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Home » Professionals » Legal Guidance » A to C » Anti Social Behaviour Guidance

Anti-Social Behaviour Guidance

May 2008

Contents

Annexes

Introduction

This document provides guidance on:

  • Section 1C of the Crime and Disorder Act 1998, relating to CPS prosecutors making applications for orders on conviction;
  • Section 1(10) of the Crime and Disorder Act 1998; relating to prosecution of breach of an anti-social behaviour order;
  • Section 32 of the Anti-social Behaviour Act 2003, relating to failure to comply with a direction to disperse; and
  • Section 4 of the Anti-social Behaviour Act 2003, relating to breach of closure orders and notices.

This guidance supersedes the Policy Minute of 8 April 2004 insofar as this Minute refers to orders on conviction under section 1C of the Crime and Disorder Act 1998. This guidance also supersedes the CPS ASB Guidance document dated August 2006. This document updates the August 2006 guidance, specifically in relation to the amendment of Part 50 of the Criminal Procedure Rules 2005 and case-law since August 2006. [Note: The Criminal Justice and Immigration Act 2008 which received Royal Assent on 8 May 2008 contains clauses which create new ASB-related offences (disturbance on NHS premises, failure to comply with closure provisions relating to premises associated with serious disorder), but these sections are not expected to come into force until 2009. Further guidance will be issued as necessary relating to these provisions.]

A consolidated version of sections 1 to 4 of the Crime and Disorder Act 1998 which includes the insertions and deletions effected by subsequent legislation is at Annex A.

In this guidance, ASBO refers to an order which can be obtained by relevant authorities in civil proceedings under section 1 or section 1B of the Crime and Disorder Act 1998. Order on conviction or section 1C order refers to the order which may be obtained by a relevant authority under section 1C of that Act. Stand alone order refers to an order obtained by a relevant authority under section 1 of the Crime and Disorder Act 1998. Other abbreviations used include Crime and Disorder Act 1998 (CDA), Anti-social Behaviour Act 2003 (ASBA) and Serious Organised Crime and Police Act 2005 (SOCPB).

General Guidance

In Clingham (formerly C (a minor)) v Royal Borough of Kensington & Chelsea, R v Manchester Crown Court ex parte McCann (HL) [Note: [2002] UKHL 39; 2003 1 AC 787]

Lord Steyn described the social problem that the anti-social behaviour order provisions of the CDA was designed to address. He referred to the fear, misery and distress that might be caused by outrageous anti-social behaviour, usually in urban areas, often by young persons and groups of young persons. He said:

In recent years this phenomenon became a serious problem. There appeared to be a gap in the law. The criminal law offered insufficient protection to communities. Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law had failed them.

A number of different public bodies may apply for an ASBO, in addition to the prosecutors power to request an order on conviction. There must therefore be a co-ordinated approach with other agencies, so that anti-social behaviour is tackled by the appropriate body at the right time.

Orders on conviction can also be initiated by the courts own motion. [Note: S 1C(3) CDA]

Areas are encouraged to develop and keep under review protocols with local agencies. It is suggested that protocols cover at the very least:

  • Which agency is to obtain what kind of order,
  • In which court,
  • What action is to be taken in case of a breach of an order, and
  • If there is to be a prosecution, who should prosecute.

It is important that all CPS Areas seek to establish consistency of approach to applications for orders upon conviction.

An order on conviction is not itself a punitive measure, but a preventative one.

The Making of an Order

Under section 1C(2) CDA an order on conviction may be made by a court following conviction for a relevant offence if the court considers:

  • That the offender has acted, at any time since [1 April 1999], in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and
  • That an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him.

A relevant offence is an offence committed after the 2nd of December 2002. [Note: S 1C(10) CDA]

The anti-social behaviour which is to be proved can have been committed at any time since 1 April 1999.

When assessing necessity, the court can take into account acts committed before 1 April 1999. [Note: Stevens v (1) Southeast Surrey Magistrates Court (2) Surrey Police [2004] EWHC 1456 (Admin)]

The behaviour must cause or be likely to cause harassment, alarm or distress to any person not of the same household. This restricts the availability of an order in domestic situations although it may be proper to seek an anti-social behaviour order where a volatile private relationship causes or is likely to cause harassment alarm or distress to a third party even if that behaviour is not aimed at that third party. [Note: Rabess v The Commissioner of Police for the Metropolis [2007] EWHC 208 (Admin)]

There should be some evidence before the court that the behaviour in question has caused or is likely to cause harassment alarm or distress. [Note: Gosport Borough Council, R (on the application of) v Fareham Magistrates Court [2006] EWHC 3047 (Admin)]

There is no requirement to show that all other remedies have been exhausted, nor that an order is the only suitable way of dealing with the problem. The court must, however, be satisfied that the order is necessary to prevent future anti-social behaviour, and this will involve consideration of other sentences and remedies available.

The prosecutor needs to show that protection is necessary for persons anywhere in England and Wales. [Note: Section 1C(2)(b) CDA]

When considering whether an order is necessary the court may take the view that the offence for which the defendant has been convicted is so serious and anti-social that it tends in itself to show that an order is necessary, but see R v Boness and others [Note: [2005] EWCA Crim 2395] and R v Wadmore and Foreman (the principles that can be drawn from these cases are set out in Miscellaneous Guidance in respect of Orders on Conviction).

Alternatively, a court may look for a pattern of anti-social behaviour and for this purpose, evidence of the facts behind previous convictions and failed interventions (such as breach of anti-social behaviour contracts) may be probative.

Prosecutors may also seek to rely on anti-social behaviour which did not result in prosecutions or convictions. For evidential considerations in relation to this material, see Evidential Considerations.

The order must not require the offender to do anything; it can only prohibit the offender from doing things as specified in the order.

An order may only be made in addition to any sentence imposed in respect of the relevant offence or conditional discharge. [Note: S 1C(4) CDA] It follows that an order may not be combined with an absolute discharge nor be imposed at the same time as the court defers sentence.

An order comes into effect on the day it is made. [Note: W (a minor) v DPP [2003] EWHC 3139]

The court may suspend any such requirements of the order as it may specify during any period when the defendant is detained in legal custody until his release. [Note: S 1C(5) CDA] The order itself, however, commences on the day it is made.

In the case of R v P (Shane Tony), [Note: [2004 EWCA Crim 287] it was said that where a custodial sentence of more than a few months was passed and the offender was liable to be released on licence and therefore subject to recall, the circumstances in which there would be a demonstrable necessity to make an ASBO and suspend prohibitions to take effect on release would be limited, although there would be cases in which geographical restraints could properly supplement licence conditions. In this case it was held inappropriate to impose an order on a 15 year old prolific robber of mobile phones on whom a four year custodial sentence was being imposed.

As to general principles, R v P (Shane Tony) held that:

  • The whole of the procedure should take place in the presence of the defendant;
  • The terms of any order must be precise and capable of being understood by the defendant to whom it must be explained;
  • The findings of fact giving rise to the making of the order must be recorded;
  • The exact terms of the order must be pronounced in open court; and
  • The written order must accurately reflect the order as pronounced.

Section 1C CDA does not require a nexus between the criminal behaviour which led to the conviction and the anti-social behaviour to be proved for the order on conviction. In practice, however, if there is no link, it might be harder to persuade the court to make the order or a court might consider that a stand alone order is more appropriate. Section 1C complements section 1 (stand alone orders) and is not intended to substitute for it.

It is necessary to show a link between the anti-social behaviour that the offender has engaged in and the prohibitions that are sought. [Note: R v Boness [2005] EWCA Crime 2395]

The Burden and Standards of Proof

In Clingham (formerly C (a minor)) v Royal Borough of Kensington & Chelsea, R v Manchester Crown Court ex parte McCann [Note: [2002] UKHL 39; [2003] 1 AC 787] the House of Lords held that the standard of proof applicable to the determination of whether anti-social behaviour has occurred under section 1(1)(a) CDA, is the equivalent of the criminal standard of beyond reasonable doubt, even though the proceedings are civil.

The court must disregard any act which the defendant shows on the balance of probabilities was reasonable in the circumstances. [Note: S 1(5) CDA]

The House of Lords further held in Clingham that a determination of necessity under section 1(1)(b) CDA does not involve a standard of proof, but that it is an exercise of judgment or evaluation to be made by the court. There must be a demonstrable necessity for an order. [Note: R v Kirby [2005 EWCA Crim 1228; R v Boness [2005] EWCA Crim 2395]

Proceedings in the Youth, Magistrates or Crown Court under section 1C CDA constitute civil, not criminal proceedings and therefore the principles in Clingham apply. [Note: W (a juvenile) v Acton Youth Court [2005] EWHC 954 (Admin); R v Wadmore & Foreman [2006] EWCA Crim 686]

Reviewing Applications for S1C CDA Orders

A police request for an order on conviction must be made on Form MG13 and accompanied by the evidence to support it. Local protocols may set out a definitive list of documents to be submitted by the police.

Review as to whether there is a need to apply for an order is separate from review of substantive charges.

The question of whether to apply for an order on conviction is one to be addressed as early as possible. It is desirable that the question is raised when charging advice is sought by the police, in cases where such advice is sought from the duty prosecutor at the police station.

Prosecutors should have in mind at the time of charge or review whether it is going to be desirable and appropriate to seek and order on conviction in the event of a conviction, endorse the file and Compass CMS accordingly and ensure an application is prepared and served in accordance with the Criminal Procedure Rules 2005 (see paragraph 5.11 below).

In reaching the decision whether to seek an order on conviction, the prosecutor may have to seek the views of parties to the local protocol. That should be done at the earliest opportunity or in accordance with the local protocol and ordinarily the matter should not be raised with the police or the local authority for the first time after conviction.

While a local protocol may govern the process by which a decision is made, it should not specify any general policy; each case must be considered individually. Bearing in mind that each order, and each prohibition in each order, must be necessary and proportionate in order to comply with the European Convention on Human Rights (ECHR), the file should be endorsed to show why the order to be sought is needed and why the prohibitions are drafted as they are in each case.

There is no statutory requirement for consultation between the police and the Local Authority (or other relevant authority) prior to a section 1C CDA application being made. Consultation should, however, take place in accordance with any local protocol.

Formal review the code test:

  • The reviewing lawyer must be satisfied that there is sufficient evidence to provide a realistic prospect of obtaining an ASBO.
    • The defendant must be charged with an offence committed after 2 December 2002.
    • There must be sufficient evidence to prove beyond reasonable doubt that the defendant has been guilty of an anti-social act since 1 April 1999.
    • There must be sufficient evidence to show it is necessary for the Court to make the order to protect persons from further anti-social acts.
  • The reviewing lawyer must be satisfied that it is in the public interest to make the application for an order. This is a separate test from the necessity test referred to above.

