This House would scrap Anti-Social Behaviour Orders (UK)

ASBOs address the symptom, not the condition. Their powers are wide and undefined – too wide, meaning that Judges and magistrates can do pretty much whatever they like. Certainly there are problems in the way people conduct themselves – but if such behaviour isn’t criminal, then it’s up to families and communities to fix it. The ASBO is the latest example of excessive state interference in the lives of citizens. Either conduct is criminal, or it is not. The law of nuisance exists. Restraining orders exist. ASBOs aren’t intended to deal with that kind of problem: they’re the tool of the state controlling behaviour. Just because a problem exists, doesn’t mean it’s the job of the state to try and fix it. The powers granted to the state in its efforts are disproportionate to the problems concerned.

Indeed, the current trend is against such interference both as shown by the potential replacement of ASBOs and by court decisions such as one that people should not be punished for hurling obscenities.[1]

[1] Kelly, Jon, ‘Should swearing be against the law?’, BBC News Magazine, 21 November 2011, http://www.bbc.co.uk/news/magazine-15816761

Something meaningful has to exist to punish actions that don’t merit criminal punishment, but damage the quality of life of others, especially through constant repetition. The ASBO is such a tool. It is intended to be the primary weapon in a ‘zero tolerance’ environment. ASBOs allow communities to take back their streets and estates from intimidating and out of control youths, and to establish proper norms of behaviour. In this way a slide into more serious lawlessness and criminality can be prevented, and the rights of the law-abiding majority to walk the streets and live peacefully with their neighbours can be secured.

ASBOs are explicitly intended to deal with bad juvenile behaviour. But they encourage rather than deal with such problems. They are viewed as badges of honour that boosts street credibility amongst young gangs – the ‘naming and shaming’ just increases this.[1] They push people that could be helped by social work or proper attention into an unenviable category of ‘offender’ – they criminalise people for behaviour that isn’t criminal.

[1] BBC News, ‘Asbos viewed as ‘badge of honour’, 2 November 2006, http://news.bbc.co.uk/1/hi/6107028.stm

ASBOs offer a wide flexibility to the sentencing authority as they are not only a punishment for past actions but also a form of restraint to prevent future misbehaviour. They permit the judge or magistrate to forbid the offender to go to a certain place, avoid a certain person, and ban them from participating in a particular activity. Without such powers, our courts will never be able to deal with the rising tide of yobbish behaviour that is, whilst not criminal, hugely damaging our communities.

“A youth recently appeared in Court in Manchester for breach of his ASBO. The Order had been made in the youth's absence without his being able to give his side of the story (one of the main concerns about ASBOs and one that can lead to misuse). The day after the Order was made someone came to his house to "serve" it on him. This consisted of his being handed a copy of what was a fairly bulky document running to several dozen pages with no attempt to explain it or even to ascertain if he was literate enough to read it. The Order included an restriction preventing him entering a particular estate nearby and another preventing him from associating with certain others. Unfortunately, he went out before reading the Order and beached it twice that day. The next day he went out again and breached it three times by mistake as he had not read the part covering the particular restriction. He now faces possibly custody although he has never been convicted of a criminal offence.”[1]

The issuing of ASBOs is inconsistent and almost amounts to a geographical lottery.  People can be jailed for breaching an ASBO where the original offence was itself non-imprisonable – i.e. A civil procedure is being used to create and expand criminal sanctions.  ASBOs have also been imposed on people with mental health problems where treatment would have been more appropriate.

[1]Select Committee on Home Affairs, ‘Anti-Social Behaviour Orders – Analysis of the First Six Years’  http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/80/80we20.htm

The problem of service and enforcement of ASBOs is identical that of all other court orders and can be solved the same way – in the proposition example the obvious solution would be to  ensure that the youth in question had had the order fully explained to him on service.

An ASBO can only be made after a court hearing where both sides have the opportunity to have their say.  The burden of proof remains on the person seeking the order to show why it is necessary.  An impartial magistrate oversees the hearing.  People subject to ASBOs are typically allowed to breach it several times before serious enforcement action is taken against them.

