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BANNED: Are ASBOs ‘Keeping Crime of the Streets’?
ASBOs have been described as ‘a new gateway to the criminal justice system’ and as ‘weighty civil enforcement measures’. These are civil orders bearing criminal repercussions and have been understood as a new way of widening the criminal responsibility of young people. Some critics even go as far as saying that it forms part of an insidious Government policy that puts young people who hung around in public places “on par with street rubbish”.
This piece seeks to assess the effectiveness of anti-social behaviour orders and whether they have worked as the Government tool to tackle anti-social behaviour in local communities.
First an explanation of the ASBO and the reasons for it’s implementation will be given. This will cover the objectives set out by the Government and the benefits of the Orders. I will also look at statistics on the number of ASBOs that have been given.
I will then discuss the main criticisms for the ASBO and how it has failed to live up to its expectations. I will also look at current criminal and Human Rights concerns. In regards to Human Rights issues, I will be using a case study of a mass ASBO given to a group of youths in Wembley which sparked a high court battle with the council who gave the Orders.
Finally, I will summarise the effectiveness of ASBOs and the current plans for the future of the ASBO.
HISTORY OF ASBOs IN THE UK
Anti Social Behavioural Orders have been used to tackle problematic behaviour since the early 2000s. This problematic, anti-social behaviour is anything that causes or is likely to cause “harassment, alarm or distress” to others not in the same household and relates to Public Order offences. The ‘ASBO’ in essence is any order that is necessary to protect the relevant people from further behaviours of the perpetrator.
The legislation which spawned ASBOs has been described as explicitly expression society’s intolerance of young people. Under the 1998 Act, those who can apply for ASBOs are; local and county councils, Chiefs of Police and Transport Police, not-for-profit social landlords and Housing Trusts.
Applications are made to a Magistrates court and the standard of proof is that the Magistrate must be sure beyond all reasonable doubt that the defendant has acted in an anti-social manner. However, the defendant may argue that he/she has a reasonable excuse for breaching the Order, which the means the Prosecution must prove that such a defence does not exist.
Breach of an ASBO carries a summary conviction of 6 months imprisonment plus fines, whilst an indictable conviction has a maximum of 5 years imprisonment plus fines. Current sentencing guidelines for breach of an ASBO state that a community or custodial sentence should only be imposed if it is warranted by the seriousness of the offence or if no lesser sentence can be justified. When an ASBO has been breached and there is no identifiable victim, the offender must make reparation to the community.
From 1999 to 2011 a total of 21,749 ASBOs were issued in England and Wales, with 53% of those being breached. The year 2004/2005 saw the highest amount of ASBOs, with a total of 4,122 being issued at all courts, but since that year there has been a continuous decline. This cannot easily be explained. Some may interpret this as indicating that anti-social behaviour has declined on a whole, whilst others may argue that it shows an unwillingness from the courts to issue ASBOs.
However, with around 86% of ASBOs being issued against males since 2000, making a total of 18,585 compared with 3,060 given to females, there is little contest about which gender is more likely to be the recipient of an ASBO. Also since ASBOs were first introduced, Local Government Authorities have applied for more than the Police, a total of 5,701 compared with 2,324.
The Labour Government introduced ASBOs as one of their flagship crime-tackling policies, and they saw anti-social behaviour as noisy neighbours, crack houses, drunken yobs and begging by cash points. They believed it was this behaviour that undermined the fabric of society and held regeneration back.
Commentators see ASBOs as indicating a shift in Government priority, from a welfare approach to focusing on crime reduction and tackling problem behaviours. The Government aimed to create a society in which individuals understood the rights they enjoyed and had respect and responsibility towards others within their community. The introduction of ASBOs was to ‘constrain the conduct’ of individuals and stop them from persisting in harassing, distressing or alarming behaviour. This was followed by a ‘Respect’ drive, which aimed to build a more prosperous and just society by offering the support necessary to challenge bad behaviour, its causes and ensure that these values are passed on to the next generation. The Government’s belief was that when people feel safe and supported, it would build trust and shared values amongst community members.
The current coalition Government admitted in a recent report that it was wrong to believe that a generic blanket approach to anti-social behaviour would work since it is a local problem that varies within each community. Rather, they want to continue to send out a zero tolerance message and improving the situation for victims and communities. The Home Secretary Theresa May laid the foundation for ASBO reforms in a speech 2010 when she admitted that current sanctions were a ‘conveyor belt’ to criminality and prison for young people.
There are four main reason for ASBOs.
First, it is a way of dealing anti-social behaviour without going through the criminal justice system, which appears to ineffective at tackling re-offending.
Secondly it puts more responsibility on parents to control their children and prevent them from being a nuisance to others. It offers a serious threat of eviction for those who breach Orders.