For the grounds and considerations taken into account by the Court in granting ASBOs and orders on conviction see Miscellaneous Guidance in respect of Orders on Conviction.

For the evidential rules which apply to such applications see Evidential Considerations.

Notice of intention to apply for an order must be made on the form specified in the Consolidated Criminal Practice Direction pursuant to Rule 50 of the Criminal Procedure Rules 2005 (Annex D) which is available on the Infonet in the forms section. The notice of intention and should be served on the court, defence and any person on whom the order would be likely to have a significant adverse effect as soon as practicable, without waiting for a conviction. [Note: Rule 50.3 Criminal Procedure Rules 2005] (see Application Procedure for more detail on procedure to be followed when preparing and making an application).

A written review of the application must be entered on Compass CMS and on the file. Compass CMS should be noted ASBO applied for.

Which Court?

An application for an order on conviction should be made to the sentencing court. [Note: S 1C(10) CDA]

Prosecutors instructing counsel to appear in the Crown Court should include instructions on whether an application for an order on conviction should be made and include the necessary background and paperwork. This should also apply in the case of agents being used in the Magistrates Court.

A suggested procedure for prosecutors to follow in court is set out in Annex B.

In all courts, if there have been discussions with local agencies about whether to seek an order on conviction, for example with youth services, details should be given to the advocate conducting the case even where a decision has been made not to seek an order.

Miscellaneous Guidance in Respect of Orders on Conviction

The Court of Appeal in R v P (Shane Tony) [Note: [2004] EWCA Crim 287] adopted the principles from C v Sunderland Youth Court [Note: [2002] EWHC 2385 (Admin)]
which included the principle that:

it is vital that the terms of the order are clearly and accurately explained to the defendant by the magistrates in open court.

Prosecutors should not, therefore, ask a court to proceed with a section 1C application unless the defendant is present in person. Evidence may however properly be called in the defendants absence when he has failed to attend; he must still be given an opportunity to make submissions, whether by adjournment or issue of a warrant under s1C (4A) CDA, before the final order is made

Liaison with other agencies as to the progress and result of an application is important, and where possible the person who has prepared the application should attend court to assist the prosecution advocate, even if there is a prospect of the case being adjourned. This will allow all parties involved to be aware of orders made for enforcement purposes and also assist in victims and witnesses being kept aware of the progress of the case.

In the event of the CPS discontinuing proceedings in respect of which, had there been a conviction, an application for an order on conviction would have been made, any parties involved in the preparation of the applications should be informed. The reason for this is that the police (or local authority) may wish to seek a stand alone order.

Where it is decided not to proceed with criminal charges, where conduct that led to the charges being brought might be used as evidence in stand alone ASBO proceedings, care should be taken not to mislead the defendant into believing that such behaviour will not be used in subsequent legal proceedings.

In R v Wadmore & Foreman [Note: [2006] EWCA Crim 686] at paragraph 41, Mr Justice Aikens set out the following principles;

  • Proceedings under section 1C CDA are civil in nature so that hearsay evidence is admissible (see section within Evidential Considerations), but a court must be satisfied to a criminal standard that the defendant has acted in the anti-social manner alleged.
  • The test of necessity set out in section 1C(2)(b) requires the exercise of judgement or evaluation; it does not require proof beyond reasonable doubt that the order is necessary.
  • The findings of fact giving rise to the making of the order must be recorded by the Court.
  • The terms of the order must be precise and capable of being understood by the offender.
  • The prohibitions in the order must be enforceable in the sense that they should allow a breach to be readily identified and capable of being proved. Therefore, they should not impose generic prohibitions, but should identify and prohibit the particular type of anti-social behaviour that gives rise to the necessity of an order (see W v DPP [Note: [2005] EWCA Civ 1333]where it was held that a prohibition not to commit any criminal offence was too wide and therefore invalid).
  • There might be cases where geographical restraints could supplement licence conditions but the circumstances in which there would be a demonstrable necessity to make suspended prohibitions to take effect on release will be limited. In R v Rush [Note: [2005] EWCA Crim 1316] the court whilst altering the length of a sentence and the length of an ASBO was happy, due to the facts of the case, to allow an ASBO to be in place after the defendants release from prison. In R v Warwick [Note: [2005]EWCA Crim 1878] the court approved of an ASBO that would run alongside a prison sentence and after the defendants release in a case involving domestic violence, so that the order should simply be sufficient (in length) to provide a period after the appellants release from prison when some protection can be provided to ensure that there is no repeat of any violence. In R v Hutchins [Note: [2005] EWCA Crim 2238] an ASBO for an indefinite period was upheld alongside a prison sentence.
  • Because the test for making an order and prohibiting an offender from doing certain acts is one of necessity, each separate paragraph prohibiting a person from doing a specified thing must be necessary to protect persons from anti-social behaviour by the offender. Therefore, each order must be specifically fashioned to deal with the offender concerned. The court has to ask is this order necessary to protect persons in any place in England and Wales from further anti-social acts by him.

Not all prohibitions set out in an order have to run for the full term of the order itself. The test must always be what is necessary to deal with the particular anti-social behaviour of the offender and what is proportionate in the circumstances. In Lonergan v Lewes Crown Court [Note: [2005] EWCA 457 (Admin)] it was held that a curfew prohibition in an ASBO is not unlawful, and also that:

just because the ASBO must run for a minimum of two years it does not follow that each and every prohibition within a particular order must endure for the life of the order. A curfew for two years in the life of a teenager is a very considerable restriction of freedom. It may be necessary, but in many cases I consider it likely that the period of curfew could properly be set at less than the full life of the order (per Maurice Kay LJ)

  • An order is there to protect others from anti-social behaviour by the offender. Therefore, the court should not impose an order which prohibits an offender from committing specified criminal offences if the sentence which could be passed following conviction (or a guilty plea) for the offence would be a sufficient deterrent.
  • It is unlawful to make an order as if it were a further sentence or punishment. An order must not therefore be used merely to increase the sentence that an offender may receive. R v Lee Kirby [Note: [2005] EWCA Crim 1228], which has been followed with approval in a number of cases, sets out this point. It says that the making of an order should not be a normal part of the sentencing process, particularly in cases which do not of themselves specifically involve intimidation, harassment and distress. Rather it is an exceptional course to be taken in particular circumstances. The Kirby case involved dangerous driving and driving whilst disqualified. This point should be borne in mind in cases such as dishonesty which of themselves do not involve harassment, alarm, intimidation or distress.

The order must be for a period (not less than two years) specified in the order or until further order. [Note: S 1(7) CDA]

The case of R v Boness [Note: [2005] EWCA Crim 2395] states that prohibitions must be:

  • Reasonable and proportionate;
  • Realistic and practical;
  • Easy to understand; and
  • In terms making it easy to determine and prosecute a breach.

Evidential Considerations

Section 1C(3A) states that:

For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.

Section 1C(3B) states that:

It is immaterial whether evidence led in pursuance of subsection (3A) would have been admissible in the proceedings in which the offender was convicted.

Together, these subsections allow prosecutors (and defence) to adduce evidence which would not have been admissible in the criminal proceedings which led to the conviction. Prosecutors may therefore consider adducing evidence which would have been or was ruled inadmissible in the criminal proceedings. Prosecutors will want, however, to consider carefully the reasons why the evidence was or would have been ruled inadmissible in weighing up whether it is worth adducing it.

Prosecutors must follow civil evidence rules when using such evidence. [Note: Criminal Evidence Act 1995]

An application for an order may be supported by:

  • The facts of the offence for which the defendant has just been convicted;
  • The facts of the offence, plus the defendants previous convictions. Frequently, the circumstances of the offence that led to the convictions will be relevant to the application; or
  • The facts of the offence (with or without antecedents) plus other evidence.

In all cases, prosecutors should be prepared to give the court relevant background information, as they would for sentencing purposes.

In all cases, prosecutors should give notice to the defence of evidence on which the prosecution intends to rely in accordance with the Rule 50 of the Criminal Procedure Rules 2005. Special rules apply in the case of hearsay evidence (see Section 8.10).

In all applications it is important that the prosecution identifies the facts which are alleged to constitute anti-social behaviour. If they are accepted by the offender these should be put in writing and put before the court. If they are not accepted they must be proved, to the criminal standard, by the prosecution. Any findings made by the court, either after agreement between the parties or after a contested hearing, must be endorsed on the order made by the court. [Note: Paragraph 45 Wadmore & Foreman v R [2006] EWCA Crim 686]

The Defendants previous convictions:

  • Where the previous convictions are probative to obtaining an ASBO, they will be admissible. If a defendant does not admit the existence of the previous convictions, the prosecution will need to prove them. Prosecutors should follow the provisions of section 11 of the Civil Evidence Act 1968 if antecedents are disputed.
  • The Rehabilitation of Offenders Act 1974 applies to a request for an order on conviction. No reference should be made to convictions that are spent in the ASBO proceedings without the consent of the Court.
  • Prosecutors should be aware that spent convictions will frequently be admissible in the proceedings which lead to the conviction for the offence that triggered the ASBO request but inadmissible in the ASBO proceedings.
  • Details of the defendants offending history may be given, but the names of victims or associates should not be read out in open court, unless they are relevant to the conditions of the order sought and it is necessary to read them out.

The use of civil hearsay in the Magistrates Court is governed by Part 50 of the Criminal Procedure Rules 2005 which state:

  • Notice of an intention to adduce hearsay evidence should be served on the defendant and the court as soon as practicable without waiting for the verdict. The hearsay notice must explain that it is a notice of hearsay evidence, identify the hearsay evidence, identify the person who made the hearsay statement, or explain why if that person has not been identified and explain why that person will not be called to give oral evidence. [Note: Criminal Procedure Rules 2005 Part 50.6] A single notice may deal will the hearsay evidence of more than one witness. [Note: Criminal Procedure Rules 2005 Part 50.6]
  • Where a party tenders hearsay evidence and does not propose to call the maker of the statement, the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents. [Note: Criminal Procedure Rules 2005 Part 50.6] The application must be made within 7 days of service of the Hearsay notice.
  • The court makes a decision on whether the maker of the statement must be called, and notifies all parties of its decision.
  • If a party serves a hearsay notice, and does not call the maker of the statement, and another party wishes to attack the makers credibility or call evidence of an inconsistent statement, then that party must give notice within seven days of receiving the hearsay notice. [Note: Rule 50.8 Criminal Procedure Rules 2005]
  • The provisions on evidence apply to the defence as well as to the prosecution. Therefore, if evidence is served on the prosecution, the prosecutor will need to decide within seven days whether the evidence served is accepted or whether the witness credibility is to be challenged or contradictory evidence adduced.

