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2004-2010: ASBOwatch: monitoring the use of Anti-Social Behaviour Orders

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• What is an ASBO?

A Statewatch report written for the launch of the European Civil Liberties Network (ECLN) sets out and analyses many of the key issues regarding the use of ASBOs.

Why should we be concerned about ASBOs?

ASBOs criminalise non-criminal behaviour. In the early 2000s the Labour government began to actively promoted their use to all local authorities in England and Wales, even going so far as to deploy "ASBO ambassadors" to encourage their adoption. Authorities that reacted favourably and began to issue ASBOs on a regular basis soon found that the vagueness of the government's definition as to what constitutes "anti-social behaviour" could allow them to push the boundaries of their use beyond what was originally intended.

From an original remit of tackling low-level nuisance behaviour such as vandalism and abusive neighbours, local authorities and police forces found ASBOs to be a hugely effective tool for quashing many other challenges to authority. Environmental and political protesters, in particular, found themselves subject to temporary orders and other powers introduced under the Anti-social Behaviour Act. Protesting was thus chategorised as both an anti-social and potentially criminal act. As was sarcasm for an 87 year-old great-grandfather in Liverpool, taken to court for breaching the ASBO banning him from shouting, swearing or making sarcastic comments to his neighbours.

This is just one example of the many orders handed out for petty transgressions, often to children in what perhaps constitutes the most alarming development of all. Rather than tackle the causes of their nuisance behaviour the preferred route appears to be to criminalise it and risk further alienating them from the community in which they live. Related to this is the encouragement for local communities to take an active role in both the issuing (by working with their local authorities) and enforcement (through reporting any breaches) of orders.

Already the admissibility of hearsay evidence, in the application process, facilitates an extraordinary high success rate (for the 3,069 orders issued to the end of March 2004, only 42 requests were turned down by the courts). Moreover, by the end of 2003 not a single order had been overturned and nor is one likely to be after Lord Justice Kennedy's recommendation that the automatic right to appeal an order be removed (see "Press Road Gang" case in the children case-studies section). The government seems intent on making it as quick and easy as possible to serve an order. The five-year strategic plan, published in July 2004, both sped up the application process and made it easier for the media to report ASBO recipients. On 24 October, Lord Chancellor Lord Falconer unveiled changes to the application process under which witnesses can provide evidence behind a screen (hidden from the defendant), in private, by live-link, and through video-recorded testimony.

The next step, currently under consideration, is for local people to instigate order applications themselves. Methods of triggering action under consideration include petitions, referendums and town hall meetings. Given the increasing unlikelihood that an application be turned down, this would appear to provide great potential for manipulation. An example of this would appear to be the case of Lynn Mills who was cleared of seven charges of breaching her order, all of which were made by her neighbours. Similarly a 10 August article in the Barking and Dagenham Post detailed the case of Jade Gambier who claimed her Asbo was based on the lies of a malicious neighbour with whom she had been involved in a long running dispute: "The only reason I was in court rather than her was because she got to the police first".

The inappropriate use of orders doesn't stop here. In August 2005 the British Institute for Brain Injured Children (BIBIC) detailed more than 15 cases where children with Asperger's, Tourette's Syndrome and Attention Deficit Hyperactivity Disorder were given ASBOs, and warned that there are many other similar examples. In February 2007 a BIBIC report found that "over 30% of youths receiving ASBOs have a diagnosed mental health disorder or an accepted learning difficulty". Many of these children cannot properly understand the order they have been given and yet face jail if they persist in what is predominantly non-criminal behaviour such as staring over a neighbour's fence.

Equally disturbing are orders made on conviction ("CRASBOs") which serve to punish an individual twice for their crime. The implicit assumption behind them is that the individual is likely to re-offend upon release, a standpoint that totally undermines the idea of prison as a rehabilitative institution. Serious questions must be asked of the message re-criminalising people, as soon as they have served their punishment, sends both to prospective employers and the individuals themselves about their prospects of reintegrating into society. The truth is that ASBOs are a punishment based on the assumption that somebody will commit a crime, rather than that they have committed a crime.

On top of all this orders can be very expensive. Home Office figures put the average cost at £5,350, but a Liberty report suggests this may be a conservative estimate and has called for a cost and effectiveness analysis. If an order is breached, and 42 per cent are, the cost is liable to skyrocket with Metropolitan Police estimates going as high as £100,000. In Northern Ireland the Armagh Community Safety Partnership has claimed that the cost of multiple orders will be too much for any public body to bear. In covering this story the Belfast Telegraph referred to a case in Manchester that was appealed both at the High Court and the Court of Appeal and cost the council £187,700. This vast sum of money could surely be better spent addressing the root causes of "anti-social behaviour".

