An
Anti-Social Behaviour Order or
ASBO () in the
United Kingdom and the
Republic of Ireland[ — The Irish Times news report, 29 December 2006.] is a
civil order made against a person who has been shown to have engaged in
anti-social behaviour. Breaking an ASBO can render up to five years imprisonment. In the UK, there has been criticism that an ASBO is sometimes viewed as a badge of honour by some younger people. Many see the ASBO connected with young delinquents.
United Kingdom
In the United Kingdom, an ASBO may be issued in response to "conduct which caused or was likely to cause harm,
harassment, alarm or distress, to one or more persons not of the same
household as him or herself and where an ASBO is seen as necessary to protect relevant persons from further anti-social acts by the Defendant".
["", Office of Public Sector Information. URL accessed on 18 June 2006.] In
England and Wales they are issued by
Magistrates' Courts, and in
Scotland by the
Sheriff Courts.
The British government introduced ASBOs by the
Crime and Disorder Act 1998. In the UK, a
CRASBO is a "criminally related" ASBO. One local authority has published photos of those given ASBOs on an Internet site.
Anti-social behaviour includes a range of problems including:
- stealing/mugging/shoplifting
History
ASBOs were first introduced in
England,
Scotland and
Wales by the
Crime and Disorder Act 1998. Later legislation has strengthened its application: in England and Wales this has largely been via the
Anti-social Behaviour Act 2003, in Northern Ireland through an
Order-in-Council and in Scotland with the
Antisocial Behaviour etc. (Scotland) Act 2004.
["", Scottish Executive. "" URLs accessed on 18 June 2006.] Scotland, however, has an existing
tribunal charged with dealing with children and young persons who offend, the
Children's Hearings System.
In a press release of
28 October 2004,
Tony Blair and
David Blunkett announced further measures to extend the use and definition of ASBOs.
["", 10 Downing Street. URL accessed on 18 June 2006.] The remit would include:
- More courts dealing with cases.
- More offences including dog-fouling, litter, graffiti, and night-time noise liable for Fixed Penalty Notices.
- Giving parish councils the power to issue fixed penalty notices for infringements.
The press release concluded by remarking:
In the past year around 100,000 cases of anti social behaviour have been dealt with. 2,633 ASBOs and 418 dispersal orders have been issued in the same period.
On
25 October 2005,
Transport for London announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines.
[", BBC News, 25 October 2005. URL accessed on 18 June 2006.] The first ever ASBO was given to offender Kat Richards for repeated drunk and disorderly behaviour. As of
31 March 2004, 2455 ASBOs had been issued in England and Wales. On
30 March 2006, the
Home Office announced that 7,356 anti-social behaviour orders had been given out since 1999 in England and Wales.
["", The Register, 30 March 2006. URL accessed on 18 June 2006.] What warrants an ASBO
Standard of proof
Applications for ASBOs are heard by Magistrates sitting in their civil capacity. Although the proceedings are civil, the court must apply a heightened civil
standard of proof. This standard is virtually indistinguishable from the criminal standard.
[R (McCann) v Crown Court at Manchester [2002] UKHL 39.] The applicant must satisfy the court "so that it is sure" that the defendant has acted in an anti-social manner. The test for the court to be "satisfied so that it is sure" is the same direction that a judge gives to a jury in a criminal case heard in the Crown Court. This is also known as satisfying the court "beyond
reasonable doubt".
Hearsay evidence is allowed, meaning the defendant is denied the ability to cross-examine all prosecution witnesses. The court can decide what weight to give the hearsay evidence. The
Court of Appeal has stated that the high standard of proof is difficult to meet if the entirety of the case, or the majority of it, is based upon hearsay evidence.
Hearsay evidence was admitted by the Civil Evidence Act 1995. Section 4(1) states that:
"...in estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence."
The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all. For an ASBO to be made, the applicant must prove beyond all reasonable doubt (the criminal standard of proof) that the respondent has behaved in an anti-social manner. The applicant can rely on hearsay evidence. However, the Court of Appeal has stated that it does not expect a court to find that the criminal standard has been reached by relying solely on hearsay evidence. The Civil Evidence Act 1995 itself makes clear that courts should consider what weight, if any at all, attaches to hearsay material. In
Cleary, the Court of Appeal again restated that courts should consider attaching no weight at all to such material, in accordance with the words of the statute.
