Anti-social behaviour order

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An anti-social behaviour order (ASBO /ˈæzb/) is a civil order made in the United Kingdom against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders, introduced by Prime Minister Tony Blair in 1998,[1] were designed to correct minor incidents that would not ordinarily warrant criminal prosecution.[2] 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 delinquents.[3] 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.[4]

Uses[edit]

A police notice on the street in Richmond

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."[5] 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.[6] Anti-social behaviour includes a range of problems such as:[7][8]

History[edit]

ASBOs were introduced in England, 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.[9] 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] The remit would include:

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.[11] 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.[12]

What warrants an ASBO[edit]

Standard of proof[edit]

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.[13] 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, and is also known as satisfying the court "beyond reasonable doubt".[14]

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.[15]

If the court refuses to grant such an application, then the defendant will (quite obviously) be unable to cross examine the makers of the hearsay statements. Nevertheless, it is open to them, in accordance with the Civil Evidence Act, to submit that the court should place little or no weight[16] 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.[16]

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.[17] 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,[18] 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.[19]

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.[20] 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.[18]

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[18] degree of weight.

Typical ASBOs[edit]

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.[21] 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.[22] A court may order an ASBO only if such an order is 'necessary'.[23] 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".[24] It must be relevant to their particular anti-social behaviour. Orders must not be drafted too widely or imprecisely. Each prohibition must be necessary.[25]

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.[26] 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,[27] 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.[28] [29][30]

Other examples:

Less common ASBOs[edit]

Less common and more 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.[8]
  • A 13-year-old forbidden to use the word "grass" as a term of abuse in order to threaten people.[8]
  • A 15-year-old forbidden to play football in his street.[8]
  • 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.[8]
  • The first farmer to be given an ASBO was instructed to keep his geese and pigs from damaging his neighbour's property.[8]

Criticism[edit]

From their inception, ASBOs have been controversial. They have been criticised as being "without strong and principled justification",[39] a distraction from the failure of the government's law and order policies,[40] a "recipe for institutionalised vigilantism",[41] and an "emblem of punitive populism".[42] Andrew Rutherford has commented that the "ASBO provides a particularly striking example of the criminalisation of social policy."[43] 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.[44] A 2012 survey by Angus Reid Public Opinion showed that only eight per cent of Britons believe ASBOs have been successful in curbing anti-social behaviour in the UK.[45]

[46] 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.[47] 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.[48]

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."[8]

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.[49] 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, Heriot-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 questioning whether young people suffering from these illnesses should be held to a lower standard of behavior than others. 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.[50] 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

The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation.

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.[51]

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.[52]

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.[53]

In the UK, there has been criticism that an ASBO is sometimes viewed as a badge of honour by youth.[54]

Nacro, the biggest criminal justice-related charity in England and Wales, has published two reports: the first claiming that ASBOs were a failure due to being costly and slow to obtain;[55] and the second criticising their use by the courts, saying that they are being used too hastily, before alternatives have been tried.[56]

Proposals for replacement[edit]

The 2010 Coalition government expressed its intention to replace ASBOs, citing the reasons that "breach rates are high and the number issued has been steadily declining since 2005".[57] In 2012, Liberal Democrat objections prevented the implementation of proposals in a Home Office White Paper to replace the ASBO with a "criminal behaviour order", and a "crime prevention injuction".[58] In May 2013 an Anti-social Behaviour, Crime and Policing Bill was introduced into the House of Commons[59][60] including a provision to create "Injunctions to Prevent Nuisance and Annoyance", replacing ASBOs in England and Wales.[57] The bill was criticised for the broad and undefined scope of "Nuisance and Annoyance"[61] and defeated in the House of Lords in January 2014.[62]

The new Anti-Social Behaviour, Crime and Policing Act 2014 received Royal Assent in March 2014. This streamlines the tools available to tackle anti-social behaviour and replaces the ASBO with an Injunction (a civil offence) and a Criminal Behaviour Order.[63]

In popular culture[edit]

In Line of Duty season 2, episode 5 (airdate July 24, 2012), Detective Inspector Buckells refers to juvenile criminal Ryan as "the ASBO dodger".

In Misfits (TV series) the main characters are sometimes referred to as the "ASBO Five" (although one, Curtis Donovan, points out he is not in fact under such an order).

