Abstract
Modern-day social policy aims to form safer communities, to a certain extent, through the use of antisocial behavior legislation, supported by the introduction of Antisocial Behaviour Orders (ASBOs). Statistics have shown that there has been continued and increasing use of ASBOs since they came into existence in April 1999. It appears from data that a high proportion of orders are granted based on noise nuisance, yet it is the varying frequency and volume of orders granted that provokes concern.
This paper delves upon the advantages and disadvantages and as well as the interpretation, administration, and operation of ASBOs within both English authorities and the court system.
The Community & Anti-Social Behaviour: An Overview
The community can become involved in collecting evidence and enforcing breached ASBOs. Evidence for ASBOs can be based on hearsay evidence. This means that a police officer can provide a statement on behalf of a witness or witnesses who remain anonymous.
Individuals or groups in the community could provide evidence for an ASBO in the form of diaries, video, or audio recordings. The evidence should contain specific information about dates, places, times, specific descriptions of actions, who was present, and what was said.
If an individual or group is a witness for an ASBO they should have regular contact with the person managing the case who will give them advice and support throughout the process. Once an order has been made, the community has an important role to play in advising the police or local authority when a breach has occurred
The Causes of Anti-social Behaviour
The basic causes of anti-social behavior are complex and interrelated. They include:
- Family problems – parental criminality, poor parental supervision/discipline, conflict.
- School and education problems – non-attendance, lack of motivation, poor educational attainment.
- Employment problems – lack of skills, qualifications, and jobs, low income.
- Social and medical problems – drug and alcohol abuse.
Tackling the factors that put people susceptible to anti-social behavior is a difficult task. It needs wide-ranging and long-term strategies, which must involve a wide range of local agencies, including the police, local authorities, registered social landlords (RSLs), schools, health workers, social workers, and community wardens. Interventions also need to draw on the skills and capability of community-based organizations such as mediation schemes, drug, and alcohol support services, and mental health projects. Most important of all, local people have to be involved. They know better than anyone the problems facing their communities and they have to take an active part in solving them.
The idea is for criminal justice agencies namely police, courts, and corrections are to become more practical partners in society’s efforts to steer young people towards becoming useful citizens; for these agencies to focus less on the exercise of retributive powers and to embrace restorative approaches; and for agencies to develop a crime prevention role through a partnership with community organizations.
Paul Omaji argues against concentrating resources on the symptom when the primary causes are within the intellectual grasp and agreeable to effectual criminal justice responses.
Delinquency holds for concepts more commonly used in Britain to refer to challenging youth behavior (Pitts 1999).
Welfare-based approaches are replaced with managerial performance measures and case management (Pitts 2003).
Introduction
Antisocial Behaviour Orders (ASBOs) were introduced by section 1 of the Crime and Disorder Act 1998 in England and Wales and have been available since April 1999. The powers to deal with antisocial behavior were strengthened and extended by the Police Reform Act 2002, which introduced the power to make similar orders on conviction in criminal proceedings, and in county court proceedings, and the power to make interim orders. Orders can now also extend across any defined part of England and Wales. The provisions relating to orders on conviction under section1C and interim orders under section1D in the magistrates’ courts were inserted in the 1998 Act by the Police Reform Act 2002 and came into force in 2002.
The provisions relating to orders in county court proceedings (section 1B) were also inserted in the 1998 Act by the Police Reform Act 2002 and came into force in 2003.
ASBOs are civil orders to protect the public from behavior that causes or is likely to cause harassment, alarm, or distress. An order contains conditions prohibiting the offender from carrying out specific anti-social acts or from entering defined areas and is effective for a minimum of two years. The orders are not criminal sanctions and are not intended to punish the offender.
Applications for ASBOs are made to the magistrates’ court by ‘relevant authorities’ which include local authorities, chief officers of police, registered social landlords, housing action trusts, or any other person or body specified by the order of the Secretary of State (as previously mentioned, it is intended that the Environment Agency and Transport for London be specified for this purpose). A similar order can be applied for during related proceedings in the county court and can be requested on conviction of certain offenses in the criminal courts. It remains a civil order irrespective of the issuing court.
