Criminal Behaviour Orders

Criminal Behaviour Orders

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Commencement

Criminal Behaviour Orders were brought into force on 20 October 2014 and apply to proceedings commenced after that date, ASBCPA 2014 s.33(1)(b). For proceedings commenced before that date, see the ASBOs factsheet.

Availability and test to apply

The power to make a CBO is available where a person is convicted of an offence and where the court imposes a sentence or conditional discharge, ASBCPA 2014 s.22(1) and (6).

An order may only be made on the application of the prosecution,  ASBCPA 2014 s.22(7).

For offender aged under 18 when the application is made, the prosecution must find out the views of the local youth offending team before applying, ASBCPA 2014 s.22(8).

The court must be satisfied beyond reasonable doubt that:

a) the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person; and

b) making the order will help in preventing the offender from engaging in such behaviour, ASBCPA 2014 s.22(3) and (4).

This is a lower test than the test for imposing a post-conviction ASBO. 

Length of the order

Where the individual is aged 18+ when the order is made, the order may be either a fixed period of not more than two years, or for an indefinite period, ASBCPA 2014 s.25(4). Where the individual is aged under 18 when order made, the order must be for a  fixed period of not less than one year and not more than three years, ASBCPA 2014 s.25(4).

Prohibitions and requirements

The order may, for the purpose of preventing the offender from engaging in such behaviour, (a) prohibit the offender from doing anything; or (b) require the offender to do anything, described in the order.

The order may specify periods for which particular prohibitions or requirements have effect, ASBCPA 2014 s.25(6).

Prohibitions and requirements must avoid any interference with the times at which the offender normally works or attends an educational establishment and any conflict with the requirements of any other court order or injunction to which the offender may be subject, ASBCPA 2014 s.22(9).

Review periods

A CBO is subject to review periods every 12 months, beginning on the day on which the order took effect, or the day on which it was varied or most recently varied, ASBCPA 2014 s.28(2).

Variation and discharge

An order may be varied or discharged by the court which made it on the application of the offender, or the prosecution, ASBCPA 2014 s.27(1).

The power to vary an order includes power to include an additional prohibition or requirement in the order or to extend the period for which a prohibition or requirement has effect, ASBCPA 2014, s.27(4).

Interim orders

The court may make a criminal behaviour order that lasts until the final hearing of the application or until further order if the court thinks it just to do so, ASBCPA 2014 s.26(2).

The court has the same powers whether or not the criminal behaviour order is an interim order.

Breach

A person who without reasonable excuse: (a) does anything prohibited , or (b) fails to do anything required by a criminal behaviour order, commits an offence, ASBCPA 2014 s.30(1). The maximum sentence for a breach of a CBO is five years, ASBCPA 2014 s.30(2). A court may not impose a conditional discharge for a breach of a CBO, ASBCPA 2014 s.30(3).

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

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