Anti-Social Behaviour Order
Encyclopedia
An Anti-Social Behaviour Order or ASBO (icon) is a civil
order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour
. The orders, introduced in the United Kingdom by Prime Minister Tony Blair
in 1998, were designed to correct minor incidents that would not ordinarily warrant criminal prosecution. The orders restrict behaviour in some way, by prohibiting a return to a certain area or shop, or by restricting public behaviour such as swearing or drinking alcohol. Many see the ASBO as connected with young delinquent
s. In July 2010, new Home Secretary
Theresa May
announced her intention to reform anti-social behaviour measures for England and Wales with the abolition of ASBOs in due course in favour of alternative 'community-based' social control policies.
, 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." 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 such as:
, Scotland
and Wales
by the Crime and Disorder Act 1998
. Later legislation 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 and sexual
Behaviour etc. (Scotland) Act 2004. 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. The remit would include:
The press release concluded by remarking:
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. The first ever ASBO was given to offender Kat Richards for repeated drunk and disorderly behaviour. As of 31 March 2004, 2,455 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.
, and is also known as satisfying the court "beyond reasonable doubt
".
Pursuant to section 1(1) Civil Evidence Act 1995, an applicant (and a defendant) has the right to rely on witness statements without calling the makers of those statements – known as hearsay
. If a party proposes to rely upon a hearsay statement, then the other party is entitled to ask the court for permission to call that witness for cross-examination
.
If the court refuses to grant such an application, then the defendant will be unable to challenge the makers of the hearsay statements. Nevertheless, it is open for them to submit that the court should place little or no weight upon material that has not been tested by way of cross examination.
Section 4(1) Civil Evidence Act 1995 states that:
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 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.
It is for the court to 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. The proper approach will be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence and the cogency and reliability of contradictory evidence supplied by a defendant.
Where, for example, ten anonymous witnesses who are unrelated to each other each provide a witness statement as to the defendant's anti-social behaviour where each statement refers independently to the same particular events and where this is supported by a witness statement from a non-anonymous witness, such as a housing officer, who confirms that residents have made complaints about a particular person over a period of time then the court may be justified in according the statements a fair degree of weight.
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 of a paint-spray can in a particular area, marked on a map. This would only be necessary if the court 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 differences 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 person subject to an anti-social behaviour order 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". There is no appeal against the variation of orders, and variation has been used to add extra conditions and to extend the duration of ASBOs.
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). Legislation yet to be brought into force will compel Magistrates to make a Parenting Order where a person under the age of 16 breaches their ASBO.
Other examples:
to illustrate the difficulties with ASBOs, include:
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.
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. 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.
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
."
In 2002 Home Office data stated that in the cases where information was available, there was a high proportion where some mitigating factor appeared to have contributed to their behaviour. Almost a fifth had a drug abuse problem and a sixth a problem with alcohol
. Overall 44% had a substance abuse problem or learning disability
and a further 16% included persons with psychological and behaviour problems in the family. Similar results are found in Scotland. A casefile review showed that 55% of those given ASBOs had substance abuse, mental health or learning disability problems. ("The Use of ASBOs In Scotland", H. Pawson, School of The Built Environment, Herriot-Watt University, Edinburgh, 2007.)
A survey of Youth Offending Teams by the British Institute for Brain Injured Children in 2005 showed that 38% of ASBOs went to young people with significant mental disorders. Problems included clinical depression/suicidal tendencies, autism, psychosis, 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.
ASBO effectiveness has also been questioned. In a House of Commons reply it was stated that 53.7% of ASBOs were breached in England in 2005; 69.4% in 2006; 70.3% in 2007. In large cities rates can be higher: the breach rate in Manchester reached 90.2% in 2007. This level of breaching raises an interesting issue. The first test to justify the issuing of an ASBO is that ASB has been proved to the criminal standard. The second test is that the order is necessary to prevent future acts of ASB and provide protection to the victim. However the criminal standard is not applied to the second test. Indeed Lord Steyn (House of Lords in R (on the application of McCann) v. Manchester Crown Court, [2003] 1 AC 787,812, para 37) said
With English national breach rates of 70%, higher in some cities, and an approximately 98% success rate in granting ASBO applications, such 'judgments' in practice must frequently be faulty.
