Anti-social behaviour order


An anti-social behaviour order is a civil order made in the United Kingdom against a person who had been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders were introduced by Prime Minister Tony Blair in 1998, and continued in use until abolished in England and Wales by the Anti-Social Behaviour, Crime and Policing Act 2014 on 20 October 2014—although they continue to be used in Scotland and Northern Ireland. ASBOs were replaced in England and Wales by the civil injunctions and criminal behaviour orders. They were designed to address behaviours like intimidation, drunkenness, and violence by individuals and families, using civil orders rather than criminal sanctions. The orders restricted behaviour in some way, such as: prohibiting a return to a certain area or shop; or restricting public behaviours, such as swearing or drinking alcohol. Many saw the ASBOs as connected with young delinquents.
They are closely related to fixed penalty notices and related schemes such as penalty notices for disorder and penalty charge notices, in both intent and date of introduction.

History

ASBOs were introduced in England, Scotland, and Wales through the Crime and Disorder Act 1998 and in Northern Ireland by The Anti-social Behaviour Order 2004. Later legislation strengthened its application: in England and Wales, this was largely via the Anti-social Behaviour Act 2003 and in Scotland with the Antisocial and Sexual Behaviour etc. Act 2004. Scotland, however, had a pre-existing tribunal system charged with dealing with children and young persons who offend, the Children's Hearings system.
In a press release of 28 October 2004, Tony Blair and David Blunkett announced further measures to extend the use and definition of ASBOs. The remit included:
  • Extension of the Witness Protection Programme in anti-social behaviour cases
  • More courts dealing with cases
  • More offences, including dog-fouling, litter, graffiti, and night-time noise liable for fixed penalty notices
  • Giving parish councils the power to issue fixed penalty notices for infringements
The press release concluded by remarking:
On 25 October 2005, Transport for London announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines. By 31 March 2004, 2,455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office announced that 7,356 ASBOs had been given out since 1999 in England and Wales.

Replacement

The 2010 coalition government expressed its intention to replace ASBOs, citing the reasons that "breach rates are high, and the number issued has been steadily declining since 2005." In July 2010, Home Secretary Theresa May announced her intention to reform anti-social behaviour measures for England and Wales, with the abolition of ASBOs in due course in favour of alternative "community-based" social control policies. However, in 2012, Liberal Democrat objections prevented the implementation of proposals in a Home Office White Paper to replace the ASBO with a "criminal behaviour order" and a "crime prevention injunction". In May 2013, an Anti-social Behaviour, Crime and Policing Bill was introduced into the House of Commons, including a provision to create "injunctions to prevent nuisance and annoyance", replacing ASBOs in England and Wales. The bill was criticised for the broad and undefined scope of "nuisance and annoyance", and was rejected by the House of Lords in January 2014.
The Anti-Social Behaviour, Crime and Policing Act 2014 received Royal Assent in March 2014. This streamlined the tools available to tackle anti-social behaviour, and replaced the ASBO with an injunction and a criminal behaviour order in England and Wales.