In M v DPP [2007] EWHC 1032 Admin, the court held that failure to serve a hearsay notice was a procedural irregularity however; in the circumstances of this case the absence of the notice caused no prejudice to the defendant. The court was at pains to point out that it did not regard compliance with the rules as a mere technicality and was concerned that little consideration was given as to why unidentified witnesses were not called to give evidence and why special measures were not considered.

Post Sentence Adjournments

An application for a post conviction order may be adjourned even after the offender has been sentenced. [Note: S 1C(4A) CDA] The effect of this is that the post conviction application can have a life of its own beyond that of the criminal proceedings to which it attaches.

If an offender fails to attend at the adjourned hearing, the court may further adjourn proceedings or issue a warrant for the offenders arrest. [Note: S 1C(4B) CDA] It does not appear that there is a power to hear a post conviction application in absence, and sections 51-57 Magistrates Courts Act 1980 would not appear to apply as proceedings for post conviction orders are commenced by application and not by complaint.

Where the Court adjourns the application to be heard after sentence an interim order should be considered (see Interim Orders).

Prosecutors should be ready to deal with the application for an order on conviction at sentencing if at all possible.

Interim Orders

The court may make an interim order on conviction, either of its own volition or at the request of the prosecution, if the court considers that it is just to make such an order, pending the determination of the final hearing. [Note: S 1D(1)(c) CDA] This power only exists once the offender has been convicted of the offence to which the application for the order on conviction relates.

Any interim order must be for a fixed period but it may be varied, renewed or discharged. [Note: S 1D(1) and (2) CDA]

There is no statutory definition of the term just. It is however clear from R(M) v Secretary of State for Constitutional Affairs and others [Note: [2004]EWCA (Civ) 312] that in deciding if an order is just the court should consider all the relevant circumstances. The Home Office Guide to ASBOs states that the court should consider whether the application for the full order has been properly made and whether there is sufficient evidence of an urgent need to protect the community. The guide also states that an interim order will be appropriate where the applicant feels that persons need to be protected from the threat of further anti-social acts which might occur before the final main application can be determined.

Following the decision in R v Boness & others [Note: [2005] EWCA Crim 2395], a request for an order under S1C CDA cannot be made until after sentence. As the power to make an interim order under section 1D of the CDA does not arise until the request is actually made [Note: S 1D(1)(c) CDA], it therefore follows that interim orders are not available until after sentence. Bail conditions should be preferred if there is a need to control and individuals behaviour post conviction but prior to sentence (see R v Lawson [2008] EWCA Crim 416 for an analogous situation in the context of a sexual offences prevention order). Interim orders may be useful, however, in a situation where the substantive ASBO hearing is adjourned to a date after sentence pursuant to section 1C(4A) CDA.

As an interim order is not available prior to sentence, prosecutors should have regard to appropriate bail conditions between charge and conviction, and where appropriate and possible prosecutors should request bail conditions that will protect the community from further offences during the criminal proceedings and reflect the terms of the proposed order on conviction.

Application Procedure

New procedural rules for the making of applications for post-conviction orders came into force on 7 April 2008 and are set out in Part 50 of the Criminal Procedure Rules 2005 which apply in both the magistrates and Crown Court.

These rules are set out at Annex C and are summarised below:

  • A new Part 50 (Civil behaviour orders after verdict or finding), in substitution for the existing Part 50 (Supplementary order on conviction) prescribes the procedure for applying in criminal cases for an anti-social behaviour order or other civil behaviour order.
  • The note to Rule 50.1 provides a list of behaviour orders the court can make. Rule 50.2 sets out general rules for behaviour orders including interim orders.
  • Rule 50.3 sets out the procedure for the prosecutor applying for an ASBO or a Serious Crime Prevention Order (SCPO) if the defendant is convicted. There are separate forms for ASBOs and SCPOs set out in Amendment No 19 of the Consolidated Criminal Practice Direction which was handed down on the 19th March and which came into force on the 7th April 2008. They are also available on the infonet in the Forms section (case conduct and management).
  • The prescribed ASBO form and SCPO form cover the requirement to give notice of intention to apply for an order as well as the application itself. The forms also incorporate the notice requirement for hearsay evidence under rule 50.6.
  • The court has a duty under section 9(4) of the Serious Crime Act 2007 to give a person the right to make representations where the making of a SCPO would be likely to have a significant adverse effect on that person. During the passage of the 2007 Act the government gave commitments that there would be procedural safeguards to ensure that the rights of third parties are effectively protected. Therefore rule 50.3(2) (c) requires the prosecutor to serve a notice on any person on whom the order would be likely to have a significant adverse effect. This particular rule is primarily aimed at SCPOs and is unlikely to apply to ASBOs.
  • Rule 50.4 is concerned with the court making a behaviour order on its own initiative. Once the court has indicated its intention to make an order a party must serve a written notice on the court and the other party identifying the evidence to be taken into account. There is no prescribed form for service as there is under rule 50.3.
  • Rule 50.5 concerns applications to vary or revoke a behaviour order.
  • Rules 50.6, 50.7 and 50.8 broadly correspond with the Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 concerning hearsay notices; cross-examination of the maker of the hearsay statement; and the credibility of the maker of the hearsay statement.
  • Rule 50.9 allows the court to extend or shorten a time limit and to allow a notice or application to be given in a different form or presented orally.

Unused Material

As applications for orders are civil in nature, Part 1 Criminal Procedure & Investigation Act 1996 and The Attorney Generals Guidance of Disclosure of Material in Criminal Proceedings do not apply.

The Police are not, therefore, required to prepare Schedules of Unused Material (MG6C, D, & E) in respect of such applications.

There is no obligation to disclose unused material in ASBO applications. The usual rules governing the conduct of prosecutors will, however apply and all cases should be presented in a fair and balanced manner. Where a Prosecutor is aware of material that should be disclosed to the defence in the interests of justice, such a disclosure should be made. Where a prosecutor is in possession of sensitive material that cannot be disclosed, but non-disclosure will adversely affect the ability to hold a fair trial, then careful consideration should be given as to whether the application should be proceeded with.

The Form and Content of the Order

An order on conviction made by a Magistrates Court under Section 1C CDA should be in the form of Schedule 4 to SI 2002/2784 (L14). (as set out at Annex E).

An order on conviction made by the Crown Court under Section 1C CDA should be in the form provided for by Schedule 13 to SI 2002/2783 (L13). (as set out at Annex F).

The findings of fact giving rise to the making of the order must be recorded by the Court. [Note: Wadmore & Foreman [2006] EWCA Crim 686]

Section 1C(2) CDA states that an order on conviction can prohibit an offender from doing anything. This apparently wide power has been restricted by case law and the following principles should be applied by prosecutors:

  • Each prohibition should be considered as if it is a separate order and must be necessary to prevent further anti-social behaviour. [Note: R v Boness [2005] EWCA Crim 2395]
  • The terms of the order must be precise so that the individual knows exactly what he is prohibited from doing. [Note: R v Boness [2005] EWCA Crim 2395]
  • The terms of the order must be reasonable and proportionate, realistic and practical and must be worded in such a way to make it easy to determine and prosecute a breach. [Note: R v Boness [2005] EWCA Crim 2395] Experience has shown that the use of simple language can assist. For example consider not to be with .. rather than not to associate with..
  • The terms of the order must be enforceable in that a breach can be readily identified and capable of being proved.
  • Each term must be substantially and not just formally prohibitory. [Note: Lonergan v Lewes Crown Court [2005] EWCA Crim 457 (Admin)]
  • Not all prohibitions need to last the lifetime of the order. [Note: Lonergan v Lewes Crown Court [2005] EWCA Crim 457 (Admin)]
  • A prohibition should not mirror a criminal offence if the sentence for the offence should be a sufficient deterrent. An ASBO should not be used to increase the maximum sentence of imprisonment that is available for a particular offence however a term prohibiting an offence might be necessary in respect of non-imprisonable offences. [Note: Paragraphs 34 & 35 R v Boness [2005] EWCA Crim 2395]

Good practice shows that the order should:

  • cover the range of anti-social acts proved to have been engaged in by the defendant;
  • be specific as to time and place, referring to clear and legible maps as necessary;
  • be specific when referring to exclusion from an area, including street names and clear boundaries. Where the prohibitions seek to exclude the defendant from particular areas, the boundaries of the area must be clearly displayed on a map which should become part of the order and a copy given to the defendant; and
  • identify individuals if it prohibits association with certain people.

It is possible that the prohibitions sought will interfere with one or more of the offenders ECHR rights. Interference with some rights (for example, Article 10 freedom of expression, Article 11 freedom of assembly and association, or Article 8 right to respect for private and family life) is justifiable where it is necessary, prescribed by law, and proportionate. The court, as a public body, is required to interpret the CDA in a way which is compatible with ECHR rights.

There are no express restrictions on what the order can say about location, other than it only having effect within England and Wales. The statue makes no reference to behaviour in public as opposed to in private. However, it is inherent in the terms of Section 1C(2) that the kind of behaviour which an order can prohibit is behaviour which affects people outside the offenders own household, and which is directed at society in general. Therefore, it seems that the courts can prohibit someone form going to or being at private premises if the conditions of Section 1C(2) are met. One example is if the accused tends to go to a private flat which is not his home and throws missiles from the flat window at passers-by. In this case, a prohibition on being in that flat might be reasonable and proportionate and if it is necessary, the order could be made.

Example of prohibitions approved by the Court of Appeal are set out in the table at Annex G.

Youths: Special Considerations

In R (A) v Leeds Magistrates Court [Note: [2004] EWHC 554 (Amin)] the High Court held that where the person against whom the order was sought is a child, the childs best interest are a primary consideration but so equally are the interests of the public.

Where an order is made on conviction of a youth there is no automatic restriction on reporting the fact that the order was made. [Note: [2004] EWHC 554 (Amin)] However, the proceedings for the criminal conviction that triggered the making of the order on conviction are still subject to section 49 Children and Young Persons Act 1933 unless the youth court specifically lifts the reporting restriction. The mere reporting of the fact that an order was made in the youth court reveals that the youth has been convicted, because the youth court has no civil jurisdiction and can only make an order on conviction.

Similarly, where a youth is prosecuted for a breach of an ASBO under Section 1(10), there are no automatic reporting restrictions on the proceedings in respect of the breach, although any other charges heard at the same time will still be subject to Section 49 Children and Young Persons Act 1933. [Note: S 1(10D) CDA]

The application of section 39 of the Children and Young Persons Act 1933 where a child or young person is the subject of an anti-social behaviour order was considered in R v St Albans Crown Court, ex parte T and Chief Constable of Surrey v J h-G and D H-G. [Note: [2002] EWHC 1129 (Admin); [2002] All ER (D) 308 (May) The judge stated that:

Whilst the court plainly does not have to refer to every factor which may weigh in favour of a section 39 direction being made, it is necessary, in my view, that it should briefly summarise the principal factors weighing in favour, even if the decision finally is that these factors are outweighed by the public interest in disclosure.