ASBOs are community-based orders that involve local people not only in the collection of evidence to support an application but also to help to enforce breaches. By their nature, they encourage local communities to become actively involved in reporting crime and disorder and to contribute actively to building and protecting the community. The civil status of ASBOs has implications for the nature of the proceedings at which applications are heard. For example, hearsay and professional witness evidence can be heard. This is an extremely important feature of ASBOs that can help protect victims and witnesses of antisocial behavior.
Sort of behavior Tackled by ASBOs
Following antisocial behaviors can be tackled by ASBOs:
- Harassment of residents or bystanders;
- Verbal violence;
- Unlawful damage;
- Sabotage;
- Noise nuisance;
- Writing graffiti;
- Engaging in intimidating behavior in large groups;
- Racial violence;
- Smoking or drinking alcohol while underage;
- Substance abuse;
- Joyriding;
- Begging;
- Prostitution;
- Kerb-crawling;
- Throwing missiles;
- Assault; and
- Vehicle vandalism
Validity of ASBOs
Before the changes introduced by the Police Reform Act 2002, the conditions an order could impose extended only to the applicant’s area and adjoining areas. An order can now extend across any defined area within England and Wales.
The power to make an order over a wide area is for use where there is reason to believe that the person concerned may move or has already moved. It goes some way to addressing the problem of offenders moving to other areas and continuing the behavior.
An order covering a wider area could address problems such as ticket touting at different train stations or anti-social behavior on trains and could help deal with the minority of the traveling community who persistently engage in anti-social behavior around the country. Careful thought needs to be given to the consequences of extending the exclusion area so that it does not simply result in displacing the behavior into a neighboring area.
Any evidence of the itinerant nature of the defendant’s lifestyle, of the likelihood of the individual moving to another area, or of the wide geographical spread of offending behavior should be submitted with the application file. The applicant does not have to prove that anti-social behavior will occur elsewhere, just show that it is likely to.
The more serious the behavior, the greater the likelihood that the court will grant a geographically wide order. Orders that seek to operate in the whole of England and Wales will not be granted without evidence that that is the actual or potential geographical extent of the problem.
Details of the Anti-Social Behaviour Orders
Civil Anti-Social Behaviour Orders issued on conviction
A total of 68.5% of young people in detention violated an ASBO imposed in a civil court. The remaining ASBOs were issued on conviction: these young people had already been found guilty of committing a criminal act, and the ASBO had been imposed as one of a range of choices open to the court.
ASBOs issued in a civil court appear to offer a much more likely course for a young person to end up in custody. Hence there is a better opportunity for a young person to end up in custody ‘through the back door’. It is these much-publicized civil ASBOs that are open to potential abuse. It is also this type that is mainly susceptible to the influence of local priorities and policies on anti-social behavior.
Length of Anti-Social Behaviour Order term
The average length of an ASBO was 39 months, with terms ranging from the minimum of 24 months through to 120 months (10 years).
There is fear that to make an ASBO seem more decisive, the trend may be simply to increase its length, not taking into consideration how much a young person’s circumstances can change within that period. The minimum term of an ASBO for a young person is rigorous in terms of youth justice: any comparable order of such a length would be a serious penalty. There is also a question as to the suitability of a ten-year ASBO being imposed on a 13-year-old.
In addition, there is a reason many ASBOs are breached is since their length means that young people just cannot see the end of their orders: the ASBOs seem so difficult there is very little motivation to obey their restrictions.
Breaches
Generally, the ASBO breach took place just 5.6 months into the order. Indeed, of the 48 cases (excluding interim ASBOs) for which data are available, 15 (31%) were breached within the first month, with 85% of all the breaches occurring in the first quarter of its term. Breaches sometimes occurred within the first week, and in a few cases on the first day: there was a couple of incidents related where the young person breached as they walked out of the court, either by talking to someone they were prohibited from associating with, or for making an obscene gesture at the local press.
