Anti-Social Behaviour Orders on Conviction (ASBOs)
- General principles
- Order on conviction - general principles
- Standards of proof
- Reviewing applications for section 1C CDA Orders
- Disability Hate Crime
- Relevant Court and Instructions to Counsel
- Application Procedure
- Court Procedure
- Interagency working
- Evidential considerations
- Post-Sentence Adjournments
- Interim Orders
- Unused Material
- Variation of discharge of an Order
- Special Measures
- Annex A
This document provides guidance on Anti-Social Behaviour Orders (ASBOs) made pursuant to section 1C of the Crime and Disorder Act 1998 (CDA) following the conviction of an offender of a relevant offence (order on conviction).
In this guidance, 'stand-alone ASBO' refers to an order which can be obtained by relevant authorities in civil proceedings under section 1 the CDA. 'Order on conviction' or 'section 1C order' refers to the order which may be requested by the prosecutor and/or granted by a court under section 1C of that Act.
The Criminal Behaviour Order (CBO) came in to force on 20 October 2014. The CBO replaces the Anti-social Behaviour Order on conviction. The CBO legal guidance includes information about the transitional arrangements.
ASBOs were introduced by section 1 of the Crime and Disorder Act 1998 which came into force on 1 April 1999. That Act has since been amended by the Police Reform Act 2002, the Anti-social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005.
ASBOs are civil orders to protect the public from behaviour that causes or is likely to cause harassment, alarm or distress. An order contains conditions prohibiting an individual from carrying out specific anti-social acts or (for example) from entering defined areas. The orders are not criminal sanctions and are not intended to punish the individual. They are designed to be preventative, not punitive.
An order may be made by:
- a magistrates' court sitting in its civil jurisdiction (section 1 CDA);
- the Crown Court, a magistrates' court or a youth court where it convicts a defendant of a relevant offence (section 1C CDA), either following a request by the prosecutor or of the court's own volition; or
- a county court in existing proceedings (section 1B CDA).
The CPS is not a relevant authority for the purposes of applying for an order under section 1 or section 1B CDA.
Order on Conviction - General Principles
Under section 1C(2) CDA an order on conviction may be made by a court following conviction for a relevant offence if the court considers:
- That the offender has acted, at any time since [1 April 1999], in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and
- An order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him.
A relevant offence is an offence committed after the 2 December 2002, (section 1C(10) CDA).
An order on conviction may only be made in addition to any sentence imposed in respect of the relevant offence or conditional discharge, (section 1C(4) CDA). 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.
The anti-social behaviour can have been committed at any time since 1 April 1999.
Section 1C CDA does not require a nexus between the criminal behaviour which led to the conviction and the anti-social behaviour to be proved for the order on conviction. In practice, however, if there is no link a court might consider that a stand alone order is more appropriate.
The behaviour must cause or be likely to cause harassment, alarm or distress to any person not of the same household. This restricts the availability of an order in domestic situations although it may be proper to request an ASBO where a volatile private relationship causes or is likely to cause harassment alarm or distress to a third party even if that behaviour is not aimed at that third party, (Rabess v The Commissioner of Police for the Metropolis  EWHC 208 (Admin)).
The case of Gosport Borough Council, R (on the application of) v Fareham Magistrates Court  EWHC 3047 (Admin) states that there should be some evidence before the court that the behaviour in question has caused or is likely to cause harassment, alarm or distress. Prosecutors should note that in R v Brzezinski  EWCA Crim 198, the Court of Appeal stated in relation to the anti-social nature of graffiti:
'As it seems to us, if there is a perception in some quarters that unless graffiti is of a kind as to be explicitly obscene or explicitly threatening that an Anti-Social Behaviour Order can never be justified, such perception should be displaced. Dolan and Whittaker is no authority to the contrary; indeed, that quite plainly was a decision on its own particular facts and where a number of factors were taken together in deciding that an Anti-Social Behaviour Order was not called for in the circumstances of that particular case ... graffiti of the present kind, heavily and extensively inscribed whether inside or outside trains, is certainly capable in appropriate circumstances of being alarming: as is pointed out in Austin  EWCA Crim 394 itself, where it is stated that graffiti "can be intimidating as well as capable of blighting the environment". In any event, it may well be such as to be likely to cause distress'.
In R v Brzezinski, the court also stated 'The general evidence put in in support of the report submitted in this case confirms [the anti-social nature of graffiti]; and, as we see it, it is not necessary for the prosecution in each individual case to adduce further evidence to that effect, specifically commenting on the specific graffiti deployed in the particular case ... the court is perfectly well placed to make its own assessment.' The appeal against the imposition of an ASBO in this case was accordingly dismissed.
When assessing necessity, the court can take into account acts committed before 1 April 1999, (Stevens v (1) Southeast Surrey Magistrates' Court (2) Surrey Police  EWHC 1456 (Admin)).
The prosecutor needs to show that protection is necessary for persons anywhere in England and Wales, (section 1C(2)(b) CDA).
When considering whether an order is 'necessary' the court may take the view that the offence for which the defendant has been convicted is so serious and anti-social that it tends in itself to show that an order is necessary. Alternatively, a court may look for a pattern of anti-social behaviour and for this purpose, evidence of the facts behind previous convictions and failed interventions (such as a failure to comply with an anti-social behaviour contract) may be probative. Prosecutors may also seek to rely on anti-social behaviour which did not result in prosecutions or convictions.
There is no requirement to show that all other remedies have been exhausted, nor that an order is the only suitable way of dealing with the problem. The court must, however, be satisfied that the order is necessary to prevent future anti-social behaviour, and this will involve consideration of other sentences and remedies available.