The following considerations were identified as relevant by the Court in the St Albans case when considering imposing or removing reporting restrictions:

  • In deciding whether to impose or thereafter to lift reporting restrictions, the court will consider whether there are good reasons for naming the defendant.
  • In each case there will be a wide variety of factors which have to be considered, and in each case the balance has to be struck between the desirability of public disclosure on one hand and the need to protect the welfare of the youth on the other after a full appreciation of the relevant considerations.
  • In reaching that decision, the court will give considerable weight to the age of the offender and the potential damage to any young person of public identification as a criminal before the offender has the benefit or burden of adulthood.
  • By virtue of section 44 of the C&YPA 1993 Act, the Court must have regard to the welfare of the child or young person.
  • The prospect of being named in court with the accompanying disgrace is a powerful deterrent and the naming of a defendant in the context of his punishment serves as a deterrent to others. These deterrents are proper objectives for the court to seek.
  • There is strong public interest in open justice and in the public knowing as much as possible about what has happened in court, including the identity of those who have committed crime.
  • The weight to be attributed to the different factors may shift at different stages of the proceedings, and, in particular, after the defendant has been found, or pleads, guilty and is sentenced. It may then be appropriate to place greater weight on the interest of the public in knowing the identity of those who have committed crimes, particularly serious and detestable crimes.
  • The fact that an appeal has been made may be a material consideration.
  • Where an anti-social behaviour order has been imposed, that is a factor which reinforces, and in some cases may strongly reinforce the general public interest in the public disclosure of court proceedings.
  • The Court should not have regard to the impact of publicity on the other members of the youths family.

If a youth is prosecuted for breach of an order in the youth court, one person authorised to be present by a relevant authority is entitled to be present at the breach proceedings in the youth court. [Note: S 1(10B) CDA]

Parenting Orders:

  • Under sections 8 and 8 CDA, the Court must make a Parenting Order when it convicts a child or young person under the age of 16 if it is satisfied that a Parenting Order is desirable in the interests of preventing further offending by the child or young person. If the Court is not so satisfied, the Court must state in open Court why it is not.
  • Also, under section 8 and 9 CDA, the Court must make a Parenting Order when it makes an ASBO against a child or young person under the age of 16 if it is satisfied that a Parenting Order is desirable in the interests of preventing a repetition of the behaviour by the child or young person that led to the Order. If the Court is not so satisfied, the Court must state in open Court why it is not.
  • In cases where the Court is making an order under Section 1C CDA, as the sentence for the offences comes before consideration of the ASBO, the Court will have already considered and ruled as to whether a Parenting Order should be made.
  • The same provisions apply to young persons aged 16 and 17, but here there is a discretionary power to make a Parenting Order.

Appeals

A defendant has a right of appeal against an order on conviction made by a magistrates court by virtue of Section 108 Magistrates Courts Act 1980, as sentence includes any order made on conviction. [Note: S 108(3) Magistrates Courts Act 1980]

An appeal is appropriate where the offender seeks to argue that the order should not have been made, or the prohibitions are wrong. [Note: R v Manchester Crown Court, ex parte Manchester City Council (2000)] If the offender seeks to argue that circumstances have changed, then an application to vary or discharge the order may be appropriate (see Variation or Discharge of an Order below).

Where the order is made by the Crown Court the defendants right of appeal is the Court of Appeal Criminal Division. [Note: S 9 Criminal Appeal Act 1968] This was confirmed in R v P [Note: [2004] EWCA Crim 287] and R v Wadmore and Foreman. [Note: [2006] EWCA Crim 686]

Variation or Discharge of an Order

Applications for variation and discharge of an order on conviction may be made under Section 1CA CDA.

An application for variation or discharge will be appropriate to deal with change of circumstances or, potentially, the passage of time, where the offender is able to come back to the court and say that he has mended his ways, left the area, got a proper job or any other considerations which may lead the magistrate to think that the prohibition on him can now be lifted. [Note: R v Manchester Crown Court, ex parte Manchester City Council (2000)]

In Leeds City Council v RG (2007) EWHC 1612 (Admin) the court held that there is a power to extend an ASBO by way of variation. Courts should, however examine why they are being asked to do this rather than make a new order. It may be, for example, that when the variation sought is to extend the order for a period in excess of two years that a fresh application may be more appropriate.

Applications to vary or discharge may be made by:

  • The person subject to the Order;
  • CPS (utilising the powers of the DPP); or
  • A relevant authority, defined in S1(1A) CDA.

The application shall be in writing to the Court which made the order [Note: Part 50.5 Criminal Procedure Rules 2005] and the person subject to the order. [Note: S 1CA(5) CDA and Part 50.5 Criminal Procedure Rules 2005] No forms for the application are specified. The application is generally made by letter setting out the variation sought and enclosing the evidence relied upon.

Where the Court considers there are no grounds on which it could conclude that the order should be varied or discharged, it can determine the application without hearing representations from the parties. [Note: Part 50.5 Criminal Procedure Rules 2005]

Where the Court considers there are grounds for variation or discharge, it shall issue a summons giving no less than 14 days notice of the hearing [Note: Part 50.5 Criminal Procedure Rules 2005] which shall be sent to the person subject to the order and Applicant Authority. [Note: Part 50.5 Criminal Procedure Rules 2005]

A section 1C order cannot be discharged before the end of a minimum 2 year period without consent of:

  • The CPS (utilising the powers of the DPP) on application by the person subject to the Order, [Note: S 1CA(7)(a) CDA] or
  • The person subject of the Order on application by CPS or the relevant authority. [Note: S 1CA(7)(b) CDA]

The consent of the DPP is not required where the relevant authority apply for a discharge.

Section 142 of the Magistrates Courts Act 1980 (slip rule) is not available to correct errors in anti-social behaviour orders, given that the power to re-open cases to rectify mistakes is available to criminal proceedings only. [Note: Samuda v DPP [2008] EWHC 205 (Admin); R(Periasamy Mathialagan v London Borough of Southwark[2004] EWCA Civ 1689]

Prosecuting Breach of an Order

A person who, without reasonable excuse, does anything which is prohibited by an order made under Section 1 (Stand Alone), Section 1B (County Court), Section 1C (Post-Conviction) or Section 1D (Interim) of the CDA, commits a criminal offence. [Note: S 1(10), 1B(7)(m), 1C(9) & 1D(5) CDA]

Breach of an ASBO may be prosecuted by the CPS or Local Authority. [Note: S 1(10A), 1B(7), 1C(9A) & 1D(5) CDA] Local protocols should include agreement with the Local Authority as to when the Local Authority may be the prosecuting authority. It is anticipated that the Local Authority may be the prosecuting authority in cases where the evidence of the breach is wholly from Local Authority employees (for example where it concerns excess noise).

The prosecutor needs to show:

  • that the order was lawfully made;
  • what the order said; and
  • what the offender did in breach of the order, and that it was behaviour which was covered by the terms of the order that was made.

A certified Copy of the Order is sufficient to prove (a) and (b) above. [Note: S 1(10C) CDA] In CPS v T [Note: [2006] EWHC 728 (Admin)] it was held that the validity of an anti-social behaviour order could not be raised as a defence in proceedings for its breach, as the correct challenge to its validity was by way of an appeal or application to vary.

The prosecutor will have to prove that the Defendant was the person who was made subject to the ASBO. Admissions in interview will be sufficient, otherwise other evidence will have to be submitted, for example fingerprints.

The offence does not require any mental element to be proved.

The defence has an evidential burden to raise a reasonable excuse, and once that burden is satisfied, it is for the prosecution to prove, to the criminal standard, that the defendant had no reasonable excuse. [Note: R v Nicholson [2006] EWHC Crim 1518]

Mistakes of fact will only provide a defence if it amounts to a reasonable excuse for what the accused did.

Questions about the validity of an order cannot be raised as a defence in proceedings for its breach. However, where the prohibition that is being enforced is too vague to be enforceable, the defence of reasonable excuse could be raised. [Note: CPS v T [2006] EWHC 728 (Admin)]

The charge is reviewed in accordance with the Code for Crown Prosecutors. In applying to public interest test, the prosecutor should take account of discussions between the relevant agencies, including the local authority or social landlord if possible. If the behaviour that has led to the charge for the breach is a repetition of the behaviour that led to the making of the order, this is a factor pointing towards prosecution for breach. If the behaviour is itself criminal, as well as being in breach of an order, then that too is a factor pointing towards prosecution for both the breach and the criminal offence.

In reviewing the file, Prosecutors should obtain evidence as to whether harassment, alarm or distress was caused to any person as a result of the breach and the circumstances around the making or the order as this is a relevant sentencing issue and the Prosecution case should not be ambiguous in this regard.

If the defendant is charged with breach of the order but has lodged an appeal against the making of an order, or the order has been granted on an interim basis, the breach is still a criminal offence and prosecutors should prepare the case for prosecution. There may be circumstances, however, in which the prosecutor may think it appropriate not to resist a request for adjournment of the prosecution until either the appeal or the substantive hearing has been dealt with. When considering this point, the prosecutor should be aware of the risk of defendants using appeal and delay to avoid prosecution for the breach.

The charge is subject to the rule against duplicity (Rule 4(2) of the Indictment Rules 1971).

The offence is triable either way. On mode of trail reference may not be made to an accuseds previous convictions. However, reference to the behaviour which led to the imposition of the order should be made, if relevant, but not to previous convictions. In representing to the court whether the case is more suitable for summary trial or for trial on indictment, prosecutors will need to refer to the manner in which the order is alleged to have been breached: for example, the more serious and deliberate the harm, then the more likely that the offence is one of serious character within Section 19(3) of the Magistrates Courts Act 1980. Prosecutors will also have in mind the question whether the maximum penalty that the magistrates can impose is going to be sufficient in the event of a conviction. The entry point for adults is a custodial sentence (see below).

Breach proceedings are criminal in nature and the criminal rules of evidence apply. Special measures will be available in appropriate cases.

Sentencing:

  • Magistrates 6 month custodial and/or maximum fine.
  • Crown Court 5 years and/or maximum fine.
  • Youth Court 24 months DTO.

