Tofagsazan, R. v

A Criminal Behaviour Order may include restrictions which help prevent further offending, provided that they are proportionate to the offender’s conduct and risk. Restrictions on devices and internet access may serve a meaningful monitoring and deterrent purpose beyond a prohibition directed at the immediate means by which the offending was committed.

Where an order includes positive requirements, the safeguards in Anti-social Behaviour, Crime and Policing Act 2014 section 24 are mandatory. The order must identify the supervising person, and the sentencing court must receive and consider that person’s evidence of the requirements’ suitability and enforceability. An appellate court may receive evidence and vary the order to cure such defects, subject to its statutory powers.

The applicant pleaded guilty at Lewes Crown Court to three offences of fraud contrary to section 2 of the Fraud Act 2006. He had used false dating profiles while a serving prisoner to deceive three women into giving him money. On 11 January 2019 he received three years’ imprisonment and a ten-year Criminal Behaviour Order.

The order restricted his possession of phones, SIM cards and computers, prohibited use of dating services, and imposed notification, device-disclosure and supervisory requirements. He sought leave, with a substantial extension of time, to challenge the first three prohibitions as unnecessary. The Court of Appeal also identified that the requirements did not name a supervisor and had been imposed without evidence from the proposed supervisor, contrary to section 24 of the Anti-social Behaviour, Crime and Policing Act 2014.

1. The Criminal Behaviour Order was varied. The court refused leave to challenge the first three prohibitions, but granted the necessary extension of time and leave to correct the invalid requirements. It identified DC Lisa Hilliard as the supervising officer.
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 has engaged in conduct causing, or likely to cause, harassment, alarm or distress, and must consider that an order will help prevent further such conduct. Both conditions were clearly satisfied. The applicant was a serious and persistent fraudster with repeated relevant convictions.
3. The judge was entitled to find that the restrictions on phones, SIM cards and computers would help prevent further fraud. They enabled proportionate and effective monitoring and operated as a deterrent. They had a meaningful purpose in addition to the prohibition on dating services, which addressed only one means by which the applicant had offended. The restrictions did not meaningfully disrupt his life.
4. The requirements in the original order failed to comply with section 24. A Criminal Behaviour Order containing requirements must specify the person responsible for supervising compliance. Before including requirements, the sentencing court must receive evidence from that person about their suitability and enforceability. These are mandatory safeguards which the court must apply independently, even where the defendant does not object.
5. The Court of Appeal could receive fresh evidence and vary the order, consistently with section 11(3) of the Criminal Appeal Act 1968. DC Hilliard gave sworn evidence that the requirements were suitable and enforceable and that she had acted as supervising officer on the applicant’s release. Naming her cured the defects and improved, rather than worsened, the clarity of the applicant’s obligations.

• Court of Appeal (Criminal Division): The court granted an extension of time and leave only to correct the defective supervisory requirements. It varied the Criminal Behaviour Order to name DC Lisa Hilliard as supervisor, but refused leave to challenge the first three prohibitions.
• Crown Court at Lewes: On 11 January 2019, following guilty pleas to three fraud offences, the applicant was sentenced to three years’ imprisonment and made subject to a ten-year Criminal Behaviour Order.