This suggests that these young people were either never going to be able to abide by the order, or that the ASBO imposed comprised excessive or unsuitable restrictions imposed. The data does not allow us to investigate this, but it should be followed up as part of the research study
ASBOs: A Critical Analysis
The Crime and Disorder Act 1998 was the first legislative piece of the New Labour that introduced Anti-social behavior orders along with other additional orders such as sex offender orders, parenting orders, child safety orders, reparation orders, action plan orders, and supervision orders, to embark upon anti-social behavior. The CDA 1998 seeks to reduce crime, improve community safety, support more efficient multi-agency approaches, and increase public confidence in the criminal justice system, through consultation with local communities, challenging to reach groups, and all public sector agencies. The CDA 1998 abolished the doli incapax, thus resulting in changes in youth justice. The 1998 Crime and Disorder Act is the first piece of legislation (since the Vagrancy Act 1984) directed at moral issues. The CDA 1998 as Muncie (1999, pp.169) points out, is “an amalgam of getting tough authoritarian measures with elements of paternalism, pragmatism, communitarianism, responsibilization, and demoralization.
ASBOs are civil orders that are to protect the public from behavior that causes or is likely to cause a nuisance. An order contains conditions prohibiting the offender from specific “anti-social” acts or entering defined areas and is successful for a minimum of two years (Home Office 2003b). ‘The civil character of the order means that hearsay and professional witness evidence can be heard’ (Campbell 2002a). An order can be used against anyone aged 10 years or more who has acted in an ‘anti-social manner’ and it can be applied by the police, local authorities, and registered social landlords (Campbell 2002b). The minimum length for an order is two years. There is no maximum period and an order may be made for an undefined period. It is for the court to decide the extent of an order, however, the applying agency should propose a time as part of its application. The duration should take into consideration the age of the recipient, the seriousness of his or her anti-social behavior, the length of time it has gone on, and the recipient’s response to any earlier measures to handle the behavior (Home Office 2003b).
“Breach of an order is a criminal offense: criminal procedures and penalties apply” (Home 2003b). The maximum penalty for violation of an order is five years imprisonment for an adult delinquent. The maximum sentence for breach by a juvenile is a detention and training order, which has a maximum term of 24 months- 12 months of which is custodial and 12 months in the community.
The Anti-Social Behaviour Act 2003 received the Royal Approval in 2003. The act increased the powers of practitioners and agencies in combating Anti-Social Behaviour. It introduced fixed penalty notices for a wide range of low-level disorders, e. g. graffiti, truancy, noise, and parental irresponsibility, it expanded the powers of the police to close down ‘crack houses’; disperse groups in designated areas suffering persistent and serious anti-social behavior; deal with aggravated trespass; deal with unauthorized encampment, and restricting the use of air weapons and replica guns. It gave the social landlords power to take actions against anti-social tenants with injunctions and evictions, as well as removing the right to buy their home (Home Office 2003a). The widening of powers of the practitioners, particularly the police, will lead to the encouragement rather than eradication of “social exclusion”.
The criminalization of Young People
‘Anti-social behavior orders have been subject to a barrage of criticism such as its merging of civil and criminal law, its criminalization of incivility and its exclusionary effects’ (Ashworth et al 1998). There is increasing evidence that ASBOs are mainly directed at youthful “rowdy and unruly” behavior. In the Campbell (2002) review, 74 percent of ASBOs were made on under 21’s. A total of 4,649 ASBOs have been issued since their introduction in 1999, of which 2,057 were applied to children aged 10-17 (Guardian, 2005).
