Published February 2021
The CBO regime was introduced by s22 of the Anti-social Behaviour, Crime and Policing Act (ASBCPA) 2014, as a replacement for the Anti-social Behaviour Order (ASBO) regime.
*Please note that the footnotes in this table are visible in the table image and do not appear in the footnotes at the end of the document.
Alternatives to the making of a CBO can be explored and are recommended.
Statutory guidance recommends early and informal intervention.1 It is also recommended that local authorities should develop a ‘tiered’ approach to anti-social behaviour, in which the following approaches are recommended as alternatives:
Other examples of alternatives include: a verbal or written warning, community resolution, mediation, Acceptable Behaviour Contracts/Agreements, parenting contracts, support and counselling.
It is suggested that, at the very least, the possibility of alternatives should be given consideration by:
In resisting an application for a CBO, consider advancing submissions about whether alternatives were explored. This is a matter relevant to the court’s assessment of proportionality.
You may also wish to argue that the ability of a statutory agency to seek a civil remedy – an Anti-social Behaviour Injunction (ASBI)4 and/or Anti-Gang Injunction5 – gives a ‘back-up’ if a young person’s behaviour remains unaffected after criminal proceedings have concluded, should the court decline to make a CBO.
An application for a CBO is usually made by the CPS, on the advice of a local police force or local authority.
A Crown prosecutor should review an application for a CBO to establish that the criteria for a CBO are made out and that it is in the public interest to pursue it.6
There must be evidence to support the request for a CBO and to justify the proposed terms. This would usually include:7
The CPS Legal Guidance for Crown Prosecutors on CBOs provides a number of useful resources, including but not limited to:8
Annex A – Procedure by which the police request the CPS to apply for a Criminal Behaviour Order (CBO)
Annex B – Procedure by which the local authority requests the CPS to apply for a Criminal Behaviour Order (CBO)
Annex D – Guide for the local authority about preparing applications
Annex F – Notice of Intention to apply for a Criminal Behaviour Order (CBO)
Annex G – Principles supporting prohibitions on Anti-Social Behaviour Orders (ASBOs)
Annex H – Guide to Anti-Social Behaviour Orders (ASBOs) prohibitions in reported cases
Annex I – Template for the Application for the variation of a Criminal Behaviour Order (CBO)
Annex K – List of relevant considerations when considering imposing or removing reporting restrictions
Annex L – Template and Process for obtaining the views of the youth offender team (YOT)
Annex M – Criminal Behaviour Orders (CBO) Aide Memoire
The CPS is required to consult with the YOT before making an application for a CBO.9
The CPS must seek YOT views on:
Most YOTs are now referred to as ‘Youth Justice Services’, to reflect the wider remit they have around Out of Court Disposals (OOCDs) and early intervention when the child hasn’t been convicted of a criminal offence. This definition is better able to reflect the ‘child first’10 principle.
YOT views must be recorded and included in the file of evidence provided to the prosecution. If the local YOT views are not present in the CBO file, the CPS must ensure that YOT views are ascertained.11
Additionally, the views of YOT will be sought during proceedings. Any pre-application objections raised by YOT, but which do not result in an application being abandoned, can be renewed in court.12
Where it is anticipated that a CBO application is to be made by the prosecution, consider discussing the potential application with YOT.
Every practitioner will need to use their own judgment to decide whether this is appropriate in the individual circumstances of a case.
There may be issues affecting a child that YOT are unaware of and which would have a bearing on whether they endorse a CBO application. For instance, a child may not have been offered any informal support in addressing alleged anti-social behaviour or the underlying causes and you may feel that YOT should be notified of this (and of the need for alternatives to be explored) before YOT’s views are formally canvassed by the prosecution.
Statutory guidance13 recommends that the agency requesting the CBO consults with local organisations that have come into contact with a child before a decision to seek an order is made.14
Furthermore, it is highly likely that YOT will formulate their views as to the application for a CBO in consultation with any statutory and other agencies involved in a child’s care, including Children’s Services.
Youth Justice Board guidance15 recommends the following consultative process:
STAGE 116
Police/local authority notifies the YOT Anti-social-Behaviour (ASB) Lead and CPS of intention to request the prosecution apply for a CBO against a young person.
STAGE 2
YOT ASB lead adds the application to the agenda for the next ‘prevention’ panel (which may need to sit at short notice or take place ‘remotely’ if timescales are tight, and should include representatives from the police, housing, YOT, education and children’s services and others as depending on local structures)
STAGE 3
Panel discussions focus on:
STAGE 4
CPS informed of outcome of discussions.
