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PART 31E+WBEHAVIOUR ORDERS

Contents of this Part
When this Part appliesrule 31.1
Behaviour orders: general rulesrule 31.2
Application for behaviour order and notice of terms of proposed order: special rulesrule 31.3
Evidence to assist the court: special rulesrule 31.4
[F1Application to vary, renew, discharge or revoke behaviour order]rule 31.5
Notice of hearsay evidencerule 31.6
Cross-examination of maker of hearsay statementrule 31.7
Credibility and consistency of maker of hearsay statementrule 31.8
Court’s power to vary requirements under this Partrule [F231.9]

Textual Amendments

F2Pt. 31 Table of Contents amended (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 17(f) (with rule 3)

[Note. See Part 3 for the court’s general powers to consider an application and to give directions.]

When this Part appliesE+W

31.1.—[F3(1) This Part applies where a magistrates’ court or the Crown Court can [F4make, vary, renew, discharge or revoke] a civil order—

(a)as well as, or instead of, passing a sentence, or in any other circumstances in which other legislation allows the court to make such an order; and

(b)that requires someone to do, or not do, something.]

(2) A reference to a ‘behaviour order’ in this Part is a reference to any such order.

(3) A reference to ‘hearsay evidence’ in this Part is a reference to evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995(1).

[Note. In the circumstances set out in the Acts listed, the court can make a behaviour order—

(a)on conviction, under—

(i)section 14A of the Football Spectators Act 1989(2) (football banning orders),

(ii) [F5section 360 of the Sentencing Act 2020] (restraining orders),

(iii)sections 1C and 1D of the Crime and Disorder Act 1998(3) (anti-social behaviour orders and interim anti-social behaviour orders),

(iv) [F6section 366 of the 2020 Act] (parenting orders),

(v) [F7section 345 of the 2020 Act] (sexual harm prevention orders),

(vi)section 19 or 21 of the Serious Crime Act 2007(4) (serious crime prevention orders),

(vii) [F8section 331 of the 2020 Act] (criminal behaviour orders),

(viii)section 14 of the Modern Slavery Act 2015(5) (slavery and trafficking prevention orders),

(ix)section 19 of the Psychoactive Substances Act 2016(6) (prohibition orders),

(x)section 20 of the Immigration Act 2016(7) (labour market enforcement orders),

(xi)section 19 of the Offensive Weapons Act 2019(8) (knife crime prevention orders);

(b)on acquittal, under section 5A of the Protection from Harassment Act 1997(9) (restraining orders on acquittal);

(c)on the making of a finding of not guilty by reason of insanity, or a finding of disability, under section 14 of the Modern Slavery Act 2015 (slavery and trafficking prevention orders); and

(d)in proceedings for a genital mutilation offence, under paragraph 3 of Schedule 2 to the Female Genital Mutilation Act 2003(10) (female genital mutilation protection orders).

F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 1(2) of the Civil Evidence Act 1995 defines hearsay as meaning “a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated”. Section 13 of that Act defines a statement as meaning “any representation of fact or opinion, however made”.]

Textual Amendments

Commencement Information

I1Rule 31.1 in force at 5.10.2020, see Preamble

Behaviour orders: general rulesE+W

31.2.—(1) The court must not make a behaviour order unless the person to whom it is directed has had an opportunity—

(a)to consider—

(i)what order is proposed and why, and

(ii)the evidence in support; and

(b)to make representations at a hearing (whether or not that person in fact attends).

[F10(2) That restriction does not apply to making an interim behaviour order, but unless other legislation otherwise provides such an order has no effect unless the person to whom it is directed—

(a)is present when it is made; or

(b)is handed a document recording the order not more than 5 business days after it is made.]

(3) Where the court decides not to make, where it could—

(a)a football banning order; or

(b)a parenting order, after a person under 16 is convicted of an offence,

the court must announce, at a hearing in public, the reasons for its decision.

