Brain, R. v

A Criminal Behaviour Order must be preventive, proportionate, targeted, sufficiently clear and practicable. Under Anti-Social Behaviour Crime and Policing Act 2014, the court must be sure that the offender engaged in relevant behaviour, but the assessment whether an order will help prevent its recurrence is evaluative and does not carry a criminal burden of proof.

Conduct outside the statutory period cannot be relied upon directly, but may provide context for qualifying conduct within it. A CBO should not duplicate the criminal law by prohibiting conduct which is independently criminal. Restrictions must also avoid unjustified interference with employment. On sentence, factors used to determine the breach category must not be counted again as aggravating features.

Brain, R. v concerned two connected challenges. In 2016, Mr Brain received four years’ imprisonment for fraud and theft offences arising from a sustained pattern of deception of women met online. The Crown Court also imposed an indefinite Criminal Behaviour Order (CBO) with nine prohibitions.

After release in 2018, he created Facebook and Instagram profiles under a false name and represented himself as former Special Forces. He pleaded guilty to two breaches of the CBO and, on 12 April 2019, received two years’ imprisonment.

The Court of Appeal considered whether the original CBO was lawfully imposed, whether its terms and indefinite duration were justified, and whether the sentence for breach was manifestly excessive through double counting.

1. The court granted permission and an extension of time to challenge the 2016 CBO. It upheld the decision to impose a CBO in principle. Although the sentencing judge had wrongly treated conduct before the permissible statutory period as directly relevant, sufficient post-October 2013 conduct established the statutory conditions. The earlier conduct could properly be considered as context for the continuous pattern of offending.

2. Under Anti-Social Behaviour Crime and Policing Act 2014, the first condition in section 22 was plainly met. The second condition required an evaluative judgment whether the order would help prevent relevant behaviour; it did not require proof beyond reasonable doubt. Following DPP v Bulmer [2016] 1 Crim App R (s) 12, an appellate court should not interfere unless the lower court plainly erred in fact, legal test, or relevant considerations.

3. The prohibitions had to be preventive, proportionate, precise and capable of compliance. The complete ban on internet dating sites was justified. The blanket restriction on social networking sites was too wide because it could hinder employment, and was varied to permit use for employment-related purposes. The internet-monitoring and false-military-status prohibitions were upheld because they targeted methods central to the offending.

4. Prohibitions 7, 8 and 9 were quashed. As a matter of principle, a CBO should not prohibit conduct which would itself constitute a criminal offence. The indefinite duration was upheld because of the significant risk of identical fraud offending; a material change of circumstances could be addressed by variation or discharge under section 27.

5. The appeal against the 2019 sentence was dismissed. The breaches were properly placed in the most serious category without relying on previous convictions. The increase above the guideline starting point was justified by separate aggravating features, including previous convictions, immediate breach after release, and prior disobedience of court orders. The two-year sentence was not manifestly excessive.

• Court of Appeal (Criminal Division) Granted permission and an extension of time to challenge the 2016 CBO. It dismissed the challenge to its imposition in principle, varied Prohibition 1, quashed Prohibitions 7 to 9, and dismissed the appeal against the 2019 sentence.

• Plymouth Crown Court On 12 April 2019, imposed two years’ imprisonment for two breaches of the CBO.

• Plymouth Crown Court On 2 September 2016, imposed four years’ imprisonment for fraud and theft offences and made an indefinite CBO.