R v Soul Kwake-Ampomah

A criminal behaviour order may be made under Sentencing Act 2020, section 331(2), where the statutory threshold is met and the court considers that the order will help prevent further behaviour causing, or likely to cause, harassment, alarm or distress. The prospective assessment may take account of the offender’s relevant history, the circumstances of the index offence, negative peer influences and the risk presented by the relevant location.

Hearsay is permissible in an application for such an order, but unsupported police intelligence which does not disclose a basis on which it can be evaluated may carry no weight. An order can nevertheless be justified by other reliable material.

The appellant pleaded guilty at the Crown Court at Southwark to attempted robbery and received 25 months’ detention in a young offender institution. He was subsequently made subject to a three-year criminal behaviour order prohibiting him, save with family members, from being in a group of three or more within a defined West End area.

With leave of the single judge, he appealed only against that order. He contended that the sentencing judge had relied on inadmissible anonymous hearsay and that the restriction would not help prevent relevant anti-social behaviour. The Crown submitted that the statutory conditions were satisfied on the available material.

1. Appeal dismissed. The court held that the criminal behaviour order was lawfully made.

2. Under section 331(2) of the Sentencing Act 2020, the court must be satisfied both that the offender has engaged in behaviour causing, or likely to cause, harassment, alarm or distress and that the order will help prevent further such behaviour. The attempted robbery alone plainly satisfied the first condition.

3. Rule 31.6 of the Criminal Procedure Rules permits hearsay evidence on an application for a criminal behaviour order. However, the intelligence material directed to this appellant contained allegations without information explaining why he was suspected or enabling their evaluation. It was therefore of no value in this case. The court stressed that police intelligence may be valuable in another case if its basis and significance are properly explained.

4. There was nevertheless sufficient material to satisfy the preventive condition. The judge could take account of the appellant’s convictions for handling stolen goods and possessing a knife; the escalation represented by the attempted robbery; its commission with others in the early hours in an area associated with such crime; the co-accused’s relevant convictions; the pre-sentence assessment of harmful peer influences; and the fact that the offence was committed during a community order.

5. Although there had been only one offence in the defined area, the restriction was capable of helping to prevent future behaviour likely to cause harassment, alarm or distress. Keeping the appellant from adverse influences in an area of particular temptation was a fair and proportionate means of doing so.

• Court of Appeal (Criminal Division): By [2023] EWCA Crim 1638, dismissed the appellant’s challenge to the criminal behaviour order.
• Crown Court at Southwark: The appellant pleaded guilty to attempted robbery on 24 April 2023, was sentenced on 6 June 2023, and was made subject to the challenged three-year criminal behaviour order on 4 July 2023.