F11(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[Note. The Acts listed in the note to rule 31.1 impose requirements specific to each different type of behaviour order. Not all allow the court to make an interim behaviour order.

[F12See section 14A(3) of the Football Spectators Act 1989(11)and section 366 of the Sentencing Act 2020.]

Textual Amendments

Commencement Information

I2Rule 31.2 in force at 5.10.2020, see Preamble

Application for behaviour order and notice of terms of proposed order: special rulesE+W

31.3.—(1) This rule applies where—

(a)a prosecutor wants the court to make one of the following orders if the defendant is convicted—

(i)an anti-social behaviour order (but this rule does not apply to an application for an interim anti-social behaviour order),

(ii)a serious crime prevention order,

(iii)a criminal behaviour order,

(iv)a prohibition order, or

(v)a knife crime prevention order;

(b)a prosecutor proposes, on the prosecutor’s initiative or at the court’s request, a sexual harm prevention order if the defendant is convicted; or

(c)a prosecutor proposes a restraining order whether the defendant is convicted or acquitted.

(2) Where paragraph (1)(a) applies (order on application), the prosecutor must serve a notice of intention to apply for such an order on—

(a)the court officer;

(b)the defendant against whom the prosecutor wants the court to make the order; and

(c)any person on whom the order would be likely to have a significant adverse effect,

as soon as practicable (without waiting for the verdict).

(3) A notice under paragraph (2) must—

(a)summarise the relevant facts;

(b)identify the evidence on which the prosecutor relies in support;

(c)attach any written statement that the prosecutor has not already served; and

(d)specify the order that the prosecutor wants the court to make.

(4) A defendant served with a notice under paragraph (2) must—

(a)serve notice of any evidence on which the defendant relies on—

(i)the court officer, and

(ii)the prosecutor,

as soon as practicable (without waiting for the verdict); and

(b)in the notice, identify that evidence and attach any written statement that has not already been served.

(5) Where paragraph (1)(b) applies (sexual harm prevention order proposed), the prosecutor must—

(a)serve a draft order on the court officer and on the defendant not less than 2 business days before the hearing at which the order may be made; and

(b)in the draft order specify those prohibitions which the prosecutor proposes as necessary for the purpose of—

(i)protecting the public or any particular members of the public from sexual harm from the defendant, or

(ii)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

(6) Where paragraph (1)(c) applies (restraining order proposed), the prosecutor must—

(a)serve a draft order on the court officer and on the defendant as soon as practicable (without waiting for the verdict); and

(b)in the draft order specify—

(i)those prohibitions which, if the defendant is convicted, the prosecutor proposes for the purpose of protecting a person from conduct which amounts to harassment or will cause fear of violence, or

(ii)those prohibitions which, if the defendant is acquitted, the prosecutor proposes as necessary to protect a person from harassment by the defendant.

(7) Where the prosecutor wants the court to make an anti-social behaviour order, a criminal behaviour order or a prohibition order, the rules about special measures directions in Part 18 (Measures to assist a witness or defendant to give evidence) apply, but—

(a)the prosecutor must apply when serving a notice under paragraph (2); and

(b)the time limits in [F13rule 18.4(a)] do not apply.

[Note. The Practice Direction sets out a form of notice for use in connection with this rule.

The orders listed in rule 31.3(1)(a) may be made on application by the prosecutor. The orders to which rule 31.3(1)(b) and (c) apply require no application and may be made on the court’s own initiative. Under section 8 of the Serious Crime Act 2007 a serious crime prevention order may be made only on an application by the Director of Public Prosecutions or the Director of the Serious Fraud Office. See also paragraphs 2, 7 and 13 of Schedule 2 to the 2007 Act.

