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Neutral Citation Number: [2026] EWCA Crim 379 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT INNER LONDON (HHJ KELLEHER) [01MD1246424] CASE NO 202502637/A5 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE DINGEMANS
MR JUSTICE BUTCHER
RECORDER OF BRISTOL
HIS HONOUR JUDGE BLAIR KC
(Sitting as a Judge of the CACD)
REX
V
JAKE SIMMS
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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_________
MR M LAVERS appeared on behalf of the Appellant.
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JUDGMENT
RECORDER OF BRISTOL:
Introduction
The appellant (aged 31) pleaded guilty at the Inner London Crown Court on 16 May 2025 to two offences of possession of Class A drugs with intent to supply them to others. He was sentenced on 1 July 2025 when he received concurrent sentences of 22 months' imprisonment which were suspended for a period of 2 years.
There was a basis of plea which was accepted by the prosecution. It reads as follows:
"I was going with a group of my friends to watch the football in a pub on 10 July 2024. Everyone said that they wanted some [sic] to get drugs for the gathering.
A friend in the group bought the drugs. Everyone provided the friend their money in cash prior.
I met him after he had bought the drugs and we went back to my house to split it up. The reason why we split it up was to make sure we were taking the drugs within our budget, aka, everyone was taking the amount they had paid for.
Everyone had already chipped in to purchase the drugs.
I did not get any financial reward for supplying the drugs; it was simply social supply."
Prosecution counsel at the sentencing hearing, Mr Johnson, opened the facts by reference to a Sentencing Note which had been prepared by previous counsel for the prosecution, a Mr Alun Evans. Mr Johnson stated that he did not intend to stray from the Sentencing Note because it had been agreed. The Sentencing Note identified that there would be applications for two ancillary orders: (a) the forfeiture and destruction of the drugs and the phones; and (b) prosecution costs.
However, in opening the facts of the case Mr Johnson then added this:
"Then we move to the issue of the Criminal Behaviour Order. The officer, Mr Hall, is in court behind me who makes the application and while it's right to say that his statement, dated 31 December 2024, does indeed outline the basic facts as were put at the time of the arrest and his interview, it's still right to say, no doubt, that this is a continued period of activity, no doubt social supply as the Crown have accepted; but nonetheless Class A drugs being involved, a serious level of activity which no doubt the possession of the mobile phone assisted him to do so. So the Crown cite, as it's regarded as being a necessary and proportionate action, that he has a number of previous convictions which relate to no doubt a habit which is alluded to in the pre-sentence report and, therefore, there may be a temptation and, indeed, substantial risk that he may return to such activity in order to continue his habit."
The Criminal Behaviour Order application was served on defence counsel by prosecution counsel as the judge was about to enter court at the sentencing hearing on 1 July 2025. It was only uploaded to the Digital Case System during the hearing itself. The evidence in support of the application from PC Hall was dated as long back as 31 December 2024, but was phrased on the basis of an analysis of the facts of the case which the prosecution had agreed no longer to pursue in the light of the accepted Basis of Plea.
Rule 31.3(1) (a) (iii) and 31.3(2) of the Criminal Procedure Rules requires the prosecutor to serve notice of its intention to apply for a Criminal Behaviour Order "as soon as practicable, (without waiting for the verdict)". The service of its notice was clearly in breach of the rules. The first hearing of the case had been almost a year earlier on 13 July 2024 and there had been some eight listings of the case in the Crown Court prior to the date of sentence. It was practicable for the application to have been served at any time in the preceding 6 months and, at the very latest, by 16 May 2025 when the acceptability of the pleas was formally accepted.
The power to make a Criminal Behaviour Order (a CBO) is derived from section 331(2) of the Sentencing Act 2020, which states that a court may make such an order:
"if it -
(a) is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and
considers that making the order will help in preventing the offender from engaging in such behaviour."
By section 339(2) (b) a person found guilty on indictment of breaching a CBO may be the subject of a sentence of imprisonment not exceeding 5 years. It is therefore a very serious additional measure giving rise to significant criminal sanctions and, in this case, the sentencing judge imposed it for a period of 5 years.