Another reason that follows on from this, is the idea that it also empowers local communities to deal with nuisance behaviour.
Finally, it prevents vulnerable groups like the disabled and the elderly from being victimised.
The Labour Government who introduced ASBOs seemed to believe that anti-social behaviour amongst young people was an epidemic problem. Commentators describe Labour’s crime control policy as tapping into public concerns and the general fear of crime. Indeed there was research to support this idea, as the public perceived young people ‘hanging around’ to be anti-social and two-thirds of respondents had experienced this in their local communities. Yet other studies found that although members of the public do tend to equate anti-social behaviour with young people, 66% of respondents wanted preventative action to tackle this behaviour. Although this still was not enough to deter the Government from treating ASB alongside ‘the war on terrorism’, as issues requiring urgent tackling.
The first issue with ASB, particularly involving the unsocial behaviour of young people, is the idea that it was a new phenomenon, which as Pearson explains was not the case.
The critics of the ASBO are many, but one writer clearly opposed has been Sheila Brown, who believed that the policy was based on punishment and did nothing to tackle the causes of anti-social behaviour.
Squires and Stephens (2005) found that it did not take into account mental disabilities and instead punished those with mental/behavioural conditions.
Another issue with ASBOs and ASB in general is that it is so difficult to define. Cornford sees ASBOs as the courts creating ‘individualised’ serious offences and criticised the current Governments plans to reform the Order, whilst still retaining its most controversial features. One key disappointment from the latest reforms is that no attempt has been made to amend the definition of anti-social behaviour. It still covers any behaviour that is likely to cause harassment, alarm or distress. As long as the scope remains wide, it will continue to be problematic since everyone has the potential to cause distress to another individual.
Cornfield recommends redefining anti-social behaviour as “a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community” however the scope of this definition still seems unclear.
I would also argue that punishing the parents for the sins of their children – through court fines and mandatory parenting classes – pushes families further into material deprivation and poverty. It is as if the Government have taken a biblical idea – of punishing children for the sins of their parents – and inverted it. Rather than deterring offending and reducing recidivism, this is more likely to create a negative subculture that scorns its community and law enforcers.
There have also been a number of criminal criticism levelled against ASBOs.
Firstly, just looking at the ASBO on a basic level. These are Orders that can be used on anyone above the age of 10 and can be ordered for an indefinite period of time. Also, it seems simply unfair that a civil order carries criminal repercussions, with punishments that are usually disproportionate to the offence. The ASBO has been described as an unnecessary net-widening tactic used to sacrifice individual liberties and due process.
There are also evidential issues which arise such hear say evidence being admitted to court from neighbours and social landlords rather than the police. Macdonald uses an analogy to illustrate that when an ASBO is ordered and breached, the criminal penalty will not just regard the act, but reflect the others acts that were complained about and went unreported.
The third criminal criticism will be demonstrated later in this piece with a case study, this is the issue of ASBOs breaching human rights. The admittance of hear say evidence brings into question the Article 6 Right to Fair Trial, but what was argued in this case was that Article 8 Right to Privacy is breached by these Orders. ASBOs can prohibit the recipient of doing a wide range of things or going to certain places and could be argued to be an infringement on freedom of movement.
Although there is no ’gene for crime’ and anti-social behaviour, a psychological connection between anti-social behaviour and delinquency can be made. Winnicott saw offenders as ill people needing treatment. He argued that children who fail to gain security within the home seek stability externally and delinquency is a symptom of a deprived home life.
If we are to believe Winnicott, anti-social behaviour is a sign for help, an “SOS” for control by strong, loving confident people”. He reiterates that there is a direct relationship between anti-social behaviour tendencies and emotional deprivation. Left Realists would agree with the deprivation element but put the causation as down to cultural and material lack.
CASE STUDY: Chalkhill Gangs
To illustrate the effectiveness of the ASBO, I will be discussing a case study of the first mass ASBO given to a young gang within London.
In 2004 a mass ASBO was granted against seven young males, aged between 15 and 28, who formed ’The Press Road Crew’. Many media outlets reported on the case, labelling the individuals as gang members, who collectively had engaged in various anti-social behaviours and were involved in a “two year reign of terror” against residents. After the Orders had been made, the local Brent Council had posted thousands of flyers to residents within the Borough, and specifically the restricted areas of Wembley and Neasden. The leaflets included the photographs and names the culprits and disclosed their addresses and the areas they would be restricted from going to.
The Council saw this as vital in order to enhance cooperation with residents. For them it was an effective way of publicising the ASBOs and how they would work to make the community safer for its residents. However, the individuals and their families sued the Council, arguing that the flyers – which were also laminated and put in pubs – infringed on their Art 8 right to privacy and family life.