Under section 1I of the Crime and Disorder Act 1998(12), on an application for an anti-social behaviour order the court may give a special measures direction under the Youth Justice and Criminal Evidence Act 1999. Under [F14section 340 of the Sentencing Act 2020] the court may give such a direction on an application for a criminal behaviour order, and under section 33 of the Psychoactive Substances Act 2016(13) the court may do so in proceedings for a prohibition order.

If a party relies on hearsay evidence, see also rules 31.6, 31.7, and 31.8.]

Textual Amendments

Commencement Information

I3Rule 31.3 in force at 5.10.2020, see Preamble

Evidence to assist the court: special rulesE+W

31.4.—(1) This rule applies where the court can make on its own initiative—

(a)a football banning order;

(b)a restraining order; or

(c)an anti-social behaviour order.

(2) A party who wants the court to take account of evidence not already introduced must—

(a)serve notice on—

(i)the court officer, and

(ii)every other party,

as soon as practicable (without waiting for the verdict); and

(b)in the notice, identify that evidence; and

(c)attach any written statement containing such evidence.

[Note. If a party relies on hearsay evidence, see also rules 31.6, 31.7, and 31.8.]

Commencement Information

I4Rule 31.4 in force at 5.10.2020, see Preamble

[F15Application to vary, renew, discharge or revoke behaviour order] E+W

31.5.—(1) The court may [F16vary, renew, discharge or revoke] a behaviour order if—

(a)the legislation under which it is made allows the court to do so; and

(b)one of the following applies—

(i)the prosecutor,

(ii)the person to whom the order is directed,

(iii)any other person protected or affected by the order,

(iv)the relevant authority or responsible officer,

(v)the relevant Chief Officer of Police,

(vi)the Director of Public Prosecutions, or

(vii)the Director of the Serious Fraud Office.

[F17(2) A person applying under this rule must—

(a)apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining—

(i)what material circumstances have changed, if any, since the order was made, and

(ii)why the order should be varied, renewed, discharged or revoked, by reference to the legislation under which it was made;

(b)in every case, serve the application on—

(i)the court officer, and

(ii)the prosecutor (unless the prosecutor is the person applying under this rule);

(c)unless the order was a restraining order, serve the application on, as appropriate—

(i)the person to whom the order was directed, and

(ii)any other person protected or affected by the order; and

(d)serve the application on any other person if the court so directs.]

[F18(3) A party who wants the court to take account of any particular evidence before making its decision must, as soon as practicable—

(a)in every case, serve notice on—

(i)the court officer, and

(ii)the prosecutor (unless the prosecutor is the party serving the notice);

(b)unless the order was a restraining order, serve the notice on, as appropriate—

(i)the person to whom the order was directed, and

(ii)any other person protected or affected by the order;

(c)serve the notice on any other person if the court so directs; and

(d)in that notice identify the evidence and attach any written statement that has not already been served.]

[F19(4) The court may decide an application under this rule—

(a)at a hearing, in public or in private; or

(b)without a hearing, if the legislation under which the order was made so allows.]

(5) But the court must not—

(a)dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b)allow an application under this rule unless everyone required to be served, by this rule or by the court, has had at least 10 business days in which to make representations, including representations about whether there should be a hearing [F20if none is otherwise required].

[F21(6) The court officer must—

(a)if the order was a restraining order, serve the application under this rule on—

(i)as appropriate, the person to whom the order was directed and any other person protected or affected by the order, and

(ii)the relevant Chief Officer of Police;

(b)serve the application on any other person if the court so directs;

(c)serve any notice of evidence received by the court officer under paragraph (3) on—

(i)each person, if any, on whom the court officer serves the application under this rule, and

(ii)any other person if the court so directs; and

(d)give notice of any hearing to—

(i)the applicant, and

(ii)any person required to be served, by this rule or by the court.]

[Note. The legislation that gives the court power to make a behaviour order may limit the circumstances in which it may be [F22varied, renewed, discharged or revoked] and may require a hearing. Under section 22E of the Serious Crime Act 2007(14), where a person already subject to a serious crime prevention order is charged with a serious offence or with an offence of failing to comply with the order, the court may vary the order so that it continues in effect until that prosecution concludes.