In the case of R v P (Shane Tony)  EWCA Crim 287 it was said that where a custodial sentence of more than a few months was passed and the offender was liable to be released on licence and therefore subject to recall, the circumstances in which there would be a demonstrable necessity to make an ASBO and suspend prohibitions to take effect on release would be limited, although there would be cases in which geographical restraints could properly supplement licence conditions. In this case it was held inappropriate to impose an order on a 15 year old prolific robber of mobile phones on whom a four year custodial sentence was being imposed.
When considering a request for an order on conviction in respect of an offender with mental health issues the order can not be deemed to be necessary if, by reason of mental incapacity, the offender is incapable of complying with the order. Evidence of such mental incapacity should normally be given by a psychiatrist and not by a psychologist or a psychiatric nurse, (The Queen on the application ofJamie Cooke v DPP  EWHC 2703 (Admin)).
An order comes into effect on the day it is made, (W (a minor) v DPP  EWHC 3139)).
The court may suspend any such requirements of the order as it may specify during any period when the defendant is detained in legal custody until his release, (section 1C(5) CDA). The order itself, however, commences on the day it is made.
The order must be for a period (not less than two years) specified in the order or until further order, (section 1(7) CDA).
Standards of proof
In Clingham (formerly C (a minor)) v Royal Borough of Kensington & Chelsea, R v Manchester Crown Court ex parte McCann  UKHL 39;  1 AC 787 the House of Lords held that the standard of proof applicable to the determination of whether anti-social behaviour has occurred under section 1(1)(a) CDA, is the equivalent of the criminal standard of beyond reasonable doubt, even though the proceedings are civil.
The court must disregard any act which the defendant shows on the balance of probabilities was reasonable in the circumstances, (section 1(5) CDA).
The House of Lords further held in Clingham that a determination of necessity under section 1(1)(b) CDA does not involve a standard of proof, but that it is an exercise of judgment or evaluation to be made by the court. There must be a 'demonstrable necessity' for an order, (R v Kirby  EWCA Crim 1228; R v Boness  EWCA Crim 2395).
Proceedings in the Youth Court, Magistrates' Court or Crown Court under section 1C CDA constitute civil, not criminal proceedings and therefore the principles in Clingham apply, (W (a juvenile) v Acton Youth Court  EWHC 954 (Admin); R v Wadmore & Foreman  EWCA Crim 686).
Reviewing Applications for section 1C CDA Orders
A police request for an order on conviction should be made on Form MG5 and accompanied by the evidence to support it.
Review as to whether there is a need to apply for an order is separate from review of substantive criminal charges.
The question of whether to apply for an order on conviction is one to be addressed as early as possible. It is desirable that the question is raised when charging advice is sought by the police, in cases where such advice is sought from the duty prosecutor at the police station.
Prosecutors should have in mind at the time of charge or review whether it is going to be desirable and appropriate to seek and order on conviction in the event of a conviction, endorse the file and Compass CMS accordingly and ensure an application is prepared and served in accordance with the Criminal Procedure Rules.
While there is no statutory requirement for consultation between the police and the local authority (or other relevant authority) prior to a section 1C CDA application being made, consultation should, however, take place in accordance with any local protocol. In reaching the decision whether to seek an order on conviction, the prosecutor may have to seek the views of parties to any local protocol. That should be done at the earliest opportunity or in accordance with the local protocol and ordinarily the matter should not be raised with the police or the local authority for the first time after conviction.
Each case must be considered individually and bearing in mind that each order, and each prohibition in each order, must be necessary and proportionate the file should be endorsed to show why the order to be sought is needed and why the prohibitions to be requested are drafted as they are.
The reviewing lawyer must be satisfied that there is sufficient evidence to provide a realistic prospect of obtaining an ASBO.
- The defendant must be charged with an offence committed after 2 December 2002.
- There must be sufficient evidence to prove beyond reasonable doubt that the defendant has committed an anti-social act since 1 April 1999.
- There must be sufficient evidence to show it is necessary for the Court to make the order, in the terms requested, to protect persons from further anti-social acts.
The reviewing lawyer must be satisfied that it is in the public interest to make the application for an order. This is a separate test from the necessity test referred to above.
If a decision is made to proceed with an application for an order on conviction, notice of intention to apply for that order must be made on the form specified in the Consolidated Criminal Practice Direction pursuant to Rule 50 of the Criminal Procedure Rules (see Annex A). The notice of intention should be served on the court, defence and any person on whom the order would be likely to have a significant adverse effect as soon as practicable, without waiting for a conviction (Rule 50.3 Criminal Procedure Rules).
A written review of the application must be entered on Compass CMS and on the file. Compass CMS should be flagged 'ASBO applied for'.
Disability Hate Crime
Scrutiny of recent media coverage about incidents of anti-social behaviour shows an increasing number of cases in which the behaviour is targeted at particular individuals, rather than at neighbourhoods. Those individuals are often disabled or have a member of their family who is disabled.
An external review into the death of David Askew was carried out by the Independent Police Complaints Commission (IPCC). Mr Askew, who had learning disabilities, had been tormented by local youths for years. He died of a heart attack in a final confrontation with them.
The IPCC's findings indicated that agencies had failed:
- to identify cases as disability hate crime;
- to adopt a strategic inter-agency approach;
- to link up all the reported incidents and to look at them as a whole;
- and taken an inappropriate stance with regard to focussing on the victim's behaviour as opposed to addressing the offender's behaviour.
CPS Legal Guidance on Disability Hate Crime already addresses those issues.
A strategic approach and prompt multi-agency action is essential to try to prevent further targeting of the victim. For example, liaising on timescales and contents of applications for remands in custody / bail conditions / ASBOs / CRASBOs / restraining orders / parenting orders /eviction proceedings etc.
We already work closely with other agencies to tackle anti-social behaviour but, when the target of the behaviour is disabled or has a disabled family member, prosecutors must be proactive in seeking further information from the police.
Further enquiries might include:
- asking the victim, 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 ethnic minorities, gay, transgender or disabled people were victims on those occasions too.
