or any provision of the order.

Five years after the commencement of Part 2 of the Act, any such orders still in force will be automatically be treated as CBOs. This means that up to the five year cut-off, existing ASBOs on conviction, DBOs on conviction and ISOs remain in force and can be varied and discharged as usual, except that the length of them cannot be extended.

Any applications for ASBOs on conviction which are already underway at the commencement date can continue.

Section 21 of the Act states that ASBOs made on application in the magistrates' court or County Court, ISOs made in connection with such orders and DBOs made on application also remain in force up to five years after the commencement date and that repeal provisions do not apply to "anything done in connection with such an order".

The combined effect of section 21 and section 33 is that breaches of ASBOs, DBOs and ISOs will continue to be prosecuted as usual up to five years after the commencement date. After that date, breaches of ASBOs and DBOs made on conviction will be dealt with as if they were breaches of a CBO. Breaches of any other ASBOs (made on application in the magistrates' court or County Court), DBOs made on application and ISOs will be handled as if they are a breach of an Injunction and consequently will no longer constitute a criminal offence.

After the five year cut off, prosecutors should seek confirmation from the PNC that the breach proceedings relate to an "on conviction" order (s1C of the Crime and Disorder Act 1998; s6 of the Violent Crime Reduction Act 2006). If there is any doubt or confusion, then clarification from the police or court should be sought.

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Annexes

Annex A - Procedure by which the police request the CPS to apply for a Criminal Behaviour Order (CBO) (English edition)

Annex B - Procedure by which the local authority requests the CPS to apply for a Criminal Behaviour Order (CBO) (English edition)

Annex B - Gorchmynion Ymddygiad Troseddol (CBO) wrth dderbyn collfarn: Y weithdrefn i awdurdod lleol ei dilyn i ofyn i'r CPS ymgeisio am CBO (Welsh edition)

Annex C - Guide for the police about preparing applications (English edition)

Annex C - Gorchmynion Ymddygiad Troseddol (CBO) wrth dderbyn collfarn: Arweiniad i'r heddlu - paratoi ceisiadau CBO (Welsh edition)

Annex D - Guide for the local authority about preparing applications (English edition)

Annex D - Gorchmynion Ymddygiad Troseddol (CBO) wrth dderbyn collfarn: Arweiniad i awdurdodau lleol am baratoi ceisiadau CBO (Welsh edition)

Annex E - Model Hearsay Notice

Annex F - Notice of Intention to apply for a Criminal Behaviour Order (CBO)

Annex G - Principles supporting prohibitions on Anti-Social Behaviour Orders (ASBOs)

Annex H - Guide to Anti-Social Behaviour Orders (ASBOs) prohibitions in reported cases

Annex I - Template for the Application for the variation of a Criminal Behaviour Order (CBO)

Annex J - Defence of "Reasonable Excuse"

Annex K - List of relevant considerations when considering imposing or removing reporting restrictions

Annex L - Template and Process for obtaining the views of the youth offender team (YOT)

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