In Sherlock (TV series) Dr. Watson was given an ASBO in Season 1 Episode 2, The Blind Banker, after being mistaken for a graffiti artist when the actual graffiti artist fled from two community support officers.

See also[edit]

References[edit]

  1. ^ "ASBOs can't beat a neighborhood policeman Times Online 30 September 2009". Timesonline.co.uk. Retrieved 2014-04-29. 
  2. ^ "BBC Q&A Anti-social behaviour orders". BBC News. 2002-03-20. Retrieved 2014-04-29. 
  3. ^ Youth Justice Board Study (2006) Conducted by NACRO, Solanki, Bateman, Boswell and Hill
  4. ^ "BBC News 28 July 2010". Bbc.co.uk. 2010-07-28. Retrieved 2014-04-29. 
  5. ^ "Crime and Disorder Act 1998 s.1(1)", Office of Public Sector Information. Retrieved 18 June 2006.
  6. ^ "Warwickshire Police Media Portal – Images of ASBO and CRASBO Offenders Published On Warwickshire Police Website". Onlinenews.warwickshire.police.uk. Retrieved 2014-04-29. 
  7. ^ Flint, John; Nixon, Judy (2006). "Governing neighbours: Anti-social behaviour orders and new forms of regulating conduct in the UK". Urban Studies 43 (5): 939–955. doi:10.1080/00420980600676386. 
  8. ^ a b c d e f g Home Affairs – Written Evidence: 19. Memorandum submitted by Napo, House of Commons, 22 March 2005. Retrieved 18 June 2006.
  9. ^ "Antisocial Behaviour etc. (Scotland) Act 2004: Guidance on Antisocial Behaviour Orders", Scottish Executive. "Guidance on Antisocial Behaviour Orders: Antisocial Behaviour etc. (Scotland) Act 2004 PDF (333 KB)" URLs. Retrieved 18 June 2007.
  10. ^ "Press Briefing: 3.45pm Thursday 28 October 2004", 10 Downing Street. Retrieved 18 June 2006.
  11. ^ Plans for £50 fare-dodger fines, BBC News, 25 October 2005. Retrieved 18 June 2006.
  12. ^ "Asbo total hits 7,356", The Register, 30 March 2006. Retrieved 18 June 2006.
  13. ^ B v Chief Constable of the Avon and Somerset Constabulary [2000] EWHC 559 QB at [31] and approved in R (McCann) v Crown Court at Manchester [2002] UKHL 39 at [37] and [83]
  14. ^ R v Kritz [1950] 1 KB 82 at 89, approved by the Privy Council in Walters v R [1969] 2 AC 26 at 30
  15. ^ Civil Evidence Act 1995 s.3; Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, r.4
  16. ^ a b Civil Evidence Act 1995 s 4(1)
  17. ^ R (Cleary) v Highbury Corner Magistrates’ Court [2006] EWCA 1869 (Admin)
  18. ^ a b c "Civil Evidence Act 1995". Legislation.gov.uk. Retrieved 2014-04-29. 
  19. ^ Cleary v Highbury Corner Magistrates & (1) Commissioner of Police of the Metropolis and others (2007) 1 WLR 1272; [2006] EWHC 1869.http://www.oup.com/uk/orc/bin/9780198763987/resources/updates/ch09_1008.pdf
  20. ^ M v DPP [2007] EWHC 1032 (Admin)
  21. ^ Crime and Disorder Act 1998, s1(4) and 1(6); R (Lonergan) v. Crown Court at Lewes (2005) 2 All ER 362
  22. ^ Crime and Disorder Act 1998, s1(a)
  23. ^ Crime and Disorder Act 1988 s1(b)
  24. ^ Leng, Taylor, and Wasik (1998). Blackstone's Guide to the Crime and Disorder Act 1998. London: Blackstone Press. p. 13. ISBN 978-1-85431-848-0. 
  25. ^ R v. Dean Boness [2005] EWCA Crim 2395
  26. ^ Greatorex & Falkowski (2006). Anti-Social Behaviour Law. Bristol: Jordans. p. 120. ISBN 978-1-84661-002-8. 
  27. ^ Barrister wins in tussle over Asbos. LDP Legal Week. 2008. 
  28. ^ Crime and Disorder Act 1998 s.8A(2), inserted by Crime and Security Act 2010 s.41
  29. ^ Mack, Jon (2010). "Anti-social Behaviour and Parenting Orders". JPN 174: 347. 