Correctly identifying an anti-social behaviour case as a disability hate crime matters because the case can then be flagged and treated as a disability hate crime. And, where there is sufficient evidence, section 146 Criminal Justice Act 2003 can be applied, sentence enhanced accordingly and the matter recognised for what it is hate crime.
Relevant Court and Instructions to Counsel
The application for an order on conviction should be made to the sentencing court, (section 1C(1) CDA).
Prosecutors instructing counsel to appear in the Crown Court should include instructions on whether an application for an order on conviction should be made and include the necessary background and paperwork. This should also apply in the case of agents being used in the Magistrates' Court.
In all courts, if there have been discussions with local agencies about whether to seek an order on conviction, for example with youth services, details should be given to the advocate conducting the case even where a decision has been made not to seek an order.
Procedural rules for the making of applications for post-conviction behaviour orders are set out in Part 50 of the Criminal Procedure Rules which apply in both the magistrates' and Crown Court.
These rules are summarised below:
- Part 50 (Civil behaviour orders after verdict or finding) prescribes the procedure for applying in criminal cases for an ASBO or other civil behaviour order.
- The note to Rule 50.1 provides a list of behaviour orders to which the Rules apply.
- Rule 50.2 sets out general rules for behaviour orders including interim orders.
- Rule 50.3 sets out the procedure for the prosecutor applying for an ASBO or a Serious Crime Prevention Order (SCPO) if the defendant is convicted. There are separate forms for ASBOs and SCPOs set out in Amendment No 19 of the Consolidated Criminal Practice Direction. They are also available on the Infonet in the Forms section (case conduct and management).
- The prescribed ASBO form and SCPO form cover the requirement to give notice of intention to apply for an order as well as the application itself.
- Rule 50.3(2) (c) requires the prosecutor to serve a notice on any person on whom the order would be likely to have a significant adverse effect. This particular rule is primarily aimed at SCPOs and is unlikely to have practical application to ASBOs.
- Rule 50.4 relates to the court making a behaviour order on its own initiative. Once the court has indicated its intention to make an order a party must serve a written notice on the court and the other party identifying the evidence to be taken into account. There is no prescribed form for service as there is under rule 50.3.
- Rule 50.5 concerns applications to vary or revoke a behaviour order.
- Rules 50.6, 50.7 and 50.8 broadly correspond with the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 concerning hearsay notices; cross-examination of the maker of the hearsay statement; and the credibility of the maker of the hearsay statement.
- Rule 50.9 allows the court to extend or shorten a time limit and to allow a notice or application to be given in a different form or presented orally.
The rules at 50.2 and 50.4, to make it clear that the defendant must be allowed the opportunity to consider any evidence in support of an order, particularly if a party wants the court to take account of evidence not already introduced. The rules reflect the case of R v Kapotra  EWCA Crim 1843, in which the Court of Appeal noted that that any person faced with the possible imposition of [an ancillary order], (in this case a restraining order) should be given proper notice of what is sought, the evidential basis for the application and, in addition, be allowed a proper opportunity to address the evidence and make informed representations as to the appropriateness of such an order.
The case of R v Paul Pelletier  EWCA Crim 1060 (concerning a Sexual Offences Prevention Order) states that in order to minimise the risk of the order which is actually drawn up differing from that pronounced in court, ,judges should insist that ancillary orders be put before them in draft form in writing. In relation to ASBOs, there is already a requirement for the prosecutor to file a Notice of Intention to Apply which must set out the prohibitions which will be sought which arguably achieves the same end as a draft order for the purposes of this judgement.
The proceedings in which the defendant is convicted are criminal. The proceedings in which an order on conviction is applied for are civil, even though they are conducted by a criminal court, (R (W) Acton Youth Court  EWHC 954 (Admin) . 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 an ASBO, whether at the sentencing hearing or a later hearing.
The Court of Appeal in R v P (Shane Tony)  EWCA Crim 287adopted the principles from C v Sunderland Youth Court  EWHC 2385 (Admin)which included the principle that:
'it is vital that the terms of the order are clearly and accurately explained to the defendant by the magistrates in open court.'
Prosecutors should not, therefore, ask a court to proceed with a section 1C application unless the defendant is present in person. Evidence may however properly be called in the defendant's absence when he has failed to attend; he must still be given an opportunity to make submissions, whether by adjournment or issue of a warrant under section 1C (4A) CDA, before the final order is made.
As to general principles relating to procedure, the court in R v P (Shane Tony) held that:
- The whole of the procedure should take place in the presence of the defendant;
- The terms of any order must be precise and capable of being understood by the defendant to whom it must be explained;
- The findings of fact giving rise to the making of the order must be recorded;
- The exact terms of the order must be pronounced in open court; and
- The written order must accurately reflect the order as pronounced.
Pursuant to section 1C(3)(b) CDA, the court may, if it thinks it appropriate to do so, make an order of its own motion. However, such an order would be quashed if the making of the order breached the requirement for procedural fairness. The court must put precisely to the defendant the concerns in relation to his behaviour that it proposes to address. The court should invite submissions on the proposal to make an order and the contents of such an order. The court should record findings of fact and findings in relation to the issue of necessity (R (on the application of McGarrett) v Kingston Crown Court  EWHC 1776 (Admin)).
Liaison with other agencies as to the progress and result of an application is important, and where possible the person who has prepared the application (if from another agency) 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 in victims and witnesses being kept aware of the progress of the case.
In the event of the CPS discontinuing proceedings in respect of which, had there been a conviction, an application for an order on conviction would have been made, any parties involved in the preparation of the applications should be informed. The reason for this is that the police (or local authority) may wish to seek a stand alone order.
Where it is decided not to proceed with criminal charges, where conduct that led to the charges being brought might be used as evidence in stand alone ASBO proceedings, care should be taken not to mislead the defendant into believing that such behaviour will not be used in subsequent legal proceedings (by other agencies).