An ASBO is specifically designed to protect the public from anti-social behaviour and a breach or the Order is a serious criminal offence. [Note: R v Braxton [2004] EWCA Crim 1374] However, where breaches did not involve harassment alarm and distress, community penalties should be considered to help the offender learn to live within the terms of the order. In cases where there is no community penalty available, custodial sentences should be kept as short as possible. [Note: R v Lamb [2005] EWCA Crim 2487]

Prosecutors should, wherever possible, draw the courts attention to the circumstances in which the order was made, in order that it may take this into account when deciding upon an appropriate sentence. [Note: R v H; R v Cyril John Stevens [2006] EWCA Crim 255]

In relation to breach of interim orders attention is drawn to the case of Cohen Parker v DPP [Note: [2005] EWHC 1485] in which it was held that it by no means follows that the absence from the final ASBO of the prohibition inserted at the interim stage, itself affects the gravity or otherwise of the breach of that prohibition.

In youth cases, any breaches should e dealt with in line with normal procedures for dealing with youth offenders. The police, in consultation with the youth offending team, should make an assessment of both the seriousness of the breach and of the young persons offending history. Where the breach of an ASBO is effectively a first criminal offence by the youth then a final warning may be appropriate, provided the breach was not a flagrant one. Where the breach was flagrant, then the expectation would be to charge, unless there were some very unusual circumstances.

Annex F sets out summaries of several Court of Appeal decisions on sentencing for breach of ASBO.

The penalty for breach of ASBO may not be a conditional discharge. [Note: S 1(11) CDA] The Magistrates Sentencing Guidelines how an entry point of a custodial sentence.

Special Measures

Section 1I CDA provides that special measures are available in proceedings for anti-social behaviour orders, in the case of vulnerable and intimidated witnesses. These provisions apply exactly as they would in relation to criminal proceedings but with omission of any provisions that are appropriate only in the context of criminal proceedings.

Dispersal of Groups

Sections 30-36 Anti-social Behaviour Act 2003 contain the relevant legislation and are set out at Annex G. Where a Police Superintendent or above has reasonable grounds for believing that members of the public have been intimidated, harassed, alarmed or distressed in public places in a specific area (referred to as the Relevant Locality) and that anti-social behaviour is significant and a persistent problem in that area, he may make a written Authority under Section 30 ASBA with the consent of the Local Authority allowing Police Officers to disperse groups of more than two people

  • The authorisation requires a brief relevant, concise summary of the nature of the material that gave rise to the issuing officers belief that such an authorisation was required. [Note: Sierney v DPP [2006] EWHC 716 (Admin)]
  • A plan of the Relevant Locality clearing defining boundaries should be attached to the Authorisation.
  • Local Government legislation requires specific delegation of powers to the Local Government Officer to give consent to the Authorisation and it is good practice for Local Government Officer to sign Authorisaton indicating consent.
  • The period of the Authorisation cannot exceed six months.

An Authorisation Notice, stating that the Authorisation has been given, the Relevant Locality and the period it is to run, must be either published in a local newspaper or displayed in the Relevant Area before the commencement of the period in which the Authorisation operates. [Note: S 31 ASBA]

During the period of the authorisation, where a Police Constable [Note: S 30(3) ASBA] or Police Community Support Officer [Note: S 33 ASBA] has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the Relevant Locality has resulted or is likely to result in any member of the public being intimidated, harassed alarmed or distressed, the Constable or PCSO may:

  • Require the persons in the group to disperse either immediately; or by such time as may be specified; and in such way as may be specified. [Note: S 30(4) ASBA]
  • If a member of the group does not have a place of residence within the Relevant Locality, require that person to leave either the Relevant Locality or a specified part of it either immediately or by such time or in such a way as may be specified [Note: S 30(4)(b) ASBA] and in addition may require that person not to return to the Relevant Locality for such period as he may specify, not exceeding 24 hours. [Note S 30(4)(c) ASBA]
  • If, between the hours of 9pm and 6am, he finds a person in any public place in the relevant locality who he has reasonable grounds for believing is under the age of 16, and is not under the effective control of a parent or a responsible adult, may take him home unless he has a reasonable grounds for believing that the would be likely to suffer significant harm at home. [Note: S 30(6) ASBA] This power is coercive, but the Police are not free to use the power for a purpose for which it was not conferred. [Note: R (on the application of W) v Commissioner of Police for Metropolis, Richmond-upon-Thames, London Borough Council, Home Office [2006] EWCA Civ 458]

Refusal to comply with a direct made under a Dispersal Authorisation (commonly known as breach of dispersal order) is a criminal offence [Note: S 32(2) ASBA] and criminal rules of evidence apply.

The Crown must prove all elements of the offence:

  • A Dispersal Authorisation was in effect and was valid.
  • The publicity provisions had been complied with.
  • The Constable was in uniform.
  • The Direction was given inside the Relevant Locality.
  • The Defendant knew that he was being given a direction under the Dispersal Authorisation.
  • The Direction given was lawful.
  • The Defendant failed to comply with the direction.

In order to prove that the Officer acted lawfully, the validity of the Authorisation must be proved. It is suggested that the Police Superintendent makes a S9 Criminal Justice Act 1967 (CJA) statement at the time he signs the Authorisation confirming that he made it, setting out the brief grounds for his decision and exhibiting the Authorisation. A copy of this statement can be used in all subsequent prosecutions.

As an Authorisation requires the consent of the Locality Authority, it is suggested that a S9CJA statement is obtained from the official at the time of the making of the Authorisation both confirming they have delegated powers and that consent has been given.

A S9 CJA statement should be obtained from the Police official who deals with publicity as required by Section 31(4). Where the Authorisation Notice appears in a newspaper, a copy of the paper should be exhibited to the statement. Where copies of the Authorisation Notice are displayed in a conspicuous place, the official should state when and where they were displayed and exhibit a copy of the plan with the locations marked on it.

Copies of the S9 CJA Statements from the Superintendent, Local Authority Official and Police Official relating to publicity should be served on the Defence pursuant to S9 CJA.

A Police Officer seeking to give a Direction pursuant to the Authorisation should ensure that it is clear whether the instruction is given under section 30(4)(a), (b) or (c). The terms of the direction should also be clear, for example, when the person is to leave the area or what action he is expected to take. The word disperse is not defined in the Act. The dictionary definition is to scatter, to go or drive or send in different directions. It is submitted that when an Officer tells a group to disperse, this means they shall all leave the area.

The offence under Section 32(2) requires the Defendant to knowingly contravene a direction. The officer needs to give evidence that the Defendant knew that the Direction was given pursuant to the Authorisation, for example, that the Officer told the Defendant that it was so given and warned the Defendant of the consequences of failing to comply.

As in all criminal cases, identification must be proved.

Crack-House Closures (Closure notices and Closure Orders) 

Sections 1-11 of the ASBA contain the relevant legislation and are set out at Annex H. Where an officer of the rank of superintendent or above has reasonable grounds for believing that at any time during the three months preceding the time his decision is taken, premises have been used in connection with the unlawful use, production or supply of a Class A drug AND that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public, he may issue a closure notice after consultation with the local authority. [Note: S 1 ASBA] The effect of the closure notice is that only the owner or persons who are habitually resident at the premises may now enter the building. It is an offence or other persons to enter the premises.

An application must be made by the Police to the Magistrates Court for a closure order within 48 hours of service of the closure notice. The Court may make a closure order if it is satisfied that the premises have been used in connection with the unlawful use, production or supply of a Class A drug AND that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public; and the order is necessary to prevent the occurrence of disorder or serious nuisance for the period specified in the order. [Note: S 1 ASBA] In Michelle Harrison v Merseyside Police, [Note: [2006] EWHC 1106 (Admin)] which relates to the standard or burden of proof to be applied to paragraphs (a) and (b) of section 2(3) ASBA, the court held that the standard of proof required in relation to these first two limbs of the requirements for a closure order was the civil standard of proof, namely on the balance of probabilities. The court accepted that there is a distinction between closure orders and ASBOS.

A closure order gives a power to close property completely or partially and can prevent access by any persons, even those with rights of abode or ownership, except where they are allowed to enter the property under the supervision or direction or permission of the police or the courts. The order will allow for a property to be sealed, closed and the removal from public use for the period of the order. The closure order comes into effect immediately the court makes the order.

The closure period under section 2(4) ASBA shall not exceed three months relating to closure orders.

Proceedings for breach of closure notices and orders are criminal offences. Hearsay evidence is only admissible in accordance with the Criminal Justice Act 2003.

Offences:

  • A person commits an offence if he remains on or enters premises in contravention of a closure notice. [Note: S 4(1) ASBA]
    • Only the owner or persons who are habitually resident at the premises may enter the building from the service of the notice.
    • A defence of reasonable excuse is available. [Note: S 4(4) ASBA]
  • A person commits an offence if he obstructs a constable or an authorised person acting under section 1(6) [service of closure notice]. [Note: S 4(2)(a) ASBA]
    • No definition is given of what constitutes obstruction. This will be a question of fact.
    • A defence of reasonable excuse is not available for this offence.
  • A person commits an offence if he obstructs a constable or an authorised person acting under section 3(2) [entry and securing the premises] [Note: S 4(2)(a) ASBA]
    • There is no definition of what constitutes obstruction. It will be a question of fact.
    • A defence of reasonable excuse is not available for this offence.
  • A person commits an offence if he remains on premises in respect of which a closure order has been made. [Note: S 4(2)(b) ASBA]
    • A closure order prevents all persons, including the owner and persons habitually resident at the premises, from being on the premises.
    • A statutory defence of reasonable excuse is available. [Note: S 4(4) ASBA] Reasonable excuse will be a matter of fact. Once raised by the defendant, it must be rebutted by the prosecution.
  • A person commits and offence if he enters the premises in contravention of a closure order. [Note: S 4(2) ASBA]
    • A closure order prevents all persons, including the owner and persons habitually resident at the premises, from entering the premises.
    • A statutory defence of reasonable excuse is available. [Note: S 4(4) ASBA] Reasonable excuse will be a matter of fact. Once raised by the defendant, it must be rebutted by the prosecution.

Sentence: Summary only offence six month custody (four months DTO for youths) and/or level 5 fine on the standard scale.

Power of Arrest: A constable in uniform may arrest a person he reasonably suspects of committing or having committed and offence under this section. [Note: S 4(5) ASBA]

Contacts in Headquarters

For queries relating to matters raised in this guidance which cannot be resolved through your local ASB Specialist Prosecutor, ASB Co-ordinator or line management, please contact the Anti-social Behaviour Delivery Unit on 0207 776 5130 or Sarah.Johnston@cps.gsi.gov.uk

CPS Anti-Social Behaviour Delivery Unit

May 2008

Annex A
Crime and Disorder Act 1998

(As amended by Police reform Act 2002, S 85 & 86 Anti-Social Behaviour Act 2003, S 322 & 323 Criminal Justice Act 2003, S139 to 143 Serious Organised Crime & Police Act 2005)

Part I
Prevention of Crime and Disorder
Chapter I
England and Wales

Crime and Disorder: General

Anti-social behaviour orders. 

