Publication - Advice and guidance

Guidance on instructing Counsel: common legislative solutions

Published: 16 Jan 2018
Justice Directorate
Part of:
Law and order

This guidance is intended to help officials to develop policy and produce instructions for primary legislation of certain commonly occurring types.

74 page PDF

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74 page PDF

804.0 kB

Guidance on instructing Counsel: common legislative solutions
Preventative Orders

74 page PDF

804.0 kB

Preventative Orders

Description of legislative solution

This solution protects the public from harm through civil orders or notices, targeted against individuals, that prevent or prohibit certain identified kinds of activity from occurring or recurring. Such activity may otherwise be perfectly lawful in itself. A civil preventative order may have the advantage of providing more flexibility than criminal prosecution.

The power to issue the order may be conferred on central or local government, on the courts, or on another legal person.

The classic example of this legislative solution is an anti-social behaviour order (" ASBO").

Related legislative solutions

In the consideration of how to approach the problem that the proposed legislation is aimed at, this solution might be viewed as almost the mirror image of licensing: the latter involves prohibiting everyone from undertaking an activity, then licensing to permit it in individual cases (licences being applied for voluntarily); whereas preventative orders stop individuals undertaking an activity which might generally be lawful (orders being imposed on a person involuntarily). From a technical perspective, it can be seen that the typical procedures surrounding preventative orders involves many of the same considerations as for licensing: e.g. application, variation, renewal, discharge, appeal, and enforcement through the creation of an offence of non-compliance.

There is also a clear link with criminal offences in general. Civil preventative orders such as ASBOs, trafficking and exploitation prevention orders and dog control notices may be seen as an alternative for policy-makers to the creation of a criminal offence for the same kind of harmful activity. So although usually they are civil orders, they may appear to have a criminal "feel" to them, in restricting or prohibiting certain kinds of behaviour. They are also often used in criminal courts after conviction for relevant offences (for example sexual offences).

The crucial difference is one of timing: preventative orders represent an attempt to act before the harmful activity actually occurs, rather than punish it after the fact, by restricting an individual from doing something that may enable them to cause harm of a particular kind. This may be a key factor when considering which legislative solution is chosen for the particular policy problem.

Elements of the pattern

1. Activity to be regulated

1.1 What is the harmful activity that is to be the subject of the preventative order?

1.2 What triggers should there be for an application for the order?

For example, conviction and sentencing for a relevant offence (and / or acquittal on the grounds of mental disorder or other relevant court finding) or a freestanding application after certain factual criteria are met, or both.

2. Procedure for applications for preventative order

2.1 Who may apply for a preventative order? Who hears the application?

This will ultimately depend on the gravity of the harm which the order seeks to prevent.

2.2 What is the process to be for applying for an order?

For example, should any pre-application consultation needed?

2.3 Should the applicant be entitled to a hearing? Should the person who is to be subject to the order be entitled to a hearing?

If so, what rules of evidence should apply? For example, who should bear the burden of proof, and to what standard of proof – civil or criminal?

2.4 Should there be a requirement to give notice of the application to the person who is to be subject to the order and / or to any other interested persons – and if so, to whom?

2.5 Should there be an opportunity for the person who is to be subject to the order and / or any other interested persons to make representations on the order?

Natural justice would usually require some form of due process for the person(s) affected by the order – a strong justification would be needed for a lack of provision on this or else ECHR issues are likely to arise.

2.6 Consider also any impact on existing court rules – and whether new rules are needed – as a result of the procedures proposed for the order.

3. Grant or refusal of application for preventative order

3.1 Is there to be a discretion to grant the order, or a duty to grant one?

3.2 If a discretion, what criteria must the decision-maker use to assess the application? Are these criteria matters of fact or opinion? Should the criteria apply to each requirement or prohibition in the order, or to the order as a whole?

3.3 If a duty, are there exceptions where the duty to grant the order does not arise? Are these cases where there is a straightforward duty to refuse the application, or should there be a residual discretion to grant the order?

4. Content and form of preventative order

4.1 What form is the order to take and what should the order contain on its face?

4.2 Is the principal requirement preventing or prohibiting the harmful activity unconditionally or is the activity to be allowed subject to meeting specified conditions?

4.3 If the activity is to be allowed subject to conditions, what conditions may be imposed? Should all the permitted conditions be set out in the legislation, or should there be a wider discretion to impose conditions? Should there be default conditions which must be included?

4.4 May the order specify particular positive steps the person subject to the order must take to prevent the harmful activity ( e.g. muzzling a dangerous dog, reporting at a police station)? Or particular examples of activity ( e.g. playing music excessively loudly, foreign travel) that the person is prohibited from undertaking?

4.5 What ancillary requirements should (or may) the order contain?

One common example would be a duty on the person subject to the order to notify the relevant authority of changes in name or address.