Recent research by Youth Justice Board figures shows that between 1 June 2000 and 31 December 2002 there were 855 ASBOs imposed in England and Wales. Of these, 464 (54%) were imposed on young people under the age of 18 (Brogan 2005 pp.17). During this period 305 people breached their ASBOs (out of 855) this represents a breach rate among the general population of 36 % (Brogan 2005). Figures show that ‘the number of orders made has escalated over the six-year period that ASBOs have been available’ (Fletcher 2004). The parliamentary answers reveal that the breach rate has been 39% for 10-15-year-olds, 38% for 16-20- year olds, and 21% for those aged over 21. Nevertheless, figures are only available on numbers jailed for the years 2001 and 2002. In 2001, 114 were jailed for breach of ASBOs out of 322 issued. In 2002, 212 were jailed out of 403 issued. These figures would indicate that ‘around 50% of those who are the subject of an ASBO eventually end up in jail’ (Fletcher 2004 pp.1).
The major point is that half of the ASBOs are being used excessively against young people. There is the danger of inspiring young people up the criminal ladder. ASBOs are also increasing the prison population, with people imprisoned for violations of ASBOs even when the original sentence would not carry a prison sentence. People served with ASBOs can now be named and shamed. Introducing the Home Office plan to ‘name and shame’, Charles Clarke said, ‘Today we are making the position crystal clear, – Yobs would face the consequences of their behavior your photo could be all over the local media, your community will know who you are and a breach could land you in prison expect more of the same in Labour’s third term. In other words: ‘what we’ve done is working well. Expect more of the same in Labour’s third term”.
Naming and shaming are counter-productive and can in some circumstances lead to vigilantism. It can also stigmatize families and communities. The naming and shaming disregard Article 40 of the United Nations Convention on the Rights of 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. The Children Act 1989 provides that the term ‘child’ refers ‘to every human being below the age of 18 years. New Labour claims to be helpful to parents and caring of children while its protective style is backed by coercive powers. ‘Civil orders are backed up by stringent criminal sanctions’ (Muncie 2004). However, the Home Office said in a statement: “Publicity is a key factor in the effectiveness of ASBOs. Whilst local communities can currently identify those who are subject to ASBOs, they are not informed of the outcome when the individual commits the more serious offense of breaching Asbo. Lifting reporting restrictions on breaches should not only act as a deterrent factor but will also maintain public confidence in the effectiveness of the system”. (BBC, 2005).
There is an aspect of blind faith in present approaches to tackling anti-social behavior. There is a lack of proper assessment and accountability by the Home Office, as issues on anti-social behavior are passed down to both the police and the local authorities. Despite New Labour’s rhetoric of the joined-up government, there is enough empirical evidence to show a noticeable difference in terms of priority of the Home Office, ODPM, local authorities, and the Police in tackling anti-social behavior. There is the need to create a common central and local government agenda on anti-social behavior, to enable communities to assert their moral and ’empowered’ authority and to make sure that tackling criminal activity is distinct from tackling anti-social behavior.
Conclusions
Various legislative means have proved counter-productive as deterrent action to cope with anti-social behavior pales to insignificance with the accent on legislative procedures and processes. In contrast, it has led to the growth of the problem of youth, the creations of new deviancy and deviancy amplification, and the undermining of the rights of youth. These measures such as ASBOs have expanded the net of social control, encouraged internal community conflicts, and increased the chances of children and young people being moved up the rung of the ladder of criminalization. There is a plethora of evidence that can be drawn from research findings both in the public and private-sector organizations which leads to the conclusion that the combination of individualized early intervention, net-widening, stigmatization, criminalization, labeling, and social reaction in form of moral panic will almost assert itself in two ways. It could even be asserted that it will ironically create more youth crime further contradicting the very intentions that civic and governmental institutions had originally wished for.
The lack of consistency in the use of ASBOs can be fairly linked to the problem of definition and its modes of application in practical reality. Such intricacies, contradictions, and duplications of intent can prove very expensive. The huge sums of money being spent on implementing ASBOs could be used to deal with the root causes of “anti-social behavior”.
Even the use of authoritarian languages, such as ‘tough’ and ‘crackdown on’ further combines the complex nature of ASBOs. Again New Labour constructs the family through a discourse that is more usually applied to public institutions such as schools, representing the family in a formal and distanced way by emptying it of its intimacy through applying to it public categories such as “mutual respect” and “acceptable conduct”.
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