Criminal Behaviour Orders
The Criminal Behaviour Orders (CBO) is a provision 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 and revised December 2017.
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 to any person,
- That the court should also consider making the order to 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.
When Does It Begin & How Long Does It Last (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:
- Not less than 1 year, and
- 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:
- A fixed period of not less than 2 years, or
- 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).
What Is The 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:
- Further adjourn the proceedings
- Issue a warrant for the offender’s arrest, or
- 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.
- 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.
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:
- Has had adequate notice of the time and place of the adjourned proceedings, and
- 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 you are to avoid the offender arguing 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.
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.
Could The Defendant Appeal?
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.
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).
How Dos Criminal Behaviour Orders Work? – 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.
Please see the following links for more information:
- Rape Crisis Freephone 0808 802 9999
- SOS Rape Crisis firstname.lastname@example.org or call 01702 667590
- Victim Support Call free Supportline 08 08 16 89 111
- SARC (Sexual Assault Referral Centres)
- Sexually abused as a child – can I claim compensation?
- Emotional/Psychological/Mental Abuse
- Family Law Act 1996
- Serious Crime Act 2015
- Restraining Orders
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Source UK Government Website