5. Criminal behaviour orders

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

A Criminal Behaviour Order (CBO) is an order which is available on conviction for any criminal offence by any criminal court, introduced by the Anti-social Behaviour, Crime and Policing Act 2014 (ABCPA 2014, s.22) with effect from 20 October 2014. It replaces the former powers of the court to make orders such as an ASBO or a drinking banning order on conviction. The statutory provisions relating to CBOs are now contained in Chapter 1 of Part 11 of the Sentencing Code.

A CBO is an order designed to tackle the most serious and persistent anti-social individuals where their behaviour has brought them before a criminal court. The anti-social behaviour to be addressed does not need to be connected to the criminal behaviour, or activity which led to the conviction. However, if there is no link the court will need to reflect on the reasons for making the order.

A CBO can deal with a wide range of anti-social behaviours following the offender’s conviction, for example threatening violence against others in the community, or persistently being drunk and aggressive in public. However, the order should not be designed to stop reasonable, trivial or benign behaviours that have not caused, or are not likely to cause anti-social behaviour.

Any application will be made by the prosecution (Sentencing Code, s.331(1)(b)). The majority of applications will therefore be made by the CPS, either at their own initiative, or at the request of the police. However, it may also be applied for by local councils, providing they are the prosecuting authority in the case. The court cannot make a CBO of its own volition.

A CBO may only be made against an offender when they have been sentenced to at least a conditional discharge for the substantive offence (Sentencing Code, s.331(3)). A CBO cannot be made where the offender has been given an absolute discharge. The court may only make a CBO if:

  1. It is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person (Sentencing Code, s.331(2)(a)) and
  2. It considers that making the order will help in preventing the offender from engaging in such behaviour (Sentencing Code, s.331(2)(b)).

For the first condition, the burden of proof on the prosecution is to the criminal standard. (There is no test of necessity as with ASBOs.)

A CBO may:

  1. Prohibit the offender from doing anything described in the order (‘a prohibition’), and/or
  2. Require the offender to do anything described in the order (‘a requirement’)

(Sentencing Code, s.330) However, any prohibitions and/or requirements must, so far as practicable, avoid any interference with times an offender would normally work, attend school or other educational establishment and any conflict with any other court order (Sentencing Code, s.331(4)).

If the order requires the offender to do anything, then the order must specify the individual or organisation that is responsible for supervising compliance with the requirement (Sentencing Code, s.333(1)) and must hear from them about both the suitability and enforceability of a requirement, before including it in the CBO (Sentencing Code, s.331(2)).

The order must be proportionate and reasonable. It will be for the court to decide the measures which are most appropriate and available to tackle the underlying cause of the anti-social behaviour. The order should be tailored to the specific needs of each offender.

When deciding whether or not to make a CBO, the court is entitled to consider evidence submitted by the prosecution and by the offender (Sentencing Code, s.332(1)). It does not matter whether the evidence would have been admissible, or has been heard as part of the criminal proceedings in which the offender was convicted, (Sentencing Code, s.332(2)) but it should be relevant to the test to be applied to the making of the order (in other words that the offender has engaged in behaviour that caused, or was likely to cause, harassment, alarm or distress to any person, and that the court considers that making the order will assist in preventing the offender from engaging in such behaviour). This evidence could include hearsay or bad character evidence. Special measures are available for witnesses who are vulnerable and intimidated witnesses in accordance with the Youth Justice and Criminal Evidence Act 1999 (Sentencing Code, s340).

A CBO takes effect on the day it is made (Sentencing Code, s334(1)), unless the offender is already subject to an existing CBO, in which case it may take effect on the day in which the previous order expires (Sentencing Code, s334(2)). The order must specify the period for which it has effect (Sentencing Code, s334(3)). In the case of an adult, the order must be for a fixed period of not less than two years or it may be an indefinite period, so that it is made until further order (Sentencing Code, s334(5)). An order may specify different periods for which particular prohibitions or requirements have effect within the order (Sentencing Code, s334(6)).

The court can impose an interim order in cases where the offender is convicted but the court is adjourning the hearing of the application for a CBO (Sentencing Code, s335(1)), before or after sentence for the offence. The offender need not be sentenced to be made subject to an interim order (Sentencing Code, s335(3)). The court can make an interim order if the court thinks it is just to do so. An interim order can be made until final hearing or further order (Sentencing Code, s335(2)). When making an interim order, the court has the same powers as if it were making a final order (Sentencing Code, s335(4)).

It is likely that the hearing for a CBO will take place at the same time as the sentencing for the criminal case. For adult offenders, there is no formal consultation requirement. However, in order to ensure that applications are made appropriately and efficiently, there is an expectation that any relevant agencies will have been consulted so that the court have the relevant information to decide whether to make an order or not and if so, in what terms. The prosecution should be prepared to deal with an application on the date of hearing.

The court may deal with the application for a CBO at the same time as it imposes sentence for the offence. Alternatively, the court may sentence the offender for the criminal offence and adjourn the application for a CBO to a later date (Sentencing Code, s332(3)). However, the court cannot hear an application once sentence has taken place, unless the application was made by the prosecution before sentence was concluded, as an application cannot be made retrospectively.

If the offender does not appear at an adjourned hearing for a CBO, the court may further adjourn the proceedings, issue a warrant for the offender’s arrest, or hear the proceedings in the offender’s absence (Sentencing Code, s332(4)). To issue a warrant for the offender’s arrest, the court must be satisfied that the offender has been given adequate notice of the time and place for the hearing (Sentencing Code, s332(5)). To proceed in the offender’s absence, the court must be satisfied that the offender has been given adequate notice of the time and place for the hearing and been told if they do not attend, the court may hear the application in their absence (Sentencing Code, s332(6)).

Further guidance is provided by the Home Office in Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers; Statutory guidance for frontline professionals. July 2014 (external website, link will not work if you are offline).