1. (1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely-

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him

(1A) In this section and sections 1B, 1CA, 1E and 1F "relevant authority" means-

(a) the council for a local government area;

(aa) in relation to England, a county council;

(b) the chief officer of police of any police force maintained for a police area;

(c) the chief constable of the British Transport Police Force;

(d) any person registered under section 1 of the Housing Act 1996 (c. 52) as a social landlord who provides or manages any houses or hostel in a local government area; or

(e) a housing action trust established by order in pursuance of section 62 of the Housing Act 1988.

(1B) In this section "relevant persons" means-

(a) in relation to a relevant authority falling within paragraph (a) of subsection (1A), persons within the local government area of that council;

(aa) in relation to a relevant authority falling within paragraph (AA) of subsection (1A)

(b) in relation to a relevant authority falling within paragraph (b) of that subsection, persons within the police area;

(c) in relation to a relevant authority falling within paragraph (c) of that subsection-

(i) persons who are on or likely to be on policed premises in a local government area; or

(ii) persons who are in the vicinity of or likely to be in the vicinity of such premises;

(d) in relation to a relevant authority falling within paragraph (d) or (e) of that subsection-

(i) persons who are residing in or who are otherwise on or likely to be on premises provided or managed by that authority; or

(ii) persons who are in the vicinity of or likely to be in the vicinity of such premises.

(2) Revoked

(3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the local government area or police area concerned where it is alleged that the harassment, alarm or distress was caused or was likely to be caused.

(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order.

(5) For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.

(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons (whether relevant persons or persons elsewhere in England and Wales) from further anti-social acts by the defendant.

(7) An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.

(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.

(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order.

(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is guilty of an offence and liable-

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(10A) The following may bring proceedings for an offence under subsection (10)-

(a) a council which is a relevant authority;

(b) the council for the local government area in which a person in respect of whom an anti-social behaviour order has been made resides or appears to reside.

(10B) If proceedings for an offence under subsection (10) are brought in a youth court section 47(2) of the Children and Young Persons Act 1933 (c. 12) has effect as if the persons entitled to be present at a sitting for the purposes of those proceedings include one person authorised to be present by a relevant authority.

(10C) In proceedings for an offence under subsection (10), a copy of the original anti-social behaviour order, certified as such by the proper officer of the court which made it, is admissible as evidence of its having been made and of its contents to the same extent that oral evidence of those things is admissible in those proceedings.

(10D) In relation to proceedings brought against a child or a young person for an offence under subsection (10)-

(a) section 49 of the Children and Young Persons Act 1933 (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the child or young person against whom the proceedings are brought;

(b) section 45 of the Youth Justice and Criminal Evidence Act 1999 (power to restrict reporting of criminal proceedings involving persons under 18) does so apply.

(10E) If, in relation to any such proceedings, the court does exercise its power to give a direction under section 45 of the Youth Justice and Criminal Evidence Act 1999, it shall give its reasons for doing so.

(11) Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 1A of the Powers of Criminal Courts Act 1973 ("the 1973 Act") in respect of the offence.

(12) In this section-

"British Transport Police Force" means the force of constables appointed under section 53 of the British Transport Commission Act 1949 (c. xxix);

"child" and "young person" shall have the same meaning as in the Children and Young Persons Act 1933;

"the commencement date" means the date of the commencement of this section;

"local government area" means-

(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly;

(b) in relation to Wales, a county or county borough "policed premises" has the meaning given by section 53(3) of the British Transport Commission Act 1949."

Serious Organised Crime & Police Act 2005 Section 141(4): Subject to paragraph 2(2) of Schedule 2 to the Youth Justice and Criminal Evidence Act 1999, until section 45 of that Act comes into force, the references to it in section 1(10D)(b) and (10E) of the Crime and Disorder Act 1998 (inserted by subsection (2) of this section) shall be read as references to section 39 of the Children and Young Persons Act 1933

Power of Secretary of State to add to relevant authorities

1A. (1) The Secretary of State may by order provide that the chief officer of a body of constables maintained otherwise than by a police authority is, in such cases and circumstances as may be prescribed by the order, to be a relevant authority for the purposes of section 1 above.

(2) The Secretary of State may by order-

(a) provide that a person or body of any other description specified in the order is, in such cases and circumstances as may be prescribed by the order, to be a relevant authority for the purposes of such of sections 1 above and 1B, 1CA and 1E below as are specified in the order; and

(b) prescribe the description of persons who are to be "relevant persons" in relation to that person or body.

Individual support orders

1AA (1) Where a court makes an anti-social behaviour order in respect of a defendant who is a child or young person when that order is made, it must consider whether the individual support conditions are fulfilled.

(2) If it is satisfied that those conditions are fulfilled, the court must make an order under this section ("an individual support order") which-

(a) requires the defendant to comply, for a period not exceeding six months, with such requirements as are specified in the order; and

(b) requires the defendant to comply with any directions given by the responsible officer with a view to the implementation of the requirements under paragraph (a) above.

(3) The individual support conditions are-

(a) that an individual support order would be desirable in the interests of preventing any repetition of the kind of behaviour which led to the making of the anti-social behaviour order;

(b) that the defendant is not already subject to an individual support order; and

(c) that the court has been notified by the Secretary of State that arrangements for implementing individual support orders are available in the area in which it appears to it that the defendant resides or will reside and the notice has not been withdrawn.

(4) If the court is not satisfied that the individual support conditions are fulfilled, it shall state in open court that it is not so satisfied and why it is not.

(5) The requirements that may be specified under subsection (2)(a) above are those that the court considers desirable in the interests of preventing any repetition of the kind of behaviour which led to the making of the anti-social behaviour order.

(6) Requirements included in an individual support order, or directions given under such an order by a responsible officer, may require the defendant to do all or any of the following things-

(a) to participate in activities specified in the requirements or directions at a time or times so specified;

(b) to present himself to a person or persons so specified at a place or places and at a time or times so specified;

(c) to comply with any arrangements for his education so specified.

(7) But requirements included in, or directions given under, such an order may not require the defendant to attend (whether at the same place or at different places) on more than two days in any week; and "week" here means a period of seven days beginning with a Sunday.

(8) Requirements included in, and directions given under, an individual support order shall, as far as practicable, be such as to avoid-

(a) any conflict with the defendant's religious beliefs; and

(b) any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(9) Before making an individual support order, the court shall obtain from a social worker of a local authority social services department or a member of a youth offending team any information which it considers necessary in order-

(a) to determine whether the individual support conditions are fulfilled, or

(b) to determine what requirements should be imposed by an individual support order if made, and shall consider that information.

(10) In this section and section 1AB below "responsible officer", in relation to an individual support order, means one of the following who is specified in the order, namely-

(a) a social worker of a local authority social services department;

(b) a person nominated by a person appointed as chief education officer under section 532 of the Education Act 1996 (c. 56);

(c) a member of a youth offending team.

Individual support orders: explanation, breach, amendment etc

1AB (1) Before making an individual support order, the court shall explain to the defendant in ordinary language-

(a) the effect of the order and of the requirements proposed to be included in it;

(b) the consequences which may follow (under subsection (3) below) if he fails to comply with any of those requirements; and

(c) that the court has power (under subsection (6) below) to review the order on the application either of the defendant or of the responsible officer.

(2) The power of the Secretary of State under section 174(4) of the Criminal Justice Act 2003 includes power by order to-

(a) prescribe cases in which subsection (1) above does not apply; and

(b) prescribe cases in which the explanation referred to in that subsection may be made in the absence of the defendant, or may be provided in written form.

(3) If the person in respect of whom an individual support order is made fails without reasonable excuse to comply with any requirement included in the order, he is guilty of an offence and liable on summary conviction to a fine not exceeding-

(a) if he is aged 14 or over at the date of his conviction, £1,000;

(b) if he is aged under 14 then, £250.

(4) No referral order under section 16(2) or (3) of the Powers of Criminal Courts (Sentencing) Act 2000 (referral of young offenders to youth offender panels) may be made in respect of an offence under subsection (3) above.

(5) If the anti-social behaviour order as a result of which an individual support order was made ceases to have effect, the individual support order (if it has not previously ceased to have effect) ceases to have effect when the anti-social behaviour order does.

(6) On an application made by complaint by-

(a) the person subject to an individual support order, or

(b) the responsible officer,
the court which made the individual support order may vary or discharge it by a further order.

(7) If the anti-social behaviour order as a result of which an individual support order was made is varied, the court varying the anti-social behaviour order may by a further order vary or discharge the individual support order."

Orders in County Court proceedings 

1B. (1) This section applies to any proceedings in a county court ("the principal proceedings").

(2) If a relevant authority-

(a) is a party to the principal proceedings, and

(b) considers that a party to those proceedings is a person in relation to whom it would be reasonable for it to make an application under section 1, it may make an application in those proceedings for an order under subsection (4).

(3) If a relevant authority-

(a) is not a party to the principal proceedings, and

(b) considers that a party to those proceedings is a person in relation to whom it would be reasonable for it to make an application under section 1, it may make an application to be joined to those proceedings to enable it to apply for an order under subsection (4) and, if it is so joined, may apply for such an order.

(3A) Subsection (3B) applies if a relevant authority is a party to the principal proceedings and considers-

(a) that a person who is not a party to the proceedings has acted in an anti-social manner, and

(b) that the person's anti-social acts are material in relation to the principal proceedings.

(3B) The relevant authority may-

(a) make an application for the person mentioned in subsection (3A)(a) to be joined to the principal proceedings to enable an order under subsection (4) to be made in relation to that person;

(b) if that person is so joined, apply for an order under subsection (4).

(3C) But a person must not be joined to proceedings in pursuance of subsection (3B) unless his anti-social acts are material in relation to the principal proceedings.

(4) If, on an application for an order under this subsection, it is proved that the conditions mentioned in section 1(1) are fulfilled as respects that other party, the court may make an order which prohibits him from doing anything described in the order.

(5) Subject to subsection (6), the person against whom an order under this section has been made and the relevant authority on whose application that order was made may apply to the county court which made an order under this section for it to be varied or discharged by a further order.

(6) Except with the consent of the relevant authority and the person subject to the order, no order under this section shall be discharged before the end of the period of two years beginning with the date of service of the order.

(7) Subsections (5) to (7) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders made under this section as they apply for the purposes of the making and effect of anti-social behaviour orders.