Statutory and Court of Appeal guidance emphasises that the power to make a CBO should not be lightly exercised and any order granted must be tailored to the specific facts of the person on whom the order is imposed.
The following principles will apply to the court’s consideration of a CBO application:
(a) the granting of a CBO is not a box-ticking exercise17
(b) the court should proceed with caution and circumspection17
(c) assessments of proportionality will be ‘intensively fact sensitive’17
(d) a CBO is intended to tackle the most serious and persistent offenders where their behaviour has brought them before a criminal court18
(e) the CBO regime should respond to anti-social behaviour without adversely impacting on behaviour that is neither unlawful nor anti-social,19 and
(f) the court should not prohibit conduct that is already criminal.20
A CBO can be made on a child’s conviction, for any criminal offence, by any criminal court, on an application by the prosecution.21
The two-limbed statutory test must be satisfied:
1. ‘Behaviour test’: The court must be satisfied, beyond reasonable doubt, that the
offender has engaged in behaviour that
has caused or was likely to cause harassment, alarm or distress to any person.22
2. ‘Helpfulness test’: The court considers that the making of the order will
help in preventing the offender from
engaging in such behaviour.23
The relevant procedural rules can be found in Criminal Procedure Rules (CrimPR) Part 31. Legal aid for responding to an application for a CBO is provided through the CRM14 that covers ordinary criminal proceedings.
Notice of intention to apply for a CBO must be served by the prosecution, by the time a conviction is returned.
This notice must:24
The defence must:
In advance of the CBO application hearing, and in addition to the above, you may wish to consider serving a defence skeleton argument clearly setting out the grounds of opposition to the application.
The application must:
An interim CBO may be granted where the court adjourns an application for a CBO, until the final hearing of the application or until further order, where it is just to do so.32
There is no requirement for the prosecution to have made an application or ascertained the views of YOT.33
If a child does not appear at an adjourned hearing for a CBO, the court may:34
(a) further adjourn the proceedings, or
(b) issue a warrant for the child’s arrest, or
(c) hear the proceedings in the child’s absence.
The court may not issue a warrant for the defendant’s arrest, or hear the case in a child’s absence, unless it is satisfied that sufficient notice has been given of the time and place of the hearing and the child has been advised that the court has the power to deal with the application in their absence.35
It is important that all parties observe the CrimPR.36 However, a failure to comply may not cause a CBO to be invalid. The key issue is whether any unfairness has been caused.37
In the case of Lima38 the Court of Appeal quashed a CBO in circumstances where the appellant had not been given an opportunity to rebut the evidence of a police officer, in consequence of a failure by the prosecution to observe the procedural rules relating to the introduction of hearsay evidence.
You should always take the step of ensuring that the prosecution have complied with the rules set out in CrimPR Part 31. A failure by the prosecution to comply may result in an easy strategy for defeating a CBO application.
The following rules of evidence apply:
7. The terms must be drafted in accordance with the guidance of the Court of Appeal in the case of Boness:47
(a) the terms must be precise and capable of being understood by the defendant
(b) the findings of fact giving rise to the making of the order must be recorded
(c) the order must be explained to the defendant
(d) the exact terms of the order must be pronounced in open court and the written order accurately reflect the order as pronounced.
The court must specify the person/organisation responsible for supervising any positive requirements. The specified person/organisation is responsible for and has a duty to:51
(a) make the necessary arrangements for the requirement(s)
(b) promote compliance
(c) inform the prosecution/police as to a child’s compliance (positive or negative) with the requirement(s).
It is possible to argue that the sentence imposed for the criminal conviction will be sufficient to prevent further anti-social behaviour. Consideration should be given to contesting the order in its entirety so that the young person can demonstrate the positive effect of the sentence passed on them.
You may wish to obtain evidence relating to the impact of the proposed terms of a CBO on a child’s social development from individuals/organisations involved with a child’s care. In any CBO application there is the potential for overlap between behaviour that is said to be anti-social (for instance, association with particular friendship groups and participation in activities such as in drill music; all of which could be presented as bad character evidence) and the legitimate features of a child’s social life. As a result, there is a high risk that prohibitions sought by the prosecution would have an adverse impact on a child’s personal growth and development and could result in their ostracisation from forms of support, such as friendship circles.
Examples of frequently used prohibitions include:
The reporting restrictions that automatically apply in the youth court do not apply to a CBO application or breach proceedings.52
The court53 retains a discretionary power to restrict the reporting of a CBO application.54 Consideration should always be given to granting an order to preserve a child’s anonymity.55
Where reporting restrictions are not imposed, the police and/or local authority may publicise the making of a CBO. Matters that must be taken into account in any decision include:56
You should always ensure that the court is invited to retain a child’s anonymity. Anecdotal experience from YOT suggests that the loss of the right to anonymity comes at a significant cost to a child.
