In this case the Court of Appeal ruled that the Criminal Behaviour Order (CBO) should not have been made. CBOs should only be made in limited circumstances and the order must be tailored to the specific facts of the case.
Mr Kahn, and his co-defendant Mr Bashir were involved in a road rage incident. Mr Bashir smashed the victim’s car window and Mr Kahn drove off dangerously. Mr Kahn was convicted of dangerous driving and sentenced to a suspended sentence. The Judge granted a CBO prohibiting him from associating with Mr Bashir in any place the public could access (including a vehicle) for 3 years. Mr Bashir was convicted of affray but no CBO granted.
In ruling that the Criminal Behaviour Order (CBO) should not have been made in Mr Khan’s case, the Court of Appeal gave general guidance on when CBOs should appropriately be made. CBOs are intended for the most serious and persistent offenders and be tailored to the specific facts of the case:
‘We are still in the early days of CBOs and the case law is not yet fully developed. Section 22 of the 2014 Act might on a literal construction be said to apply to a high proportion of cases in the criminal courts. Many offences are committed in public places and cause a degree of alarm and distress either to the victims or to members of the public who observe them…we do not believe that it was the intention of Parliament that criminal behaviour orders should become a mere matter of box-ticking routine…Such orders are not lightly to be imposed; the court should proceed with a proper degree of caution and circumspection; the order must be tailored to the specific circumstances of the person on whom it is to be imposed; and assessments of proportionality are intensively fact sensitive.’1 (emphasis added)
The Court of Appeal noted the Home Office Anti-social Behaviour, Crime and Policing Act 2014: Anti-social behaviour powers: Statutory guidance for frontline professionals, states that the CBO ‘is intended for tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court.’2
Applications for CBOs should adopt the procedural steps prescribed in Rules 31.2 and 31.3 of the Criminal Procedure Rules to ensure such applications are properly considered and ‘that an application for a CBO is not one to be either made or considered on the hoof.’3 The CBO application in the appellant‘s case was not made until 7 months after the sentencing hearing which the court deemed wholly unacceptable.4
The judgment approved Beatson LJ’s observations in DPP v Bulmer  EWHC 2323 (Admin) that ‘the guidance given in decisions of this court (the Divisional Court) and those of the Court of Appeal (Criminal Division) on ASBOs is of relevance when considered whether to make a Criminal Behaviour Order.’5
The guidance given by the Court of Appeal in R v Boness  EWCA Crim 2395 at paragraphs 19-23 and the should be followed, in particular the four requirements derived from the previous decision of this court in R v P (Shane Tony)  EWCA Crim 287:
- The terms of the order must be precise and capable of being understood by the offender.
- The findings of fact giving rise to the making of the order must be recorded.
- The order must be explained to the offender.
- The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced.
It should be noted that in some courts, CBOs are routinely applied for in cases involving children and young people, particularly when there is suspected gang involvement. Children are at high risk of breaching these orders and the consequences are grave. This case is helpful to remind courts that ‘such orders are not lightly to be imposed’ and the issue of proportionality should be balanced more heavily in favour of the defendant where the welfare principle should also be considered. The guidance given in this case will have applicability in applications for anti-social behaviour injunctions.