According to government evaluations (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/physical health and learning disability problems; One in five families had children affected with Attention Deficit Hyperactivity Disorder, 60% of the families 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.
A later study of 53 projects by the National Centre For Social Research noted that 42% of children with mental health problems were reported to have ADHD or hyperactivity, and 29% depression or stress. Amongst adults, 69% had depression.
A later comprehensive review of Family Intervention Projects over a decade found little objective evidence for significant, sustained reduction in ASB in the families, and concluded that underlying mental health and disability problems remained largely unaddressed.
In the UK, there has been criticism that an ASBO is sometimes viewed as a badge of honour by youth.
, 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 alternatives have been tried.
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour
Anti-social behaviour
Anti-social behaviour is behaviour that lacks consideration for others and that may cause damage to society, whether intentionally or through negligence, as opposed to pro-social behaviour, behaviour that helps or benefits society...
. The orders, introduced in the United Kingdom by Prime Minister Tony Blair
Tony Blair
Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...
in 1998, were designed to correct minor incidents that would not ordinarily warrant criminal prosecution. The orders restrict behaviour in some way, by prohibiting a return to a certain area or shop, or by restricting public behaviour such as swearing or drinking alcohol. Many see the ASBO as connected with young delinquent
Juvenile delinquency
Juvenile delinquency is participation in illegal behavior by minors who fall under a statutory age limit. Most legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention centers. There are a multitude of different theories on the causes of crime, most if not...
s. In July 2010, new Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Theresa May
Theresa May
Theresa Mary May is a British Conservative politician who is Home Secretary in the Conservative – Liberal Democrat Coalition government. She was elected to Parliament in 1997 as the Member of Parliament for Maidenhead, and served as the Chairman of the Conservative Party, 2003–04...
announced her intention to reform anti-social behaviour measures for England and Wales with the abolition of ASBOs in due course in favour of alternative 'community-based' social control policies.
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 distressHarassment, Alarm or Distress
Harassment, alarm or distress is a statutory offence in England and Wales. It is also a term of art used in sections 4A and 5 of the Public Order Act 1986 .-The offence:...
, to one or more persons not of the same household
Household
The household is "the basic residential unit in which economic production, consumption, inheritance, child rearing, and shelter are organized and carried out"; [the household] "may or may not be synonymous with family"....
as him or herself and where an ASBO is seen as necessary to protect relevant persons from further anti-social acts by the Defendant." In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
they are issued by Magistrates' Courts, and in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
by the Sheriff Courts.
The British government introduced ASBOs by the Crime and Disorder Act 1998
Crime and Disorder Act 1998
The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 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 such as:
- abandoning cars
- arsonArsonArson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
- beggingBeggingBegging is to entreat earnestly, implore, or supplicate. It often occurs for the purpose of securing a material benefit, generally for a gift, donation or charitable donation...
- defecating/urinating in public
- dealing/consumptionDrug abuseSubstance abuse, also known as drug abuse, refers to a maladaptive pattern of use of a substance that is not considered dependent. The term "drug abuse" does not exclude dependency, but is otherwise used in a similar manner in nonmedical contexts...
of controlled recreational drugs - doggingDogging (sexual slang)Dogging is a British English euphemism for engaging in sexual acts in a public or semi-public place or watching others doing so. There may be more than two participants; both group sex and gang banging can be included. As observation is encouraged, voyeurism and exhibitionism are closely associated...
(theatrical public sex) - drunken behaviour
- fare dodgingFare evasionFare evasion, as distinct from fare avoidance, is the act of travelling on public transport in disregard of the law and/or regulation, having deliberately not purchased the required ticket to travel . It is a problem in many parts of the world, and revenue protection officers operate on many systems...