4.6 What should be the permitted duration of an order? Are the minimum and / or maximum periods prescribed? Can they be extended?

Orders of indefinite length may raise ECHR issues, particularly if regulating behaviour that would otherwise be lawful.

A situation can arise, on the sentencing of an offender in separate criminal proceedings, where a preventative order already exists, having been imposed by the civil courts – and the criminal court would examine whether the existing order should be varied. Therefore consider whether there should be extension of the order on conviction for another offence (see also paragraph 7.8 below).

4.7 What other particular details (if known) must be included in the order?

For example: the date of service and effect; the name and address of the person subject to the order; the reasons for service of the order; and information for the person subject to the order on further procedures e.g. on appeal, variation, discharge and on non-compliance with the order constituting an offence (if applicable).

4.8 What provision on content and form is to be in primary legislation, and what details can be left to subordinate legislation? If subordinate legislation is chosen, what parliamentary procedure is deemed appropriate?

5. Variation, renewal and discharge of preventative order

5.1 Should it be possible for a preventative order to be varied, renewed or discharged?

5.2 If so, should the original applicant ( e.g. if a public authority) be able to vary, renew or discharge the order of its own motion? Or should it have to make an application to do so?

5.3 If the original applicant can vary etc of its own motion, what is the procedure for doing so? Should notice be given to the person subject to the order and any other interested persons? Are they to have an opportunity to make representations?

Again, ECHR issues are likely to arise without adequate provision of due process here.

5.4 Who would hear an application to vary, renew or discharge?

In Scotland the strong preference of the Courts Service, for resourcing reasons, is that such applications should go back to the court of first instance.

5.4 Who else should be able to apply to vary, renew or discharge – e.g. the person subject to the order? Should there be any restrictions on doing so – for example a time limit, or only specific grounds being available?

5.5 What criteria need to be met in order for the order to be varied, renewed or discharged?

5.5 How does the procedure for applying for variation, renewal or discharge differ (if at all) from the procedure for the main application?

5.6 What should be the status of the original order while the variation / renewal / discharge application is being processed – should it be suspended or should it continue in force?

6. Appeals

6.1 Who should have the right of appeal against decisions concerning the preventative order?

Appeal rights may be particularly important if, for instance, there is no opportunity to make oral representations on the initial application. The question of what is adequate due process may be measured cumulatively.

6.2 To which particular decisions should the right apply?

For example, only the grant or refusal of the order; or also to variation, renewal or discharge.

6.3 To whom should the appeal be made?

This will depend on which is the court of first instance but also, again, on the gravity of the harm which the order seeks to prevent.

6.4 Are there to be restrictions on the making of appeals – for example a time limit, or only specific grounds of appeal being available?

6.5 What powers should the appellate body have when hearing the appeal? Can it only confirm or set aside the original decision? Or can it vary that decision?

6.6 What should be the status of the original decision while the appeal is being considered – should it be suspended or should it continue in force?

6.7 Is there to be a chance for a further appeal, or is the appellate body's decision final?

6.8 Where the appeal is to an existing body, do that body's powers need amending?

6.9 What provision is wanted as to the content and form of appeals, and the way (or manner) in which they must be made? What particular provision is to be in primary legislation and what provision in subordinate legislation? If subordinate legislation is chosen, what parliamentary procedure is appropriate? What might be left to court rules?

6.10 Should there be explicit double jeopardy provision?

That is, where an application is made and dismissed, or the grant of an order successfully appealed, a rule that there can be no repeat application made for another order against the same person unless there is a change of circumstances. An absence of double jeopardy restrictions may raise ECHR issues (see control orders under the Prevention of Terrorism Act 2005 as an example).

7. Enforcement

7.1 How should the preventative order be enforced? Are there to be general duties on government or other persons e.g. to monitor compliance with orders?

7.2 Is it necessary for the preventative order to be enforceable throughout the UK? For instance, in Scotland, the need for subordinate legislation under section 104 of the Scotland Act 1998 will need to be considered at the same time as the primary legislation is instructed.

7.2 Is there to be a discrete offence of breach of the order? If so –

7.3 Is there to be a mental element to the offence – i.e. intent, recklessness, knowledge? Or is it to be a "strict liability" offence with no mental element?

7.4 What is to be the method of trial – summary only, indictment only, or either way?

7.5 What is the maximum penalty to be for the offence?

7.6 Are any post-conviction orders to be available? For example, disqualification from ownership of dangerous dogs (see also paragraph 10.2 below on last-resort alternative options).

7.7 What is the status of the original order after prosecution / conviction for breach?

7.8 As an alternative or additional approach to creating a discrete offence of breach of the order, are there to be specific consequences for the person subject to the order if separate offences are committed while the order is in force – e.g. the existence of the order serving to aggravate the sentence for those separate offences?

