Ancillary Orders Consultation

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Sentencing Act 2020, Part 11, Chapter 1

A CBO is an order which is made for the purpose of preventing the offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person in the future.

The order

• prohibits the offender from doing anything described in the order, and/or
• requires the offender to do anything described in the order.

The prosecutor must serve a notice of intention to apply for a CBO as soon as practicable (Criminal Procedure Rule 31.3)

The court can only consider whether to make a CBO if all of the following pre-conditions are met:

• the person has been convicted of an offence
• the prosecutor has made an application to the court for a CBO to be made against the offender
• the CBO would be made in addition to dealing with the offender for the offence, and
• the offender has not been absolutely discharged in respect of the offence.

(Sentencing Code, s331(1), (2))  

For special considerations where the application for a CBO is made against an offender aged under 18, see below.

For the power to adjourn an application for a CBO until after the offender has been sentenced for the offence (and to make an interim order during the adjournment), see below.

The court may make a CBO against the offender if it

• is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and
• considers that making the order will help in preventing the offender from engaging in such behaviour.

(Sentencing Code, s331(2)).

• A CBO is an order designed to tackle the most serious and persistent anti-social individuals where their behaviour has brought them before a criminal court.
• The behaviour to be addressed does not need to be connected to the criminal behaviour, or activity which led to the conviction. However, if there is no link the court will need to reflect on the reasons for making the order.
• A CBO can deal with a wide range of anti-social behaviour following the offender’s conviction, for example threatening violence against others in the community, or persistently being drunk and aggressive in public. However, the order should not be designed to stop reasonable, trivial or benign behaviours that have not caused, or are not likely to cause anti-social behaviour.

• The court must decide whether the offender has engaged in the behaviour alleged and also whether that behaviour caused or was likely to cause harassment, alarm or distress to any person.
• The standard of proof is the criminal standard.
• For this purpose, evidence may be led by the prosecution and/or the offender. 
• The strict rules of evidence do not apply.  It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted. But the evidence must be relevant to the test to be applied to the making of the order. This evidence could include hearsay or bad character.
• Special measures are available for witnesses who are vulnerable and intimidated witnesses in accordance with the Youth Justice and Criminal Evidence Act 1999 (Sentencing Code, s340).

A CBO may include prohibitions and/or requirements, which must be:

• proportionate, reasonable and tailored to the specific needs of each offender
• realistic, practical and precise
• capable of being understood by the offender, and
• sufficiently clear so that any breach can be prosecuted.

A CBO should not prohibit particular conduct which itself constitutes a criminal offence where the purpose of the order is to provide for an increased penalty in the event of repetition in breach of the order.

Prohibitions and requirements in a CBO must, so far as practicable, be such as to avoid—

• any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment, and
• any conflict with the requirements of any other court order to which the offender may be subject.

There is no power to make any prohibition or requirement in a CBO subject to electronic monitoring.

• A criminal behaviour order that includes a requirement must specify the person (individual or organisation) who is to be responsible for supervising compliance with the requirement.
• The court must also receive evidence about its suitability and enforceability from that individual or an individual representing the organisation.
• If the criminal behaviour order includes two or more requirements, the court must consider their compatibility with each other.

• The CBO must specify the period for which it has effect.
• Where the offender is an adult (when the order is made), the order must be for either a fixed period of not less than 2 years, or an indefinite period (so that the order has effect until further order).
• See below as to the duration of a CBO made against a child.
• The order may specify periods for which particular prohibitions or requirements have effect.

See Section 1 (sentencing principles and welfare) and Section 3 (parental responsibilities) of the Sentencing Children and Young People guideline.

Duty to obtain views of Youth Justice Services

The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order. (Sentencing Act 2020, s.331(5)).

Length of the CBO

The order must be for a fixed period of length between 1 and 3 years. (Sentencing Act 2020, s.334(4)).

Parenting order on making of CBO

Where the court has made a CBO against an offender aged under 16, it must make a parenting order if doing so would be desirable in the interests of preventing any repetition of the kind of behaviour which led to the CBO being made.

The court may make a parenting order in the case on offender aged 16 or 17 where that condition is fulfilled

(Crime and Disorder Act 1998, ss.8 and 9).

The CBO takes effect on the day it is made unless the offender is already subject to a criminal behaviour order in which case the new order may be made so as to take effect on the day on which the previous order ceases to have effect.

The CBO must be explained to the offender, and the exact terms of the order pronounced in open court.

• The court may adjourn hearing the application for a CBO until after the offender has been sentenced for the offence. 

• If the offender fails to appear on the adjourned date, the court has powers to issue a warrant or proceed in absence.
• The court can make an interim order if the it thinks it is just to do so. An interim order can be made until final hearing or further order.
• When making an interim CBO, the court has the same powers as if it were making a final order.

Breach of a criminal behaviour order is a criminal offence, with a maximum penalty of 5 years’ custody or an unlimited fine.

Breach of a criminal behaviour order guideline.