You should liaise with the local YOT when preparing objections to the loss of anonymity as YOT is likely to be in a position to provide you with examples (anonymised) of the impact of anonymity being waived.
You may wish to consider ensuring that YOT are aware of this review requirement. Anecdotal evidence suggests that YOT are not, but for reasons that will be obvious may be in a position to make a meaningful and positive contribution to the review process.
A CBO may be varied or discharged by a defendant or the prosecution.59 The power to vary includes a power to: (a) add an additional prohibition or requirement; and/or (b) extend the period for which a term has effect.60
Either the defendant or the prosecution can make an application but if this is dismissed by the court, neither party can make another application without the consent of either the court or the other party.
The court has a discretion to vary an order in the absence of the defendant, but would have to consider carefully whether there was a genuine reason for the absence and whether the application should properly be adjourned in order to hear fully from both parties.
A defendant may wish to vary the order in the light of a change of circumstances or passage of time.
Relevant circumstances are likely to include: a child remaining out of trouble after a CBO has been made, leaving the area, getting employment or any other circumstances that suggest it would be appropriate for an order/prohibition to be lifted.61
The procedure to follow when seeking to vary or discharge a CBO is set out in CrimPR 31.5. The application is generally made by letter, setting out the variation sought and enclosing the evidence relied upon.
A child defendant may seek to appeal the making of the CBO on the basis that the order should not have been made and/or the terms imposed were too severe.
CBO in youth court or adult magistrates’ court
CBO in Crown Court
Slip rule amendment is not available in the youth or adult magistrates’ court, but is available in the Crown Court.62
It is a criminal offence for a child to fail to comply with the prohibitions and/or requirements in the CBO, without reasonable excuse.63
Breaches should be dealt with in the youth court, even if the order was originally made by the Crown Court.64 The defence of ‘reasonable excuse’ is available and must be disproved by the prosecution to the criminal standard.65
In some cases, a youth caution may be an appropriate disposal for a CBO breach, therefore the CPS should review any decision to prosecute a breach.
‘Where a youth breaches a CBO, a youth caution may be appropriate. The CPS legal guidance on Youth Offenders states that youth cautions are intended to provide a proportionate and effective response to offending behaviour and can be used for any offence providing the statutory criteria are satisfied. Offence seriousness is determined by reference to the ACPO Gravity Matrix, which sets out the most prevalent offences, and provides them with a score of 1, 2, 3 or 4. The score may be raised or lowered by one level according to aggravating and mitigating factors which are set out in the Matrix.
The Gravity Matrix score for breach of a CBO without any aggravating factors is 3 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. In the case of breaches of a CBO imposed following a conviction, the public interest will usually require a prosecution.’
If a child is prosecuted, they will be sentenced in line with the Sentencing Council’s guideline for breach of CBO, taking into account the principles in the guideline for the sentencing of children and young people. The maximum penalty is a 24-month Detention and Training Order (DTO).
If a defendant is charged with breach of a CBO but has lodged an appeal against the making of the order, the breach is still a criminal offence. In these circumstances, there may be merit in making an application to adjourn the breach proceedings until the appeal has been dealt with.
On 14 March 2019 a 15 year old was sentenced for the offence of possession of a bladed article (a second offence) to a Youth Rehabilitation Order of 12 months with the following requirements: supervision; 30 hours’ reparation; Violence Reduction Programme; and an electronically monitored curfew for 2 months between 8pm and 7am.
A had previously been sentenced to a Referral Order of 9 months for one offence of possession of a bladed article and one offence of the possession of Class A drugs on 12th November 2018.
At A’s sentence hearing the prosecution indicated that they wished to apply for a CBO. The defence confirmed the application would be contested. The YOT, who were supervising A’s sentence, did not support the application.
The application proposed 5 conditions: a combination of prohibitions and positive requirements.
Prohibitions – not to:
The application relied on evidence from two police officers.
A defence skeleton argument was served in advance of the hearing, outlining the grounds of opposition to the application.
In summary, it was argued that the first limb of the test was not satisfied as there was no evidence that A had engaged in anti-social behaviour and any material that did exist was incapable of satisfying the court, to the criminal standard, that A had engaged in such behaviour.
In relation to the second limb of the test, it was argued that the conditions failed to satisfy the helpfulness test and were neither tailored nor proportionate.
Throughout, the defence reminded the court of its obligation to treat A’s welfare as paramount.
The application was refused.