Section 1C(2) CDA states that an order on conviction can prohibit an offender from doing anything described in the order.
It is necessary to show a link between the anti-social behaviour that the offender has engaged in and the prohibitions that are sought (R v Boness  EWCA Crime 2395).
The order must not require the offender to do anything; it can only prohibit the offender from doing things as specified in the order.
This apparently wide power has been the subject of a considerable number of cases, from which the following principles have emerged, and which prosecutors must have regard when drafting on conviction applications:
- Each prohibition should be considered as if it is a separate order and must be necessary to prevent further anti-social behaviour (R v Boness  EWCA Crim 2395).
- The terms of the order must be precise and easy to understand so that the individual knows exactly what he is prohibited from doing, (R v Boness  EWCA Crim 2395).
- The terms of the order must be reasonable and proportionate, realistic and practical and must be worded in such a way to make it easy to determine and prosecute a breach, (R v Boness  EWCA Crim 2395). Experience has shown that the use of simple language can assist. For example consider 'not to be with ... ' rather than 'not to associate with ...'
- Each term must be substantially and not just formally prohibitory (Lonergan v Lewes Crown Court  EWCA Crim 457 (Admin)).
- A prohibition should not mirror a criminal offence if the sentence for the offence should be a sufficient deterrent. An ASBO should not be used to increase the maximum sentence of imprisonment that is available for a particular offence however a term prohibiting an offence might be necessary in respect of non-imprisonable offences, (Paragraph 34 and 35 R v Boness  EWCA Crim 2395).
- The prohibitions in the order must be enforceable in the sense that they should allow a breach to be readily identified and capable of being proved. Therefore, they should not impose generic prohibitions, but should identify and prohibit the particular type of anti-social behaviour that gives rise to the necessity of an order (see W v DPP  EWCA Civ 1333 where it was held that a prohibition 'not to commit any criminal offence' was too wide and therefore invalid).
- There might be cases where geographical restraints could supplement licence conditions but the circumstances in which there would be a demonstrable necessity to make suspended prohibitions to take effect on release will be limited. In R v Rush  EWCA Crim 1316 the court whilst altering the length of a sentence and the length of an ASBO was happy, due to the facts of the case, to allow an ASBO to be in place after the defendant's release from prison. In R v Warwick  EWCA Crim 1878 the court approved of an ASBO that would run alongside a prison sentence and after the defendant's release in a case involving domestic violence, so that 'the order should simply be sufficient (in length) to provide a period after the appellant's release from prison when some protection can be provided to ensure that there is no repeat of any violence'. In R v Hutchins  EWCA Crim 2238 an ASBO for an indefinite period was upheld alongside a prison sentence.
- Because the test for making an order and prohibiting an offender from doing certain acts is one of necessity, each separate paragraph prohibiting a person from doing a specified thing must be necessary to protect persons from anti-social behaviour by the offender. Therefore, each order must be specifically fashioned to deal with the offender concerned. The court has to ask 'is this order necessary to protect persons in any place in England and Wales from further anti-social acts by him.'
- Not all prohibitions set out in an order have to run for the full term of the order itself, (Lonergan v Lewes Crown Court  EWCA 457 (Admin). The test must always be what is necessary to deal with the particular anti-social behaviour of the offender and what is proportionate in the circumstances. In Lonergan v Lewes Crown Court  EWCA 457 (Admin) it was held that a curfew prohibition in an ASBO is not unlawful, and also that:
'just because the ASBO must run for a minimum of two years it does not follow that each and every prohibition within a particular order must endure for the life of the order. A curfew for two years in the life of a teenager is a very considerable restriction of freedom. It may be necessary, but in many cases I consider it likely that the period of curfew could properly be set at less than the full life of the order' (per Maurice Kay LJ)
- An order is there to protect others from anti-social behaviour by the offender. Therefore, the court should not impose an order which prohibits an offender from committing specified criminal offences if the sentence which could be passed following conviction (or a guilty plea) for the offence would be a sufficient deterrent.
- It is unlawful to make an order as if it were a further sentence or punishment. An order must not therefore be used merely to increase the sentence that an offender may receive. R v Lee Kirby  EWCA Crim 1228, which has been followed with approval in a number of cases, sets out this point. It says that the making of an order should not be a normal part of the sentencing process, particularly in cases which do not of themselves specifically involve intimidation, harassment and distress. Rather it is an exceptional course to be taken in particular circumstances. The Kirby case involved dangerous driving and driving whilst disqualified. This point should be borne in mind in cases such as dishonesty which of themselves do not involve harassment, alarm, intimidation or distress.
Good practice shows that the order should:
- cover the range of anti-social acts proved to have been engaged in by the defendant;
- be specific as to time and place, referring to clear and legible maps as necessary;
- be specific when referring to exclusion from an area, including street names and clear boundaries. Where the prohibitions seek to exclude the defendant from particular areas, the boundaries of the area must be clearly displayed on a map which should become part of the order and a copy given to the defendant; and
- identify individuals if it prohibits association with certain people.
It is possible that the prohibitions sought will interfere with one or more of the offender's ECHR rights. Interference with some rights (for example, Article 10 - freedom of expression, Article 11 - freedom of assembly and association, or Article 8 - right to respect for private and family life) is justifiable where it is necessary, prescribed by law, and proportionate. The court, as a public body, is required to interpret the CDA in a way which is compatible with ECHR rights.
The case of Avery, Avery, Nicholson and Medd-Hall  EWCA Crim 2670 provides an example of where the court considered it justifiable to interfere with an offender's ECHR rights, and to impose an ASBO in conjunction with a substantial term of imprisonment.