Orders on conviction in criminal proceedings

1C. (1) This section applies where a person (the "offender") is convicted of a relevant offence.

(2) If the court considers-

(a) that the offender has acted, at any time since the commencement date, in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and

(b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him, it may make an order which prohibits the offender from doing anything described in the order.

(3) The court may make an order under this section :

(a) if the prosecutor asks it to do so, or

(b) if the court thinks it is appropriate to do so.

(3A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.

(3B) It is immaterial whether evidence led in pursuance of subsection (3A) would have been admissible in the proceedings in which the offender was convicted.

(4) An order under this section shall not be made except-

(a) in addition to a sentence imposed in respect of the relevant offence; or

(b) in addition to an order discharging him conditionally.

(4A) The court may adjourn any proceedings in relation to an order under this section even after sentencing the offender.

(4B) If the offender does not appear for any adjourned proceedings, the court may further adjourn the proceedings or may issue a warrant for his arrest.

(4C) But the court may not issue a warrant for the offender's arrest unless it is satisfied that he has had adequate notice of the time and place of the adjourned proceedings.

(5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.

(6) Repealed by Serious organised Crime & Police Act 2005

(7) Repealed by Serious organised Crime & Police Act 2005 

(8) Repealed by Serious organised Crime & Police Act 2005 

(9) Subsections (7), (10), (10C), (10D), (10E) and (11) of section 1 apply for the purposes of the making and effect of orders made by virtue of this section as they apply for the purposes of the making and effect of anti-social behaviour orders.

(9A) The council for the local government area in which a person in respect of whom an anti-social behaviour order has been made resides or appears to reside may bring proceedings under section 1(10) (as applied by subsection (9) above) for breach of an order under subsection (2) above.

(9B) Subsection (9C) applies in relation to proceedings in which an order under subsection (2) is made against a child or young person who is convicted of an offence.

(9C) In so far as the proceedings relate to the making of the order-

(a) section 49 of the Children and Young Persons Act 1933 (c. 12) (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the child or young person against whom the order is made;

(b) section 39 of that Act (power to prohibit publication of certain matter) does so apply."

(10) In this section-

"child" and "young person" have the same meaning as in the Children and Young Persons Act 1933 (c. 12);

"the commencement date" has the same meaning as in section 1 above;

"the court" in relation to an offender means-

(a) the court by or before which he is convicted of the relevant offence; or

(b) if he is committed to the Crown Court to be dealt with for that offence, the Crown Court; and "relevant offence" means an offence committed after the coming into force of section 64 of the Police Reform Act 2002 (c. 30).

Variation and discharge of orders under section 1C

1CA (1) An offender subject to an order under section 1C may apply to the court which made it for it to be varied or discharged.

(2) If he does so, he must also send written notice of his application to the Director of Public Prosecutions.

(3) The Director of Public Prosecutions may apply to the court which made an order under section 1C for it to be varied or discharged.

(4) A relevant authority may also apply to the court which made an order under section 1C for it to be varied or discharged if it appears to it that-

(a) in the case of variation, the protection of relevant persons from anti-social acts by the person subject to the order would be more appropriately effected by a variation of the order;

(b) in the case of discharge, that it is no longer necessary to protect relevant persons from anti-social acts by him by means of such an order.

(5) If the Director of Public Prosecutions or a relevant authority applies for the variation or discharge of an order under section 1C, he or it must also send written notice of the application to the person subject to the order.

(6) In the case of an order under section 1C made by a magistrates' court, the references in subsections (1), (3) and (4) to the court by which the order was made include a reference to any magistrates' court acting in the same local justice area as that court.

(7) No order under section 1C shall be discharged on an application under this section before the end of the period of two years beginning with the day on which the order takes effect, unless-

(a) in the case of an application under subsection (1), the Director of Public Prosecutions consents, or

(b) in the case of an application under subsection (3) or (4), the offender consents.

Interim Orders

1D. (1) This section applies where-

(a) an application is made for an anti-social behaviour order;

(b) an application is made for an order under section 1B;

(c) a request is made by the prosecution for an order under section 1C; or

(d) the court is minded to make an order under section 1C of its own motion.

(2) If, before determining the application or request, or before deciding whether to make an order under section 1C of its own motion, the court considers that it is just to make an order under this section pending the determination of that application or request or before making that decision, it may make such an order.

(3) An order under this section is an order which prohibits the defendant from doing anything described in the order.

(4) An order under this section-

(a) shall be for a fixed period;

(b) may be varied, renewed or discharged;

(c) shall, if it has not previously ceased to have effect, cease to have effect on the determination of the application or request mentioned in subsection (1), or on the court's making a decision as to whether or not to make an order under section 1C of its own motion.

(5) In relation to cases to which this section applies by virtue of paragraph (a) or (b) of subsection (1), subsections (6), (8) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders under this section as they apply for the purposes of the making and effect of anti-social behaviour orders.

(6) In relation to cases to which this section applies by virtue of paragraph (c) or (d) of subsection (1)-

(a) subsections (6) and (10) to (12) of section 1 apply for the purposes of the making and effect of orders under this section as they apply for the purposes of the making and effect of anti-social behaviour orders; and

(b) section 1CA applies for the purposes of the variation or discharge of an order under this section as it applies for the purposes of the variation or discharge of an order under section 1C.

Consultation requirements

1E. (1) This section applies to-

(a) applications for an anti-social behaviour order; and

(b) applications for an order under section 1B.

(2) Before making an application to which this section applies, the council for a local government area shall consult the chief officer of police of the police force maintained for the police area within which that local government area lies.

(3) Before making an application to which this section applies, a chief officer of police shall consult the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside.

(4) Before making an application to which this section applies, a relevant authority other than a council for a local government area or a chief officer of police shall consult-

(a) the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside; and

(b) the chief officer of police of the police force maintained for the police area within which that local government area lies.

(5) Subsection (4)(a) does not apply if the relevant authority is a county council for a county in which there are no districts.

Contracting out of local authority functions

1F (1) The Secretary of State may by order provide that a relevant authority which is a local authority may make arrangements with a person specified (or of a description specified) in the order for the exercise of any function it has under sections 1 to 1E above-

(a) by such a person, or

(b) by an employee of his.

(2) The order may provide-

(a) that the power of the relevant authority to make the arrangements is subject to such conditions as are specified in the order;

(b) that the arrangements must be subject to such conditions as are so specified;

(c) that the arrangements may be made subject to such other conditions as the relevant authority thinks appropriate.

(3) The order may provide that the arrangements may authorise the exercise of the function-

(a) either wholly or to such extent as may be specified in the order or arrangements;

(b) either generally or in such cases or areas as may be so specified.

(4) An order may provide that the person with whom arrangements are made in pursuance of the order is to be treated as if he were a public body for the purposes of section 1 of the Local Authorities (Goods and Services) Act 1970.

(5) The Secretary of State must not make an order under this section unless he first consults-

(a) the National Assembly for Wales, if the order relates to a relevant authority in Wales;

(b) such representatives of local government as he thinks appropriate;

(c) such other persons as he thinks appropriate.

(6) Any arrangements made by a relevant authority in pursuance of an order under this section do not prevent the relevant authority from exercising the function to which the arrangements relate.

(7) The following provisions of the Deregulation and Contracting Out Act 1994 apply for the purposes of arrangements made in pursuance of an order under this section as they apply for the purposes of an authorisation to exercise functions by virtue of an order under section 70(2) of that Act-

(a) section 72 (effect of contracting out);

(b) section 73 (termination of contracting out);

(c) section 75 and Schedule 15 (provision relating to disclosure of information);

(d) paragraph 3 of Schedule 16 (authorised persons to be treated as officers of local authority).

(8) For the purposes of subsection (7), any reference in the provisions specified in paragraphs (a) to (d) to a person authorised to exercise a function must be construed as a reference to a person with whom an arrangement is made for the exercise of the function in pursuance of an order under this section.

(9) Relevant authorities and any person with whom arrangements are made in pursuance of an order under this section must have regard to any guidance issued by the Secretary of State for the purposes of this section.

(10) An order under this section may make different provision for different purposes.

(11) An order under this section may contain-

(a) such consequential, supplemental or incidental provisions (including provision modifying any enactment), or

(b) such transitional provisions or savings,

as the person making the order thinks appropriate.

(12) Each of the following is a local authority-

(a) a local authority within the meaning of section 270 of the Local Government Act 1972;

(b) the Common Council of the City of London;

(c) the Council of the Isles of Scilly.

Intervention orders

1G (1) This section applies if, in relation to a person who has attained the age of 18, a relevant authority-

(a) makes an application for an anti-social behaviour order or an order under section 1B above (the behaviour order),

(b) has obtained from an appropriately qualified person a report relating to the effect on the person's behaviour of the misuse of controlled drugs or of such other factors as the Secretary of State by order prescribes, and

(c) has engaged in consultation with such persons as the Secretary of State by order prescribes for the purpose of ascertaining that, if the report recommends that an order under this section is made, appropriate activities will be available.

(2) The relevant authority may make an application to the court which is considering the application for the behaviour order for an order under this section (an intervention order).

(3) If the court-

(a) makes the behaviour order, and

(b) is satisfied that the relevant conditions are met,

it may also make an intervention order.

(4) The relevant conditions are-

(a) that an intervention order is desirable in the interests of preventing a repetition of the behaviour which led to the behaviour order being made (trigger behaviour);

(b) that appropriate activities relating to the trigger behaviour or its cause are available for the defendant;

(c) that the defendant is not (at the time the intervention order is made) subject to another intervention order or to any other treatment relating to the trigger behaviour or its cause (whether on a voluntary basis or by virtue of a requirement imposed in pursuance of any enactment);

(d) that the court has been notified by the Secretary of State that arrangements for implementing intervention orders are available in the area in which it appears that the defendant resides or will reside and the notice has not been withdrawn.

(5) An intervention order is an order which-

(a) requires the defendant to comply, for a period not exceeding six months, with such requirements as are specified in the order, and

(b) requires the defendant to comply with any directions given by a person authorised to do so under the order with a view to the implementation of the requirements under paragraph (a) above.

(6) An intervention order or directions given under the order may require the defendant-

(a) to participate in the activities specified in the requirement or directions at a time or times so specified;

(b) to present himself to a person or persons so specified at a time or times so specified.

(7) Requirements included in, or directions given under, an intervention order must, as far as practicable, be such as to avoid-

(a) any conflict with the defendant's religious beliefs, and

(b) any interference with the times (if any) at which he normally works or attends an educational establishment.

(8) If the defendant fails to comply with a requirement included in or a direction given under an intervention order, the person responsible for the provision or supervision of appropriate activities under the order must inform the relevant authority of that fact.

