Reinforcing Supervisory Requirements in Criminal Behaviour Orders: Insights from Tofagsazan v. EWCA Crim 982

Introduction

The case of Tofagsazan, R. v ([2020] EWCA Crim 982) represents a significant decision by the England and Wales Court of Appeal (Criminal Division) regarding the imposition and procedural requirements of Criminal Behaviour Orders (CBOs). This commentary delves into the intricacies of the case, examining the background, key legal issues, the parties involved, and the implications of the court's decision.

Summary of the Judgment

In November 2018, the Applicant, R. Tofagsazan, pleaded guilty to three counts of fraud under the Fraud Act 2006 and was sentenced in January 2019 to three years of imprisonment. Concurrently, a Criminal Behaviour Order was imposed for ten years, prohibiting the Applicant from owning multiple mobile phones, SIM cards, computers, and accessing dating services. Additionally, the order mandated strict reporting and supervision requirements.

The Applicant appealed against the first three prohibitions of the CBO, arguing that these measures were excessive and unnecessary. The Court of Appeal upheld the validity of these prohibitions, emphasizing their role in preventing future offenses. However, the court identified procedural deficiencies in the original order's compliance with the Anti-social Behaviour, Crime and Policing Act 2014, specifically sections 24(1) and (2). Consequently, the court varied the CBO to rectify these shortcomings, ensuring proper supervision mechanisms were in place.

Analysis

Precedents Cited

The judgment references several key legal precedents to bolster its reasoning. Notably, R v Khan (Kaman) [2018] EWCA Crim 1472 is cited, wherein the court expressed disapproval of CBOs being imposed as mere procedural formalities without substantive consideration of their necessity and proportionality. Additionally, R v Brain [2020] EWCA Crim 457 is acknowledged for its elucidation of the principles governing the issuance of CBOs under the 2014 Act, particularly regarding the evaluation of an offender's behavior up to one year prior to the order.

These precedents collectively influenced the Court of Appeal's approach in Tofagsazan, ensuring that CBOs are not only tailored to prevent future offenses but also comply meticulously with statutory requirements.

Legal Reasoning

Central to the court’s decision was the interpretation of sections 22 and 24 of the Anti-social Behaviour, Crime and Policing Act 2014. Section 22 outlines the conditions under which a CBO may be imposed, primarily focusing on preventing harassment, alarm, or distress caused by the offender and ensuring that the order aids in preventing future misconduct.

The court affirmed that the Applicant, with his extensive history of fraud and previous convictions, unequivocally met the criteria for a CBO. The initial prohibitions on devices and access to dating services were deemed essential in curbing his ability to commit further fraudulent activities, particularly given his modus operandi involving online deception and exploitation of vulnerable individuals.

However, the court identified a procedural lapse concerning section 24, which mandates the specification of a supervising officer responsible for ensuring compliance with the order's requirements. The original order failed to designate such an officer and lacked evidence regarding the suitability and enforceability of the supervisory provisions. To address this, the court varied the CBO to appoint DC Lisa Hilliard as the supervising officer, thereby rectifying the procedural deficiencies without altering the substantive prohibitions imposed on the Applicant.

Impact

This judgment underscores the judiciary's commitment to not only imposing stringent measures on persistent offenders but also adhering strictly to procedural safeguards embedded within the law. By reinforcing the necessity of specifying and evidencing the supervisory mechanisms under section 24, the Court of Appeal ensures that CBOs are both effective and legally compliant.

Future cases involving CBOs will likely reflect this balanced approach, wherein the courts meticulously evaluate both the necessity and the procedural correctness of the orders. This decision serves as a precedent that emphasizes the dual importance of substantive prohibition measures and procedural integrity in the enforcement of Criminal Behaviour Orders.

Complex Concepts Simplified

Criminal Behaviour Order (CBO)

A Criminal Behaviour Order is a legal measure that restricts individuals convicted of certain offences from engaging in specific activities or behaviors. The primary aim is to prevent re-offending by imposing limitations tailored to the offender's modus operandi.

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

This section outlines the procedural requirements for issuing a CBO. It mandates that any order must specify a supervising officer responsible for monitoring the offender's compliance and that the court must consider evidence regarding the suitability and enforceability of these supervisory measures.

Prejudice in Legal Context

In legal terms, prejudice refers to an unfair harm or disadvantage that could affect the outcome of a case. In this judgment, the absence of a designated supervising officer and lack of evidence could have prejudiced the enforcement of the CBO, thereby necessitating judicial intervention to rectify the oversight.

Conclusion