7.9 Are the police or other persons to be given particular powers of entry, search, arrest or detention in order to be able to enforce compliance with the order?

8. Interim orders

8.1 Should it be possible to make an application for an interim preventative order?

8.2 If so, who may apply for an interim order? To whom is the application to be made?

8.3 When should the application for the interim order be capable of being made? Only at the same time as the main application is made, or separately?

8.4 What are the criteria to be used by the decision-maker to assess the interim application?

8.5 How are these criteria to be different to the assessment of the main application? For example, is a broader or a narrower discretion to be given to the decision-maker?

8.6 What is the procedure for applying for an interim order? How does it differ (if at all) from the procedure for the main application? Should there be a requirement to give notice to those affected and an opportunity for them to make representations? See paragraph 2.5 above on this.

8.7 When should the interim order come into effect and for what duration? For example, for a fixed period or until determination of the main application?

9. Register of orders

9.1 Is there to be a register or database containing the preventative orders in force?

9.2 If so, who is to maintain and manage it?

9.3 What information should it contain?

9.4 Who should be able to access it? Should fees be payable for access?

9.5 Should the information contained in it be capable of being shared with other bodies and persons?

If so, the interaction with the Data Protection Act 1998 – and related ECHR issues – would need careful consideration.

10. Miscellaneous issues

10.1 Are there to be any mechanisms for monitoring the implementation of the preventative orders? This may be a particular issue where the orders are perceived as being highly restrictive ( e.g. control orders). Such mechanisms might include, for example–

  • the preparation and laying before Parliament of a report on the orders;
  • the appointment of a person to review the operation of the legislation; or
  • a "sunset clause" making the legislation expire after a fixed period of time.

10.2 Should there be a last-resort or alternative option available if it appears that a preventative order is, or would be, ineffective or inappropriate? For example, an application for a dog's destruction where a dog control notice has failed or is likely to fail.

10.3 Can one kind of order lead on to another kind? For instance, the Antisocial Behaviour etc. (Scotland) Act 2004 allows a sheriff, if imposing an ASBO on a child, to make a linked parenting order against the child's parent, and to refer the case to a children's hearing.

10.4 Also of note in the 2004 Act is the requirement for the sheriff to explain the ASBO's terms in ordinary language when making it: something that might be considered in particular for orders that can be made against children.

Examples of the legislative solution

Protection from Harassment Act 1997 and Protection from Harassment (Northern Ireland) Order 1997 – introduced restraining orders and non-harassment orders.

Crime and Disorder Act 1998, Part 1 – introduced ASBOs.

Sexual Offences Act 2003, ss.104-113; and ss.123-129 – introduced sexual offences prevention orders ( SOPOs); and risk of sexual harm orders ( RSHOs).

Antisocial Behaviour etc. (Scotland) Act 2004, Part 2 – introduced new kind of ASBOs for Scotland.

Anti-social Behaviour (Northern Ireland) Order 2004

Prevention of Terrorism Act 2005 – introduced control orders.

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, ss.2-8 – introduced RSHOs for Scotland.

Serious Crime Act 2007, Part 1 – introduced serious crime prevention orders.

Terrorism Prevention and Investigation Measures Act 2011 – replaced control orders with terrorism prevention and investigation measures ( TPIMs).

Anti-social Behaviour, Crime and Policing Act 2014, Parts 1, 2 and 4 – replaced ASBOs in England and Wales with injunctions (Part 1); also introduced criminal behaviour orders (Part 2), community protection notices (Chapter 1 of Part 4) and public space protection Orders (Chapter 2 of Part 4).

Control of Dogs (Scotland) Act 2010 – introduced dog control notices.

Human Trafficking and Exploitation (Scotland) Act 2015, Part 4 – introduced trafficking and exploitation prevention and risk orders.

Modern Slavery Act 2015, Part 2 – introduced slavery and trafficking prevention and risk orders.

Abusive Behaviour and Sexual Harm (Scotland) Act 2016, Part 2 – replaced SOPOs and RSHOs in Scotland with sexual harm prevention orders (Chapter 3) and sexual risk orders (Chapter 4).

Note regarding instructing for Scotland

Consider speaking to officials in the Scottish Government's Justice Directorate, the Lord President's Private Office and the Scottish Courts Service when instructing this legislative solution. Practical difficulties have arisen in the Scottish courts over particular aspects of some of the UK statutes listed above due to the conferral of a civil jurisdiction on the High Court of Justiciary, and there is an institutional preference for bespoke provision in the manner of e.g. the Antisocial Behaviour etc. (Scotland) Act 2004.

Ultimately the guidance here should not be viewed in isolation. Previous examples of this solution may not be suitable or helpful for the policy needs of the new legislation which is being instructed.