The appellants pleaded guilty to or were convicted of conspiracy to commit blackmail. The appellants were concerned in the activities of an organisation whose purpose was to cause a company engaged in life sciences to cease its business. The activities of their organisation included targeting the company and individuals and companies who were associated with or had dealings with the company. The individuals or companies became the targets of various activities, including allegations of paedophilia, hoax bombs, sending various items, demonstrations at and damage to the homes of members of staff, the threat of and commission of criminal damage to property, the threat of physical assault, threatening and abusive telephone calls, emails and letters and other activities. Companies dealing with the business were told that the action would continue until they severed contact with the business. The appellants were sentenced to terms of imprisonment varying from 11 years to 8 years, with an order under the Crime and Disorder Act 1998 section1C prohibiting the appellants indefinitely from participating in, organising or controlling any demonstration or meeting protesting against animal experimentation, sending any communication to any of the companies named in the Schedule to the order, communicating directly or indirectly with any person associated with the business or any of the businesses listed in the Schedule. The appeal was limited to the order under section 1 of the Crime and Disorder Act 1998
It was submitted that the prohibition against participating in any demonstration, meeting, gathering or website protesting against animal experimentation was a disproportionate interference with the appellants' fundamental right to participate in political debate and discussion and represented an interference with the rights under arts 10 and 11, with respect to freedom of speech and freedom of assembly.
It was further submitted by the appellants that the orders were unnecessary because it was impossible to say how the sentence of imprisonment might affect the appellants, whose attitudes might change following their release; they would in any event be on licence following their release. It was further submitted that the order ought not to have been imposed for an indefinite period.
It was further submitted that the order ought not to have been imposed for an indefinite period.
In the Court's view, the sentencing judge was uniquely well placed to assess the gravity of the offence, the part played by each of the appellants, and the need for public protection for those who had been the victims of their conduct. This was a matter of judgment and assessment. The sentencing judge had no doubt that the imposition of such an order was necessary to protect those in England and Wales from further anti-social acts. The judge's assessment was overwhelmingly supported by the evidence. The likelihood of a conversion or change of attitude following the appellants' release from prison was slight and the sentencing judge noted that if there was a genuine change of heart the appellants could apply to have the order discharged or varied. In the Court's judgment, the sentencing judge was entitled to conclude that the orders should run for an indefinite period. A number of authorities indicated that there would be circumstances where separate ASBOs would not be necessary where a custodial sentence was imposed. Conditions might be attached to the licence which would suffice to provide public protection. However the principle was not universal and the sentencing judge had to make his assessment in the light of the particular circumstances of the case.
The Court accepted the submission that the rights of peaceful assembly and demonstration were important rights and that in almost all circumstances it would be a severe matter to limit the right of an individual lawfully to participate in discussions or demonstrations in favour of an issue about which the person felt passionately. However, the circumstances of the case were exceptional. The crucial questions were, was the restriction proportionate to the aim to be achieved? Was there a legitimate aim? The Court did not accept that the first prohibition of the order was unnecessary because of the detailed further prohibitions in the order. The Court considered that the meaning of the words in the prohibition were sufficiently clear. The Court had concluded in the case of one appellant that it was not necessary to impose a lifelong order, as he played a lesser role and he did not fall into the same fanatical category as the other appellants. In the case of that appellant the order would be limited to a period of five years following his release from prison.
There are no express restrictions on what the order can say about location, other than it only having effect within England and Wales. The statue makes no reference to behaviour in public as opposed to in private. However, it is inherent in the terms of section 1C(2) that the kind of behaviour which an order can prohibit is behaviour which affects people outside the offender's own household, and which is directed at society in general. Therefore, it seems that the courts can prohibit someone form going to or being at private premises if the conditions of section 1C(2) are met. One example is if the accused tends to go to a private flat which is not his home and throws missiles from the flat window at passers-by. In this case, a prohibition on being in that flat might be reasonable and proportionate and if it is necessary, the order could be made.
The case of Daniel James Heron v Plymouth City Council  EWHC 3562 (Admin) (12 November 2009) demonstrates the application of these principles. This was an appeal by way of case stated against a decision of the Plymouth District Magistrates' Court, who, on the Plymouth City Council's application, allowed an application to vary an ASBO that had originally been imposed on the appellant on 11 May 2004.
The ASBO had been imposed in the early years of ASBOs. Since then there have been many cases from the Divisional Court and the Court of Appeal explaining the grounds for the imposition of an ASBO and outlining the restrictions on those prohibitions which could be added to an ASBO, particularly that they should only be imposed where they are clear, comprehensible and enforceable. It was accepted by the City Council that the prohibitions on the original ASBO did not comply with those restrictions.
On the facts of the case, Lord Justice Moses found that the first prohibition that the respondent should not enter Plymouth city centre or any part of an area whose boundaries were marked on a map was both necessary and proportionate. The court noted that the restriction did not prevent the appellant from shopping as he needed to, even though he lived close to the city centre, it did not prevent him from visiting the bus station, the railway station, the benefits office, the police station or the library. The restriction was found to be plainly sensible and necessary because it removed the temptation afforded by a conglomeration of shops in the city.
The second prohibition required him not to behave in any way causing or likely to cause harassment, alarm or distress to any person. The court noted that a prohibition drafted in this way does no more than repeat offences contained within the Public Order Act 1986, and is barely better than the restriction criticised in the case of CPS v T  EWHC 728 [not to act in an anti-social manner without further definition]. It was held that such a prohibition offends the principle that the prohibition must be precise and must be targeted at the individual and at the type of anti-social behaviour it is sought to prevent.
Lord Justice Moses referred to the guidance on drafting of terms of an ASBO set out in the Anti-social Behaviour Orders Guide for the Judiciary, published by the Judicial Studies Board, and the guide at Appendix 2 which includes useful examples of valid prohibitions. Lord Justice Moses noted that the guidance repeats the strictures advanced in CPS v T "particularly requiring restrictions in relation to threatening and abusive behaviour to identify the targets and referring, in addition, to a geographical limitation so as to prevent access to an area where identified individuals might be targeted." (Daniel James Heron v Plymouth City Council  EWHC 3562 (Admin) (12 November 2009), paragraph 9). Given that the current prohibition was restricted in neither of those respects, it was held that it should be removed.