- intimidationIntimidationIntimidation is intentional behavior "which would cause a person of ordinary sensibilities" fear of injury or harm. It's not necessary to prove that the behavior was so violent as to cause terror or that the victim was actually frightened.Criminal threatening is the crime of intentionally or...
- littering/fly tipping/dog foulingDogs (Fouling of Land) Act 1996The Dogs Act 1996 is an Act of the Parliament of the United Kingdom. The purpose of the Act was to create a criminal offence if a dog defecates at any time on designated land and a person who is in charge of the dog at that time fails to remove the faeces from the land forthwith.It was repealed by...
- loiteringLoiteringLoitering is the act of remaining in a particular public place for a protracted time. Under certain circumstances, it is illegal in various jurisdictions.-Prohibition and history:Loitering may be prohibited by local governments in several countries...
- noise pollutionNoise pollutionNoise pollution is excessive, displeasing human, animal or machine-created environmental noise that disrupts the activity or balance of human or animal life...
- racismRacismRacism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
- spittingSpittingSpitting or expectoration is the act of forcibly ejecting saliva or other substances from the mouth. It is currently considered rude and a social taboo in many parts of the world including the West, while in some other parts of the world it is considered more acceptable...
- stealing/muggingMuggingMugging or mugger may refer to:* A type of street robbery**Steaming , a variation of this type of robbery*Model Mugging, a self-defense training technique.* The Mugger Crocodile, a species native to India, Pakistan, Iran, and Nepal....
/shopliftingShopliftingShoplifting is theft of goods from a retail establishment. It is one of the most common property crimes dealt with by police and courts.... - vandalismVandalismVandalism is the behaviour attributed originally to the Vandals, by the Romans, in respect of culture: ruthless destruction or spoiling of anything beautiful or venerable...
/criminal damage
History
ASBOs were first introduced in EnglandEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
by the Crime and Disorder Act 1998
Crime and Disorder Act 1998
The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998...
. Later legislation strengthened its application: in England and Wales this has largely been via the Anti-social Behaviour Act 2003
Anti-social Behaviour Act 2003
The Anti-social Behaviour Act 2003 is an Act of the Parliament of the United Kingdom which almost entirely applies only to England and Wales. The Act, championed by then Home Secretary, David Blunkett, was passed in 2003...
, in Northern Ireland through an Order in Council and in Scotland with the Antisocial and sexual
Behaviour etc. (Scotland) Act 2004. Scotland, however, has an existing tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
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
Tony Blair
Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...
and David Blunkett
David Blunkett
David Blunkett is a British Labour Party politician and the Member of Parliament for Sheffield Brightside and Hillsborough, having represented Sheffield Brightside from 1987 to 2010...
announced further measures to extend the use and definition of ASBOs. The remit would include:
- Extension of the Witness Protection Programme in anti-social behaviour cases.
- More courts dealing with cases.
- More offences including dog-fouling, litter, graffiti, and night-time noise liable for Fixed Penalty NoticeFixed Penalty NoticeFixed penalty notices were introduced in Britain in the 1950s to deal with minor parking offences. Originally used by police and traffic wardens, their use has extended to other public officials and authorities, as has the range of offences for which they can be used.In recent years, this has...
s. - 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
Transport for London
Transport for London is the local government body responsible for most aspects of the transport system in Greater London in England. Its role is to implement the transport strategy and to manage transport services across London...
announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines. The first ever ASBO was given to offender Kat Richards for repeated drunk and disorderly behaviour. As of 31 March 2004, 2,455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
announced that 7,356 Anti-Social Behaviour Orders had been given out since 1999 in England and Wales.
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. 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 CourtCrown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, and is also known as satisfying the court "beyond reasonable doubt
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
".
Pursuant to section 1(1) Civil Evidence Act 1995, an applicant (and a defendant) has the right to rely on witness statements without calling the makers of those statements – known as hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
. If a party proposes to rely upon a hearsay statement, then the other party is entitled to ask the court for permission to call that witness for cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
.
