by Matthew Cullen, Criminal Barrister
INTRODUCTION:
Criminal Behaviour Orders (“CBOs”) replaced Antisocial Behaviour Orders and are issued under the Anti-social Behaviour, Crime and Policing Act 2014 (“the Act”). In the recent case of R v Brain [2020] EWCA Crim 457, the Court of Appeal considered an appeal against a CBO and confirmed a number of principles relating to such orders generally. This article focusses on three of these principles as opposed to the facts of the case. A copy of the judgment is available here as specific paragraphs (“Para”) are referred to below.
A SUMMARY OF CRIMINAL BEHAVIOUR ORDERS:
The two statutory conditions under the Act for making a CBO are:
- The court is 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 (Section 22(3) of the Act); and
- The court considers that making the order will help in preventing the offender from engaging in such behaviour (Section 22(4) of the Act).
CBOs are preventative, as opposed to punitive, and should only include requirements which are proportionate, necessary and targeted to the offender and their relevant conduct.
THE CASE, THE PRINCIPLES & ANALYSIS:
The key principle to be taken from Brain, in my own opinion, is provided at Para 41 of the judgment. It states, ‘as a matter of principle, prohibitions should not be imposed in relation to conduct which would constitute a criminal offence on its own merits’.
I prioritise this first principle due to my own experiences. I have, on a number of occasions when both prosecuting and defending, been presented with draft orders which propose prohibitions amounting to criminal offences in themselves. For instance, when defending in an application for a CBO following convictions for numerous thefts from the same shop, a proposed prohibition was not to take items from said shop without payment or permission. When prosecuting a committal for sentence involving harassment offences, I was given a draft Restraining Order with a proposed condition of not acting in a way which is likely to cause the injured party harassment, alarm or distress.
Whilst not necessarily reflecting the like offences word for word, each prohibition was adequately covered by the criminal law already. Although Brain deals with CBOs specifically, this principle should apply equally to other post-conviction orders where the terms of the order should always be necessary. A requirement will rarely be necessary if the individual could already be prosecuted for the conduct it proposes to cover. In both of my examples the Judge did not include the terms in the final order.
To summarise three of the prohibitions in Mr Brain’s CBO, they prevented him possessing and using another person’s ‘bank card, chequebook or bank account’ unless expressly authorised by the person without duress and making a false claim on applications for employment or positions of trust. Similarly to my own examples, all three prohibitions, the Court of Appeal concluded, were adequately covered by existing fraud offences. As a result, all three of these initially unopposed prohibitions were quashed.
Unlike in Brain, it is particularly important to oppose prohibitions of this type robustly. Failure to do so could be contrary to your client’s interests. The maximum sentence for breaching a CBO is five years imprisonment. This maximum can be significantly larger than the maximum sentence for the offence inappropriately subsumed within the CBO. Further, a conviction for breaching a CBO could also be used to illustrate an alleged disregard for court orders – a potentially damaging factor for any Defendant in future applications.
Mr Brain’s order additionally imposed a blanket ban on using social networking sites. This was held to be inappropriate to the extent that it inhibited Mr Brain’s employment prospects. Section 22(9) of the Act deals, in part, with employment by saying, as far as practicable, prohibitions should avoid interference with normal work commitments. Brain appears to expand on this idea and, as a matter of principle, highlights the importance of prospective work commitments. The court concluded that the blanket ban in Brain could be suitably amended and narrowed by including ‘save for employment-related purposes’ (Para 38).
Finally, the Court of Appeal explored the potentially niche question of whether conduct predating the introduction of the Act can be considered when deciding whether to make a CBO. Section 33(5) of the Act restricts this to conduct occurring up to one year before the commencement day – that being the day which Part 2 of the Act came into force namely October 20th 2014. In Mr Brain’s case, the lower court directly relied upon conduct predating the resulting October 2013 cut off point (Para 34). Although the lower court was wrong in doing so directly, it was entitled to ‘take account of the broader historical background as context for assessing the direct conduct which took place in the relevant [one year] period’ (Para 36). This was because the pre and post October 2013 conduct constituted an ‘ongoing and continuous pattern’. As we move away from the October 2013 cut off, this principle is likely to become less relevant. However, Brain confirms that Section 33(5) does not preclude a court considering, albeit indirectly, historical conduct as context. Where such conduct is intrinsically linked to conduct which can be relied upon, it may not be totally irrelevant to a CBO application.
CONCLUSION:
Other principles, including topics such as duration, evidence, burdens, the application procedure and more, are rehearsed at Paras 26 to 32 of Brain. Neither this article, nor Brain, outlines all the factors relevant to CBOs. On the three specific topics explored above however, the case is a clear authority for principles which should be followed.