  30. ^ Mack, Jon (2011). "Anti-Social Behaviour and Parenting Orders". JPN 175: 269. 
  31. ^ ASBO for abusive Rochester Square resident, Camden Council, 13 January 2005
  32. ^ "Cases of ASBOs used for general public order issues" Statewatch's ASBOWatch
  33. ^ "Top music chiefs are spared ASBOs" BBC News, 14 June 2004
  34. ^ a b "Asbo for youth who terrorised neighbours" Rochdale Observer, 16 March 2007, Helen Johnson
  35. ^ "Man banned from organising raves" BBC News, 14 June 2006
  36. ^ "Arrest of Asbo 'suicide' woman" BBC News, 27 February 2006
  37. ^ "TfL wins first Asbo against graffiti vandal" Wikinews, 25 September 2007
  38. ^ "How ASBOs have worked" CrimeReduction.gov.uk, 6 September 2006
  39. ^ Ashworth, Andrew (2004). "Social Control and Antisocial Behaviour: The Subversion of Human Rights". Law Quarterly Review 120: 263. 
  40. ^ HL Deb, 12 Mar 2003, c 1324 (Lord Dholakia)
  41. ^ Morgan and Carlen (1998). Crime Unlimited?. Basingstoke: Palgrave Macmillan. ISBN 978-0-333-72502-3. 
  42. ^ Burney, Elizabeth (2002). "Talking Tough, Acting Coy". The Howard Journal 41 (5): 469. 
  43. ^ Rutherford, Andrew (2000). An Elephant on the Doorstep. Oxford: Hart. p. 56. 
  44. ^ "Public Concern About ASB And Support For ASBOs", MORI, 10 June 2005. Retrieved 18 June 2006.
  45. ^ "PBritons Remain Unconvinced By Anti-Social Behaviour Orders", Angus Reid Public Opinion, 22 February 2012. Retrieved 22 February 2012.
  46. ^ Webley and Samuels, 'Public Law: Texts, Cases and Materials' 2nd edition(2012, Oxford University Press) p93
  47. ^ "A triumph of hearsay and hysteria" The Guardian, 5 April 2005
  48. ^ "'False' Asbo woman wins payout" BBC, 5 July 2007
  49. ^ Siobhan Campbell: A review of anti-social behaviour orders (2002) Home Office Research Study 236[dead link]
  50. ^ {{{speaker}}} Written answers and statements, 10 November 2009 col. 330W Antisocial Behaviour Orders
  51. ^ Anti-social Behaviour Intensive Family Support Projects[dead link]
  52. ^ "Family Intervention Projects: An Evaluation of Their Design, Setup & Early Outcomes; NCSR, 2008". Education.gov.uk. 2014-04-25. Retrieved 2014-04-29. 
  53. ^ 'Family Intervention Projects: A classic case of policy based evidence', Centre For Crime & justice Studies, Kings College, London, June 2010; Professor D P Gregg.[dead link]
  54. ^ "ASBO Mania". Headliners. Retrieved 6 March 2013. 
  55. ^ "Failure of policy in tackling anti-social behaviour". Nacro. 12 November 2002. Retrieved 3 January 2007. 
  56. ^ "ASBOs oversold as the answer to antisocial behaviour". Nacro. 7 December 2006. Retrieved 3 January 2007. 
  57. ^ a b "Anti-social Behaviour, Crime and Policing Bill Fact sheet: Replacing the ASBO". Home Office. October 2013. Retrieved 9 January 2014. 
  58. ^ Morris, Nigel (23 May 2012). "'Crimbos' replace Asbos – but will they rush children into custody?". The Independent. 
  59. ^ "Anti-social Behaviour, Crime and Policing Bill". Home Office. Retrieved 9 January 2014. 
  60. ^ "Anti-social Behaviour, Crime and Policing Bill 2013-14". UK Parliament. Retrieved 10 January 2014. 
  61. ^ Laura Tanguay and Jean Parkinson (19 July 2013). "Injunction to Prevent Nuisance and Annoyance". Steeles Law Solicitors Ltd. Retrieved 9 January 2013. 
  62. ^ "Lords reject government's anti-social, crime and policing bill". The Guardian. 9 January 2014. 
  63. ^ "What the Law Says". http://www.asbhelp.co.uk/what-the-law-says. ABS Help. 

Further reading[edit]