The ASBO itself was deemed an immediate success according to the Police, who recorded crime in the local area falling by 25% after the Orders had been given.
Unsurprisingly, the court sided with the Council and described the actions as “entirely appropriate” in order to engage with residents. The outcome was in line with the police conclusion; that the measure against the youths was proportionate and did limit the level of criminality within the community.
In 2008, just as the ASBOs for six of the individuals were due to expire, The Guardian investigated the effects of the Orders, and from these findings four conclusions can be made. First, the idea that young people are driven to anti-social behaviour out of boredom. One of the perpetrators Samuel Brenya remarked that he and his associates found themselves hanging around on the streets because they simply had nothing else to do.
Secondly, despite the need to give young people a chance to engage in recreational activities, this must be done early enough to have an impact on their behaviour. This idea was supported by the Chief Inspector who oversaw the ASBO cases originally, and acknowledged that the level of disruption meant that community projects would have been ineffective.
Winnicott’s theory reinforces this idea, since he stated that children “deprived of a home life must either be provided with something personal and stable” whilst they are still young enough for it to have a positive impact on them and remarked that it could come in the form of a school or a four-walled prison cell.
This really is key to tackling anti-social behaviour within local communities. Too often, social agencies are reactive, seeking how to engage the offender after the offence has been committed. However I believe that the priority should not be on retrospection, but be placed on diverting the would-be offender with something to do. Councils and local authorities need to be proactive. Young people need to be given a stake within their own communities. In the words of numerous New Labour publications, respect needs to be emphasised and encouraged.
Furthermore, there needs to be a multi-agency plan, designed around giving young people a place to socialise and a purpose for meeting to dissuade many from lurking on street corners or seeking cheap thrills.
Thirdly, we can see how low-level initiatives such as Acceptable Behaviour Contracts are ineffective and disregarded by those privy to the contract. As reported, many individuals simply did not turn up to discuss their contracts, rendering the scheme useless.
Finally, the labelling that occurs as a result of the Order restricts the individual’s life and choices. Aside from the resentment that builds after an ASBO is breached, and the criminal education gained in prison, Brenya felt forced to move away due to the damaging label. This is since ASBOs work to confirm unacceptable behaviour and justify sanctions against the individual.
One issue that is not explored in much detail is the role of the family. For individuals like Brenya, expectations were always low – for himself and for fellow young people growing up in the area. These are young people who come from impoverished backgrounds, where someone “doing good” is seen as out of the ordinary. It’s no surprise then that little mention is given to the importance of the family, as if families of the area came to expect the worst and the lowest of their children too.
Anti-social behaviour is seen as symptomatic of social and moral decline but different reasons are given for this decline. Local agencies see it as a result of social exclusion, whilst other individuals just see it as typical teenage behaviour. Those who see it as moral decline seem to favour tough punishments, whilst those who see it as social exclusion want to counter it with prevention and inclusion.
Let us not be deceived, ASBOs appears to be nothing more than a plaster on a stab wound. The structural issues that these young people are facing of material disadvantage, cultural deprivation and economic uncertainty are not improved by community Orders. In this regard, ASBOs are not effective and cannot be seen as helping to reduce ASB.
As the case study illustrated, these young offenders can be rehabilitated and with hindsight, regret following their criminal path. The onus however is on local and national governments to look at new ways of stopping them from engaging in such activities. ASBOs have been tried and tested, yet banning children from their streets is not the same as keeping crime off the streets.
Prevention truly is better than cure, so we must stop viewing ASBOs as a panacea for ASB but rather focus our efforts on tackling the socio-economic issues facing young people that drive them to ASB.