What warrants an ASBO

Uses

An ASBO can be issued in response to "conduct which caused or was likely to cause harm, harassment, alarm, or distress, to one or more persons not of the same household as him or herself, and where an ASBO is seen as necessary to protect relevant persons from further anti-social acts by the defendant." In England and Wales, they were issued by magistrates' courts; they are issued in Scotland by the sheriff courts and in Northern Ireland by magistrates' courts.
The British government introduced ASBOs through the Crime and Disorder Act 1998. In the UK, a CRASBO was a "criminally related" ASBO. One local authority published photos of those given ASBOs on an Internet site. Anti-social behaviour included a range of behaviours, such as:
Applications for ASBOs were heard by magistrates sitting in their civil capacity. Although the proceedings were civil, the court had to apply a heightened civil standard of proof. This standard was virtually indistinguishable from the criminal standard. The applicant had to satisfy the court "so that it is sure" that the defendant has acted in an anti-social manner. The test for the court to be "satisfied so that it is sure" was the same direction that a judge gives to a jury in a criminal case heard in the Crown Court, and is also known as satisfying the court "beyond reasonable doubt".
Pursuant to section 1 Civil Evidence Act 1995, an applicant had the right to rely on witness statements without calling the makers of those statements—known as hearsay. If a party proposed to rely upon a hearsay statement, then the other party was entitled to ask the court for permission to call that witness for cross-examination.
If the court refused to grant such an application, then the defendant would be unable to cross examine the makers of the hearsay statements. Nevertheless, it was open to them, in accordance with the Civil Evidence Act, to submit that the court should place little or no weight upon material that had not been tested by way of cross examination.
Section 4 Civil Evidence Act 1995 states that:
The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all. For an ASBO to be made, the applicant had to prove beyond all reasonable doubt that the respondent had behaved in an anti-social manner. The applicant could rely on hearsay evidence. However, the Court of Appeal has stated that it does not expect a court to find that the criminal standard has been reached by relying solely on hearsay evidence. The Civil Evidence Act 1995 itself makes clear that courts should consider what weight, if any at all, attaches to hearsay material. In Cleary, the Court of Appeal again restated that courts should consider attaching no weight at all to such material, in accordance with the words of the statute.
It is for the court to decide what weight to give the hearsay evidence. The Court of Appeal has stated that the high standard of proof is difficult to meet if the entirety of the case, or the majority of it, is based upon hearsay evidence. The proper approach would be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence, and the cogency and reliability of contradictory evidence supplied by a defendant.
Where, for example, ten anonymous witnesses who are unrelated to each other each provide a witness statement as to the defendant's anti-social behaviour, where each statement refers independently to the same particular events, and where this is supported by a witness statement from a non-anonymous witness, such as a housing officer who confirms that residents have made complaints about a particular person over a period of time, then the court may be justified in according to the statements a fair degree of weight.

Typical ASBOs

An ASBO was an order of the court which told an individual aged over 10 years how they must not behave.
An order could contain only negative prohibitions. It could not contain a positive obligation. To obtain an ASBO, a two-stage test had to be satisfied by the applicant authority. The first test was that the defendant had committed acts causing or likely to cause harassment, alarm, or distress within six months of the date of issue of the summons. The second test was that an order was necessary to protect persons from further anti-social behaviour.
The applicant had to satisfy the court that the individual had acted in an anti-social manner—that is to say, in a manner that caused, or was likely to cause, harassment, alarm, or distress to one or more persons not of the same household as themself. A court could order an ASBO only if such an order was "necessary". Further, each prohibited act would usually be an act preparatory to a criminal offence, rather than the offence itself—but not always. In addition, each prohibition itself had to be necessary.
An order had to be tailor-made for the individual defendant. The ASBO represented "a form of personalised criminal law." It had to be relevant to their particular anti-social behaviour. Orders should not have been drafted too widely or imprecisely. Each prohibition had to be necessary.
An ASBO was very similar to a civil injunction, even though the differences are important. First: the injunction was supposed to protect the world at large, in a given geographical area, rather than an individual. Second: breach of an ASBO was a criminal offence to be tried in a criminal court, applying the criminal standard of beyond all reasonable doubt. A power of committal to prison was available for breach of a civil injunction, but a court was unlikely to exercise that power. A person subject to an anti-social behaviour order where it did not follow a criminal conviction had an automatic right of appeal against both the making of the order and its terms to a higher court. There was also the availability of an appeal to the High Court by way of "case stated". There was no appeal against the variation of orders, and variation was used to add extra conditions, and to extend the duration of ASBOs.
An application for an ASBO was considered by the courts in its civil jurisdiction, and was a civil order. However, breach of an ASBO was a criminal offence, and conviction could result in up to five years' imprisonment. Subsequent legislation compelled magistrates to make a Parenting Order, where a person under the age of 16 breached their ASBO.
Other examples: