Khan, R v

A criminal behaviour order under section 22 of the Anti-Social Behaviour Crime and Policing Act 2014 is not a routine consequence of conviction. The court must apply the statutory conditions, proceed cautiously, and tailor any order proportionately to the offender’s particular circumstances. The prevention condition is an evaluative exercise and does not require proof beyond reasonable doubt, but the order must be likely to help prevent further qualifying behaviour.

Prohibitions must be clear, practical, proportionate and readily enforceable. Applications require proper procedural preparation and should ordinarily be determined with the sentencing proceedings; an unexplained delay of months is unacceptable.

The appellant pleaded guilty at Manchester Crown Court to dangerous driving, being concerned in the supply of cannabis, and two possession offences. He received a suspended prison sentence for dangerous driving and a community sentence for the supply offence.

Seven months after sentence, the Crown Court made a three-year criminal behaviour order prohibiting him from associating publicly with his co-defendant, Aweis Bashir. The order had no geographical limit. The appellant appealed, initially on its geographical extent, but the Court of Appeal granted leave to challenge the order generally.

The central issue was whether a criminal behaviour order was properly imposed on the evidence and in the circumstances of the case.

1. Appeal allowed; criminal behaviour order quashed. The order should not have been made. It was therefore unnecessary to decide whether its unrestricted geographical extent was disproportionate.

2. Under section 22 of the Anti-Social Behaviour Crime and Policing Act 2014, the court must be satisfied beyond reasonable doubt that the offender engaged in behaviour causing, or likely to cause, harassment, alarm or distress. It must then consider whether the order will help prevent the offender from engaging in such behaviour. Following R v Browne-Morgan [2016] EWCA Crim 1903, the second condition is evaluative and does not require proof beyond reasonable doubt. The statutory test is not whether the order is necessary.

3. The court endorsed the cautionary and proportionality guidance in DPP v Bulmer [2015] EWHC 2323 (Admin). Criminal behaviour orders are not to be imposed mechanically. They must be tailored to the individual, and proportionality is intensely fact-sensitive. The statutory guidance also supported their use for the most serious and persistent offenders.

4. On the facts, the conduct most likely to alarm onlookers was that of Bashir, who wielded a steering lock, and the Volkswagen driver’s response, rather than the appellant’s driving alone. The one-sided non-association prohibition was anomalous because Bashir was not similarly restrained. There was no evidence, even to the civil standard, that the two men were fellow gang members.

5. The delay of more than seven months between sentencing and determination of the application was also wholly unacceptable absent exceptional circumstances. Although a nationwide prohibition may sometimes be proportionate where it is confined to public association with a named non-family member, that issue did not arise once the order was quashed.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 1472, allowed the appeal and quashed the criminal behaviour order.
• Crown Court at Manchester: Following the appellant’s guilty pleas and sentencing, made a three-year criminal behaviour order prohibiting public association with Aweis Bashir.