Legal Developments (excerpt from article published in Statewatch Bulletin, vol 14 no 6)

The Serious Organised Crime and Police Bill, published in November 2004, includes significant legal changes to Anti-Social Behaviour Orders (ASBOs). Legal safeguards protecting the anonymity of children involved in criminal proceedings for breaching the terms of their ASBO will be removed to facilitate their "naming and shaming". In addition the Bill provides for an extension of the "relevant authorities" able to apply for an order which the government says will encourage greater proactive public involvement.

The government has run into a legal quandary, well publicised by Media Lawyer, arising from a clash between civil and criminal law in ASBO cases brought against children. The application process takes place in a civil court, where there are no automatic restrictions on reporting, but should a child violate the terms of their order they would then appear in a juvenile court to face criminal charges where they enjoy anonymity (under section 49 of the Children and Young Persons Act 1933) unless the court decides to waive the restriction. This leads to problematic cases where the press can name a child when an order is made, but not later should they appear in court accused of breaching it. As local community awareness of who has been served an order is supposedly fundamental to its effective enforcement, and "naming and shaming" in the local media is the most effective means to this end, this legal difficulty has assumed added significance.

Clause 127 of the new Bill effectively reverses this presumption of privacy for all children involved in criminal proceedings following a breach of their ASBO. To preserve their anonymity the onus is now on the court to make a discretionary order under section 39 of the 1933 Act, and it would have to "give its reasons for doing so". Not only does this contravene Article 40 of the United Nations Convention on the Rights of the Child - which provides to all children facing criminal charges a guarantee "to have his or her privacy fully respected at all stages of the proceedings" - but it creates a striking legal inconsistency. As Liberty highlights, "there is no justification for the privacy rights of children and young persons in ASBO related criminal proceedings receiving less protection than those in other proceedings."

Moreover, the lifting of automatic anonymity restrictions only in cases involving ASBOs has not fully remedied the legal difficulties faced by the media. More and more often when a child is convicted of a criminal offence an application for an order on conviction is made in addition to any sentence. Section 49 would then apply to the criminal proceedings (unless the judge decides to waive the restriction) but not for the additional hearing for an ASBO. If the criminal proceedings did not involve the breach of an ASBO it would be unaffected by clause 127 of the new Bill and the legal conflict remains intact. Any journalist wishing to cover the case would now be faced with a choice between reporting either the details of the criminal trial (without naming the child) or the subsequent serving of the ASBO, in which case the offender can be named. In February, Barnardo's criticised the Bill for "chipping away at the rights of young people".

When announcing the government's strategic plan, in July, the then Home Secretary, David Blunkett, emphasised the proactive role he would like local communities to take in combating anti-social behaviour: "I want to empower people to be able firstly to ask for information, second to meet, and third to act." Clause 125 subsection 3 of the new Bill enables the Secretary of State to add to the list of "relevant authorities" that may apply for an ASBO. Currently this stands at police forces (including the British transport police), local authorities, housing action trusts and registered social landlords. No examples are provided of whom the Home Secretary might choose to empower, but the implication gleaned from earlier rhetoric is that the power will be used to channel public concern through government sponsored bodies and quangos such as neighbourhood watch schemes and parent-teacher associations. Equally worrying is Clause 128 which provides for the contracting out of local authority ASBO functions to profit-orientated private companies.

Not only can breaching an ASBO result in a five-year prison sentence, but as civil orders their application process is subject to a lower burden of proof and hearsay evidence is admissible. This has led to an incredibly high rate of success (for the 2,455 orders issued to the end of March, only 42 requests were turned down by the courts). On top of this is the blatant fact that ASBOs drastically alter peoples' lives, affecting where they can go and who they can associate with. These represent fundamental restrictions to individual liberty and should not be made lightly. In December the probation union, Napo, called for a re-evaluation of ASBOs on the grounds that "far too many people are being jailed where the original offence was itself non-imprisonable" and that a "geographical lottery" exists with massive inconsistencies across the country. The wisdom of of placing such powers in the hands of untrained, unaccountable private contractors and community groups is extremely suspect.

In January 2005 the Joint Committee on Human Rights (which examines every Bill presented to Parliament) published a report expressing concern at clauses 127 and 128. They have written to the government seeking both assurances that the United Kingdom's obligations under the Convention on the Rights of the Child will be brought to the attention of the courts, and an explanation of how it can be assured that any private bodies contracted ASBO related functions will respect Convention rights.