Analysis
Statutory framework: what must be proved for a CBO
The power arises under section 331(2) of the Sentencing Act 2020. The court may make a CBO only if:
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it is satisfied the offender engaged in behaviour that caused or was likely to cause
harassment, alarm or distress to any person; and
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it considers making the order will help prevent the offender from engaging in such behaviour.
The Court also highlighted the seriousness of CBO breach: by section 339(2)(b), breach on indictment can
attract up to 5 years’ imprisonment. That punitive potential underlines the need for careful,
evidence-based decision-making.
Procedure: late notice and the “on the hoof” error
Under Criminal Procedure Rules 31.3(1)(a)(iii) and 31.3(2), a prosecutor must serve notice of intention
to apply for a CBO “as soon as practicable (without waiting for the verdict)”.
Here, the application was served only as the judge was about to enter court for sentence, despite multiple prior listings
and ample opportunity to comply. The Court treated this as a clear breach of the Rules.
The late service was not merely technical. It interacted with a second defect: the supporting police statement was drafted
on a factual premise the prosecution had abandoned by accepting the basis of plea. The sentencing judge was
therefore invited to decide a serious, restrictive order without proper notice, preparation, or evidential alignment with the
agreed case theory—precisely the kind of “on the hoof” decision-making the Court disapproved.
Precedents cited: caution, tailoring, and proportionality
The Court relied on R v Khan [2018] EWCA Crim 1472, where the CACD warned against treating CBOs as routine
“box-ticking”. The cited passage stresses:
CBOs are “not lightly to be imposed”; courts must act with “caution and circumspection”; orders must be “tailored” to the
individual; and proportionality is “intensively fact sensitive”.
In Simms, those principles were applied in a concrete way: the Court held the order was not sufficiently
tethered to proven conduct on the accepted basis and was therefore not a justified, tailored prevention measure.
Legal reasoning: why the statutory test was not met on the agreed facts
The sentencing judge reasoned that even “social supply” was behaviour likely to cause harassment, alarm, or distress, and
that restricting phones/SIMs would be a proportionate preventive measure given the appellant’s record.
The Court of Appeal rejected that approach on the facts as agreed:
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Insufficient evidential link to “harassment, alarm or distress”: the accepted basis described a limited
episode of group drug use/splitting within a social circle. On that basis, the Court held it was not open to conclude (to the
requisite standard) that the appellant engaged in behaviour likely to cause harassment, alarm, or distress in the way required
by section 331(2).
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No proper nexus between phones and the targeted mischief: the CBO’s core restrictions (one handset/one SIM,
registration requirements, public-place limits) required a demonstrated connection between phone use and the behaviour said to
cause harassment/alarm/distress. The Court found the conclusion that phones were materially implicated—and that these
restrictions would help prevent the statutory harm—was unreasonable and inconsistent with
the agreed basis.
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Agreement to the basis of plea mattered: once the prosecution accepted the basis, the sentencing exercise
(including ancillary orders) had to proceed on that footing, absent a proper evidential and procedural route to dispute it.
Sentencing Council guidance: “serious and persistent” anti-social behaviour
The Court noted the Sentencing Council’s description of CBOs as designed for “the most serious and persistent anti-social
individuals” and reiterated that the court must decide both (i) whether the alleged behaviour occurred and (ii) whether it caused
or was likely to cause harassment, alarm or distress. The facts as accepted did not justify treating this case as meeting that
paradigm via a far-reaching phone restriction.
Drafting defects: an indicator of insufficient care
The drawn-up order reportedly stated (nonsensically) that the appellant “must” possess more than one SIM/handset, rather than
“must not”. The Court proceeded on the assumption it was intended as a prohibition but treated the error as reflective of the
lack of care that should not attend CBO-making, given the potential for severe consequences on breach.
Impact
The decision reinforces several practical constraints on CBO use in the Crown Court:
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Compliance with CrimPR 31.3 is substantive: late notice can materially contribute to an unlawful or unsafe
CBO because it undermines fair opportunity to respond and encourages rushed decision-making.
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“Social supply” does not automatically equate to statutory “harassment, alarm or distress”: courts must
identify a defensible evidential route from the proven facts to the statutory harm.
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Technology restrictions require proof of relevance: phone/SIM limits must be justified by evidence showing
they will help prevent the specific statutory mischief, not merely reflect general concerns about drug offending.
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Ancillary orders must track the accepted factual basis: where a basis of plea is accepted, ancillary orders
cannot be anchored to an earlier, abandoned narrative without a procedurally proper foundation.