If the court refuses to grant such an application, then the defendant will be unable to challenge the makers of the hearsay statements. Nevertheless, it is open for them to submit that the court should place little or no weight upon material that has not been tested by way of cross examination.
Section 4(1) Civil Evidence Act 1995 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 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.
It is for the court to 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. The proper approach will be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence and the cogency and reliability of contradictory evidence supplied by a defendant.
Where, for example, ten anonymous witnesses who are unrelated to each other each provide a witness statement as to the defendant's anti-social behaviour where each statement refers independently to the same particular events and where this is supported by a witness statement from a non-anonymous witness, such as a housing officer, who confirms that residents have made complaints about a particular person over a period of time then the court may be justified in according the statements a fair degree of weight.
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
Harassment, Alarm or Distress
Harassment, alarm or distress is a statutory offence in England and Wales. It is also a term of art used in sections 4A and 5 of the Public Order Act 1986 .-The offence:...
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 of a paint-spray can in a particular area, marked on a map. This would only be necessary if the court 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 differences 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 person subject to an anti-social behaviour order 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". There is no appeal against the variation of orders, and variation has been used to add extra conditions and to extend the duration of ASBOs.
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). Legislation yet to be brought into force will compel Magistrates to make a Parenting Order where a person under the age of 16 breaches their ASBO.
Other examples:
- VandalismVandalismVandalism is the behaviour attributed originally to the Vandals, by the Romans, in respect of culture: ruthless destruction or spoiling of anything beautiful or venerable...
- TheftTheftIn common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
- Abusive behaviour
- HarassmentHarassmentHarassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...
- FlypostingFlypostingFlyposting is a guerilla marketing tactic through the act of placing advertising posters or flyers in legal or illegal places. In the United States, these posters are known as bandit signs, snipe signs, or street spam. Posters are adhered to construction site barricades, building facades, in...
- Organising illegal raveRaveRave, rave dance, and rave party are parties that originated mostly from acid house parties, which featured fast-paced electronic music and light shows. At these parties people dance and socialize to dance music played by disc jockeys and occasionally live performers...
s - BeggingBeggingBegging is to entreat earnestly, implore, or supplicate. It often occurs for the purpose of securing a material benefit, generally for a gift, donation or charitable donation...
- SuicideSuicideSuicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...
attempts
Less common ASBOs
Less common and more conventional uses of ASBOs, as listed by a report to the Home OfficeHome Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
to illustrate the difficulties with ASBOs, include:
- Two teenage boys from east ManchesterManchesterManchester is a city and metropolitan borough in Greater Manchester, England. According to the Office for National Statistics, the 2010 mid-year population estimate for Manchester was 498,800. Manchester lies within one of the UK's largest metropolitan areas, the metropolitan county of Greater...
forbidden to wear one golfGolfGolf is a precision club and ball sport, in which competing players use many types of clubs to hit balls into a series of holes on a golf course using the fewest number of strokes....
glove, as it was a symbol of membership of a particular gang. - A 13-year-old forbidden to use the word "grassSupergrass (informer)Supergrass is a slang term for an informer, which originated in London. Informers had been referred to as "grasses" since the late-1930s, and the "super" prefix was coined by journalists in the early 1970s to describe those informers from the city's underworld who testified against former...
" 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 in the club was how to deal with anti-social behaviour.
- The first farmer to be given an ASBO was instructed to keep his geese and pigPigA pig is any of the animals in the genus Sus, within the Suidae family of even-toed ungulates. Pigs include the domestic pig, its ancestor the wild boar, and several other wild relatives...
s from damaging his neighbour's property. - The oldest recipient of an ASBO, an 87-year-old man who was sarcastic to his neighbours.
- A two-year-old boy was accused of kicking a football at windows over a fence 7 feet (2 m) high and verbally abusing residents when asked to stop. This, however, turned out to be a police error.