Under section 26 of the Offensive Weapons Act 2019(15), where the court has made a knife crime prevention order the court may require the applicant and the defendant to attend one or more review hearings to consider whether the order should be varied or discharged. Where a requirement or prohibition imposed by the knife crime prevention order is to have effect after the end of one year from the date the order is made, the court must convene such a review on a specified date within the last 4 weeks of that year.

If a party relies on hearsay evidence, see also rules 31.6, 31.7 and 31.8.]

Textual Amendments

Commencement Information

I5Rule 31.5 in force at 5.10.2020, see Preamble

Notice of hearsay evidenceE+W

31.6.—(1) A party who wants to introduce hearsay evidence must—

(a)serve notice on—

(i)the court officer, and

(ii)every other party directly affected; and

(b)in that notice—

(i)explain that it is a notice of hearsay evidence,

(ii)identify that evidence,

(iii)identify the person who made the statement which is hearsay, or explain why if that person is not identified, and

(iv)explain why that person will not be called to give oral evidence.

(2) A party may serve one notice under this rule in respect of more than one notice and more than one witness.

[Note. For the time within which to serve a notice of hearsay evidence, see rule 31.3(2) to (4), rule 31.4(2) and rule 31.5(3). See also the requirement in section 2 of the Civil Evidence Act 1995 for reasonable and practicable notice of a proposal to introduce hearsay evidence.

Rules 31.6, 31.7 and 31.8 broadly correspond with rules 3, 4 and 5 of the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999(16), which apply in civil proceedings in magistrates’ courts. Rule 3 of the 1999 Rules however includes a time limit, which may be varied by the court, or a justices’ legal adviser, of 21 days before the date fixed for the hearing, for service of a hearsay notice.]

Commencement Information

I6Rule 31.6 in force at 5.10.2020, see Preamble

Cross-examination of maker of hearsay statementE+W

31.7.—(1) This rule applies where a party wants the court’s permission to cross-examine a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to cross-examine that person must—

(a)apply in writing, with reasons, not more than 5 business days after service of the notice of hearsay evidence; and

(b)serve the application on—

(i)the court officer,

(ii)the party who served the hearsay evidence notice, and

(iii)every party on whom the hearsay evidence notice was served.

(3) The court may decide an application under this rule with or without a hearing.

(4) But the court must not—

(a)dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b)allow an application under this rule unless everyone served with the application has had at least 5 business days in which to make representations, including representations about whether there should be a hearing.

[Note. See also section 3 of the Civil Evidence Act 1995.]

Commencement Information

I7Rule 31.7 in force at 5.10.2020, see Preamble

Credibility and consistency of maker of hearsay statementE+W

31.8.—(1) This rule applies where a party wants to challenge the credibility or consistency of a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to challenge the credibility or consistency of that person must—

(a)serve notice of intention to do so on—

(i)the court officer, and

(ii)the party who served the notice of hearsay evidence

not more than 5 business days after service of that hearsay evidence notice; and

(b)in the notice, identify any statement or other material on which that party relies.

(3) The party who served the hearsay notice—

(a)may call that person to give oral evidence instead; and

(b)if so, must serve notice of intention to do so on—

(i)the court officer, and

(ii)every party on whom the hearsay notice was served

not more than 5 business days after service of the notice under paragraph (2).

[Note. Section 5(2) of the Civil Evidence Act 1995 describes the procedure for challenging the credibility of the maker of a statement of which hearsay evidence is introduced. See also section 6 of that Act. The 1995 Act does not allow the introduction of evidence of a previous inconsistent statement otherwise than in accordance with sections 5, 6 and 7 of the Criminal Procedure Act 1865(17).]

