Imposition and Modification of Criminal Behaviour Orders: The Case of Brain, R. v (2020) EWCA Crim 457

Introduction

The case of Michael Roger Brain ("Mr Brain") presented before the England and Wales Court of Appeal (Criminal Division) in 2020 constitutes a significant examination of the application and modification of Criminal Behaviour Orders (CBOs) under the Anti-Social Behaviour, Crime and Policing Act 2014. Mr Brain appealed against his sentences imposed in 2016 and 2019 for multiple offences, including breaches of a CBO. The key issues revolved around the appropriateness of the CBO's imposition, its terms, and duration, as well as the judicial reasoning underpinning the sentencing decisions.

Summary of the Judgment

Mr Brain faced two primary sentencing decisions:

2016 Sentence: Imposed a four-year imprisonment term for 14 offences of theft and fraud, alongside a CBO with nine prohibitions intended to prevent further criminal behavior.
2019 Sentence: Ordered two years' imprisonment for breaching the CBO almost immediately after his release from the 2016 sentence.

Upon appeal, Mr Brain contested the legality and terms of the CBO, arguing procedural and substantive flaws. The Court of Appeal upheld the imposition of the CBO in principle but modified specific prohibitions and dismissed the appeal against the 2019 sentence, finding it proportionate given the circumstances.

Analysis

Precedents Cited

The judgment referenced several key cases and statutory provisions:

R v Browne-Morgan [2016] EWCA Crim 1903: Clarified the discretionary nature of CBOs under the 2014 Act.
R v McGrath [2015] EWCA Crim 353: Distinguished the necessity of harassment or distress in imposing CBOs.
R v Khan [2018] EWCA Crim 1472: Emphasized the cautious approach required in imposing CBOs and their prevention-focused intent.
R v Bones [2005] EWCA Crim 2395: Provided guidance on the specificity required in orders akin to injunctions.
DPP v Bulmer [2016] 1 Cr App R (S) 12: Offered insights into the lack of a positive requirement for CBOs and the evaluation standard.

These precedents collectively reinforced the court's approach to balancing the preventive aims of CBOs with the rights of the offender, ensuring orders are specific, proportionate, and targeted.

Legal Reasoning

The court's legal reasoning hinged on interpreting the Anti-Social Behaviour, Crime and Policing Act 2014, specifically sections 22 and 33. The court assessed whether Mr Brain's behavior met the dual criteria for a CBO: causing or likely causing harassment, alarm, or distress, and the necessity of a CBO to prevent future offending.

Imposition in Principle: The court confirmed that Mr Brain's prolonged pattern of deceit and fraud satisfied the conditions for a CBO, emphasizing the preventive rather than punitive nature of such orders.
Scope of Considered Conduct: Although procedural errors were identified in the consideration of conduct predating one year before the commencement of the Act, the court found that the overarching pattern of behavior justified the CBO.
Modification of Terms: The court identified specific prohibitions within the CBO that were either overly broad or redundant. Consequently, it tailored the order to better fit Mr Brain's circumstances, allowing exceptions for employment-related use of social networking sites while quashing prohibitions redundant with existing criminal laws.
Sentence Appropriateness: Regarding the 2019 sentence, the court deemed the two-year imprisonment term proportionate, considering the immediate breach post-release and Mr Brain's history of non-compliance.

Impact

This judgment has several implications for future cases involving CBOs:

Clarification on Conduct Consideration: It reinforces the importance of adhering to statutory timelines when considering past conduct for CBOs, ensuring that only relevant and admissible behavior is evaluated.
Specificity in Prohibitions: Courts must draft CBOs with precise and justified prohibitions, avoiding overly broad restrictions that may infringe upon an individual's rights without serving the preventive aim.
Balancing Prevention and Proportionality: The decision underscores the necessity of balancing the preventive objectives of CBOs with the proportionality of the restrictions imposed, tailoring orders to the offender's specific behaviors and risks.
Precedential Guidance: By referencing and applying precedent cases, the judgment provides a framework for lower courts in assessing and imposing CBOs, contributing to a more consistent application of the law.

Additionally, the case highlights the judiciary's role in ensuring that protective orders do not become tools of undue punishment, maintaining their intended preventive function.

Complex Concepts Simplified

Criminal Behaviour Order (CBO)

A Criminal Behaviour Order is a legal tool used to prevent offenders from engaging in specific harmful behaviors in the future. Unlike past behavior-focused sanctions, CBOs are prospective and tailored to mitigate the risk of reoffending by imposing certain restrictions or requirements on the individual.

Prohibition and Requirement Terms

Prohibitions are specific actions an individual is forbidden from doing, while requirements are actions the individual must undertake. For example, a prohibition might prevent access to certain websites, whereas a requirement could mandate attendance at counseling sessions.

Pre-sentence Report

A pre-sentence report is an investigative document prepared by probation services to provide the court with information regarding the offender's background, character, and circumstances to inform sentencing decisions. In this case, neither the prosecution nor the defense considered it necessary.

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

This section outlines the criteria and process for imposing a CBO. It requires that the offender's behavior has caused or is likely to cause harassment, alarm, or distress, and that the CBO will help prevent such behavior in the future.

Conclusion

The judgment in Brain, R. v (2020) EWCA Crim 457 serves as a pivotal reference in the application and refinement of Criminal Behaviour Orders under the Anti-Social Behaviour, Crime and Policing Act 2014. By upholding the imposition of a CBO while judiciously modifying its terms, the court demonstrated a balanced approach that upholds public safety and preventive aims without overstepping into punitive measures. This case underscores the necessity for specificity, proportionality, and adherence to statutory guidelines in the formulation of CBOs, ensuring they effectively mitigate the risk of reoffending while respecting individual rights. Future cases will likely draw on this precedent to navigate the complexities of preventive justice within the UK's legal framework.