The fact is that the system of ASBOs is perfectly just and a much more liberal alternative to simply criminalising minor anti-social behaviour altogether

Newspapers are full of examples of absurd ASBOs. They make an ass of the law and show that the nanny state is overreaching. People trying to kill themselves really aren’t going to be put off by the prospect of breaching their ASBO.[1]

Other examples include a prostitute who was prohibited from carrying condoms in an area that included her drug clinic, a prohibition on mobile soup vans that fed the homeless and a deaf girl who was banned from spitting in public.[2]

[1] BBC News, ‘Suicide woman banned from river’, 25 February 2005,  http://news.bbc.co.uk/1/hi/england/somerset/4297695.stm

[2] Select Committee on Home Affairs, ‘Anti-Social Behaviour Orders – Analysis of the First Six Years’  http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/80/80we20.htm

The wackier examples of ASBOs are actually demonstrations of what the order can do and other laws cannot. The woman who has an ASBO restraining her from jumping into rivers shows that the order can help with the thorny problem of actions that aren’t illegal, but place huge burdens on the emergency services and place the police and other citizens at risk.

ASBOs address the symptom, not the condition. Their powers are wide and undefined – too wide, meaning that Judges and magistrates can do pretty much whatever they like. Certainly there are problems in the way people conduct themselves – but if such behaviour isn’t criminal, then it’s up to families and communities to fix it. The ASBO is the latest example of excessive state interference in the lives of citizens. Either conduct is criminal, or it is not. The law of nuisance exists. Restraining orders exist. ASBOs aren’t intended to deal with that kind of problem: they’re the tool of the state controlling behaviour. Just because a problem exists, doesn’t mean it’s the job of the state to try and fix it. The powers granted to the state in its efforts are disproportionate to the problems concerned.

Indeed, the current trend is against such interference both as shown by the potential replacement of ASBOs and by court decisions such as one that people should not be punished for hurling obscenities.[1]

[1] Kelly, Jon, ‘Should swearing be against the law?’, BBC News Magazine, 21 November 2011, http://www.bbc.co.uk/news/magazine-15816761

Something meaningful has to exist to punish actions that don’t merit criminal punishment, but damage the quality of life of others, especially through constant repetition. The ASBO is such a tool. It is intended to be the primary weapon in a ‘zero tolerance’ environment. ASBOs allow communities to take back their streets and estates from intimidating and out of control youths, and to establish proper norms of behaviour. In this way a slide into more serious lawlessness and criminality can be prevented, and the rights of the law-abiding majority to walk the streets and live peacefully with their neighbours can be secured.

ASBOs are explicitly intended to deal with bad juvenile behaviour. But they encourage rather than deal with such problems. They are viewed as badges of honour that boosts street credibility amongst young gangs – the ‘naming and shaming’ just increases this.[1] They push people that could be helped by social work or proper attention into an unenviable category of ‘offender’ – they criminalise people for behaviour that isn’t criminal.

[1] BBC News, ‘Asbos viewed as ‘badge of honour’, 2 November 2006, http://news.bbc.co.uk/1/hi/6107028.stm

ASBOs offer a wide flexibility to the sentencing authority as they are not only a punishment for past actions but also a form of restraint to prevent future misbehaviour. They permit the judge or magistrate to forbid the offender to go to a certain place, avoid a certain person, and ban them from participating in a particular activity. Without such powers, our courts will never be able to deal with the rising tide of yobbish behaviour that is, whilst not criminal, hugely damaging our communities.

“A youth recently appeared in Court in Manchester for breach of his ASBO. The Order had been made in the youth's absence without his being able to give his side of the story (one of the main concerns about ASBOs and one that can lead to misuse). The day after the Order was made someone came to his house to "serve" it on him. This consisted of his being handed a copy of what was a fairly bulky document running to several dozen pages with no attempt to explain it or even to ascertain if he was literate enough to read it. The Order included an restriction preventing him entering a particular estate nearby and another preventing him from associating with certain others. Unfortunately, he went out before reading the Order and beached it twice that day. The next day he went out again and breached it three times by mistake as he had not read the part covering the particular restriction. He now faces possibly custody although he has never been convicted of a criminal offence.”[1]

The issuing of ASBOs is inconsistent and almost amounts to a geographical lottery.  People can be jailed for breaching an ASBO where the original offence was itself non-imprisonable – i.e. A civil procedure is being used to create and expand criminal sanctions.  ASBOs have also been imposed on people with mental health problems where treatment would have been more appropriate.

[1]Select Committee on Home Affairs, ‘Anti-Social Behaviour Orders – Analysis of the First Six Years’  http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/80/80we20.htm

The problem of service and enforcement of ASBOs is identical that of all other court orders and can be solved the same way – in the proposition example the obvious solution would be to  ensure that the youth in question had had the order fully explained to him on service.

