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Recent case highlights the dangers and disproportionate manner in which CBOs can be imposed

In April 2016 a 15-year-old was given a Criminal Behaviour Order (CBO) following a conviction for using an imitation firearm to threaten a 14-year-old. As a condition of the CBO, the child was required to wear a GPS tracking tag. The effect of this device is to observe the child’s behaviour at all times and allegedly to act as a deterrent to the child to refrain from anti-social behaviour. The child’s previous convictions for burglary were included in the evidence upon which the CBO was made.  This is the first time a youth has been tagged as part of a condition of a CBO, and the case was reported here.

Details

CBOs were introduced to replace post-conviction Anti-social Behaviour Orders (ASBOs) in tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court. Whilst very similar to ASBOs, the differences include the capability to take conduct in the previous year into account and to impose positive requirements upon the offender, as well as prohibitions.

The test for a CBO is weaker than the test for an ASBO. An important difference is the replacement of the necessity requirement with the consideration that making an order will “help in preventing” further offences. Despite the removal of the necessity component, a court can still refuse to impose a CBO on the grounds it is disproportionate.

At present, there has been little challenge to CBOs once made and the case law that currently exists has essentially been on the transition from ASBO to CBO. In a 2015 case the judge stated that the principles relating to ASBOs could apply when deciding whether to make a CBO, subject to the differences in the legislation.1 This provides some guidance as to how they will be treated in court.

Commentary

The order made on this 15-year-old is arguably very punitive. Although the new legislation gives scope to impose orders to help prevent the offender in engaging in the specified behaviour, this goes far beyond help and restricts the total behaviour of a 15-year-old raising concerns as to whether such orders are in the best interests of the child and whether this results in an infringement of his article 8 right to a private life. In N v DPP [2007] EWHC 883 (Admin) the court ruled that an ASBO prohibiting the offender from congregating in groups of 3 other than in the presence of adults aged over 21 years was disproportionate as it was too wide. The order was varied to include the phrase “in a manner causing or likely to cause any person to fear for their safety”. Given the decision in Bulmer (discussed above), that the case law on ASBOs may continue to apply to CBOs, it will be interesting to see if this or other similar cases are successfully challenged on those grounds.  In the case of the young offender from Oxford, the CBO does not contain any form of preventative measure as required by the CBO legislation.

 

By Donnchadh Greene (YJLC Legal Researcher)

 

  1. DPP v Bulmer [2015] EWHC 2323 (Admin  (back)