The Impact of the European Convention on Human Rights on the Imposition of Criminal Behaviour Orders

A considered approach to a defendant’s ECHR rights is always necessary in criminal practice. The recent case of R v Al Magloub [2025] EWCA Crim 640 highlights this in a particularly routine context – the imposition of a Criminal Behaviour Order (“CBO”). CBOs allow the court to impose sweeping prohibitions and requirements on a convicted person where the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour likely to cause harassment, alarm or distress, and making the order will help prevent further such behaviour (s.331 Sentencing Act 2020). Conditions must be reasonable, enforceable, proportionate, and understandable (see Boness [2005] EWCA Crim 2395, P (Shane Tony) [2004] EWCA Crim 287, and Khan [2018] EWCA Crim 1472).

Plainly, the conditions imposed under a CBO can have significant implications for an offender’s qualified ECHR rights: notably their right to a private life (Article 8), freedom of expression (Article 10), and freedom of association (Article 11). Infringement of these qualified rights is permissible under the ECHR, but only in a lawful and proportionate manner, necessary for a legitimate aim. Given the court’s obligation not to act in a way that is incompatible with a person’s Convention rights (s.6 Human Rights Act 1998), it is essential that this test is adequately considered.

In Al Magloub [2025] – a case concerning a street robbery – a CBO was imposed prohibiting, among other things, the Appellant from being in a group of two or more people in a public place, unless those people were a family member. This condition clearly and significantly interfered with the Appellant’s Article 8 and Article 11 rights: he was unable to meet with his social workers in their public office, unable to see friends in public, and even unable to speak to supermarket workers. Despite this, and while the condition may have been imposed in a lawful manner for a legitimate aim, it does not appear that there was any consideration at first instance of the proportionality of such an interference. Indeed, it is hard to see how such a draconian prohibition could ever be justified as a proportionate way of preventing future robberies or other similar criminal behaviour.

While the Court of Appeal found that the prohibition was simply not a proper exercise of the s.331 discretion due to the difficulties with ‘its width, its lack of clarity, and the difficulty in enforcing such a prohibition’ – making consideration of ECHR arguments unnecessary – Al Magloub [2025] surely remains a salutary reminder of the importance of a thoughtful approach to a defendant’s ECHR rights. Such rights were clearly engaged, and proper consideration of the proportionality of their infringement may well have averted the imposition of this improper prohibition.