What is a criminal behaviour order?
The Criminal Behaviour Order (CBO) has been introduced to give agencies and communities the tools and powers they need to deal with persistent anti-social behaviour exhibited by individuals who are also engaged in criminal activity. The court may make a CBO against the offender if two conditions are met:
1. The person has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons.
2. The court considers that making the order will help in preventing the offender from engaging in such behaviour.
The court may make a CBO against the offender only if it is made in addition to;
a) A sentence imposed in respect of the offence, or
b) An order discharging the offender conditionally. If the offender is under 18, the prosecution must find out the views of the local youth offending team before applying for a CBO.
What is the procedure to apply for a CBO?
CBO’s 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 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:
• Summarise the relevant facts.
• Identify the evidence on which the prosecutor relies in support.
• Attach any written statement that the prosecutor has not already served.
• 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 five working days after service of the notice of hearsay evidence.
If the individual is over 18 years of age, a CBO will last at least two years and there is no maximum time it can last. If the individual is under 18, the CBO can last between one and three years, but it can be reviewed every year. This time period must be specified and, if it includes a requirement, it must specify the person responsible for supervising compliance.
The CBO may also include certain provisions for the order (or a prohibition or requirement included in the order) to cease to have effect if the offender satisfactorily completes an approved course specified in the order.
CBOs are aimed at tackling serious and persistent anti-social behaviour. Where a person breaches a CBO, without a reasonable excuse, the order imposes tough criminal sanctions. The punishment for not following your CBO is:
• Up to two years in a detention centre if the individual is under 18.
• Up to five years in prison or an unlimited fine (or both) if the individual is 18 or over.
What is an example of a CBO?
A young person has been convicted of criminal damage after breaking the window of an elderly person’s house following an ongoing campaign of harassment. With the CBO, they can be prevented from going near their victim’s house, but also make good the damage to the victim’s window and engage with a mentoring programme to address the reasons why they were harassing the victim.
Our thoughts....
The criminal behaviour order is an additional preventative measure when someone was already in court and has been convicted of a criminal offence. The terms and prohibitions are usually the same as those used in civil injunctions but using a different route. A CBO can be considered where an offender is in the system and a civil injunction is the most appropriate option, but then the individual is arrested and charged with a criminal offence, so this route is an alternative, using the same evidence.
When utilising this option, consideration should be given to the length of time that this process could take, taking into account potential delays at court and it is also dependent on a conviction. Therefore, it may be the case that an initial switch from a civil injunction to CBO may well be a change back to civil injunction if this is appropriate taking into account the full circumstances.
The criminal behaviour order is for people who have both committed a crime and are engaging in anti-social behaviour, when there can be a train of thought that it must be either one or the other. A CBO can be applied for when the ASB does not relate to the criminal offence in court at that time. This is a good example of how important it is to work closely with partners so that information is shared, and the bigger picture is seen across the partnership.
With regards to the positive requirements, anecdotally it has been found nationally that there are barriers to using the positive requirements as there are gaps in local infrastructures, as well as conflicts with the agencies who could provide the service with the positive requirements. For example, where an individual is ordered to attend support sessions, the support worker may not be keen to report a breach of non-attendance as it may damage the working relationship with that individual.