Criminal Behaviour Orders (or “CBOs”) are one half of the regime introduced by the Anti-Social Behaviour, Crime and Policing Act 2014 to replace the perhaps better-known ASBOs, when those orders were abolished in England and Wales. The other half of the regime is the civil injunction.
CBOs can only be made after a defendant is convicted (which includes pleading guilty) and sentenced for a crime. In practice, the impetus to apply for a CBO almost always comes from the police. The CPS will often simply take an application pack which the police have prepared and forward it on to the court and the defence, without amending it. They are generally only sought against persistent offenders – this is not an explicit requirement of the statute, but the statutory guidance issued by the Home Office does indicate that CBOs are intended for “the most serious and persistent offenders”.
In order for a CBO to be made, the court in which the defendant was convicted, has to be sure that the defendant has “engaged in behaviour that causes or was likely to cause harassment, alarm or distress to any person”. This is a feature which is sometimes overlooked when CBO applications are made – these are not orders which can be imposed on any persistent offender, but only on those who have caused harassment, alarm or distress. Note, however, that the behaviour that causes harassment, alarm or distress does not have to be the same behaviour that led to the defendant being convicted, so it is possible to be convicted of one kind of offence, and then for a CBO to be made on the basis of completely different, unrelated behaviour, as long as that behaviour is proved to the court.
The court also must consider that making the order will help in preventing such behaviour. In many cases, this second part of the test proves to be easy to establish, but the defence may well find it is a helpful basis to challenge particular proposed terms of a CBO, if a term does not seem to bear any relation to the behaviour which the CBO is supposed to tackle. It should also be borne in mind that the terms of a CBO must be “reasonable, proportionate, realistic, practical, clear and enforceable” (first established in a case under the ASBO regime, but still applicable to CBOs). Terms which do not meet that test can be resisted.
Although the criminal standard of proof applies to the first part of the test (the court must be sure the defendant engaged in behaviour of the kind described), the application for a CBO is still a civil process. This means that the court will follow civil rules of evidence, and will (for example) admit hearsay evidence, including anonymous hearsay.
No burden of proof applies to the second part of the test (whether the CBO will help, it is simply an exercise of “judgment and evaluation” for the court.
CBOs can be made against any defendant (of any age), although the prosecution has to obtain the views of the local youth offending team before applying for a CBO against an under-18.
As with other civil orders, once a CBO has been made, it must be followed. This means that if the defendant is charged with breaching it, they can’t argue at that stage that the CBO is unlawful or invalid for some reason.
A charge of breach of a CBO is a serious one, with a maximum sentence of 5 years imprisonment. In many cases, this is therefore more serious than the original behaviour which led to the CBO being made. This, again, underlines the importance of challenging a CBO at the time when it is first made, so that defendants do not end up having to abide by unrealistic or impractical terms, under threat of a substantial sentence.
Likely defences to a charge of breaching a CBO are either factual (i.e. a denial that the order had actually been breached), or else that the defendant had a reasonable excuse for the breach. If the original CBO has been well written, however, it may in many cases be relatively easy for the prosecution to prove the facts, and indeed to rule out many likely excuses, since a good CBO will not prohibit conduct that is in itself reasonable or necessary.