Commencement Information

I8Rule 31.8 in force at 5.10.2020, see Preamble

Court’s power to vary requirements under this PartE+W

[F2331.9.]  Unless other legislation otherwise provides, the court may—

(a)shorten a time limit or extend it (even after it has expired);

(b)allow a notice or application to be given in a different form, or presented orally.

Textual Amendments

F23Original rule 31.9 omitted and rule 31.11 renumbered as rule 31.9 (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 17(d)(e) (with rule 3)

Commencement Information

I9Rule 31.9 in force at 5.10.2020, see Preamble

Giving effect to a European protection order made in another EU member StateE+W

F2431.10.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Court’s power to vary requirements under this PartE+W

F2531.11.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F25Rule 31.11 renumbered as rule 31.9 (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 17(e) (with rule 3)

(2)

1989 c. 37; section 14A was amended by section 1 of, and paragraphs 1 and 2 of Schedule 1 to, the Football (Disorder) Act 2000 (c. 25), section 86(5) of the Anti-Social Behaviour Act 2003 (c. 38), section 139(10) of the Serious Organised Crime and Police Act 2005 (c. 15) and sections 52(2) and 65 of, and paragraphs 1 and 2 of Schedule 3 and Schedule 5 to, the Violent Crime Reduction Act 2006 (c. 38).

(3)

1998 c. 37; section 1C was inserted by section 64 of the Police Reform Act 2002 (c. 30) and amended by sections 83 and 86 of the Anti-social Behaviour Act 2003 (c. 38), sections 139, 140, 141 and 174 of, and Part 2 of Schedule 17 to, the Serious Organised Crime and Police Act 2005 (c. 15) and sections 123 and 124 of the Criminal Justice and Immigration Act 2008 (c. 4). Section 1D was inserted by section 65 of the Police Reform Act 2002 (c. 30) and amended by section 139 of the Serious Organised Crime and Police Act 2005 (c. 15). Each section was repealed on 20th October, 2014, by section 181 of, and paragraph 24 of Schedule 11 to, the Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), subject to the saving provisions of section 33 of that Act.

(4)

2007 c. 27; section 21 was amended by section 48 of the Serious Crime Act 2015 (c. 9).

(8)

2019 c. 17; section 19 comes into force on a date to be appointed.

(9)

1997 c. 40; section 5A was inserted by section 12(5) of the Domestic Violence, Crime and Victims Act 2004 (c. 28).

(10)

2003 c. 31; Schedule 2 was inserted by section 73 of the Serious Crime Act 2015 (c. 9).

(11)

1989 c. 37; section 14A was substituted, together with sections 14 and 14B–14J, for the existing sections 14–17, by section 1 of, and paragraphs 1 and 2 of Schedule 1 to, the Football (Disorder) Act 2000 (c. 25).

(12)

1998 c. 37; section 1I was inserted by section 143 of the Serious Organised Crime and Police Act 2005 (c. 15) and amended by paragraph 72 of Schedule 21 and Part 3 of Schedule 23 to the Coroners and Justice Act 2009 (c. 25).

(13)

2016 c. 2.

(14)

2007 c. 27; section 22E was inserted by section 49 of the Serious Crime Act 2015 (c. 9).

(15)

2019 c. 17; section 26 comes into force on a date to be appointed.

(16)

S.I. 1999/681, amended by S.I. 2005/617.

(17)

1865 c. 18; section 6 was amended by section 10 of the Decimal Currency Act 1969 (c. 19), section 90 of, and paragraph 3 of Schedule 13 to, the Access to Justice Act 1999 (c. 22), section 109 of, and paragraph 47 of Schedule 8 to, the Courts Act 2003 (c. 39) and paragraph 79 of Schedule 36 and Schedule 37 to the Criminal Justice Act 2003 (c. 44). It is further amended by section 119 of, and Schedule 7 to, the Police and Criminal Evidence Act 1984 (c. 60), with effect from a date to be appointed.