Mr Lavers, counsel for the appellant, informs us that he made submissions to the judge objecting to the imposition of a CBO because it was not warranted bearing in mind the accepted Basis of Plea. He argued that the test for its imposition was not satisfied because there was an insufficient evidential basis upon which to establish the necessary link between the appellant's accepted behaviour and it causing or being likely to cause harassment, alarm or distress.
Our attention has been drawn to this Court having said that the imposition of such an order should be approached with care and not made or considered on the hoof. In R v Khan [2018] EWCA Crim 1472, this Court stated:
"We do not believe that it was the intention of Parliament that criminal behaviour orders should become a mere matter of box-ticking routine... such orders are not lightly to be imposed; the court should proceed with a proper degree of caution and circumspection; the order must be tailored to the specific circumstances of the person on whom it is to be imposed; and assessments of proportionality are intensively fact sensitive."
The judge did not accede to Mr Laver's submissions. The judge said:
"Now, I am asked to impose a criminal behaviour order upon you, restricting you to having only one phone, and that phone being registered to you in your name. In my judgment, the offending that you have pleaded guilty to in this case, even on a social supply basis, is behaviour likely to cause harassment, alarm, or distress to other people because the group taking of drugs does that. It is distressing to others, it is likely to cause disorder and, taken with the rest of your record, in my judgment, you are at risk of doing that. The restriction that is sought is a limited one. It is relevant to this case because, even on a social supply basis, it appears you may have used your phone to facilitate that, or phones. In my
judgment, this would be a proportionate restriction to limit your ability to do that.
So, I do impose a criminal behaviour order for a period of five years from today's date. It has two conditions. That you must not own or possess more than one mobile phone SIM card, and that SIM card must be registered in your name with the provider and on the immobilise.com website, and you must not be in possession of more than one mobile phone handset in any public place in England and Wales. The one that you do have must be registered on immobilise.com. That is for you to do. If you are arrested in public with more than one phone, you are going to find yourself in custody, so make sure you comply with that. A breach of that order can result in a prison sentence, so you have been warned."
As drawn up by the Crown Court the CBO in the appellant's case unfortunately states that the appellant must own or possess more than one mobile phone SIM card and must be in possession of more than one mobile phone handset in public. We intend to assume for the purposes of this appeal that the CBO in fact required him not to possess such things but perhaps it reflects a lack of the necessary care and attention which needs to be applied when making such orders.
The Sentencing Council has published guidelines for the Crown Court when passing ancillary orders in connection with CBOs it states as follows:
"A CBO is an order designed to tackle the most serious and persistent anti-social individuals where their behaviour has brought them before a criminal court...
The court must decide whether the offender has engaged in the behaviour alleged and also whether that behaviour caused or was likely to cause harassment, alarm or distress to any person."
In granting leave to appeal the Single Judge (Norton J) stated:
"Given the limited basis of plea that was accepted on evidential grounds by the prosecution, and the absence of any previous offending for drug supply, I consider that it is arguable that the relevant test for making a CBO was not met in this case."
We are most grateful for the assistance provided by Mr Lavers in his advice on appeal and in his oral submissions before us today.
Our conclusions
We agree with Mr Lavers that the imposition of a Criminal Behaviour Order was wrong in principle and was not justified by the agreed factual basis of the offending in this case.
The prosecution made its application for a CBO at the last possible stage of the proceedings. There had been no advance notification as is required by the Criminal Procedure Rules. Quite the converse, although the Prosecution Sentencing Note referred to its intention to seek other ancillary orders there had been no hint of a CBO.
In our view, the problems which have arisen were caused by the prosecution’s late notification of an application and one based upon a statement from a police officer which was no longer consistent with the factual basis upon which the case was to be presented.
Unfortunately therefore the learned judge was drawn into error by agreeing to consider the imposition of a CBO on the hoof.
This was not a case in which the judge could properly have concluded that the appellant had engaged in behaviour likely to cause harassment, alarm or distress to other people by the use of mobile telephones, the prevention of which could be helped by the restrictions contained in the Criminal Behaviour Order. The conclusion was unreasonable and inconsistent with the agreed Basis of Plea.
Accordingly, we allow the appeal and we quash the Criminal Behaviour Order which was imposed.
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