Introduction

The case of Tofagsazan, R. v [2020] EWCA Crim 982 was heard in the England and Wales Court of Appeal (Criminal Division) on July 17, 2020. The appellant, Mr. Tofagsazan, a convicted fraudster with a history of persistent offending, appealed against certain prohibitions imposed by a Criminal Behaviour Order (CBO) following his sentencing in the Crown Court at Lewes. The key issues revolved around the necessity and proportionality of the prohibitions imposed by the CBO and the procedural compliance with the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act").

Summary of the Judgment

Mr. Tofagsazan pleaded guilty to three counts of fraud under the Fraud Act 2006 and was sentenced to three years' imprisonment, accompanied by a ten-year CBO. The order included prohibitions on owning multiple mobile phones, SIM cards, computers, and accessing dating services, along with stringent reporting requirements. Mr. Tofagsazan appealed against the first three prohibitions, arguing they were excessive and lacked purpose beyond disrupting his life. The Court of Appeal dismissed the appeal, upholding the initial prohibitions as necessary for preventing future offenses. However, the Court identified procedural shortcomings concerning the supervision requirements under sections 24(1) and (2) of the 2014 Act and subsequently varied the CBO to comply with these provisions.

Analysis

Precedents Cited

The judgment referenced R v Khan (Kaman) [2018] EWCA Crim 1472 and R v Brain [2020] EWCA Crim 457 to elucidate the principles governing Criminal Behaviour Orders. In R v Khan (Kaman), the Court emphasized that CBOs must not be mere formalities but should have substantive relevance to preventing re-offending, rejecting "box-ticking" applications. Similarly, R v Brain provided a succinct summary of the legal standards applicable to CBOs, particularly highlighting the necessity and proportionality tests under the 2014 Act. These precedents underpinned the Court of Appeal's reasoning in affirming the breadth and necessity of the prohibitions imposed on Mr. Tofagsazan.

Legal Reasoning

The Court of Appeal evaluated the imposition of the CBO against the two main criteria outlined in section 22 of the 2014 Act: the offender must have engaged in behavior causing harassment, alarm, or distress, and the order must aid in preventing future offending. Given Mr. Tofagsazan's extensive criminal history and the nature of his fraud offenses, the Court found that both conditions were unequivocally satisfied. The first three prohibitions—limiting possessions of mobile devices and computers—were deemed instrumental in restricting Mr. Tofagsazan's capacity to commit further fraud, thereby serving a clear preventative purpose. The fourth prohibition, concerning access to dating services, directly targeted the modus operandi of his crimes, which involved deceitful interactions on such platforms. Additionally, the Court scrutinized the procedural compliance with section 24 of the 2014 Act, which mandates the specification of a supervising officer and evidence of the order's suitability and enforceability. Noting the initial omission of a designated supervisor and lack of supporting evidence, the Court rectified these defects by identifying DC Lisa Hilliard as the supervising officer and acknowledging her testimony regarding the suitability and enforceability of the order's requirements.

Impact

This judgment reinforces the Court of Appeal's commitment to stringent oversight of CBOs, ensuring they are both comprehensive and procedurally sound. By upholding broad prohibitions while also mandating proper supervisory mechanisms, the decision sets a precedent for balancing offender monitoring with legal compliance. Future cases involving persistent offenders can anticipate robust orders tailored to hinder re-offending effectively, while also adhering strictly to procedural safeguards mandated by the 2014 Act. This dual emphasis ensures that CBOs serve their intended preventive function without overstepping legal boundaries.

Complex Concepts Simplified

Criminal Behaviour Order (CBO)

A Criminal Behaviour Order is a civil order imposed by courts following a criminal conviction. It aims to prevent individuals from committing further offenses by imposing specific restrictions and requirements tailored to their offending behavior.

Fraud Act 2006

This Act defines various fraud offenses, providing the legal framework for prosecuting deceptive practices intended to gain financial or other benefits unlawfully.

Section 22 and 24 of the Anti-social Behaviour, Crime and Policing Act 2014

Section 22: Outlines the conditions under which a CBO can be imposed, focusing on behaviors causing harassment, alarm, or distress and the order's potential to prevent future offenses.
Section 24: Specifies the procedural requirements for enforcing a CBO, including the designation of a supervising officer and the submission of evidence regarding the order's suitability and enforceability.

Proportionality

In legal terms, proportionality refers to ensuring that the severity of the court's orders or punishments is appropriate to the gravity of the offense committed.

Conclusion

The Court of Appeal in R v Tofagsazan [2020] EWCA Crim 982 upheld the imposition of a comprehensive Criminal Behaviour Order against a seasoned fraudster, emphasizing the necessity and proportionality of the restrictions to prevent recidivism. Importantly, the judgment underscored the critical importance of procedural adherence to the 2014 Act, particularly sections 22 and 24, ensuring that such orders are both effective and legally compliant. This case serves as a reaffirmation of the judiciary's role in meticulously balancing offender management with legal safeguards, thereby enhancing the efficacy of Criminal Behaviour Orders in the broader context of criminal justice.