The third restriction related to not touching or entering any unattended vehicle in Plymouth as shown on a map without the express permission of the owner, and was not the subject of challenge.
The fourth and final prohibition sought to enable those who needed to question him or stop him to require him to prove that any item he has with him has been lawfully purchased. It reads:
'Not to have with him or carry any packaged, wrapped, bagged new or unused goods or objects not belonging to him, except food in any public place without a valid receipt or the consent of the owner of the packaged, wrapped, bagged, new or unused goods or objects in Plymouth as marked in red on Map 2.'
Lord Justice Moses found that this clause offended the need to keep the terms of an ASBO as simple and clear as possible, particularly in light of the fact that the consequences of a breach could be imprisonment for as long as five years. It was therefore struck out.
Each case will turn on its own facts, but the principles set out above should be applied to the facts of each and every case in which the CPS requests that the court make an ASBO following a conviction. Prosecutors are reminded, therefore, that when considering requesting a 'harassment, alarm and distress' prohibition within an ASBO application, that the clause should contain sufficient qualifications of geography, persons, specific behaviour or other qualifying criteria as appropriate to the facts of the case to ensure that the prohibition is targeted, precise, capable of being understood and proportionate.
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 offence, plus the defendant's previous convictions. Frequently, the circumstances of the offence that led to the convictions will be relevant to the application; or
- The facts of the offence (with or without antecedents) plus other evidence.
Section 1C(3A) states that:
'For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.'
Section 1C(3B) states that:
'It is immaterial whether evidence led in pursuance of subsection (3A) would have been admissible in the proceedings in which the offender was convicted.'
Together, these subsections allow prosecutors (and the defence) to adduce evidence which would not have been admissible in the criminal proceedings which led to the conviction. Prosecutors may therefore consider adducing evidence which would have been or was ruled inadmissible in the criminal proceedings. Prosecutors will want, however, to consider carefully the reasons why the evidence was or would have been ruled inadmissible in weighing up whether it is worth adducing it.
Prosecutors must follow civil evidence rules when using such evidence (Civil Evidence Act 1995).
In all cases, prosecutors should be prepared to give the court relevant background information, as they would for sentencing purposes.
In all cases, prosecutors should give notice to the defence of evidence on which the prosecution intends to rely in accordance with the Rule 50 of the Criminal Procedure Rules. Prosecutors should note that the Criminal Procedure (Amendment) Rules 2011 (which came in to force on 2 April 2012) amend the rules at 50.2 to make it clear that the defendant must be given the opportunity to consider the evidence in support of the order and 50.4 to specify that when a court is considering making an order of its own volition, a party who wants the court to take account of evidence not already introduced must serve notice in writing on the court officer and every other party as soon as practicable (without waiting for the verdict). In that notice, they must identify that evidence and attach any written statement containing such evidence.
Prosecutors should follow the rules relating to hearsay notice where appropriate.
In all applications it is important that the prosecution identifies the facts which are alleged to constitute anti-social behaviour. If they are accepted by the offender these should be put in writing and put before the court. If they are not accepted they must be proved, to the criminal standard, by the prosecution. Any findings made by the court, either after agreement between the parties or after a contested hearing, must be endorsed on the order made by the court, (Paragraph 45, Wadmore & Foreman  EWCA Crim 686).
In relation to a defendant's previous convictions:
- Where the previous convictions are probative to obtaining an ASBO, they will be admissible. If a defendant does not admit the existence of the previous convictions, the prosecution will need to prove them. Prosecutors should follow the provisions of section 11 of the Civil Evidence Act 1968 if antecedents are disputed.
- 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 ASBO proceedings without the consent of the Court.
- Prosecutors should be aware that 'spent' convictions will frequently be admissible in the proceedings which lead to the conviction for the offence that triggered the ASBO request but inadmissible in the ASBO proceedings.
- 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.
The use of civil hearsay in the Magistrates' Court is governed by Part 50 of the Criminal Procedure Rules which state:
- Notice of an intention to adduce hearsay evidence should be served on the defendant and the court as soon as practicable without waiting for the verdict. The hearsay notice must explain that it is a notice of hearsay evidence, identify the hearsay evidence, identify the person who made the hearsay statement, or explain why if that person has not been identified and explain why that person will not be called to give oral evidence, (Criminal Procedure Rules Part 50.6). A single notice may deal will the hearsay evidence of more than one witness (Criminal Procedure Rules Part 50.6).
- Where a party tenders hearsay evidence and does not propose to call the maker of the statement, the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents, (Criminal Procedure Rules Part 50.6). The application must be made within 7 days of service of the Hearsay notice.
- The court makes a decision on whether the maker of the statement must be called, and notifies all parties of its decision.
- If a party serves a hearsay notice, and does not call the maker of the statement, and another party wishes to attack the maker's credibility or call evidence of an inconsistent statement, then that party must give notice within seven days of receiving the hearsay notice, (Rule 50.8 Criminal Procedure Rules).
- The provisions on evidence apply to the defence as well as to the prosecution. Therefore, if evidence is served on the prosecution, the prosecutor will need to decide within seven days whether the evidence served is accepted or whether the witness' credibility is to be challenged or contradictory evidence adduced.
In M v DPP  EWHC 1032 Admin, the court held that failure to serve a hearsay notice was a procedural irregularity however; 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.
An application for a post conviction order may be adjourned even after the offender has been sentenced, (section 1C(4A) CDA). The effect of this is that the post conviction application can have a life of its own beyond that of the criminal proceedings to which it attaches.
If an offender fails to attend at the adjourned hearing, the court may further adjourn proceedings or issue a warrant for the offender's arrest, (section 1C(4B) CDA). It does not appear that there is a power to hear a post conviction application in absence, and sections 51-57 Magistrates' Courts Act 1980 would not appear to apply as proceedings for post conviction orders are commenced by application and not by complaint.
