Criminal Behaviour Orders (CBOs) replaced the more commonly known ASBOs in October 2014. They are governed by Part 2 of the Anti-social Behaviour, Crime and Policing Act 2014 and are aimed at tackling serious and persistent antisocial behaviour. Where a person breaches a CBO, without a reasonable excuse, they are liable to a maximum sentence of 5 years imprisonment.
Procedure for applying for a CBO
CBOs can only be granted by the court upon a defendant being convicted for a substantive criminal offence (although a CBO cannot be imposed if a defendant receives an absolute discharge at sentencing). Often the prosecution will notify a defendant at the beginning of the criminal proceedings of their intention to apply for a CBO if they are convicted. The prosecution cannot apply for a CBO once sentencing has taken place.
Whilst the police or local authority will usually request that a CBO be applied for and provide evidence to support it, it is for the prosecution to make the actual application. A court cannot impose a CBO of its own accord. It is important to check whether the procedural rules have been complied with by the prosecution as failure to do so can result in the application being rejected by the court. These can be found under Part 31 of the Criminal Procedure Rules (CrimPRs).
The key points to take away from the CrimPRs are:
- The prosecution must serve a notice of their intention to apply for a CBO on the court and defendant as soon as practicable (without waiting for the verdict)
- The notice must
- (a) summarise the relevant facts;
- (b) identify the evidence on which the prosecutor relies in support;
- (c) attach any written statement that the prosecutor has not already served; and
- (d) specify the order that the prosecutor wants the court to make
- The defendant has the opportunity to serve any evidence on which they wish to rely upon in opposition of the application but they must do so as soon as practicable
- Hearsay evidence is admissible in CBO applications but the prosecution must serve a notice of hearsay evidence. If a defendant wishes to challenge the hearsay evidence, they must apply to the court for permission to do so no later than 5 working days after service of the notice of hearsay evidence.
How long does a CBO last for?
For those under 18, the order must be fixed for no less than 1 year and no more than 3 years. For over 18s, the order must be for a period of not less than 2 years but it can be imposed indefinitely. However, specific prohibitions or requirements within the order may last for less time than the actual duration of the order.
The test for granting a CBO
Remember, the aim of CBOs is to tackle serious and persistent anti-social behaviour. The court must comply with the following test:
- The court is satisfied, beyond reasonable doubt, that the defendant has engaged in behaviour that caused, or was likely to cause, harassment, alarm or distress to one or more people. The burden of proof is on the prosecution.
- The court considers that making the order will help in preventing the defendant from engaging in such behaviour. This will be an exercise of judgement to be made by the court however the prosecution should evidence to the court why each proposed term of the CBO will help in preventing future harassment, alarm or distress.
In deciding whether to make an order, the court can take into account a person’s conduct up to one year before the date of order. When applying for a CBO for a youth, the prosecution must obtain the views of the local youth offending team.
The court can impose an interim order in cases where the defendant has been convicted of a substantive criminal matter but the court adjourns the full hearing of the CBO application.
What can be included in a CBO
A CBO can include prohibitions preventing a person from doing something as well as requirements for a person to do something. The key points are:
- Any prohibitions and/or requirements must be reasonable and proportionate
- The terms must be narrow and precise
- The order should not include terms which are already criminal offences in themselves
- If the order requires a person to do something then the order must specify the individual or organisation who will be responsible for supervising compliance with the requirement and must hear from them about the suitability and enforcement of the requirement
- CBOs should not include requirements which are already included in the terms of any community or suspended sentence imposed by the court
- Prohibitions should not interfere with a person’s ECHR rights unless they are proven to be necessary, prescribed by law and proportionate
Can a CBO be challenged?
There is an automatic right of appeal to the crown court against a CBO made in the magistrates’ court. For an order made in the crown court, the defendant can appeal to the Court of Appeal but they must prove that the order should not have been made or that the terms of the order were wrong. If a defendant’s circumstances have changed then they can apply to vary or discharge the order.