- A woman 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 MORIMORI
Ipsos MORI is the second largest market research organisation in the United Kingdom, formed by a merger of Ipsos UK and MORI, two of the Britain's leading survey companies in October 2005...
opinion poll
Opinion poll
An opinion poll, sometimes simply referred to as a poll is a survey of public opinion from a particular sample. Opinion polls are usually designed to represent the opinions of a population by conducting a series of questions and then extrapolating generalities in ratio or within confidence...
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.
Andrew Ashworth
Andrew Ashworth
Andrew Ashworth CBE QC LLB PhD was the lead patent law examiner at St Johns Chambers Manchester and is a Vinerian Professor of English Law 2011-present at the University of Oxford, a Fellow of All Souls College, and Chairman of the Sentencing Advisory Panel...
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. In July 2007 the Local Government Ombudsman
Local Government Ombudsman
A Local Government Ombudsman is an official employed by the Commission for Local Administration in England , a body of commissioners established under the Local Government Act 1974 to investigate complaints about councils and certain other bodies in England. Each of three Local Government Ombudsmen...
published a report criticising Manchester City Council
Manchester City Council
Manchester City Council is the local government authority for Manchester, a city and metropolitan borough in Greater Manchester, England. It is composed of 96 councillors, three for each of the 32 electoral wards of Manchester. Currently the council is controlled by the Labour Party and is led by...
for serving an ASBO based purely on uncorroborated reports of nuisance by a neighbour, and the Council agreed to pay £2000 in compensation.
A 2005 memorandum submitted by the National Association of Probation Officers
National Association of Probation Officers
The National Association of Probation Officers is the trade union that represents probation officers and Children and Family Court Advisory and Support Service reporters in the United Kingdom.NAPO was formed in 1912...
(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
Mental health
Mental health describes either a level of cognitive or emotional well-being or an absence of a mental disorder. From perspectives of the discipline of positive psychology or holism mental health may include an individual's ability to enjoy life and procure a balance between life activities and...
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
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
."
In 2002 Home Office data stated that in the cases where information was available, there was a high proportion where some mitigating factor appeared to have contributed to their behaviour. Almost a fifth had a drug abuse problem and a sixth a problem with alcohol
Alcohol abuse
Alcohol abuse, as described in the DSM-IV, is a psychiatric diagnosis describing the recurring use of alcoholic beverages despite negative consequences. Alcohol abuse eventually progresses to alcoholism, a condition in which an individual becomes dependent on alcoholic beverages in order to avoid...
. Overall 44% had a substance abuse problem or learning disability
Learning disability
Learning disability is a classification including several disorders in which a person has difficulty learning in a typical manner, usually caused by an unknown factor or factors...
and a further 16% included persons with psychological and behaviour problems in the family. Similar results are found in Scotland. A casefile review showed that 55% of those given ASBOs had substance abuse, mental health or learning disability problems. ("The Use of ASBOs In Scotland", H. Pawson, School of The Built Environment, Herriot-Watt University, Edinburgh, 2007.)
A survey of Youth Offending Teams by the British Institute for Brain Injured Children in 2005 showed that 38% of ASBOs went to young people with significant mental disorders. Problems included clinical depression/suicidal tendencies, autism, psychosis, 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.
ASBO effectiveness has also been questioned. In a House of Commons reply it was stated that 53.7% of ASBOs were breached in England in 2005; 69.4% in 2006; 70.3% in 2007. In large cities rates can be higher: the breach rate in Manchester reached 90.2% in 2007. This level of breaching raises an interesting issue. The first test to justify the issuing of an ASBO is that ASB has been proved to the criminal standard. The second test is that the order is necessary to prevent future acts of ASB and provide protection to the victim. However the criminal standard is not applied to the second test. Indeed Lord Steyn (House of Lords in R (on the application of McCann) v. Manchester Crown Court, [2003] 1 AC 787,812, para 37) said
With English national breach rates of 70%, higher in some cities, and an approximately 98% success rate in granting ASBO applications, such 'judgments' in practice must frequently be faulty.
According to government evaluations (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/physical health and learning disability problems; One in five families had children affected with Attention Deficit Hyperactivity Disorder, 60% of the families 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.