Where the Court adjourns the application to be heard after sentence an interim order should be considered.
Prosecutors should be ready to deal with the application for an order on conviction at sentencing if at all possible.
The court may make an interim order on conviction, either of its own volition or at the request of the prosecution, if the court considers that it is 'just' to make such an order, pending the determination of the final hearing, (section 1D(1)(c) CDA). This power only exists once the offender has been convicted of the offence to which the application for the order on conviction relates.
Any interim order must be for a fixed period but it may be varied, renewed or discharged, (section 1D(1) and (2) CDA).
There is no statutory definition of the term 'just'. It is however clear from R(M) v Secretary of State for Constitutional Affairs and others  EWCA (Civ) 312 that in deciding if an order is just the court should consider all the relevant circumstances.
Following the decision in R v Boness & others  EWCA Crim 2395, a request for an order under a section 1C CDA cannot be made until after sentence. As the power to make an interim order under section 1D of the CDA does not arise until the request is actually made (section 1D(1)(c) CDA), it therefore follows that interim orders are not available until after sentence. Bail conditions should be preferred if there is a need to control and individual's behaviour post conviction but prior to sentence (see R v Lawson  EWCA Crim 416 for an analogous situation in the context of a sexual offences prevention order). Interim orders may be useful, however, in a situation where the substantive ASBO hearing is adjourned to a date after sentence pursuant to section 1C(4A) CDA.
As applications for orders 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.
The Police are not, therefore, required to prepare Schedules of Unused Material (MG6C, D, & E) in respect of such applications.
Although there is no obligation to disclose unused material in ASBO applications, the usual rules governing the conduct of prosecutors will, however apply and all cases should be presented in a fair and balanced manner. Where a prosecutor is aware of material that should be disclosed to the defence in the interests of justice, such a disclosure should be made. Where a prosecutor is in possession of sensitive material that cannot be disclosed, but non-disclosure will adversely affect the ability to hold a fair trial, then careful consideration should be given as to whether the application should be proceeded with.
In R (A) v Leeds Magistrates' Court  EWHC 554 (Admin) the High Court held that where the person against whom the order was sought is a child, the child's best interest are a primary consideration but so equally are the interests of the public.
Where an order is made on conviction of a youth there is no automatic restriction on reporting the fact that the order was made (section 1C(9C) CDA). However, the proceedings for the criminal conviction that triggered the making of the order on conviction are still subject to section 49 Children and Young Persons Act 1933 unless the youth court specifically lifts the reporting restriction. The mere reporting of the fact that an order was made in the youth court reveals that the youth has been convicted, because the youth court has no civil jurisdiction and can only make an order on conviction.
Similarly, where a youth is prosecuted for a breach of an ASBO under Section 1(10), there are no automatic reporting restrictions on the proceedings in respect of the breach, although any other charges heard at the same time will still be subject to Section 49 Children and Young Persons Act 1933, (section 1(10D) CDA).
The application of section 39 of the Children and Young Persons Act 1933 where a child or young person is the subject of an ASBO was considered in R v St Albans Crown Court, ex parte T and Chief Constable of Surrey v J h-G and D H-G  EWHC 1129 (Admin);  All ER (D) 308 (May). The judge stated that:
'Whilst the court plainly does not have to refer to every factor which may weigh in favour of a section 39 direction being made, it is necessary, in my view, that it should briefly summarise the principal factors weighing in favour, even if the decision finally is that these factors are outweighed by the public interest in disclosure.'
The following considerations were identified as relevant by the Court in the St Albans case when considering imposing or removing reporting restrictions:
- In deciding whether to impose or thereafter to lift reporting restrictions, the court will consider whether there are good reasons for naming the defendant.
- In each case there will be a wide variety of factors which have to be considered, and in each case the balance has to be struck between the desirability of public disclosure on one hand and the need to protect the welfare of the youth on the other after a full appreciation of the relevant considerations.
- In reaching that decision, the court will give considerable weight to the age of the offender and the potential damage to any young person of public identification as a criminal before the offender has the benefit or burden of adulthood.
- By virtue of section 44 of the C&YPA 1993 Act, the Court must 'have regard to the welfare of the child or young person'.
- The prospect of being named in court with the accompanying disgrace is a powerful deterrent and the naming of a defendant in the context of his punishment serves as a deterrent to others. These deterrents are proper objectives for the court to seek.
- There is strong public interest in open justice and in the public knowing as much as possible about what has happened in court, including the identity of those who have committed crime.
- The weight to be attributed to the different factors may shift at different stages of the proceedings, and, in particular, after the defendant has been found, or pleads, guilty and is sentenced. It may then be appropriate to place greater weight on the interest of the public in knowing the identity of those who have committed crimes, particularly serious and detestable crimes.
- The fact that an appeal has been made may be a material consideration.
- Where an ASBO has been imposed, that is a factor which reinforces, and in some cases may strongly reinforce the general public interest in the public disclosure of court proceedings.
- The Court should not have regard to the impact of publicity on the other members of the youth's family.
If a youth is prosecuted for breach of an order in the youth court, one person authorised to be present by a relevant authority is entitled to be present at the breach proceedings in the youth court, (section 1(10B) CDA).
Under sections 8 and 9 CDA, the Court must make a Parenting Order when it convicts a child or young person under the age of 16 if it is satisfied that a Parenting Order is desirable in the interests of preventing further offending by the child or young person. If the Court is not so satisfied, the Court must state in open Court why it is not.
Also, under section 8 and 9 CDA, the Court must make a Parenting Order when it makes an ASBO against a child or young person under the age of 16 if it is satisfied that a Parenting Order is desirable in the interests of preventing a repetition of the behaviour by the child or young person that led to the Order. If the Court is not so satisfied, the Court must state in open Court why it is not.