(9) The person responsible for the provision or supervision of appropriate activities is a person of such description as is prescribed by order made by the Secretary of State.

(10) In this section-

"appropriate activities" means such activities, or activities of such a description, as are prescribed by order made by the Secretary of State for the purposes of this section;

"appropriately qualified person" means a person who has such qualifications or experience as the Secretary of State by order prescribes;

"controlled drug" has the same meaning as in the Misuse of Drugs Act 1971;

"relevant authority" means a relevant authority for the purposes of section 1 above.

(11) An order under this section made by the Secretary of State may make different provision for different purposes.

(12) This section and section 1H below apply to a person in respect of whom a behaviour order has been made subject to the following modifications-

(a) in subsection (1) above paragraph (a) must be ignored;

(b) in subsection (2) above, for "is considering the application for" substitute "made";

(c) in subsection (3) above paragraph (a), the word "and" following it and the word "also" must be ignored.

Intervention orders: explanation, breach, amendment etc.

1H (1) Before making an intervention order the court must explain to the defendant in ordinary language-

(a) the effect of the order and of the requirements proposed to be included in it,

(b) the consequences which may follow (under subsection (3) below) if he fails to comply with any of those requirements, and

(c) that the court has power (under subsection (5) below) to review the order on the application either of the defendant or of the relevant authority.

(2) The power of the Secretary of State under section 174(4) of the Criminal Justice Act 2003 includes power by order to-

(a) prescribe cases in which subsection (1) does not apply, and

(b) prescribe cases in which the explanation referred to in that subsection may be made in the absence of the defendant, or may be provided in written form.

(3) If a person in respect of whom an intervention order is made fails without reasonable excuse to comply with any requirement included in the order he is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4) If the behaviour order as a result of which an intervention order is made ceases to have effect, the intervention order (if it has not previously ceased to have effect) ceases to have effect when the behaviour order does.

(5) On an application made by-

(a) a person subject to an intervention order, or

(b) the relevant authority,

the court which made the intervention order may vary or discharge it by a further order.

(6) An application under subsection (5) made to a magistrates' court must be made by complaint.

(7) If the behaviour order as a result of which an intervention order was made is varied, the court varying the behaviour order may by a further order vary or discharge the intervention order.

(8) Expressions used in this section and in section 1G have the same meaning in this section as in that section.

Special measures for witnesses

1I (1) This section applies to the following proceedings-

(a) any proceedings in a magistrates' court on an application for an anti-social behaviour order,

(b) any proceedings in a magistrates' court or the Crown Court so far as relating to the issue whether to make an order under section 1C, and

(c) any proceedings in a magistrates' court so far as relating to the issue whether to make an order under section 1D.

(2) Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 (special measures directions in the case of vulnerable and intimidated witnesses) shall apply in relation to any such proceedings as it applies in relation to criminal proceedings, but with-

(a) the omission of the provisions of that Act mentioned in subsection (3) (which make provision appropriate only in the context of criminal proceedings), and

(b) any other necessary modifications.

(3) The provisions are-

(a) section 17(4),

(b) section 21(1)(b) and (5) to (7),

(c) section 22(1)(b) and (2)(b) and (c),

(d) section 27(10), and

(e) section 32.

(4) Any rules of court made under or for the purposes of Chapter 1 of Part 2 of that Act shall apply in relation to proceedings to which this section applies-

(a) to such extent as may be provided by rules of court, and

(b) subject to such modifications as may be so provided.

(5) Section 47 of that Act (restrictions on reporting special measures directions etc.) applies, with any necessary modifications, in relation to-

(a) a direction under section 19 of the Act as applied by this section, or

(b) a direction discharging or varying such a direction,

and sections 49 and 51 of that Act (offences) apply accordingly.

Sex Offender Orders

2. Omitted

Sex Offender Orders: Supplemental 

3. Omitted

Appeals against orders.

4. (1) An appeal shall lie to the Crown Court against the making by a magistrates' court of an anti-social behaviour order, an individual support order or an order under section 1D above, or sex offender order.

(2) On such an appeal the Crown Court-

(a) may make such orders as may be necessary to give effect to its determination of the appeal; and

(b) may also make such incidental or consequential orders as appear to it to be just.

(3) Any order of the Crown Court made on an appeal under this section (other than one directing that an application be re-heard by a magistrates' court) shall, for the purposes of section 1(8), 1AB(6) or 2(6) above, be treated as if it were an order of the magistrates' court from which the appeal was brought and not an order of the Crown Court.

Annex B

Court

Conviction and Sentence on substantive charges The ASBO application is not part of the sentencing process (R v Boness and Others [2005], R v Wadmore & Foreman [2006]).

Prosecutor

Makes Application for Anti-Social Behaviour Order

1 Opens Application (Rule 14(1) Magistrates Courts Rules 1981)

2 Outlines Facts

3 Outlines Law:

(a) Prove beyond reasonable Doubt that the Defendant has acted in an anti-social manner

(b) Court needs to be satisfied on evidence that it is necessary to make the order to protect persons in England & Wales from further anti-social acts by the Defendant

(c) Law as to Hearsay Evidence (if appropriate)

4 Specify what acts are being relied upon & the evidence being adduced to prove the facts

5 Specify why it is necessary to make the Order and the evidence being adduced in support

Prosecution Evidence

1 Evidence called in support of Application (Rule 14(1)

(a) Magistrates Courts Rules 1981)

(b) Direct Evidence from live witnesses

Hearsay Evidence from Live Witnesses

(c) Read Statements agreed with Defence - In civil proceedings unsworn statements cannot be received in evidence in the absence of agreement or statutory provision. (Footnote in Stones Justices Manual to Rule 14(2) Magistrates Courts Rules 1981)

Defence

2 Have right to address Court before calling evidence (Rule 14(2) Magistrates Courts Rules 1981). This right is retained even if the Defendant has previously submitted that in law there is no case to answer (Disher v Disher [1965] P 31, [1963 3 All ER 933). The Court may dismiss the case at the conclusion of the Complainants case either of its own motion or upon submission to that effect and, in either event the Complainants solicitor must be given an opportunity to address the Court before such dismissal (Mayes v Mayes [1971] 2 All ER 397)

Evidence

1 Evidence called by Defence (Rule 14(2) Magistrates Courts Rules 1981).

The Defendant has no right to make a statement not on oath in lieu of giving evidence (Aggas v Aggas [1971] 2 All ER 397

2 Direct Evidence from Live Witnesses

3 Hearsay Evidence from Live Witnesses

4 Read Statements agreed with Prosecution

Prosecutor

Rebuttal evidence may be called by Prosecution (Rule 14(3) Magistrates Courts Rules 1981). In civil cases, the right to call rebutting evidence corresponds with a similar right in criminal trials.

Defence

Closing Speech (Rule 14(4) Magistrates Courts Rules 1981)

Prosecutor

Right to reply with leave of Court, but Defence have right to reply to Prosecutors address (Rule 14(5) Magistrates Courts Rules 1981). The terms of this Rule are such that the prosecution may be allowed to address the Court a second time even if the Defence does not wish to do so.

Bench

Decision on ASBO Application and making of Order if appropriate. The Order must record specific findings of fact as to anti-social behaviour (R v Wadmore & Foreman [2006])

Court Clerk

If Order made

1 Serves copy of Order on Defendant before he leaves Court

2 Hands Certified copy of Order to Prosecutor which could be subsequently used in Breach proceedings (if necessary).

Annex C
Part 50 Civil behaviour orders after verdict or finding

Contents of this Part

  • When this Part applies: rule 50.1
  • Behaviour orders: general rules: rule 50.2
  • Application for behaviour order: special rules: rule 50.3
  • Evidence to assist the court: special rules: rule 50.4
  • Application to vary or revoke behaviour order: rule 50.5
  • Notice of hearsay evidence: rule 50.6
  • Cross-examination of maker of hearsay statement: rule 50.7
  • Credibility and consistency of maker of hearsay statement: rule 50.8
  • Courts power to vary requirements under this Part: rule 50.9

[Note. The rules in this Part derive in part from those contained in rule 114 of The Magistrates Courts Rules 1981 [Note: S.I. 1981/552, amended by S.I. 1998/2167], rule 38 of The Crown Court Rules 1982 [Note: S.I. 1982/1109. amended by S.I. 2003/639], rules 2 to 5 of The Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 [Note: S.I. 1999/681, amended by S.I. 2005/617], rules 5 and 6 of The Magistrates Courts (Anti-Social Behaviour Orders) Rules 2002 [Note: S.I. 2002/2784, amended by S.I. 2005/617], rules 7, 8 and 9 of The Magistrates Courts (Parenting Orders) Rules 2004 [Note: S.I. 2004/247] and rule 4 of The Magistrates Courts (Sexual Offences Prevention Orders) Rules 2004 [Note - S.I. 2004/1054].

See Part 3 for the courts general powers to consider an application and to give directions.

When this Part applies

50.1 (1) This Part applies in magistrates courts and in the Crown Court where the court could decide to make, vary or revoke a civil order

(a) under a power that the court can exercise after reaching a verdict or making a finding, and

(b) that requires someone to do, or not do, something. 

(2) A reference to a behaviour order in this Part is a reference to any such order.

(3) A reference to hearsay evidence in this Part is a reference to evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995 [Note: Civil Evidence Act 1995, c. 38].

[Note. In the circumstances set out in the Acts listed, the court can make a behaviour order:

a) on conviction, under

Football Spectators Act 1989, section 14A [Note: 1989 c. 37; section 14A was amended by section 1 of, and paragraphs 1 and 2 of Schedule 1 to, the Football (Disorder) Act 2000 (c. 25), section 86(5) of the Anti-Social Behaviour Act 2003 (c. 38), section 139(10) of the Serious Organised Crime and Police Act 2005 (c. 15) and sections 52(2) and 65 of, and paragraphs 1 and 2 of Schedule 3 and Schedule 5 to, the Violent Crime Reduction Act 2006 (c. 38)]. (football banning orders),

Protection from Harassment Act 1997, section 5 [Note: 1997 c. 40; section 5 was amended by sections 12 and 58 of, and paragraph 43 of Schedule 10 and 11 to, the Domestic Violence, Crime and Victims Act 2004 (c. 28) and by section 125 of the Serious Organised Crime and Police Act 2005 (c. 15)]. (restraining orders),

Crime and Disorder Act 1998, sections 1C [Note: 1998 c. 37; section 1C was inserted by section 64 of the Police Reform Act 2002 (c. 30) and amended by sections 83 and 86 of the Anti-social Behaviour Act 2003 (c. 38) and sections 139, 140, 141 and 174 of, and part 2 of Schedule 17 to the Serious Organised Crime and Police Act 2005 (c. 15)