A later study of 53 projects by the National Centre For Social Research noted that 42% of children with mental health problems were reported to have ADHD or hyperactivity, and 29% depression or stress. Amongst adults, 69% had depression.
A later comprehensive review of Family Intervention Projects over a decade found little objective evidence for significant, sustained reduction in ASB in the families, and concluded that underlying mental health and disability problems remained largely unaddressed.
In the UK, there has been criticism that an ASBO is sometimes viewed as a badge of honour by youth.
Nacro
The biggest criminal justice-related charity in England and Wales, NacroNacro
Nacro is a registered criminal justice charity operating in England and Wales. It is not formally linked with Sacro in Scotland or NIACRO in Northern Ireland.-History:...
, 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 alternatives have been tried.
See also
- Acceptable behaviour contractAcceptable behaviour contractIn the United Kingdom, an Acceptable Behaviour Contract is an early intervention made against individuals who are perceived to be engaging in anti-social behaviour...
- Antisocial Personality Disorder
- Broken windows theory
- ChavChavA chav is a term that is used in the United Kingdom to describe a stereotype of teenagers and young adults from an underclass background.-Etymology:...
/NedNed (Scottish)Ned is a derogatory term applied in Scotland to hooligans, louts or petty criminals, latterly with the stereotypical implication that they wear casual sports clothes. Such usage in Glasgow dates back to the 1960s or earlier.-Early use of term:... - Control orderControl orderA control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005...
- Football hooliganismFootball hooliganismFootball hooliganism, sometimes referred to by the British media as the English Disease, is unruly and destructive behaviour—such as brawls, vandalism and intimidation—by association football club fans...
- LawburrowsLawburrowsLawburrows is a little-known civil action in Scots law initiated by one person afraid of another's possible violence.-Lawburrows Act 1429:The 1429 Act remains in force and says-Civil law and the rights of individuals:...
- Lettre de cachetLettre de cachetLettres de cachet were letters signed by the king of France, countersigned by one of his ministers, and closed with the royal seal, or cachet...
- Moral panicMoral panicA moral panic is the intensity of feeling expressed in a population about an issue that appears to threaten the social order. According to Stanley Cohen, author of Folk Devils and Moral Panics and credited creator of the term, a moral panic occurs when "[a] condition, episode, person or group of...
- Nanny stateNanny stateA nanny state is the perception of a situation characterised by governmental policies of over-protectionism, economic interventionism, or heavy regulation of economic, social or other nature....
- Peace bondPeace bondIn Canadian law, a peace bond is an order from a criminal court that requires a person to keep the peace.Usually, other conditions are attached such as a requirement to abstain from certain activities or avoid communicating, directly or indirectly with certain individuals and/or avoid certain...
(Canada) - Police statePolice stateA police state is one in which the government exercises rigid and repressive controls over the social, economic and political life of the population...
- Restraining orderRestraining orderA restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions...
(USA) - Social justiceSocial justiceSocial justice generally refers to the idea of creating a society or institution that is based on the principles of equality and solidarity, that understands and values human rights, and that recognizes the dignity of every human being. The term and modern concept of "social justice" was coined by...
- Youth justice in England and WalesYouth justice in England and WalesYouth justice system in England and Wales comprises the organs and processes that are used to prosecute, convict and punish persons under 18 years of age who commit criminal offences...
Further reading
- HMSO.gov.uk – Crime and Disorder Act 1998Crime and Disorder Act 1998The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998...
(introduced ASBOs), Office of Public Sector InformationOffice of Public Sector InformationThe Office of Public Sector Information is the body responsible for the operation of Her Majesty's Stationery Office and of other public information services of the United Kingdom... - HMSO.gov.uk – Anti-social Behaviour Act 2003Anti-social Behaviour Act 2003The Anti-social Behaviour Act 2003 is an Act of the Parliament of the United Kingdom which almost entirely applies only to England and Wales. The Act, championed by then Home Secretary, David Blunkett, was passed in 2003...
, Office of Public Sector Information