In cases where the Court is making an order under section 1C CDA, as the sentence for the offences comes before consideration of the ASBO, the Court will have already considered and ruled as to whether a Parenting Order should be made.
The same provisions apply to young persons aged 16 and 17, but here there is a discretionary power to make a Parenting Order.
Section 123 of the Criminal Justice and Immigration Act 2008 inserts sections 1J and 1K into the CDA. These sections create a statutory duty for a responsible authority to carry out a review of the operation of an order (whether made under section 1, section 1B or section 1C of the CDA) made in respect of a child or young person at the end of every 12 month period during the currency of the order. In relation to section 1C orders, the review must be carried out by the chief officer of police in the relevant force area unless another responsible authority is named in the order.
A defendant has a right of appeal against an order on conviction 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).
An appeal is appropriate where the offender seeks to argue that the order should not have been made, or the prohibitions are wrong, (R v Manchester Crown Court, ex parte Manchster City Council (2000). If the offender seeks to argue that circumstances have changed, then an application to vary or discharge the order may be appropriate (see section 16 below).
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). This was confirmed in R v P  EWCA Crim 287and R v Wadmore and Foreman  EWCA Crim 686.
Variation or discharge of an order
Applications for variation and discharge of an order on conviction may be made under section 1CA CDA.
An application for variation or discharge 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', (R v Manchester Crown Court, ex parte Manchester City Council (2000)).
In Leeds City Council v RG (2007) EWHC 1612 (Admin) the court held that there is a power to extend an ASBO by way of variation. Courts should, however examine why they are being asked to do this rather than make a new order. It may be, for example, that when the variation sought is to extend the order for a period in excess of two years that a fresh application may be more appropriate.
Applications to vary or discharge may be made by:
- The person subject to the Order;
- CPS (utilising the powers of the DPP); or
- A relevant authority, defined in S1(1A) CDA.
The application shall be in writing to the Court which made the order (Part 50.5 Criminal Procedure Rules) and the person subject to the order, (section 1CA(5) CDA and Part 50.5 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.
Where the Court considers there are no grounds on which it could conclude that the order should be varied or discharged, it can determine the application without hearing representations from the parties, (Part 50.5 Criminal Procedure Rules).
Where the Court considers there are grounds for variation or discharge, it shall issue a summons giving no less than 14 days notice of the hearing (Part 50.5 Criminal Procedure Rules) which shall be sent to the person subject to the order and Applicant Authority, (Part 50.5 Criminal Procedure Rules).
A section 1C order cannot be discharged before the end of a minimum 2 year period without consent of:
- The CPS (utilising the powers of the DPP) on application by the person subject to the Order (section 1CA(7)(a) CDA) , or
- The person subject of the Order on application by CPS or the relevant authority, (section 1CA(7)(b) CDA).
The consent of the DPP is not required where the relevant authority apply for a discharge.
Section 142 of the Magistrates' Courts Act 1980 (slip rule) is not available to correct errors in ASBOs, given that the power to re-open cases to rectify mistakes is available to criminal proceedings only, (Samuda v DPP  EWHC 205 (Admin); R (Periasamy Mathialagan v London Borough of Southwark  EWCA Div 1689).
There is no basis for saying that a variation requires the proof of a fresh anti-social act. Section 1(8) CDA 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, (James v Birmingham City Council  EWHC 2874 (Admin)).
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 of designed to frustrate the process, (R (on the application of M) vBurnley, Pendle and Rossendale Magistrates' Court  EWHC 2874 (Admin).
Section 1I CDA provides that special measures are available in proceedings for ASBOs, in the case of vulnerable and intimidated witnesses. These provisions apply exactly as they would in relation to criminal proceedings but with omission of any provisions that are appropriate only in the context of criminal proceedings.
INTENTION TO APPLY FOR AN ANTI-SOCIAL BEHAVIOUR ORDER IF THE DEFENDANT IS CONVICTED
(Criminal Procedure Rules 2005, Rule 50.3)
Case reference number:
In the Crown Court at
In the Magistrates' / Youth Court
1. THIS NOTICE is to tell you (name and address of the defendant against whom the prosecutor intends to apply to the court for an anti-social behaviour order)
that if you are convicted of one or more offences with which you have been charged, the prosecutor intends to apply to the court for an anti-social behaviour order to be made against you (The prosecutor believes that an anti-social behaviour order is necessary to protect people in any place in England and Wales from further anti-social acts by you. This is because you are alleged to have acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as you).
2. THE TERMS OF THE ORDER the prosecutor wants the court to make are:
The defendant must not: (prosecutor to specify here the prohibitions required)
3. NOTICE TO THE DEFENDANT SERVED with this document:
If you are convicted, you will have an opportunity to explain to the court why you think the proposed order should not be made. (Written notice of any evidence you rely on needs to be served on the court officer and the prosecutor (See Rules 50.3(4) and 50.6).
4. Name and address of prosecutor:
Prosecuting authority (if applicable)
5. Offence(s) with which the defendant is charged / has been convicted:
6. Attachments in support of the proposed application:
The prosecutor attaches the following material upon which the application will be based: (Attach items (i) and (ii) in every case and (iii) and (iv) where applicable.)
(i) Description of behaviour (a list, with dates, of the specific acts of anti-social behaviour upon which the prosecutor will rely in making this application)
(ii) Evidence to be relied on (e.g. witness statements, any previous convictions):
(a) a list of such evidence that has already been served;
(b) a list of such evidence that has not yet been served and is attached to and served with this notice.
(iii) Notice of any hearsay evidence to be relied on (See Rule 50.6).
(iv) Other documents served with this notice (The prosecutor is required to list and attach all other documents now served, such as a map of the proposed exclusion area).
This notice and proposed application must be served, with the listed attachments upon which the application will be based, as soon as possible (without waiting for a verdict) on the court officer and on the defendant.
A downloadable pdf. copy can be accessed here.