R v Jake Simms

A criminal behaviour order must be founded on the behaviour proved or admitted on the basis on which the offender is sentenced. The court must be satisfied that the behaviour caused or was likely to cause harassment, alarm or distress and that the proposed order will help prevent such behaviour. Notice must be served as soon as practicable, allowing the application to be considered with care, proper evidence and attention to proportionality. An application supported by material inconsistent with the accepted facts should not be considered without proper preparation. Restrictions require an evidential connection with the relevant behaviour and the statutory preventive purpose.

The appellant pleaded guilty at the Crown Court at Inner London to two offences of possessing Class A drugs with intent to supply. The accepted basis of plea described social supply without financial reward. At sentence, the prosecution made a late application for a five-year criminal behaviour order restricting the appellant’s possession of mobile phones. The supporting police evidence was based on facts no longer pursued. The judge imposed the order. The appeal concerned whether the statutory test was satisfied on the accepted facts and whether the proposed restrictions had a sufficient evidential and preventive basis.

Appeal allowed. The Criminal Behaviour Order was quashed.

1. Under section 331(2) of the Sentencing Act 2020, the court had to be satisfied that the appellant had engaged in behaviour causing or likely to cause harassment, alarm or distress, and had to consider that the order would help prevent such behaviour. Those requirements had to be assessed on the accepted factual basis of the offending.
2. Rule 31.3 of the Criminal Procedure Rules required notice of the intended application to be served as soon as practicable, without waiting for the verdict. The prosecution had failed to comply. The application was made at the last possible stage, despite numerous earlier hearings, and the supporting evidence was inconsistent with the accepted basis of plea.
3. The court applied the guidance in R v Khan [2018] EWCA Crim 1472 that criminal behaviour orders required care and circumspection, individual tailoring and fact-sensitive proportionality assessment. The sentencing judge had been drawn into considering the application without adequate preparation.
4. On the accepted facts, the judge could not properly conclude that the appellant’s conduct was behaviour likely to cause harassment, alarm or distress by the use of mobile telephones, or that preventing such conduct would be helped by the proposed restrictions. Generalised concerns about social drug-taking and the suggestion that a phone had facilitated supply did not establish the necessary statutory link. The conclusion was unreasonable and inconsistent with the agreed basis of plea.
5. The court also noted that the drawn-up order incorrectly appeared to require possession of more than one phone and SIM card, rather than prohibit it. That error reflected the lack of care required when imposing an order carrying serious criminal sanctions.

• Court of Appeal (Criminal Division): The appeal was allowed and the five-year Criminal Behaviour Order was quashed: [2026] EWCA Crim 379.
• Crown Court at Inner London: Following guilty pleas and sentence on 1 July 2025, a five-year Criminal Behaviour Order was imposed.