Typical ASBOs
An anti-social behaviour order is an Order of the Court which tells an individual over 10 years old how they must not behave.
An Order can contain only negative prohibitions. It cannot contain a positive obligation. To obtain an ASBO, a two-stage test must be satisfied by the applicant authority (see s.1(1) Crime and Disorder Act 1998). The first is that the defendant has committed acts causing or likely to cause harassment, alarm or distress within six months of the date of issue of the summons. The second is that an order is necessary to protect persons from further anti-social behaviour.
The applicant has to satisfy the court that the individual has acted in an anti-social manner. That is to say, in a manner that caused or was likely to cause
harassment, alarm or distress to one or more persons not of the same household as himself, A court may order an ASBO only if such an order is 'necessary'. Further, each prohibited act will usually be an act preparatory to a criminal offence rather than the offence itself, but not always: Rabess v Commissioner of Police of the Metropolis [2007] EWHC 208 (Admin). In addition, each prohibition itself must be necessary. It may be inappropriate for a condition to be not to spray graffiti – the final act as opposed to prohibiting the carrying a paint-spray can in a particular area, marked on a map. This would only be necessary if that court was satisfied so that it was sure that the respondent continually created graffiti with spray-cans in a specific area.
An order must be tailor-made for the individual defendant. The ASBO represents "a form of personalised criminal law". It must be relevant to their particular anti-social behaviour. Orders must not be drafted too widely or imprecisely. Each prohibition must be necessary.
An ASBO is very similar to a civil injunction even though the difference are important. First, the injunction is supposed to protect the world at large, in a given geographical area, rather than an individual. Second, breach of an ASBO is a criminal offence to be tried in a criminal court applying the criminal standard of beyond all reasonable doubt. A power of committal to prison is available for breach of a civil injunction but a court is unlikely to exercise that power. A subject of an anti-social behaviour where it does not follow a criminal conviction has an automatic right of appeal against both the making of the order and its terms to a higher court. There is also the availability of an appeal to the High Court by way of "case stated".
An application for an ASBO is considered by the courts in its civil jurisdiction and is a civil order. However, breach of an ASBO is a criminal offence and conviction may result in up to five years' imprisonment (two for a minor). A court may include a prohibition only to the extent that it is necessary to protect other members of the public from anti-social acts from the defendant. A prohibition may prohibit an activity that by itself is not anti-social but which is considered so to be in the context of the particular defendant. For instance, the entering of a particular geographic area may not be an anti-social activity per se. But where a defendant associates with a gang that commits criminal and/or anti-social acts and where that gang operates within a specific geographic area, an anti-social behaviour order might contain a prohibition to prevent the defendant from associating with those gang members and/or entering the geographical area in which the gang operates.
Other examples similar to this:
- Suicide attempts
[ BBC News, 27 February 2006]
Less common ASBOs
Less conventional uses of ASBOs, as listed by a report to the
Home Office to illustrate the difficulties with ASBOs, include:
- Two teenage boys from east Manchester forbidden to wear one golf glove, as it was a symbol of membership of a particular gang.
[, House of Commons, 22 March 2005. URL accessed on 18 June 2006.]
- A 17-year-old forbidden to use the word "grass" as a term of abuse in order to threaten people.
- A 15-year-old forbidden to play football in his street.
- An 18-year-old male was banned from congregating with more than three youths, and subsequently arrested when he entered a very popular youth club (The subject scheduled for that day was how to deal with anti-social behaviour).
[ ]
- The first farmer to be given an ASBO was instructed to keep his geese and pigs from damaging his neighbour's property.
- The oldest recipient of an ASBO, an 87-year-old man who was abusive to his neighbours.
- The youngest person to be threatened with an ASBO, a two-year-old boy accused of kicking a football at windows over a fence high and verbally abusing residents when asked to stop. This, however, turned out to be a police error.
- A person was forbidden to make excessive noise during sex anywhere in England.
Criticism of ASBOs
From their inception, ASBOs have been controversial. They have been criticised as being "without strong and principled justification", a distraction from the failure of the government's law and order policies, a "recipe for institutionalised vigilantism", and an "emblem of punitive populism". Andrew Rutherford has commented that the "ASBO provides a particularly striking example of the criminalisation of social policy" A
MORI opinion poll published on
9 June 2005 found that 82% of the British public were in favour of ASBOs; however, only 39% believed they were effective in their current form.
