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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.

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Introduction

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"1. 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. ...read more.

Middle

'naming and shaming', which may even lead as far as national newspapers. A British Government Social Survey revealed that whilst only ten per cent of youths ranked 'the punishment I might get' as the most important consequence of arrest, fifty-five per cent said either 'what my family' or 'my girlfriend' would think about it, with a further twelve per cent selecting 'the publicity or shame of having to appear in court'11. This idea is proposed by John Braithwaite, who argues that whilst punishment erects barriers between the offender and punisher by creating a relationship of power assertion and injury, whereas shaming produces a greater 'interconnectedness'12. This builds on the theories of Tittle, who argued that "the extent [to which] individuals are deterred from deviance by fear, the fear that is relevant is most likely to be that their deviance will evoke some respect or status loss among acquaintances or in the community as a whole"13. So in light of this theory, I believe the ASBO can be interpreted slightly differently, or rather it has a further aspect to its ideology. It is preventative in that it aims to stop repeat offenders by laying down what they cannot do, but it also aims to both stop repeat offenders and deter would-be offenders by saying if you are found guilty of the offence(s) and an ASBO is issued upon you, everyone will know about it - building on this idea that people fear the publicity and shame of courts and publicised Orders, perhaps in many cases more than punishment such as a short term of imprisonment or fine. Ultimately of course if this publicity does not act as a deterrent, repeat offenders will run the risk of criminal proceedings anyway - so the presence of two very different deterrents within the ASBO should act as some sort of double safeguard. The idea of deterrence, whether through the terms of the Order, the eventual threat of criminal proceedings or in the form of the 'naming and shaming' ...read more.

Conclusion

Finally it is important to note that as with any legislative measure, there is a degree of political influence. Whilst I have outlined the ideological elements behind the ASBO above, it is imperative to remember that as such a popular topic of discussion and concern amongst the general public, the issue of antisocial behaviour becomes one which is used by political parties to try to gain an advantage over their rivals. The importance of this issue to the country can perhaps best be identified by the fact that both major parties recognise a need for something to be done. Unfortunately, it is the political debate that has perhaps exposed the lack of true ideological concerns behind the ASBO, revealing it as a means of punishment as opposed to anything else. The Home Secretary (at the time) David Blunkett stated this quite clearly, "they [the 'specialist prosecutors'] will lead the response of the criminal justice system ... with a firm resolve to ensure offenders receive the punishments they deserve"15 and this desire was echoed recently following the afore-mentioned Birmingham ASBO case by the Conservative Party's vice-chairman, "this group of yobs deserve serious punishment ... this is happening all across Britain ... society is getting out of control"16. I believe that the ASBO does exhibit some of the ideologies expressed above, but perhaps most of all a keen desire to deter and to prevent antisocial behaviour being a precursor to criminal behaviour, as the report on the 2003 Crime and Justice Survey identifies, "given the link found between antisocial behaviour and other offences, tackling the former should help prevent young people progressing to more serious offending". As part of a wider antisocial behaviour policy, the ASBO is an effective preventative measure, but arguably the work is to be done in assessing the root causes of the particularly serious aspects the ASBO covers (drug abuse, prostitution, racial abuse) and dealing with them (education, upbringing, poverty). It may then be possible to truly nip antisocial behaviour in the bud, just as the ASBO attempts to do with crime. ...read more.

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