Anti-Social Behaviour Orders have been promoted as 'mixing the best of the civil and criminal law'. Critically explore this legislative innovation with particular reference to its underlying ideology.

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Anti-Social Behaviour Orders have been promoted as ‘mixing the best of the civil and criminal law’. Critically explore this legislative innovation with particular reference to its underlying ideology.

As a fairly recently developed innovation, introduced less than six years ago on the 1st April 1999 under the Crime and Disorder Act 1998, the Anti-Social Behaviour Order (ASBO) remains a popular topic of discussion for politicians, the media and the broader general public alike. The Government has recently reiterated its intention to stamp out the problems cited under the somewhat broad heading of ‘antisocial behaviour’ by introducing new powers in the Anti-Social Behaviour Act 2003. It is clear that the Government considers this a priority in the field of dealing with crime, be that for ideological reasons or for political reasons.

        Firstly it is important to look at what anti-social behaviour is, and what the anti-social behaviour order aims to achieve, before it is possible to determine the success of the measure and assess the degree to which the aims have been achieved. The Crime and Disorder Act 1998 defined antisocial behaviour as acting in a “manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household”. This definition appears to be somewhat unhelpful, in that it is wide open to opinion and interpretation. As pointed out in a report on findings of a recent Crime and Justice survey, “people have different expectations and levels of tolerance. What one person may find offensive or distressing, another person might view as innocuous. For example, a group of five or six youths on a street corner at 7 p.m. shouting and laughing may be intimidating to an elderly lady living on her own, but a twenty-five year old male may well think nothing of it. The British Crime Survey of 2000 stated that nine per cent of adults had experienced disorderly and antisocial behaviour in the last year. A few examples of behaviour which the ASBO targets range from littering, abusive language and drunken behaviour in the streets, to vandalism, joyriding, prostitution and dealing drugs. Whilst some of these examples may seem fairly tame and unworthy of prosecution, albeit civil, they can be the precursor to more serious incidents, or indeed be sufficiently intimidating or damaging in isolation, as Attorney General Lord Goldsmith QC pointed out, “these offences may be at the low end of the criminal calendar, but the effect they have … can be devastating – producing misery, trapping people in their own homes, living with neighbours from hell, running the gauntlet of thugs on street corners, surrounded by vandalism and public disorder. The ASBO itself is a civil order, which can be made against anyone ten years or older who is deemed to have acted in an antisocial manner (in accordance with the statutory definition referred to above), where an order is required to protect a person or persons from further antisocial acts by the offender. The ASBO, once proved according to the rules of civil evidence, will contain conditions as laid down by Court prohibiting the offender from specified acts and may often contain a prohibition to enter certain areas, perhaps typically true of shoplifters, or those whose antisocial behaviour is concentrated on a certain area, e.g. a road,  a council estate. The ASBO is effective for a minimum of two years, and whilst it is a civil order, the breach of an Order is a criminal offence. As such, the prosecution must prove beyond reasonable doubt that the Order has been breached, and if this is done the maximum penalty is five years’ imprisonment, a fine of £5,000 or both.

        The ASBO in itself is a measure aimed at stopping the anti-social behaviour at issue, rather than being seeking to exclusively punish the offender. The Order will contain a list of things that the offender cannot do, e.g. cannot attend a certain area, must not be on the streets after 7 p.m. etc. A recent case involving six Birmingham-based youths causing £100,000 worth of damage to their neighbourhood is a good example of the ASBO in operation. Rather than prosecuting for assault or criminal damage, the police and City Council sought ASBOs against the gang, the conditions of which require the teenagers not to meet up, to stay away from the area and to stay home at night. Looking at the ASBO independently of the damage to assess its desired effect, it is clear that the ASBO aims to be a preventative not punitive measure: it lays down what the offender(s) cannot do, and whilst no criminal proceedings or punishment have been administered (other than the restriction/s on their freedom to go where they like), should they not adhere to the conditions and stop the antisocial behaviour they previously exhibited, criminal proceedings may be commenced against them, which bring with them the threat of a large fine or imprisonment or both as mentioned above. It is essentially a ‘last chance’ measure – a threat to the offender that if he or she does not stop the antisocial element(s) of their behaviour they will be liable to criminal prosecution.

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        From looking at this basic overview of the ASBO most would be able to say that it is a good thing – it aims to deal with minor offences that cause distress to society in such a way as to prevent with the minimum degree of punishment. But the ultimate acid test for any legislative measure is, quite simply, does it fulfil its objectives? From its introduction on 1st April 1999 to 30th June 2004, the Home Office reports that 3,069 Orders have been granted in England and Wales, with a further 42 being refused. As with any statistic, this is fairly ...

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