Janes, R v

A criminal behaviour order under Anti-social Behaviour Crime and Policing Act 2014 may be made without proof of a sustained course of conduct. The statutory question is whether the order will help prevent future conduct causing, or likely to cause, harassment, alarm or distress; necessity is not required. The order may prohibit business-touting where the offending occurred in obtaining or performing work. It should, so far as practicable, avoid preventing ordinary work, but a restriction leaving other employment available may be proportionate. Its duration must be tailored to the preventive need, and an excessive term should be reduced.

The appellant was convicted at Cardiff Crown Court of two fraud offences contrary to section 1 of the Fraud Act 2006. He had obtained substantial cash payments from an elderly householder for gardening and building work worth far less than the sum paid.

He received concurrent sentences of 18 months' imprisonment. The sentencing judge also imposed a ten-year criminal behaviour order under section 22 of the Anti-social Behaviour Crime and Policing Act 2014, prohibiting him from approaching addresses to offer garden, building, or other business services, or instructing others to do so.

On appeal, he challenged the order as disproportionate and unjustified after offending against one victim. The central issue was whether the statutory conditions and discretion justified the restriction, particularly its duration.

1. The appeal was allowed to the limited extent that the criminal behaviour order was varied. Its duration was reduced from ten years to three years.

2. Section 22 requires the court to be satisfied beyond reasonable doubt that the offender engaged in behaviour causing, or likely to cause, harassment, alarm or distress, and to consider that the order will help prevent future such behaviour. The second condition does not require proof that an order is necessary. Nor does the section require a sustained course of conduct. The series of dishonest demands made of the victim was in any event sufficient conduct for the purpose of the order.

3. There was no principle restricting criminal behaviour orders to the type of unruly conduct formerly addressed by anti-social behaviour orders. Where offending arises from the obtaining or performance of work, an order may appropriately prohibit the related conduct, including touting for business.

4. Section 22(9) requires prohibitions, so far as practicable, to avoid interfering with the times at which an offender normally works. It did not prevent this order. The restriction did not stop the appellant seeking employment by others after release; it prevented only the prohibited form of solicitation. If genuinely insuperable difficulties arose, he could seek a variation under section 27.

5. The Article 8 point was not pursued. The court made no express decision on engagement, but observed that an appropriate order, necessary for crime prevention and proportionate in application, would not normally infringe that right. The ten-year term was nevertheless excessive. A three-year restraint met the preventive needs of this case.

• Court of Appeal (Criminal Division): allowed the appeal to the limited extent of reducing the criminal behaviour order from ten years to three years.
• Crown Court at Cardiff: following conviction for two fraud offences, imposed concurrent sentences of 18 months' imprisonment and a ten-year criminal behaviour order under the Anti-social Behaviour Crime and Policing Act 2014.