["", MORI, 10 June 2005. URL accessed on 18 June 2006.]Andrew Ashworth is a notable critic of the ASBO's effect of criminalising behaviour that is otherwise lawful. Other parties have voiced concerns about the open-ended nature of ASBO penalties – that is, there is little restriction on what a court may impose as the terms of the ASBO, and little restriction on what can be designated as antisocial behaviour. Critics have reported that only around 3% of ASBO applications have been turned down.
["" The Guardian, 5 April 2005] In July 2007 the
Local Government Ombudsman published a report criticising
Manchester City Council for serving an ASBO based purely on uncorroborated reports of nuisance by a neighbour, and the Council agreed to pay £2000 in compensation.
["" BBC, 5 July 2007]A 2005 memorandum submitted by the
National Association of Probation Officers (NAPO) asserted that "there is ample evidence of the issuing of ASBOs by the courts being inconsistent and almost a geographical lottery. There is great concern that people are being jailed following the breach of an ASBO where the original offence was itself non-imprisonable. There is also evidence that ASBOs have been used where people have
mental health problems where treatment would be more appropriate. In NAPO's view the time is right for a fundamental review of the use and appropriateness of Anti-social Behaviour Orders by the
Home Office."
[, House of Commons, 22 March 2005. URL accessed on 18 June 2006.]In 2002 Home Office data confirmed that 60% of ASBO recipients were found in court to have 'medical mitigating factors'including mental illnesses, addiction problems and learning disabilities.A survey of Youth Offending Teams by the British Institute for Brain Injured Childrenin 2005 showed that 38% of ASBOs went to youngsters with significant mental disorders.Problems included clinical depression, autism, psychosis, suicidal tendencies, personality disorders, learning disabilities, and ADHD. By contrast the same survey of ASBO teams gave only a 5% reported incidence of mental impairment. This massive difference suggests that most ASBO teams do not take into account mental health problems even though the Home Office safeguards for vulnerable people in the ASBO process require it. Even more remarkable according to the government's own evaluation reports (e.g. Housing Research Summary No. 230; DfCLG) in the 'ASB Intensive Family Support' (Sin Bin) projects introduced to supplement ASBOs, 80% of the families targeted had serious mental health and learning disability problems. 60% were recognised as victims of ASB. Project managers described many families as 'easily scapegoated' in neighbour disputes. HRS 230 calls for a review of ASBO policy and investigation procedures to make the whole process fairer.
Cavadino(2007) notes that ASBOs have the potential to widen the net of the social control mechanism, catching people and trapping them within the punitive net. This is potentially problematic, in view of the fact that 40-60% of ASBOs are imposed on people between 10 and 17 years of age.
[Home Office] There are no restrictions on reporting for ASBO proceedings, and, as such there is a risk of stigmatising youth, causing them to self-identify as criminals. This has problematic effects on development and self esteem . ASBOS net widening effect is illustrated by the fact that 47% of ASBOs issued to children between 2000 and 2004 were breached
and 43% of children who breached the orders received a custodial sentence.
Nacro
The biggest criminal justice-related charity in England and Wales,
Nacro, has published two reports, the first claiming that ASBOs were a failure due to being costly and slow to obtain,
and the second criticising their use by the courts, saying that they are being used too hastily, before alternative remedies have been tried.
TV and media
- The ASBO Fairy Tales: a book of 18 fairy tales rewritten with antisocial behaviour-based settings and characters. Stories in the collection include 'Blingerella', 'Snow White and the Seven Dads', and 'The Crack Piper of Camden'.
- In the Doctor Who episode "School Reunion", the Doctor mentioned ASBOs, stating that the school was "very well behaved" and that he: "...thought they'd all be happy-slappy hoodies. Happy-slappy hoodies with ASBOs. Happy-slappy hoodies with ASBOs and ringtones..."
- In the TV show Skins, during Episode 1 of Season 2, Maxie's dad refers to the kids outside their apartment as the "ASBO army".
- The theme song to the film St Trinian's lists ASBOs amongst other social cliques.
- "ASBO juice" is a slang for alcoholic drink when drunk by teenagers.
See also