An ASBO can only be made after a court hearing where both sides have the opportunity to have their say.  The burden of proof remains on the person seeking the order to show why it is necessary.  An impartial magistrate oversees the hearing.  People subject to ASBOs are typically allowed to breach it several times before serious enforcement action is taken against them.

The fact is that the system of ASBOs is perfectly just and a much more liberal alternative to simply criminalising minor anti-social behaviour altogether

Newspapers are full of examples of absurd ASBOs. They make an ass of the law and show that the nanny state is overreaching. People trying to kill themselves really aren’t going to be put off by the prospect of breaching their ASBO.[1]

Other examples include a prostitute who was prohibited from carrying condoms in an area that included her drug clinic, a prohibition on mobile soup vans that fed the homeless and a deaf girl who was banned from spitting in public.[2]

[1] BBC News, ‘Suicide woman banned from river’, 25 February 2005,  http://news.bbc.co.uk/1/hi/england/somerset/4297695.stm

[2] Select Committee on Home Affairs, ‘Anti-Social Behaviour Orders – Analysis of the First Six Years’  http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/80/80we20.htm

The wackier examples of ASBOs are actually demonstrations of what the order can do and other laws cannot. The woman who has an ASBO restraining her from jumping into rivers shows that the order can help with the thorny problem of actions that aren’t illegal, but place huge burdens on the emergency services and place the police and other citizens at risk.

The prison population is soaring, to 87749 on 5^th November 2011 in England and Wales, and we have to find ways to keep it down, or at least slow the speed of its rise. Talking about crushing sentences for all may arouse the passions of a certain type of voter but we have to have a pragmatic look at the pressures on the system. The UK has the second highest incarceration rate in western Europe and 63% of prisons overcrowded in September 2011 and several times over the few years the prison population has come close to going over the capacity of the prison service resulting in having to use cells in police stations.[1] ASBOs are one way to punish offenders while still ensuring they have continuing access to education, family support, job opportunities, etc., and they are much cheaper than the alternative of prison.

[1] Berman, Gavin, ‘Prison population statistics’, House of Commons Library, 7 November 2011, www.parliament.uk/briefing-papers/SN04334.pdf

Sentencing shouldn’t be affected by such considerations. If we need more prisons, we should build them. The point is that offenders should get the punishment they deserve. If they only need light punishment, fine – but don’t argue that those who should otherwise go to prison must get ASBOs for economic reasons – this is an affront to victims and to society and dilutes the disincentive to offend.

Of course, some ASBOs fail. But no aspect of the justice system has a 100% success rate, and by their nature ASBOs are more likely to be abused because (unlike prison) the offender remains in his own environment. Should more in breach of ASBOs be punished? Sure. That’s not an argument against ASBOs though, is it? Neither is the fact that not enough are handed down. Although the use of ASBOs around the country is still patchy, some authorities have made very effective use of them to improve life in many local communities.

58% of ASBOs have been breached,[1] with little resulting punishment. Only 2% of those who breach their ASBO are currently punished with a prison sentence.[2] This brings the justice system into disrepute. It doesn’t seem to matter if they’re breached – so people don’t care about getting them. Furthermore, they’re not granted in anything like the proportions needed to have an effect: 5,000 were supposed to be imposed every year, but instead only 3,800 were used in the first five years.

[1] ‘Statistical Notice: Anti-Social Behaviour Order (ASBO) Statistics - England and Wales 2012’, gov.uk, 2013, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/253535/Anti-Social_Behaviour_Order_Statistical_Notice_2012.pdf

[2] ‘No prison for Asbo-breaching yobs’, Metro, http://www.metro.co.uk/news/61949-no-prison-for-asbo-breaching-yobs

ASBOs are a useful tool in the armoury in order to combat anti-social behaviour. Anti-social behaviour is a serious problem in the wider community (76% thinking it is a moderate or big problem in 2006[1]) – abolishing them would send out a message that such behaviour is acceptable.

[1] Weaver, Matt, ‘UK ‘has worst behaviour problem in Europe’’, theguardian.com, 9 May 2006, http://www.theguardian.com/uk/2006/may/09/ukcrime.britishidentity

Criminal behaviour ought to be dealt with by the ordinary criminal law – not through various forms of civil order.

While much discussed, criminality is criminality, and non-criminal anti-social behaviour, while anti-social, should not be criminalized directly or indirectly.