Criminal Behaviour Orders - Annex G

Principles supporting prohibitions on ASBOs

The principles supporting prohibitions on ASBOs will be relevant to whether a prohibition can be placed on a CBO:

1. It is necessary to show a link between the anti-social behaviour that the offender has engaged in and the prohibitions that are sought, and each prohibition must be necessary to prevent further ASB (R v Boness [2005] EWCA Crim 2395). In the case of CBOs, the test will be whether each prohibition within the order will help to prevent further harassment, alarm or distress.  The terms of the order must be precise and easy to understand so that the individual knows exactly what he is prohibited from doing, (R v Boness).
2. 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, (R v Boness). For example consider "not to be with ... " rather than "not to associate with ...".
3. Prohibitions should not be generic, (W v DPP [2005] EWCA Civ 1333).
4. A prohibition should not mirror a criminal offence if the sentence for the offence should be a sufficient deterrent.  An order 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, (Paragraph 34 and 35 R v Boness).
5. An order must not be used merely to increase the sentence that an offender may receive, (R v Lee Kirby [2005] EWCA Crim 1228).
6. 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 [2005] EWCA Crim 1316 the court was happy to allow an ASBO to be in place after the defendant's release from prison. In R v Warwick [2005] EWCA Crim 1878 the court approved of an ASBO that would run alongside a prison sentence and after the defendant's release in a case involving domestic violence, so that 'the order should simply be sufficient (in length) to provide a period after the appellant's release from prison when some protection can be provided to ensure that there is no repeat of any violence'. In R v Hutchins [2005] EWCA Crim 2238, an ASBO for an indefinite period was upheld alongside a prison sentence.

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, 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.

Leeds City Council v Fawcett [2008] EWCA Civ 597 "ASBOs which deal clearly with matters such as exclusion zones, so as to prevent the defendant from ever getting in to the position where he might offend or cause harassment or intimidation to his neighbours, are a preferred form of prohibition. Conduct prohibitions are much harder for the defendant himself to evaluate and for the neighbours or the local council or the police a may be necessary to enforce."