 Smith, D. (2010) ‘The need for a fresh start’ in Smith, D. (2010) A New Response to Youth Crime (Willan Publishing, Devon)
 Poole, L. (2010) ‘Responding to Anti Social Behaviour’ in Smith, D. (2010) A New Response to Youth Crime (Willan Publishing, Devon)
 Graham, J (2010) ‘Responding to Youth Crime’, in ‘Smith, D. (2010) A New Response to Youth Crime (Willan Publishing, Devon)
 Brown, S. (2009) Youth Offending and Youth Justice (Eds. Barry, M. and McNeil, F.) (Jessica Kingsley Publishers, London)
 Home Office (2008) A Guide To Anti-Social Behaviour Tools and Methods. (Home Office, London)
 The Crime and Disorder Act 1998 s.1(1)(a)
 CIVITAS (2012) Youth Crime in England and Wales. Available from, http://www.civitas.org.uk/crime/factsheet-youthoffending.pdf [Accessed on: 24th April 2013]
 The Police Reform Act 2002
 Fionda, J. (2005) Devils and Angels Youth Policy and Crime (Hart, Oxford)
R v Charles (2010)
 Sentencing Guidelines Council (2008) Breach of an Anti-Social Order: Definitive Guideline. Available from, http://sentencingcouncil.judiciary.gov.uk/docs/web_Breach_of_an_Anti-Social_behaviour_order.pdf [Accessed on: 30th April 2013]
 Home Office (2012) Anti-Social Behaviour Order Statistics – England and Wales 2011. Available from, https://www.gov.uk/government/publications/anti-social-behaviour-order-statistics-england-and-wales-2011–2 [Accessed on: 30th April 2013]
 Ministry of Justice (2012) Statistical Notice: Anti-Social Behaviour Order (ASBO) Statistics England andWales 2011 (Ministry of Justice, London)
 Op cit at Table 6
 Home Office (2003) Respect and Responsibility – Taking a Stand Against Anti-Social Behaviour Cm 5778 (TSO, London)
 Smith, R. (2006) ‘Actuarialism and Early Intervention in Contemporary Youth Justice’ in Goldson, B. and Muncie, J. (2006) Youth Crime and Justice (SAGE, London)
 Sparks, R. (2002) ‘Prisons, Punishment and Penality’ in McLaughlin, E. and Muncie, J. (1996) Controlling Crime (2 ed.) (OUP, London)
 Home Office (2006) Respect Action Plan. (Home Office, London)
 Home Office (2012) Putting Victims First – More Effective Responses to Anti-Social Behaviour Cm 8367 (TSO, London)
 Gov.uk (2010) Crime: Home Secretary’s speech on moving beyond the ASBO (28th July 2010) Available from, https://www.gov.uk/government/speeches/crime-home-secretarys-speech-on-moving-beyond-the-asbo-28-july-2010 [Accessed on: 30th April 2013]
 Gilling, D. (2007) Crime Reduction and Community Safety Labour and the Politics of Local Crime Control (Willan Publishing, Devon)
 Upson, A. (2006) Perceptions and Experience of Anti-Social Behaviour: findings from the 2004/05 British Crime Survey, Home Office Online Report 21/06 (Home Office, London)
 Millie, A. et al. (2005) Anti-Social Behaviour Strategies: finding a balance (published for the Rowntree Foundation by the Policy Press, Bristol)
 Hughes, G. and Follet, M. (2006) ‘Community Safety, Youth and the ‘Anti-Social’’ in Goldson, B. and Muncie, J. (2006) Youth Crime and Justice (SAGE, London)
 Pearson, G. (1983) Hooligan: A History of Respectable Fears (MacMillan, Basingstoke)
 Brown, S. (2005) Understanding Youth and Crime (2nd ed.) (OUP, Buckingham)
 Squires, P. and Stephens, D. (2005) Rougher Justice: Anti-Social Behaviour and Young People (Willan Publishing, Cullompton)
 Cornford, A. (2012) Criminalising Anti-Social Behaviour. Criminal Law and Philosophy Vol.6 pp.1-19
 Ibid pg 9
 Hopkins Burke, R. (2008) Young People, Crime and Justice (Willan Publishing, Devon)
 Macdonald, S. (2003) The Nature of the ASBO. Modern Law Review Vol. 66 4) 630.
 Rutter, M et al. (1996) Genetics of Criminal and Antisocial Behaviour: Ciba Foundation Symposium 194. (John Wiley & Sons, Chichester)
 Winnicott, D.W. (1984) Delinquency and Deprivation. (Eds. Winnicott, C., Shepherd, R. and Davis, M.) (University Press, Cambridge)
 Ibid pg 116
 Ibid pg 116
 BBC. ‘Asbo gang lose human rights fight’ (7th October 2004) Available from, http://news.bbc.co.uk/1/hi/england/london/3723104.stm [Accessed on: 3rd April 2013]
 The Guardian. (2003) ‘Parents cry foul as ‘anti-social’’ teenagers are named and shamed (12th October 2003) Available from, http://www.guardian.co.uk/society/2003/oct/12/youthjustice.crime [Accessed on: 24th April 2013]
 Ibid at para 13
 Inside Housing. ‘Lawyers lose case to stop ASBO name and shame’ (15th October 2004) Available from, http://www.insidehousing.co.uk/lawyers-lose-case-to-stop-asbo-name-and-shame/1445950.article [Accessed on: 24th April 2013]
 The Guardian. ‘Under Orders: Five years on, did first mass asbo succeed? ‘(27th August 2008) Available from, http://www.guardian.co.uk/society/2008/aug/27/communities.asbos [Accessed on: 24th April 2013]
 Ibid at para 10
 Ibid at para 12
 Op cit pg 119
 Op cit at para 13
 Ibid at para 25
 Smith, R. (2011) Doing Justice to Young People Youth Crime and Social Justice (Willan Publishing, Oxon)
 Ibid at para 34
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